Sanket & Zain
[2025] FedCFamC1F 51
•7 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sanket & Zain [2025] FedCFamC1F 51
File number(s): PAC 3383 of 2023 Judgment of: ANDERSON J Date of judgment: 7 February 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife asserts that the husband has acted in a manner inconsistent with the maintenance of legal professional privilege with respect to the file maintained by his solicitor – Where the Court finds that the husband has expressly waived privilege with respect to certain topics as they relate to the parties’ competing financial applications – Where the Court makes consequent orders as to disclosure Legislation: Family Law Act 1975 (Cth) s 106B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6, 12
Legal Profession Uniform Law (NSW) s 174, 180
Cases cited: AWB Ltd v Cole (No. 5) (2006) 155 FCR 30; [2006] FCA 1234
Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543; [2002] HCA 49
Ewin v Vergara (No 2) (2012) 209 FCR 288; [2012] FCA 1518
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46
Hartogen Energy Ltd (In Liq) v Australian Gas Light Co (1992) 36 FCR 557; [1992] FCA 322
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
Metro Waterloo Pty Ltd v HWL Ebsworth Lawyers [2021] QDC 295
Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275
Division: Division 1 First Instance Number of paragraphs: 58 Date of hearing: 21 November 2024 and 12 December 2024 Place: Parramatta Solicitor for the Applicant: David Leamy Solicitor & Barrister Counsel for the Respondents: Ms Meares Solicitor for the Respondents: FB Legal Solicitor for the Independent Children's Lawyer: Legal Aid NSW Bankstown Family Law ORDERS
PAC 3383 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SANKET
Applicant
AND: MS ZAIN
First Respondent
MS SENFT
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ANDERSON J
DATE OF ORDER:
7 FEBRUARY 2025
THE COURT ORDERS THAT:
Affidavit of Documents
1.Without limiting his continuing obligation to make full disclosure in compliance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), by no later than 4.00 pm on 21 February 2025, the Applicant Husband (“the husband”) file and serve upon the Respondent Wife (“the wife”) a List of Documents disclosing:
(a)Any Costs Agreement between the husband and his solicitor and/or any document, which:
(i)Evidences the basis on which the husband’s solicitor would calculate his costs;
(ii)Evidences the precise work, which the husband’s solicitor was engaged to perform from time to time;
(b)Communications or correspondence between the husband, and/or on his behalf, and the husband’s solicitor for the period from the date of the husband’s engagement of his solicitor to 4 December 2024 with respect to the parties’ competing financial applications;
(c)All file notes created by the husband’s solicitor relevant to the parties’ competing financial applications for the period from the date of the husband’s engagement of his solicitor to 4 December 2024;
(d)All records of telephone conversations between the husband, and/or on his behalf, and the husband’s solicitor and/or any member of his office with respect to the parties’ competing financial applications for the period from the date of the husband’s engagement of his solicitor to 4 December 2024;
(e)Any document, which records in any manner whatsoever instructions provided by the husband to his solicitor with respect to the parties’ competing financial applications for the period from the date of the husband’s engagement of his solicitor to 24 October 2024;
(f)All trust account statements, tax invoices and time recording records with respect to work performed by the husband’s solicitor or his office for the period from the date of the husband’s engagement of his solicitor to 4 December 2024;
(g)Documents provided to the husband in which the husband’s solicitor and/or his office provided advice to the husband about his duty of disclosure with respect to financial issues;
(h)All advice provided by the husband’s solicitor and/or his office to the husband in relation to the sale/transfer of the property located at B Street, Suburb C in the State of New South Wales; and
(i)All advice provided by the husband’s solicitor and/or his office to the husband in relation to the disposal of matrimonial assets either prior to or subsequent to the commencement of financial proceedings.
2.The list provided pursuant to Order 1 shall not include any document, which reveals:
(a)Advice provided by the husband’s solicitor and/or his office to the husband with respect to any entitlement of the wife pursuant to her application under Part VIII of the Family Law Act1975 AND to the extent that any document does reveal such advice, then the husband’s solicitor is permitted to redact the document;
(b)Communications between the husband, and/or on his behalf, and the husband’s solicitor or any member of his office in relation to the parties’ competing parenting applications AND to the extent that any document does reveal such information, then the husband’s solicitor is permitted to redact the document.
3.The list provided pursuant to Order 1 shall comprise, in relation to each communication, correspondence or document:
(a)The date of such communication, correspondence or document;
(b)The method of such communication or correspondence;
(c)The sender;
(d)The addressee(s); and
(e)A brief description of the content of the communication, correspondence or document.
