FAMILY COURT OF AUSTRALIA
| STRAHAN & STRAHAN | [2012] FamCA 214 |
| FAMILY LAW – PRACTICE AND PROCEDURE – legal professional privilege – application by the husband seeking orders that the wife produce documents over which she has claimed legal professional privilege – where there were issues about whether the wife’s legal representative was qualified as a lawyer – whether the wife’s belief as to the status of the person was sufficient to establish legal professional privilege – whether the person was acting in the role of a lawyer – where the Court was satisfied that the wife had established that she had a bona fide belief on reasonable grounds that her lawyer was a qualified legal practitioner and was providing legal advice to her. FAMILY LAW – PRACTICE AND PROCEDURE – legal professional privilege – where the husband alleges that correspondence between the wife’s legal representatives and the Australian Tax Office, Australian Federal Police and Italian Consulate would be unlikely to have been created for the dominant purpose of legal proceedings – where the Court held that some of the documents were unlikely to be documents created for the dominant purpose of conducting legal proceedings – orders that the wife produce for inspection certain documents over which legal professional privilege had not been established. FAMILY LAW – PRACTICE AND PROCEDURE – legal professional privilege – consideration of whether the wife had waived privilege by providing documents to third parties – where the husband argues that such actions constituted imputed waiver – where the Court held that the production of documents to third parties does not attract common interest privilege – where the Court held that privilege had been impliedly waived. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 rr 13.01, 13.09 & 13.12 |
| APPLICANT: | Mr Strahan |
| RESPONDENT: | Ms Strahan |
| FILE NUMBER: | ADF | 228 | of | 2005 |
| DATE DELIVERED: | 4 April 2012 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 3 December 2010, 8 April 2011 & 24 June 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Berman, SC |
| SOLICITOR FOR THE APPLICANT: | Kennedy Partners |
| COUNSEL FOR THE RESPONDENT: | Mr Brown, QC (with Mr Holland) |
| SOLICITOR FOR THE RESPONDENT: | Winter & Co |
Orders
Within 14 days from today the wife produce the following documents for inspection by the husband’s solicitors and provide…
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- STRAHAN & STRAHAN [2012] FamCA 214
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- [2012] FamCA 214
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CaseChat Overview and Summary
The primary legal issues before the court were: (1) whether legal professional privilege could be established where the client held a bona fide belief, on reasonable grounds, that their representative was a qualified lawyer, even if that person was not in fact qualified; (2) whether specific documents were created for the dominant purpose of legal proceedings; and (3) whether the wife had impliedly waived privilege by disclosing documents to third parties, thereby negating any claim of common interest privilege.
Dawe J found that while the wife's legal representative, Mr. GL, may not have been demonstrably qualified to practice law in any jurisdiction, the wife had established a bona fide belief on reasonable grounds that he was a qualified legal practitioner providing her with legal advice. This belief was supported by her introduction to him by a qualified practitioner and the sighting of a letterhead suggesting he was a legal practitioner in the United States. Applying the principles from *Global Funds Management (NSW) v Rooney*, the court held that privilege can exist where a client bona fide believes on reasonable grounds that the other person is their solicitor, up until the point that belief is dispelled. However, the court also determined that some of the documents in question were unlikely to have been created for the dominant purpose of conducting legal proceedings and that the wife had impliedly waived privilege by providing certain documents to third parties, as such disclosures did not attract common interest privilege and it would be unfair to maintain privilege after partial disclosure.
Consequently, the court ordered the wife to produce specific documents for inspection by the husband's solicitors within 14 days, at the husband's cost. These documents included correspondence with the Australian Tax Office, the Department of Immigration & Multicultural Affairs, the Australian Federal Police, and various Italian consulates and officials, as well as South Australian Police and the Italian Ministry of Internal Affairs.
Orders
Orders of the court
1.
Within 14 days from today the wife produce the following documents for inspection by the husband’s solicitors and provide such copies as are requested by the husband’s solicitors at the cost of the husband being the following documents described in “ES2” of the annexure to the wife’s affidavit filed on 18 November 2010:
(a) Item 245 on page 43, being
(i) ID …103 Dated 17/09/2005 from Mr GL to Ms T of ATO/Mr SG of ATO;
(b) Items 3, 4 and 6 of Schedule B on page 52, being:
(i) ID …205, dated 15/09/2005 from Mr SG (ATO) to Mr GL/Ms T (ATO)/Mr AP;
(ii) ID …103 dated 17/09/2005 from Mr GL to Ms T and Mr GS (ATO);
(iii) ID …205 dated 18/05/2006 from Mr AB to … the Director of Citizenship Policies, Department of Immigration & Multi Cultural Affairs.
(c) Items 7, 8, 10, 11, 12, 15 and 17 on page 53 being:
(i) ID …143 dated 24/02/2005 from IM & Co to Australian Federal Police;
(ii) ID …128 dated 03/03/2005 from IM & Co to Australian Federal Police;
(iii) ID …097.0019 dated 15/04/2005 from IM & Co to Australian Federal Police;
(iv) ID …077 dated 19/05/2005 from IM & Co to Australian Federal Police;
(v) ID …227 dated 13/09/2005 from Ms MA to Australian Federal Police (Criminal Records);
(vi) ID …201 dated 16/05/2006 from Mr RE (DM Firm) to Australian Federal Police;
(vii) ID …033 dated 28/06/2006 from Mr AB to Australian Federal Police.
