STRAHAN & STRAHAN - [2012] FamCA 214

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

Attorney-General (NT) v Maurice (1986) 161 CLR 475
British Coal Corp v Dennis Rye Ltd (No 2) and Another [1988] 3 All ER 816
Buttes Gas and Oil Co v Hammer (No 3) [1981] QB 223
Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49
Global Funds Management (NSW) v Rooney (1994) 36 NSWLR 122
Grant v Downs (1976) 135 CLR 674
Kennedy v Wallace and Others (2004) 208 ALR 424
Nickmar Pty Ltd and Another v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44
Southern Equities Corporation Ltd (In Liq) v Arthur Andersen & Co (1997) 70 SASR 166
Trade Practices Commission v Sterling (1979) 36 FLR 244

APPLICANT:

Mr Strahan

RESPONDENT:

Ms Strahan

FILE NUMBER:

ADF

228

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 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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Strahan & Strahan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 228 of 2005

Mr Strahan

Applicant

And

Ms Strahan

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The husband MR STRAHAN sought orders that the wife MS STRAHAN produce for inspection a large number of documents referred to in the wife’s list of documents prepared by the wife’s solicitors in relation to the property settlement proceedings between the parties.
The wife opposed the application claiming legal professional privilege applied to those documents.

Hearings

The application was listed for hearing on 3 December 2010. The matter was then adjourned part-heard, resuming on 8 April 2011. At that time, counsel for the wife sought an adjournment on the basis that he had not been instructed because the wife’s new solicitor did not yet have possession of the file of the previous solicitor which also contained counsel’s brief.
The matter was further adjourned to 10 May 2011, when again at the request of counsel for the wife, the matter was adjourned due to ongoing difficulties between the new solicitors for the wife and the previous solicitor for the wife in obtaining possession of the file.
The matter resumed on 24 June 2011. Submissions were heard from counsel for the husband, Mr Berman, SC, and counsel for the wife, Mr Brown, QC, with Mr Holland. No oral evidence was heard.
Judgment was reserved.

Background

The husband and wife met in the late 1980s and commenced a relationship some time thereafter. The parties were married in 1994. There is one child of the marriage, who was born in June 1996.
The parties separated in about January 2005.
In June 2005, the wife file an Amended Application for Final Orders seeking settlement of property and spousal maintenance orders. Since then there have been numerous interim and procedural applications, hearings, orders and appeals to the Full Court. The Court has attempted to list the proceedings for final determination, however, the parties have indicated that they have not been ready for such final determination.
At the hearing of the Application in a Case filed in June 2011, there were 596 documents on the Court file.
The wife has had various solicitors acting for her in relation to the children’s issues and property settlement issues before the Family Court of Australia. In 2005 the wife’s then solicitors, DM Firm, engaged another solicitor, Ms Y, to act as their agent to assist them in respect of the proceedings. Ms Y introduced, Mr GL, to the wife. It was claimed that he was an international lawyer.
The wife maintained that Mr GL was engaged to assist the solicitors to ascertain the extent of the matrimonial assets, particularly those outside of Australia, to advise in relation to caveats being placed over real estate in various countries in Europe, to negotiate with the husband’s solicitors in Hong Kong, to provide advice in relation to international law generally and to investigate and initiate proceedings in Switzerland for spousal maintenance.
The wife maintained that at the time she believed that Mr GL was a qualified lawyer. She said her belief was partly based upon a letterhead from a firm of solicitors in the United States of America, which described Mr GL as a Senior Partner of that firm
Thereafter, there was correspondence between Mr GL, the husband’s solicitors, the wife’s solicitors in Australia and the wife’s siblings who were acting as the wife’s agents.
In 2005 there were proceedings between the husband and wife in the Hong Kong Courts. Both parties instructed solicitors in Hong Kong. In 2005, Mr GL provided a large number of documents to the husband’s Hong Kong Solicitors. The wife maintains that these documents were provided without her knowledge and consent.
The wife maintains that the documents are subject to her claim for privilege. Mr GL thereafter ceased communications with the wife. His current whereabouts are unknown.
The documents provided by Mr GL to the husband’s solicitors in Hong Kong have been returned to the wife’s Hong Kong solicitors.
The list of documents provided by the wife in the Family Court of Australia proceedings (being the list of documents annexed to the wife’s affidavit filed on 18 November 2010) identifies the correspondence between the wife, her agents, her solicitors and Mr GL. Legal professional privilege is claimed on the basis of the wife’s belief that Mr GL was a lawyer.
The documents which were provided to the husband’s solicitors by Mr GL are not identified.
The husband maintains that Mr GL was not a lawyer and at no time during the relevant period was he qualified in any jurisdiction as a legal practitioner.
As indicated, the Family Court of Australia attempted to list this matter for final hearing in November 2010 and subsequently listed the matter for final hearing for June 2012. The matter has again been deferred due to the delay caused by the request to update experts’ reports. The final determination is now listed for August 2012.
The issues to be determined in the property settlement and maintenance proceedings between the parties include ascertaining the assets and financial resources of each of the parties (particularly the wife’s allegations about the assets owned or controlled by the husband and their value), the liabilities of each of the parties, including their existing and possible future taxation liabilities arising from the property settlement orders, the current financial circumstances of each of the parties and their contributions.
The husband maintains that he is concerned that the actions of the wife and her agents may have had an impact on his ability to travel and his financial circumstances.
There is currently considerable discrepancy between the parties on all of these matters.