4.Pursuant to r 6.18(1)(b) of the Rules, the husband’s solicitor provide an Affidavit of documents verifying the List referred to in Order 1.
5.Pursuant to r 6.18(1)(e) of the Rules, the husband’s solicitor provide an Affidavit identifying:
(a)Whether any of the categories of documents referred to at Order 1 herein does not exist or has never existed;
(b)The circumstances in which a specified document or class of documents ceased to exist or passed out of the possession or control of the husband and/or his solicitor.
6.In the event that the husband’s solicitor is unable to produce any of the documents referred to at Order 1(a) to 1(i) herein on the basis that such documents do not exist then, and in that event, the husband’s solicitor is to file an affidavit, which explains why:
(a)The husband’s solicitor has not disclosed to his client the basis on which legal costs will be calculated and/or provided an estimate of legal costs as required by the Legal Profession Uniform Law (NSW);
(b)The husband’s solicitor has not provided his client with a costs agreement;
(c)The husband’s solicitor has not maintained file notes and/or records of telephone discussions;
(d)The husband’s solicitor has not provided the husband with advice about his duty of disclosure pursuant to Chapter 6, Part 6.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
7.The affidavit referred to at Order 6 shall be filed and served by no later than 4.00pm on 28 February 2025.
Dismissal of interim applications and Costs
8.All extant interim applications be dismissed.
9.The costs of and incidental to the hearing on 12 December 2024 be reserved to Trial such costs certified fit for counsel.
Listing for Trial
10.The matter be listed for mention on 7 February 2025 at 9.30 am for the purpose identifying what orders, if any, are required to prepare the matter for trial, the listing of the competing applications for trial and the making of trial directions.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sanket & Zain has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ANDERSON J:
On 1 July 2023, the Applicant husband (“the husband”) commenced parenting proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The parenting application relates to the child, X born in 2020 who is now aged four years. The final parenting applications remain extant.
On 15 September 2023, the Respondent wife (“the wife”) filed a Response to an Initiating Application. At that time, the wife also sought Orders to adjust the parties’ property interests pursuant to Part VIII of the Family Law Act 1975 (Cth) following the breakdown of their relationship in March 2023.
On 19 September 2023, the husband sold the former matrimonial home to a person later identified as Ms Senft (“Ms Senft”). It was sold for a sum equating to $40,000 less than the sum for which the husband purchased the property for in 2019.[1] Settlement occurred on 10 October 2023.[2]
[1] Wife’s Affidavit filed 19 September 2024, paragraph 12.
[2] Exhibit W3.
On 19 September 2024, the wife filed an Application in a Proceeding seeking Orders that Ms Senft be joined to the proceedings. The wife filed that application in circumstances where she asserts that:
(a)Ms Senft is the husband’s first wife; and
(b)The husband sold the former matrimonial home to Ms Senft for less than market value after becoming aware that the wife was seeking a property settlement.[3]
[3] Wife’s Affidavit filed 19 September 2024, paragraph 5.
The husband agrees that Ms Senft is his first wife and says it was coincidental that Ms Senft purchased the former matrimonial home. He adopts this position in circumstances where the property had been listed with a sales agent.[4]
[4] Husband’s Affidavit filed 24 October 2024, paragraph 24.
The wife does not explain why she waited for eleven months before making effort to join Ms Senft to the proceedings and/or seek other relief from the Court.
On 9 October 2024, Ms Senft and the husband consented to Ms Senft’s joinder to the proceedings. Ms Senft was joined in circumstances where on a final basis, the wife seeks an Order that the disposition of the former matrimonial home to Ms Senft be set aside pursuant to s 106B of the Act.[5]
[5] Second Amended Response to Initiating Application filed on 18 October 2024, paragraph 1.
On 17 November 2024, the wife filed an Application in a Proceeding seeking injunctive relief restraining the husband and Ms Senft from transferring, disposing of, dealing with or further encumbering the former matrimonial home. I made an Order in those terms on 21 November 2024. The application also sought an Order to the effect that the husband’s solicitor be restrained from continuing to act for him in these proceedings. I listed that application before me on 12 December 2024.
Prior to hearing the application, the husband’s solicitor advised me that he would not remain as the husband’s legal representative beyond the hearing on 12 December 2024.[6]
[6] Husband’s Outline of Case Document filed 9 December 2024, paragraph 2.