(d) Items 2, 3, 4, 5, 6, 7 and 8 on page 54 being:
(i) ID …206 dated 16/09/2005 from Mr GL to Consular General of Italy, Hong Kong;
(ii) ID …333 dated 01/11/2005 from Mr GL to Consulate General of Italy, Hong Kong;
(iii) ID …063 dated 21/11/2005 from Mr AB to Italian Ambassador in Australia;
(iv) ID …068 dated 21/11/2005 from Ms MA to Ambassador for Italy in Australia;
(v) ID …062 dated 21/11/2005 from Ms MA to Italian Ambassador in Australia;
(vi) ID …357 dated 13/12/2005 from Ms MA to Italian Consulate Adelaide;
(vii) ID …203 dated 21/04/2006 from P Law Firm (wife’s Italian lawyers).
(e) Items 18 and 19 in Schedule B and Items 1 and 10 in Schedule C on page 60 being:
(i) …229 dated 05/07/2006 from Mr MC to South Australian Police;
(ii) …234 dated 05/07/2006 from Mr MC to South Australian Police;
(iii) …046 dated 24/08/2005 from Italian Ministry of Internal Affairs to “blank”;
(iv) …287 dated 26/04/2006 from P Law Firm to Consul.
(f) Items 4 of Schedule A on page 61 being:
(i) …103 dated 17/09/2005 from Mr GL to Ms T and Mr SG (ATO).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In relation to the question of waiver of the privilege, the Court was referred to the decision of Southern Equities Corporation Ltd (In Liq) v Arthur Andersen & Co (Supra) in which His Honour Justice Bleby referred to the comments of the High Court in Attorney-General (NT) v Maurice(1986) 161 CLR 475 at 191:An implied waiver occurs when, by reason of some conduct on the privilege holder’s part, it becomes unfair to maintain the privilege. The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication. Professor Wigmore explains:‘[W]hen his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.’ (J H Wigmore, Evidence in Trials at Common Law (1961), Vol 8, p 636, par 2327.)In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject matter: see Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529; [1981] 2 All ER 485. On the issue of the asserted principle of “common interest privilege” the Court was referred to Buttes Gas and Oil Co v Hammer (No 3) [1981] QB 223. The wife’s affidavits, and in particular the affidavit filed on 18 November 2010, refer to the basis upon which she believed, at the time she was communicating with Mr GL from approximately May 2005 until January 2006, that he was a qualified lawyer. She describes him in paragraph 3 as “an international lawyer”. Reference is also made to the letterheads of an American law firm, which the wife says described Mr GL as a Senior Partner of that firm. The wife however claims legal professional privilege in respect of the communications and correspondence to which she refers in paragraph 4. The wife maintains in paragraph 5 of the affidavit:On 14 October 2005 [Mr GL] communicated by email to Mr Phil Harris, the husband’s solicitor (who then worked for Thomson Playford), in which inter alia his email stated “I am a lawyer based in Hong Kong. The wife’s assertions do not establish on a satisfactory basis that Mr GL was, at any of the relevant times, qualified or admitted to practice in any jurisdiction as a lawyer. The affidavit of the wife establishes on a sufficient basis however that she did believe Mr GL was a lawyer. This is based upon the fact that she was introduced to him by a qualified legal practitioner in South Australia and that she sighted a letterhead which purported to show him as a legal practitioner in the United States of America. The authority of Global Funds Management (NSW) v Rooney (1994) 36 NSWLR 122 provides assistance in determining whether the claim of legal professional privilege can relate to communications with a person who is not a lawyer, but whom the client thinks is a lawyer. At 130 His Honour Young J said:Although there does not appear to be any Australian or English decision on the point, it seems fairly clear that if a person tricks another into thinking that he or she is a solicitor willing to act for them, then a communication made by the person under such circumstances will be privileged. This has occurred in the United States and Canada. Thus, where the District Attorney pretended to be the prisoner's counsel and took a statement from her (State v Russell 53 NW 441 (1892)), or where a person lied to the accused and said that he had been sent by the accused's solicitor to talk about the case (R v Choney (1908) 17 Manitoba 467), the evidence of the communication was excluded.Although there is some doubt as to the ambit of the rule, it seems clear from the authorities that the submission of the first and third defendants that the privilege only attaches if the relationship of solicitor/client actually exists or at least was contemplated is not a sufficient summary of the law. At least in a situation where the client thought that the lawyer was his or her solicitor and that thought was contributed to by the action of the solicitor or by the person who is seeking to tender the statement, the privilege will exist. In my view the authorities go further to support the proposition that if the client bona fide believes on reasonable grounds that the other is his or her solicitor, then the privilege exists up to the time when that belief is exploded.(Emphasis added)