Stamp and Stamp

Case [2007] FamCA 420

FAMILY COURT OF AUSTRALIA

STAMP & STAMP [2007] FamCA 420

FAMILY LAW – APPEAL FROM DECISION OF FAMILY COURT JUDGE – Legal professional privilege – Whether privilege attached to a file of the wife’s former solicitors – Orders for property settlement by consent – Wife’s application pursuant to s79A(1)(a) – Appeal allowed inspection of solicitors file.

FAMILY LAW – COSTS – Certificates granted - Federal Proceedings (Costs) Act1981 (Cth).

Family Law Act 1975 (Cth)
Family Law Rules 2004
Federal Proceedings (Costs)Act 1981 (Cth)
Evidence Act 1995 (Cth)

Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd Anors (1995) 37 NSW LR 405
Australian Agricultural Company Ltd & AMP Life Ltd [2006] FCA 371
BP Australia Ltd v Stallwood [2000] WASC 75
British American Tobacco Australia Service Ltd & Cowell (2002) 7 VR 524
Commissioner of Taxation v Rio Tinto Ltd (2006) 229 ALR 304
Commonwealth of Australia v Temwood Holdings Pty Ltd (2002) WA SC 107

DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384
Mann v Carnell (1999) 201 CLR 1
Thomason v Campbelltown Municipal Council (1939) 39 SR 347 at 358.

APPELLANT: MR STAMP
RESPONDENT: MRS STAMP
FILE NUMBER: PAF 2730 of 2004
APPEAL NUMBER: EA 27 of 2006

DATE DELIVERED:

 11 May 2007
PLACE DELIVERED: Brisbane
JUDGMENT OF: Finn, May and Boland JJ
HEARING DATE: 8 November 2006
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 14 December 2005
LOWER COURT MNC: [2005] FamCA 420

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Gasic
SOLICITOR FOR THE APPELLANT: Foott, Law & Co
COUNSEL FOR THE RESPONDENT: Mr Lloyd with Mr Durer
SOLICITOR FOR THE RESPONDENT: Mark Turnbull & Co

Orders

  1. That leave to appeal against the order of 14 December 2005 is granted.

  2. That the appeal be allowed.

  3. That the order made on 14 December 2005 is varied to provide that the order made on 16 August 2005 be no longer stayed.

  4. That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by the appellant in relation to the appeal.

  5. That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by the respondent in relation to the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Stamp and Stamp.

FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 27 of 2006
File Number: PAF 2730…

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Stamp and Stamp [2007] FamCA 420
Case
[2007] FamCA 420
Decision Date

CaseChat Overview and Summary

The appeal concerned an interlocutory decision made by Stevenson J on 14 December 2005, which had stayed an earlier order made on 16 August 2005. The appellant husband sought leave to appeal against the interlocutory order, arguing that the primary judge had erred in principle by failing to properly consider and apply the common law rules regarding waiver of professional privilege. The dispute centred on whether the respondent wife had impliedly waived privilege over the file of her solicitors, M & J.

The legal issues before the Full Court were whether leave to appeal an interlocutory decision should be granted, and if so, whether the primary judge had erred in principle by failing to apply the correct common law principles concerning the waiver of professional privilege. Specifically, the court had to determine if the wife's state of mind or knowledge was an issue such that legal advice relevant to its formulation could lead to a waiver, and whether the wife had made assertions that would constitute such a waiver. The court also considered whether the application was premature.

The Full Court found that the husband's submissions regarding the application of common law rules on waiver of privilege, as established in cases like *Mann v Carnell*, were correct. The court noted that the primary judge had not referred to any authorities and had relied on a passage from *Cross on Evidence* without proper citation. The court accepted that the *Evidence Act 1995* (Cth) was confined to the adducing of evidence in court and was not applicable to this interlocutory application, thus requiring reference to common law principles. The court concluded that the primary judge's failure to consider and apply the principles of inconsistency in relation to waiver of privilege constituted an error of principle and could lead to substantial injustice, thereby fulfilling the criteria for granting leave to appeal.

The Full Court allowed the appeal, varied the order of 14 December 2005 to remove the stay on the order of 16 August 2005, and granted costs certificates to both the appellant husband and the respondent wife under the *Federal Proceedings (Costs) Act 1981*.

Orders

Orders of the court

1.

That leave to appeal against the order of 14 December 2005 is granted.

2.

That the appeal be allowed.

3.

That the order made on 14 December 2005 is varied to provide that the order made on 16 August 2005 be no longer stayed.

4.

That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by the appellant in relation to the appeal.

5.

That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by the respondent in relation to the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It was submitted by counsel for the husband in his written submissions that:“11.Her Honour referred (without citation of edition or other reference) to a passage from Cross on Evidence which referred to Mann v Carnell, but failed to consider and apply the issue of inconsistency in the manner required by the authorities. That failure constitutes an error of principle and could also work a substantial injustice. Proper consideration of the issue would have led to the conclusion that the Wife has waived her privilege.” (Original emphasis) It was further submitted that Stevenson J’s failure to apply the principles of inconsistency, as they relate to waiver of privilege, fulfilled the criteria necessary to give leave and allow an appeal against an interlocutory decision. The essence of the husband’s submissions are as this is a pre-trial application, and not an application to adduce evidence, that the common law rules about a waiver of professional privilege apply: Mann v Carnell (1999) 201 CLR 1; and Thomason v Campbelltown Municipal Council (1939) 39 SR NSW 347 at 358. We accept the correctness of this submission. The submissions on behalf of the husband contained a detailed review of the authorities including reference to the judgment of Allsop J in DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499. Her Honour did not refer in her judgment to any authorities. As mentioned there is a quote from Cross on Evidence, unfortunately without any reference to an edition. It was submitted that the question to be decided is “has there been an implied waiver of privilege over the file of [M & J]?” It was submitted that the answer to that question is clearly “no”. In any event, the application was premature at least until the issue of the wife’s “status of her health” is properly before the Court. In relying on Mann v Carnell (supra), counsel for the husband had referred to a number of other cases in relation to the question of state of mind. Privilege can be waived if a party’s state of mind or knowledge is an issue and legal advice was relevant to the formulation of the state of mind (Subs para 7). Reference was made to Australian Agricultural Co Ltd & AMP Life Ltd [2006] FCA 371. It is also correct that the wife “has not made any assertions as to the content of legal advice given to her and nor has she stated that her decision to enter into the consent property orders was based upon legal advice.” (Subs para 26) We were also asked to consider the clear distinction between disclosing the existence of legal advice and disclosing its substance and content, see British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524 and Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 40 NSWLR 12. For the Full Court to grant leave to appeal from an interlocutory order it must be shown that the trial Judge erred in principle or that the decision worked a substantial injustice to the appellant. Although no reference was made to Part 3.10 of the Evidence Act 1995 (Cth) we mention that the provisions of that Act are “…confined to the adducing of evidence in the course of a hearing in Court…” Mann v Carnell (supra). This application, being interlocutory in nature, did not require consideration of the Evidence Act 1995 (Cth). Consequently it is to the common law that reference must be made. See Commissioner of Taxation v Rio Tinto Ltd (2006) 229 ALR 304 particularly at paragraphs 43, 45-47 and 51.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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