At the hearing on 21 November 2024, the husband relied on an Affidavit in the name of his solicitor filed on 24 October 2024. The Affidavit was filed in support of a Reply. By that document, the husband seeks an Order that the wife’s application pursuant to s 106B of the Act be dismissed. At paragraph 2 of his Affidavit, the husband’s solicitor says as follows:
The client has authorised me to make this Affidavit and to waive legal professional privilege in relation to the facts disclosed in this Affidavit.[7]
[7] Affidavit of the husband’s solicitor filed on 24 October 2024, paragraph 2.
Given the nature of the applications before me, the Affidavit of the husband’s solicitor was directed to the reasons why the Court ought not grant the injunctive relief sought by the wife. Regrettably, the facts deposed to by the husband’s solicitor have now put in issue the date the husband’s solicitor received instructions to act for the husband with respect to financial issues and instructions which the husband may have provided to his regarding the sale of the former matrimonial home.
The sale of the former matrimonial home and whether the husband knew about the terms of the wife’s Part VIII application at the time of the sale, is a central issue in the proceedings. The determination of the issue at trial will no doubt be complicated given the inconsistencies between the evidence of the husband and his solicitor. I refer to these inconsistencies below.
On 21 November 2024, and as a consequence of the terms of the Affidavit of the husband’s solicitor, I made an Order in the following terms:
6.That within seven (7) days of the date of these Orders, the First Respondent’s solicitor do write to the Applicant’s solicitor and identify any documents, which the First Respondent considers are relevant to the facts disclosed in the Affidavit of [the Husband’s solicitor], Barrister & Solicitor, filed 24 October 2024, which have not otherwise been produced.
Subsequent to the hearing, the wife’s solicitor sent a letter to the husband’s solicitor seeking the production of ten categories of documents.[8] In response, the husband’s solicitor only provided a portion of the documents requested. In response to the outstanding documents, the husband’s solicitor said that either, the documents requested did not fall within the terms of paragraph 6 of the Orders made on 21 November 2024, or alternatively, as submitted during oral submissions, that the documents do not exist.
[8] Wife’s Outline of Case Document filed 9 December 2024, paragraph 10.
The wife’s solicitor also asserts that the husband has waived legal professional privilege over the file maintained by his solicitor. That assertion is challenged by the husband.
Accordingly, the issues, which I must determine are whether:
(a)The husband has waived legal professional privilege in the manner contended for by the wife; and
(b)If so, whether it is appropriate to make Orders for disclosure of the categories of documents sought by the wife’s solicitor.
For the reasons discussed below, I have determined that the husband has acted in a way, which is inconsistent with the maintenance of legal professional privilege over those aspects of his file, which relate to the parties’ competing financial applications. I make that finding for the period up to and including 4 December 2024. I have, however, drafted my Orders such that the husband shall be permitted to exclude from the disclosure process any legal advice provided to him with respect to any entitlement of the wife pursuant to her application under Part VIII of the Act and/or any communications with his solicitor or his solicitor’s office in relation to the parties’ competing parenting applications.
In addition, and now that the interim applications will be finalised by me, the husband and the wife agree that it is appropriate to consider listing the competing parenting and financial applications for trial. There is no reason why I ought not do so. I will allocate the applications a date for trial, but I will also list the matter before me for mention in circumstances where Ms Senft was not in attendance at Court on the last occasion and trial directions to prepare the matter for trial need to me made.
EVIDENCE
In support of her application, the wife relied on the following:
(a)Application in a Proceeding filed on 20 November 2024;
(b)Wife’s Affidavit filed on 18 November 2024;
(c)Tendered documents;[9] and
(d)Outline of Case Document filed on 9 December 2024.
[9] Exhibit W1 to W5 (inclusive).
The husband relied on:
(a)Response to an Application in a Proceeding filed on 21 November 2024;
(b)Affidavit of the husband’s solicitor filed on 24 October 2024;
(c)Affidavits of the husband filed on 22 March 2024 and 24 October 2024;
(d)Outline of Case Document filed on 9 December 2024.
WAIVER OF LEGAL PROFESSIONAL PRIVILEGE
The wife’s counsel made a submission to the effect that the documents previously disclosed by the husband’s solicitor and otherwise annexed to his Affidavit filed on 24 October 2024, and the assertion by the husband’s solicitor to the effect that he was authorised to waive legal professional privilege in relation to the facts disclosed in his Affidavit, is inconsistent with the maintenance by the husband of privilege in respect of the entirety of his solicitor’s file.
In Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543, the High Court held as follows:
9. It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. It may here be noted that the “dominant purpose”' test for legal professional privilege was recently adopted by this Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation in place of the “sole purpose” test which had been applied following the decision in Grant v Downs.
10.Being a rule of substantive law and not merely a rule of evidence, legal professional privilege is not confined to the processes of discovery and inspection and the giving of evidence in judicial proceedings. Rather and in the absence of provision to the contrary, legal professional privilege may be availed of to resist the giving of information or the production of documents in accordance with investigatory procedures of the kind for which s 155 of the Act provides. Thus, for example, it was held in Baker v Campbell, that documents to which legal professional privilege attaches could not be seized pursuant to a search warrant issued under s 10 of the Crimes Act 1914 (Cth).
11.Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity. It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect. That rule, the expression of which in this Court can be traced to Potter v Minahan, was the foundation for the decision in Baker v Campbell. It is a rule which, subject to one possible exception, has been strictly applied by this Court since the decision in Re Bolton; Ex parte Beane. Cases in which it has since been applied include Bropho v Western Australia, Coco v The Queen and Commissioner of Australian Federal Police v Propend Finance Pty Ltd. The possible exception to the strict application of that rule was the decision in Yuill.
(Footnotes omitted)
In AWB Ltd v Cole (No. 5) (2006) 155 FCR 30, Justice Young observed as follows:
44. …
(7)The concept of legal advice is fairly wide. It extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context; but it does not extend to advice that is purely commercial or of a public relations character:
(Citations omitted)
Although I was not specifically addressed on the issue, it is clear to me that the documents the subject of the claim for privilege (being the documents contained on the file maintained by the husband’s solicitor) are covered by advice and litigation privilege. There can be no doubt that the documents maintained on the file would by dint of this litigation reveal advice as to what the husband should in the words of Young J “prudently or sensibly do” in this litigation.
In Mann v Carnell (1999) 201 CLR 1 (“Mann v Carnell”), the High Court said as follows:[10]
28.…
Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege.
…
29.Waiver may be express or implied. … What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
(Citations omitted)
[10] Mann v Carnell (1999) 201 CLR 1 at [28] to [29].
In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303, the High Court stated as follows:
30.According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege). It may be express or implied. In most cases concerning waiver, the area of dispute is whether it is to be implied. In some cases waiver will be imputed by the law with the consequence that a privilege is lost, even though that consequence was not intended by the party losing the privilege. The courts will impute an intention where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.
31.In Craine v Colonial Mutual Fire Insurance Co Ltd, it was explained that “‘[w]aiver is a doctrine of some arbitrariness introduced by the law to prevent a man in certain circumstances from taking up two inconsistent positions … It is a conclusion of law when the necessary facts are established. It looks, however, chiefly to the conduct and position of the person who is said to have waived, in Order to see whether he has ‘approbated’ so as to prevent him from ‘reprobating’”. In Mann v Carnell, it was said that it is considerations of fairness which inform the court’s view about an inconsistency which may be seen between the conduct of a party and the maintenance of confidentiality, though “not some overriding principle of fairness operating at large”.
32.Those considerations, articulated in relation to waiver at common law, apply with equal force in relation to the statutory question posed by s 122(2) of the Evidence Act, and made applicable by s 131A of that Act to the determination of a question of waiver of client legal privilege arising in the context of pre-trial discovery. That question is whether the client or party concerned “has acted in a way that is inconsistent with the client or party objecting to” the production of a document.[11]
[11] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 at [30] to [32].
In Ewin v Vergara (No 2) (2012) 209 FCR 288, Bromberg J observed as follows:
16.…
At common law, a privilege is waived either expressly or impliedly by conduct engaged in by the privilege holder which is inconsistent with the maintenance of the privilege. In Mann v Carnell (1999) 201 CLR 1, the majority emphasised that the inconsistency which brings about the waiver may be informed by considerations of fairness as between the conduct of the privilege holder and the maintenance of the privilege.[12]
[12] Ewin v Vergara (No 2) (2012) 209 FCR 288 at [16].
The test in Mann v Carnell (1999) 201 CLR 1 as referred to above focuses the common law test on inconsistency, rather than fairness alone.
Affidavit of the Husband’s filed on 24 October 2024
The Affidavit of the husband’s solicitor filed on 24 October 2024, which gives rise to the current application discloses among other things the following:
(a)The husband authorised his solicitor to waive legal professional privilege in relation to facts disclosed in the Affidavit.[13] This grounded the wife’s application for disclosure of documents contained on the file maintained by the husband’s solicitor;
[13] Affidavit of the Husband’s solicitor filed 24 October 2024, paragraph 2.