Issues

(a) Status of Mr GL

The husband maintains that Mr GL was not a qualified lawyer and therefore correspondence with him does not qualify for legal professional privilege. The wife maintains that her belief that he was a qualified lawyer in either the United States of America or England, was sufficient to provide her with the proper basis to claim legal professional privilege.

(b) Role actually performed by Mr GL

On behalf of the husband it was also asserted that even if the wife believed Mr GL was properly qualified, it was also necessary for the wife to successfully maintain that Mr GL was providing her with legal advice and that documents and correspondence passing between them were created for that purpose.

(c) Insufficient description of documents

On behalf of the husband it was argued that the description given for many of the documents, over which privilege was claimed, was not a sufficient description to establish the necessary basis.

(d) Documents not within “privilege” type / claim of Common Interest Immunity

In relation to some of the documents the husband maintained that legal professional privilege could not be established due to the type of document. It was submitted that correspondence between the wife’s Australian solicitors (or Mr GL) and other persons or agencies (such as the Australian Taxation Office and the Italian Consulate) on the face of it would be unlikely to be documents created for the dominant purpose of conducting the property settlement proceedings between the parties.

(e) Waiver

It was also maintained that even if the wife could establish the ground of legal professional privilege for some documents, publishing the documents and providing them to third parties indicated that the wife had waived any legal professional privilege that could be claimed.

The Law

Chapter 13 of the Family Law Rules 2004 deals with disclosure.
Rule 13.01 provides:
General duty of disclosure
(1)Subject to subrule (3), each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner.
Note Failure to comply with the duty may result in the court excluding evidence that it is not disclosed or imposing a consequence, including punishment for contempt of court. This Chapter sets out a number of ways that a party is either required, or can be called upon, to discharge the party’s duty of disclosure, including:
(a) disclosure of financial circumstances (see Division 13.1.2);
(b)disclosure and production of documents (see Division 13.2.1); and
(c)disclosure by answering specific questions in certain circumstances (see Part 13.3).
(2)The duty of disclosure starts with the pre-action procedure for a case and continues until the case is finalised.
Note The duty of disclosure applies to a case guardian for a child and a person with a disability (see subrule 6.13(2)).
(3)This rule does not apply to a respondent in an application alleging contravention or contempt.

Rule 13.09 provides:
Production of original documents
A party may, by written notice, require another party to produce for inspection an original document if the document is a document that must be produced under the duty of disclosure.

Rule 13.12 provides:
Documents that need not be produced
Subject to rule 15.55, a party must disclose, but need not produce to the party requesting it:
(a)a document for which there is a claim for privilege from disclosure;