(b)On 7 August 2023, the proceedings were listed before a Judicial Registrar at which time:
(i)The husband’s solicitor asserted that it would be necessary for the husband to sell the former matrimonial home;[14]
[14] Affidavit of the Husband’s solicitor filed 24 October 2024, Annexure A.
(ii)The Court noted that “there are likely to be property proceedings joined to the matter”;[15]
[15] Order made on 7 August 2023, Notation B.
(c)On 15 August 2023, the solicitor who was then acting for the wife sent an email to the husband’s solicitor, which email read in part as follows:
Within the first return date you advised that it would be necessary for your client to sell the matrimonial home. We ask that you propose Orders of which attend to the sale of the property and place the monies into trust until further Orders;[16]
[16] Affidavit of the Husband’s solicitor filed 24 October 2024, Annexure A.
(d)The husband’s solicitor was served with the wife’s Response to Initiating Application, which incorporated financial issues on 15 September 2023. The husband’s solicitor says that he immediately forwarded the documents to his client by email. However, the husband’s solicitor says that he did not read the documents because he had surgery late 2023 and was still recovering.[17] It is implicit from this evidence that the husband’s solicitor at the very least considered he had an obligation to read the documents. The husband himself says that “[a]t the time of the sale of the matrimonial home I was not aware that the respondent had sought property Orders in these proceedings because I had not read the email that was sent to me by my Solicitor”.[18] Neither the husband’s solicitor nor the husband assert that the wife’s solicitor was advised at any stage subsequent to 15 September 2023, that the husband’s solicitor was not retained with respect to financial issues.
[17] Affidavit of the Husband’s solicitor filed 24 October 2024, paragraphs 10 to 12.
[18] Affidavit of the Husband filed 24 October 2024, paragraph 27.
(e)On 12 October 2023, the husband’s solicitor sent an email to the Independent Children’s Lawyer and the wife’s solicitor in the following terms:
Hi All,
We are focussed on the Parenting aspect mainly at this time. I will see the client on the weekend to obtain instructions in the financial matter.
….[19]
[19] Affidavit of the Husband’s solicitor filed 24 October 2024, Annexure B.
(f)Again, it is implicit from the terms of this communication that the husband had in fact retained his solicitor to act from him in the financial proceedings.
(g)On 17 October 2023, the husband’s solicitor says that he “told the client we needed to respond to the property Application otherwise I would tell the other side to contact him direct”.[20] In response to his solicitor, the husband said that he was “gathering bank records and documents”.[21] This also implies that the husband’s solicitor was retained with respect to financial issues;
(h)The husband solicitor says he was told by his client on or about 18 October 2023, “that the property was sold and settled. That is the first that I knew of the actual sale”.[22] On the same day, the husband’s solicitor sent the wife’s then solicitor an email in the following terms:
Good morning
I am not yet instructed in the Financial matter.
However I have received today the first part of the husband’s financial disclosure.
Further documents are to follow.[23]
(i)The documents produced by the husband’s solicitor included information with respect to the sale of the former matrimonial home;[24] and
(j)On dates not specified, the husband’s solicitor had “a few conversations requesting the client to come in to reply to the Application for Financial Orders”.[25]
[20] Affidavit of the Husband’s solicitor filed 24 October 2024, paragraph 15.
[21] Affidavit of the Husband’s solicitor filed 24 October 2024, paragraph 15.
[22] Affidavit of the Husband’s solicitor filed 24 October 2024, paragraph 16.
[23] Affidavit of the Husband’s solicitor filed 24 October 2024, Annexure C (but in fact found at Annexure E).
[24] Affidavit of the Husband filed 24 October 2024, paragraph 37.
[25] Affidavit of the Husband’s solicitor filed 24 October 2024, paragraph 19.
I am satisfied by reason of my summary of the Affidavits of the husband and his solicitor referred to above that the husband has put in issue the content of legal advice insofar as that advice related to the disposition of the former matrimonial home and the parties’ competing financial applications. He has expressly done so by way of his solicitor’s Affidavit. However, there is no general waiver of legal professional privilege if otherwise privileged information is disclosed for a specific and limited purpose.[26] The particular circumstance and the whole of the particular circumstance must be considered to see whether the person entitled to the privilege has so acted that the confidentiality essential to the claim has been abandoned.[27]
[26] B Cairns, Australian Civil Procedure, Thomson Reuters (13th edition) at [11.490].
[27] Hartogen Energy Ltd (In Liq) v Australian Gas Light Co (1992) 36 FCR 557 at [567] to [569]; Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275, page 278.
I am not satisfied that the husband has waived legal professional privilege with respect to the whole of his solicitor’s file. Instead, I find that because of the content of the Affidavit of the husband’s solicitor filed on 24 October 2024, the husband has expressly waived privilege with respect to the following topics:
(a)The date on which the husband first retained his solicitor with respect to financial issues;
(b)The date on which the husband first provided his solicitor with instructions in relation to financial issues;
(c)Whether the husband’s solicitor was retained to act for the husband with respect to financial issues as at 15 September 2023 being the day on which the wife served the husband’s solicitor with her Response to Initiating Application. It was this document, which incorporated financial issues;
(d)Whether the husband’s solicitor was only engaged to act for the husband with respect to financial issues on 3 December 2023 as so asserted by the husband’s solicitor.
DISCLOSURE
As a consequence of my findings, it is necessary to consider whether it is appropriate to make an Order for disclosure of certain categories of documents. The wife makes an application for the disclosure of ten categories of documents. Those categories as described by the wife’s counsel are:
(a)Category 1: Costs Agreement;
(b)Category 2: File Notes from the commencement of the retainer until 24 October 2024;
(c)Category 3: Documents evidencing instructions up until 24 October 2024;
(d)Category 4: Draft Court documents up until 24 October 2024;
(e)Category 5: SMS messages between the husband’s solicitor and his office and the husband up until 4 October 2024;
(f)Category 6: Email correspondence between the husband’s solicitor and his office and the husband up until 4 December 2024;
(g)Category 7: Phone call records between the husband’s solicitor and his office and the husband up until 4 December 2024;
(h)Category 8: Trust account statements and tax invoices and time recording records of work performed by the husband/s solicitor and/or his office and the husband up until 4 December 2024;
(i)Category 9: Documents provided to the husband in which the husband’s solicitor or his office provided advice to the husband about his duty of disclosure and financial disclosure obligations pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and the Family Law Act 1975 (NSW); and
(j)Category 10: All advice provided to the husband in relation to the sale/transfer of the former matrimonial home and/or Ms Senft and/or disposal of assts during or prior to family law proceedings.
Category One: Costs Agreement
The wife’s counsel submits that the Costs Agreement between the husband and his solicitor ought to be disclosed. I agree. The terms of the Costs Agreement are relevant to the terms on which the husband’s solicitor was retained and the precise work, which the husband’s solicitor was engaged to perform. Such a document and the terms contained in such a document are relevant to the following enquiries:
(a)the instructions, which the husband provided to his solicitor and particularly, when it was that the husband first provided instructions with respect to financial issues;
(b)whether the husband’s solicitor was engaged with respect to the parties’ competing financial applications at a particular time;
(c)whether the husband’s solicitor was retained to act for the husband with respect to financial issues as at 15 September 2023 being the day on which the wife served the husband’s solicitor with her Response to Initiating Application. As discussed, it was the Response to Initiating Application, which incorporated financial issues; and
(d)whether the husband’s solicitor was only engaged to act for the husband with respect to financial issues on 3 December 2023 as so asserted by the husband’s solicitor.
Section 174(1)(a) of the Legal Profession Uniform Law (NSW) provides that a solicitor must disclose to his or her client the basis on which legal costs will be calculated and an estimate of the total legal costs. Such disclosure by a solicitor is not required if the total legal costs, excluding disbursements, are not likely to exceed $825 including GST.[28] The husband’s solicitor suggests that this section applies to him in circumstances where he has not charged his client in excess of $825 including GST on any one occasion.
[28] Legal Profession Uniform Law (NSW), s 174(4); Legal Profession Uniform Law (NSW), Schedule 4, clause 18.
The Costs Notice filed by the husband’s solicitor reveals that as at 24 October 2024, the husband had paid his solicitor a sum of $5,600. It is not clear whether that sum is inclusive or exclusive of the Goods and Services Tax. The husband’s solicitor failed to comply with r 12.06 of the Federal Circuit and Federal Circuit Court of Australia (Family Law) Rules 2021 (Cth) with respect to the provision of a Costs Notice prior to the hearing on 12 December 2024. Whatever the scenario, the amount charged by the husband’s solicitor as at 24 October 2024 is in excess of the amount referred to in Schedule 4, Clause 18 of the Legal Profession Uniform Law (NSW) and accordingly, the husband’s solicitor would have been obliged to disclose the basis on which his costs would be calculated. Section 180 of the Legal Profession Uniform Law (NSW) also provides that a Costs Agreement must be written or evidenced in writing.