The provisions of the Commonwealth Evidence Act 1995 (Cth) relate to exceptions to documents which can be received as evidence and do not directly deal with issues of disclosure and discovery between parties. The common law rules therefore apply.
The High Court decision of Esso Australia Resource v Commissioner of Taxation (1999) 201 CLR 49 confirmed that the correct test for ascertaining the existence of legal professional privilege was the dominant purpose test. This case also confirmed that pre-trial discovery is governed by the common law, not the Evidence Act 1995 (Cth).
The common law doctrine of legal professional privilege exists to protect from disclosure to the other party, any document which sets out the particulars of communications between a client and their legal advisor, if the communications were made for the purpose of legal advice or for the purpose of obtaining information for use in the existing or anticipated litigation.
In the decision of Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 Wood J embarked on a lengthy discussion of the authorities in relation to legal professional privilege and held that the same principles applied to documents created by an agent of a party. His Honour found that there was “no reason why any less stringent test should be applied to documents prepared by agents or representatives of a party, than for the party itself”. (at 52).
Counsel for the wife referred to the decision of Lockhart J in Trade Practices Commission v Sterling (1979) 36 FLR 244 in particular at 245:-
Legal professional privilege extends to various classes of documents including the following:
(a)Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them. See Wheeler v. Le Marchant; Smith v. Daniell; Bullivant v. Attorney-General for Victoria; Jones v. Great Central Railway Co., and O'Rourke v. Darbishire.
(b)Any document prepared with a view to its being used as a communication of this class, although not in fact so used. See Southwark Water Co. v. Quick.
(c)Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance. See Hughes v. Biddulph.
(d)Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf. See Woolley v. North London Railway Co.^{- fn_LAWREP-AUS-036-FLR-0244-FN.8#fn_LAWREP-AUS-036-FLR-0244-FN.8}; Greenough v. Gaskell; Corporation of Bristol v. Cox; Woolley v. Pole; Seabrook v. British Transport Commission; Grant v. Downs, and Bray, Principles and Practice of Discovery (1885) pp. 388-389.
(e)Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. See Wheeler v. Le Marchant^{- fn_LAWREP-AUS-036-FLR-0244-FN.14#fn_LAWREP-AUS-036-FLR-0244-FN.14}; Laurenson v. Wellington City Corporation, and O'Sullivan v. Morton.
(f)Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. See Wheeler v. Le Marchant; Cork v. Union Steamship Co., and In Re Holloway.
(g)Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent. See Kennedy v. Lyell and Lyell v. Kennedy (No. 2). (citations omitted)

The decision of Southern Equities Corporation Ltd (In Liq) v Arthur Andersen & Co(1997) 70 SASR 166 was referred to by both counsel.
His Honour, Justice Bleby, at 194 said:-
We have heard no argument from the parties as to the adequacy of the present description either of the documents in question or of the nature of the privilege claimed. It may well be that the present lists are inadequate in that regard. In any case there needs to be sufficient description of the document to disclose the fact that it is of such a nature as to fall within the head of privilege. That could well include sufficient description to disclose whether privilege may have been waived. What the description should be will depend in each case on the pleadings and nature of the claim. White J said in Kadlunga Proprietors v Electricity Trust SA (1985) 39 SASR 410 at 414, 415:
“…it is both necessary and desirable that the description of a particular document for which protection is claimed should be sufficient to disclose quite readily (without disclosing contents) whether or not it is in fact a document to which the head of privilege relied upon can extend...
What is required in properly describing discovered documents will vary from case to case depending on the nature of the document and the particular ground of privilege claimed…”
Counsel referred to the decision of Grant v Downs (1976) 135 CLR 674 where the majority said at 688-689:-
It is well accepted that the court in allowing production and inspection of documents exercises a judicial discretion. In so doing it needs to scrutinize with care claims of privilege made on the ground now under consideration. It is for the party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The court has the power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, sparingly possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence.

Both counsel conceded that in a proper case it was open to the Court to inspect a document in order to determine whether it fell within the category of “privileged documents” but both counsel accepted that this should not be done as a matter of course.
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.

Discussion and Findings

(a) Status of Mr GL

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)
I am therefore satisfied that the legal professional privilege claimed by the wife in relation to communications with Mr GL can be sustained on the basis that she had a bona fide belief on reasonable grounds that he was a qualified legal practitioner.