The husband’s solicitor advised me that he has not prepared, nor has his client executed a Costs Agreement. That might be so but nevertheless, the terms of the husband’s engagement of his solicitor and the costs payable by the husband must be recorded in writing to some extent. If not, the husband’s solicitor would find himself in breach of the obligations placed upon him by statute. Accordingly, I will require the husband’s solicitor to disclose all documents, which evidence the agreement between him and the husband as to the precise work, which the husband’s solicitor was retained to perform and the basis on which legal costs would be calculated.
Category Two: File Notes
The wife submits that the husband’s solicitor ought to disclose his file notes for the period from the time he was engaged by the husband to 24 October 2024 (being the date on which the husband’s solicitor filed his Affidavit). She submits that the file notes are relevant to:
(a)the instructions, which the husband provided to his solicitor.
(b)whether the husband’s solicitor was engaged with respect to the parties’ competing financial applications at a particular time;
(c)whether the husband’s solicitor was retained to act for the husband with respect to financial issues as at 15 September 2023 being the day on which the wife served the husband’s solicitor with her Response to Initiating Application, which document incorporated financial issues; and
(d)whether the husband’s solicitor was only engaged to act for the husband with respect to financial issues on 3 December 2023 as so asserted by the husband’s solicitor.
The file notes are also relevant to the husband’s state of mind including whether the husband knew as at 19 September 2023 (being the date on which the husband entered into a contract for the sale of the former matrimonial home) that the wife was seeking an Order under Part VIII of the Act.
During submissions, the husband’s solicitor advised me that it is not his practice to keep file notes because he is often “driving in the car” and further, that he does not keep time records with respect to any work performed by him.
In Metro Waterloo Pty Ltd v HWL Ebsworth Lawyers [2021] QDC 295, Barlow DCJ said as follows:
71.A solicitor in commercial practice is generally expected to record in file notes at least important matters arising in conversations with the client and other persons. Where the solicitor has not recorded, either in a file note or elsewhere, the fact or the substance of a conversation in which, for example, the solicitor says that the client gave the solicitor certain instructions, a court in later proceedings in which that conversation is of crucial important may well have cause to doubt the accuracy of the solicitor’s evidence and to prefer that of the client, including where the client denies that the conversation occurred at all.[29]
[29] Metro Waterloo Pty Ltd v HWL Ebsworth Lawyers [2021] QDC 295 at [71].
The failure by a solicitor to take any file notes and the difficulties which then might ensue is highlighted in the case at bar. It is poor practice that is not condoned by this Court.
In any event, and by reason of the sale of the former matrimonial home and the content of the Affidavit filed by the husband’s solicitor on 24 October 2024, I agree that file notes insofar as they exist, ought to be disclosed for the period from the time of the husband’s engagement of his solicitor to 24 October 2024.
Category Three: Documents evidencing instructions
By his Affidavit filed on 24 October 2024, the husband’s solicitor says as follows:
(a)He concedes that during a hearing before a Judicial Registrar on 15 August 2023, he informed the Court that the former matrimonial home would need to be sold;[30]
(b)On 15 September 2023, he received the wife’s financial documents but did not read them.[31] During oral submissions, the husband’s solicitor says that he “never formally accepted service of the financial documents” and that he “only passed them to the client”. Notwithstanding this, the husband’s solicitor gives no evidence whatsoever about whether he provided the wife’s solicitor with notice that he was not engaged to act for the husband with respect to the parties’ financial dispute;
(c)He did not accept any instructions in relation to financial issues until 3 December 2024. These submissions are inconsistent with:
(i)Paragraph 12 of the solicitor’s Affidavit wherein he suggests that he would have read the financial material save that he was recovering from surgery and “had work to catch up on”;
(ii)The knowledge of the husband’s solicitor with respect to financial issues as expressed to the Judicial Registrar during the hearing on 15 August 2024; and
(iii)The email communication from the husband’s solicitor to the wife’s solicitor and the Independent Children’s Lawyer on 12 October 2023 to the effect that he was “focussed on the Parenting aspect mainly at this time”.[32] The use of the word “mainly” suggests to a reader of the email communication that the husband’s solicitor had received some instructions in relation to financial issues. By the same communication, the husband’s solicitor indicated that he would be meeting with his client on the weekend of 14 and 15 October 2023 to obtain instructions in relation to the financial proceedings.[33]
[30] Affidavit of the Husband’s solicitor filed 24 October 2024, paragraph 9.