(b)Whether a claim can be made for privilege in relation to a practitioner who is known not to be qualified in Australia

The authority of Kennedy v Wallaceand Others (2004) 208 ALR 424 provides comment by His Honour Justice Gyles at 438:
It will be observed that none of these judgments has given reasoned consideration to the very real issues in relation to foreign legal advice which counsel for ASIC has put forward in the present case. Further, in most of the cases there was a deal of evidence about the circumstances under which the advice was given and the general substance of it. When that evidence is considered, there was nothing in any of the cases to suggest that the foreign lawyer was acting otherwise than as a professional lawyer giving professional legal advice appropriate to the resolution of the case or issue in hand.
On appeal the Full Court of the Federal Court held that the privilege was capable of being maintained for a foreign lawyer provided that the role of the person clearly fell within the necessary conditions to establish legal professional privilege.
The wife maintains that Mr GL was engaged to assist in negotiations concerning property settlement proceedings, assisting in ascertaining the value of the overseas matrimonial assets, to advise in relation to caveats on the European properties and other real estate. Paragraph 3 of the wife’s affidavit filed on 18 November 2010 states:
As to my relationship with [Mr GL] I further say that on or about June 2005 my solicitors with respect to matrimonial issues were [DM Firm]. In May 2005 [DM Firm] engaged Ms [Y] as a family lawyer to assist them to act as their agent on my behalf with respect to my matrimonial affairs. [Ms Y] first introduced me to [Mr GL] as an international lawyer to assist her in relation to my matrimonial affairs and to attempt to (inter alia).
i.Ascertain the value of the extent of our overseas worldwide matrimonial assets. This included bank accounts which the husband had an interest in with third parties,
ii.To advise as to the placing of caveats over our [European] properties and such other real estate as identified,
iii.To engage in negotiations with respect to property settlement with the husband in Hong Kong,
iv. To provide advice on the international law generally, and
v.To investigate and initiate proceedings in Switzerland for spousal maintenance.
Thereafter [Mr GL] carried out work on my behalf.

In general terms therefore the status and role of Mr GL brings him within the necessary parameters to establish legal professional privilege if each of the communications and documents fall within the necessary defined grounds namely, the dominant purpose of the communications and documents being for the giving or receiving of legal advice or for use in existing or anticipated legal proceedings.

(c) Role actually performed by Mr GL

Counsel for the husband maintained that it is also necessary for the role of Mr GL to be that of providing legal advice. It is maintained that the wife’s case had not sufficiently established that he was providing legal advice, rather it was alleged that he was held out as someone who was a negotiator, a facilitator or an investigator.
As previously discussed, the wife’s affidavit however sets out the basis upon which she maintains that Mr GL was assisting her and her Hong Kong and Australian lawyers.
On behalf of the wife it is maintained that Mr GL was providing advice to the wife about various matters relevant to the property settlement proceedings, including advice about and assistance concerning the identification of the husband’s overseas assets and assisting in negotiations.
The wife has established on a sufficient basis that she believed Mr GL was a qualified international lawyer and that the communications with him related to him either providing advice, or providing assistance in obtaining information for the purposes of the litigation between the husband and wife.
There are some documents which might not fall within this category which will be discussed specifically particularly where the correspondence is not between Mr GL and the wife or Mr GL and the wife’s solicitors, but with third parties.

(d)The adequacy of the description of the documents for which privilege is claimed

The heading to Annexure ES2 is the “Wife’s List of Privileged Documents”. The first part are documents which are disclosed under heading “Legal Professional Privilege is claimed on the following documents as they are communications made between myself and my lawyers and their associates bona fide for the purpose of seeking and giving legal professional advice.”
Under Schedule A are listed numerous documents which are described as either letters or emails between the wife and her solicitors or Mr GL or between the wife’s agents (family members) and the wife’s solicitors or Mr GL.
The most common description is “Email communication from myself to my lawyer bona fide for the purpose of seeking legal professional advice and enclosing instructions”.
Although this type of description could be described as a “resort to verbal ritual” that criticism must be considered carefully when the document is an email or letter between the client, her agent and the client’s solicitor or person she believed to be a solicitor.
Any further detail may risk disclosure which would defeat the purpose of the claim to privilege.
A similar description is provided for letters and emails under the next section headed “Legal Professional Privilege is claimed on the following documents as they are communications made between my lawyers acting for me and were intended to be confidential”.
The correspondence mentioned in that section is between Mr GL and the wife’s solicitors.
As discussed above most of these documents are on the face of the description privileged and any further description would risk defeating the purpose of the claim to privilege.
It must be emphasised that the privilege applies to the email communication and letters and is not a privilege which is extended to the documents necessarily referred to in those communications. For instance, the headings to many of the correspondence referred to relate to specific documents, however the Court was not asked to rule on whether the documents referred to in the communication were protected by privilege. The Court is only ruling on the email communications and letters, not the specific documents that were referred to in the communications. For instance, reference is made in Item 352 to a document described as “Police Report” and in Item 375 “AFP Statements by … and …”. The Court did not have before it the information relating to the actual documents referred to and is merely ruling on the communication between the client and her lawyers about these documents. Whilst the correspondence may be privileged, this is not a ruling that the documents themselves are privileged.
Item 320 refers not only to an email communication headed “[Mr BH] Reports” between the wife and Mr GL, but also refers to the report of BH Pty Ltd Forensic Accountant dated 16/09/2005. “A document brought into existence solely for the purposes of this litigation”. This report also falls within the qualification of legal professional privilege being a document prepared for the purposes of the litigation with a view to obtaining advice or evidence to be used or information which may assist in obtaining such evidence.
Item 5, under Schedule B on page 29 of the annexures to the wife’s affidavit, is a communication dated 8 May 2006 between Allan Branch, the wife’s former lawyer and the wife being an email communication described as headed “Australian Citizenship” and states “from my lawyer to myself bona fide for the purpose of giving professional advice and enclosing copies of letters sent by [Ms MA] to the Department of Immigration & Multi Cultural and Indigenous Affairs on behalf of the plaintiff and other documents brought into existence for the purposes of legal proceedings”. It is important to emphasise that the email communication between the wife and her former solicitor is on the face of it capable of sustaining a claim for legal professional privilege, but this is not a ruling that therefore deems that the copies of letters enclosed with that communication are also protected by legal professional privilege.
The same applies to Item 221 which is referred to as dated 15/09/2005 between Ms MA as the author and Mr GL / Ms Strahan as the recipients which refers to “Email communication between my lawyers for me and were intended to be confidential headed “Australian Federal Police Reports” re advice and including Australian Federal Police Reports, including documents brought into existence solely for the purpose of these proceedings”.
Whilst the correspondence between the lawyers and Mr GL and the wife are, on the face of it, protected by legal professional privilege this ruling does not necessarily extend to the enclosed documents being the Australian Federal Police Reports referred to in that heading.
The same applies to Item 445 on page 35.
These two documents fall within the section headed “Legal Professional Privilege is claimed on the following documents as they are communications made between my lawyers acting for me and were intended to be confidential”.
The next section is headed “Legal Professional Privilege is claimed on the following documents as they are confidential communications between me and other parties OR between my lawyer acting for me and other parties”.
The references to “other parties” also appears in the most common description of documents in this section which includes the phrase “communication between my lawyers for me and other parties”. The “other parties” are not identified in the columns referring to “Author” and “Recipient”. The authors and recipients named in the columns in Schedule A (page 37 of attachment “ES2”) are the wife, her solicitors or Mr GL.
Some of the descriptions assert a purpose of “instructions” or “providing information and advice”, others do not.
Some of the descriptions refer to “the purpose of seeking professional advice”. The “other parties” and their qualifications are not identified. The connection to legal professional privilege is not apparent except to the extent there are some claims to the “purposes of this litigation”.
The failure to identify the other parties makes it difficult to assess whether the advice sought or instructions given were between a client and a legally qualified person acting as a legal advisor or to or from a person who would qualify as an agent assisting in the provision of information and advice for the litigation.
Another explanation for this section is that the “other party” is Mr GL and that the communications between him and the wife and the wife’s lawyer fall within the category of correspondence with an agent of the lawyers for the party for the purposes of the litigation with a view to obtaining evidence or information to be used in such litigation when Mr GL was not acting as a lawyer but assisting in collecting information.
One exception to the above is Item 245, which is dated 17/09/2005 and described as a letter from Mr GL to “[Mr T] of ATO/[Mr SG] of ATO” described as “Letter communication from my lawyer to another party bona fide for the purpose of seeking and giving professional advice.”
No adequate explanation is given for the claim that Mr GL was giving or seeking from the Australian Taxation Office (“the ATO”) “professional advice” which would fall within the parameters of “legal professional privilege”.
Another Item 510 is described as “17/10/2005 from [Ms L] ([American Law Firm])” to “… of [CT] Investigations” and described as “Email communication headed “[Mr Strahan’s] photo” from my lawyer to another party”.
The description fails to explain why this letter can be the subject of a claim to privilege.
Schedule B of this section lists 10 documents of various dates in 2005 and 2006. Items 3 and 4 are email and letters between Mr GL and the ATO.
The description for Item 3 is, “Email communication between my lawyers and another party, the ATO”.
Item 4 is dated 17/9/2005 being a letter from Mr GL to Ms T and Mr SG (ATO) being “Letter communication ‘without prejudice’ headed “[CX Company] and Members Heads of Agreement” from my lawyers to another party – ATO”. (This is the same date and almost identical Author and Recipients as Item 245).