[31] Affidavit of the Husband’s solicitor filed 24 October 2024, paragraph 12.
[32] Affidavit of the Husband’s solicitor filed 24 October 2024, paragraph 14.
[33] Affidavit of the Husband’s solicitor filed 24 October 2024, paragraph 14.
By reason of the inconsistencies made in his oral submissions and Affidavit material, I have concluded that the husband’s solicitor has now put in doubt the date on which he received instructions in relation to financial issues and further, he has put in doubt details about his knowledge of the sale of the former matrimonial home and instructions he received in relation to the same. This being so, I agree that the husband’s solicitor ought to disclose all documents evidencing instructions received by him for the period of his engagement to 24 October 2024.
Category Four: Draft Court documents
The wife seeks the disclosure of what she describes as “draft court documents”. The husband’s solicitor says that he does not keep copies of draft documents and this being so, I will not make the Order sought by the wife’s counsel.
Categories Five, Six and Seven: SMS Messages, Email communications and Phone Call Records
The wife seeks copies of all SMS Text Messages and email communications between the husband’s solicitor and/or the office of the husband’s solicitor and the husband for the period to 4 December 2024. The wife also seeks phone records for the same period.
I understand from submissions of the wife’s counsel that the date of 4 December 2024 was selected in circumstances where husband’s solicitor submitted that he only received instructions in relation to financial issues on 3 December 2024.
I again refer to the inconsistencies between the oral submissions of the husband’s solicitor and the Affidavit material of the husband’s solicitor. I consider that the communications sought by the wife’s solicitor are directly relevant to the question of the date on which the husband’s solicitor received instructions in relation to financial issues and information, which he had received in relation to the sale of the former matrimonial home. Further, the communications are directly relevant to the facts referred to by the husband’s solicitor in his Affidavit filed on 24 October 2024.
Category Eight: Trust account statements and tax invoices
The Wife seeks trust account statements, tax invoices and time recording records with respect to work performed by the husband’s solicitor or his office for the period to 4 December 2024.
I refer to and repeat the reasons set out above. I consider that these documents are also relevant to the question of the date on which the husband’s solicitor received instructions in relation to financial issues and information, which he had received in relation to the sale of the former matrimonial home.
Category Nine: Documents provided to the husband in which the husband’s solicitor and/or his office provided advice to the husband about his duty of disclosure
The wife seeks the production of “documents provided to… [the husband] in which [the husband’s solicitor] or [his] office provided advice to [the husband] about his duty of disclosure and financial disclosure obligations pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and the Family Law Act 1975 (NSW).
I refer to and repeat the reasons set out above. I consider that these documents are again relevant to the question of the date on which the husband’s solicitor received instructions in relation to financial issues and information, which the husband’s solicitor may have received in relation to the sale of the former matrimonial home.
Category Ten: All advice provided to the husband in relation to the sale/transfer of the former matrimonial home and/or the second respondent and/or disposal of assets during or prior to family law proceedings
The wife seeks the production of those documents, which fall within the above category of documents described above.
I refer to and repeat the reasons set out in the preceding paragraphs. I consider that these documents are also relevant to the question of the date on which the husband’s solicitor received instructions in relation to financial issues and information, which he had received in relation to the sale of the former matrimonial home.
Conclusion as to disclosure
For the reasons discussed above, I am satisfied that the categories of documents referred to above are relevant to the facts, which the husband’s solicitor put in issue by his Affidavit filed on 24 October 2024. This being so, I propose to make an Order, which requires the husband to disclose documents within the categories referred to above and to otherwise state whether a specified document or class of documents exists or has never existed.
I will also ensure that my Orders are sufficiently wide to include communications, which may have been initiated by or received by any agent of the husband noting the submission made by the husband’s solicitor to the effect that he often communicates through a third party due to the husband’s difficulty in understanding communications in English.
As discussed, however, I will draft my Orders such that the husband will not be obliged to make disclosure of any advice provided to him with respect to any entitlement of the wife pursuant to her application under Part VIII of the Act and/or communications between the husband and his solicitor with respect to the parties’ competing financial applications.
Finally, and given my concerns about the manner in which the husband’s solicitor has maintained his file, I will require him to file an Affidavit explaining why any of the documents referred to above do not exist.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson. Associate:
Dated: 7 February 2025
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