No explanation is given for any basis to claim legal professional privilege for these Items (3 and 4).
Item 6 is a letter from the wife’s former lawyer (Mr AB) to the “Director of Citizenship Policies, Department of Immigration & Multi Cultural Affairs” described as “Application for an Italian passport and related to these proceedings”. This description does not provide any basis for legal professional privilege.
Items 7, 8, 10, 11, 12, 15 and 17 of Schedule B are communications from the wife’s lawyers to the Australian Federal Police in 2005 and 2006. The descriptions given are:
Item 7Communication between my lawyers and another party – Australia Federal Police.
Item 8Letter communication headed “Family Court Proceedings ADF 228 of 2005 – [Strahan].” from my lawyers to another party – Australian Federal Police re Watch Order made in relation to [the child S].
Item 10Communication between my lawyers from me and another party.
Item 11Communication headed “Allegation of possible Passport & Family Law Offences by [Mr Strahan]” from my lawyers for me to another party. This is a document brought into existence solely for the purposes of this litigation and is privileged on the grounds that it forms part of information provided by an informant to the Police.
Item 12Letter communication headed “Urgent – process of criminal history character check forms” from my lawyers for me to another party. This is a document together with enclosures brought into existence solely for the purposes of these proceedings.
Item 15Communication between my lawyers for me and another party being [a named officer] of Australian Federal Police.
Item 17Communication between my lawyers for me and another party – Australian Federal Police.
The description of Items 7, 10, 12, 15 and 17 obviously failed to provide sufficient information to establish that the communication between the solicitors for the wife and the Australian Federal Police should be the subject of legal professional privilege or common interest privilege or any other protection from disclosure. Item 12 appears to claim a separate ground of opposition to providing the documents for inspection, even though it has been included in long lists of documents to which it was asserted that legal professional privilege applied. There is also an unexplained connection between the claim that the document was brought into existence “solely for the purposes of these proceedings” and the claim for privilege on the basis that it forms part of information provided to the Australian Federal Police.
Item 8 which refers to the “Watch Order” made in relation to S, provides some background to the correspondence but does not establish any appropriate ground for privilege.
Item 11 refers to the document being privileged “on the grounds that it forms part of information provided by an informant to the Police”.
Items 2, 3, 4, 5, 6, 7 and 8 on page 54 relate to communications from the wife’s lawyers and Mr GL to the various Consular Generals of Italy and Hong Kong, the Italian Ambassador in Australia and the Italian Consulate in Adelaide. The correspondence is dated from September 2005 through to April 2006.
The explanations given are either “communication from my lawyers to another party” or “facsimile communication from my lawyers to another party enclosing letter document 4 above” or “letter communication from my lawyers for me to another party in Italian”. No explanation is given for the basis upon which these communications are of the nature which would form the basis for legal professional privilege.
Items 18, 19, 21, 22 and 23 on page 55 relate to correspondence between the “Investigating Agencies” and the wife’s solicitors or Mr GL. They refer to communications between those detectives, investigating agencies and the lawyers. The legal professional privilege is established by reference to communication for the purposes of obtaining evidence for the litigation.
The next section on page 55 is headed “Legal Professional Privilege is claimed on the following documents as confidential documents that were created and prepared for the dominant purpose of providing me with professional legal services and assistance relating to my Family Court Proceedings”.
The first document under Schedule A is item 14, an undated document, the author of which is described as the American law firm. After reference to the “dominant purpose” being professional legal services, the document is described as “…Document produced by my lawyers headed “Bilingual Laws information system”. Accepting the description of the document as being provided for the purpose of professional legal services in relation to the Family Court proceedings, this may establish the legal professional privilege.
However, the next Item 17 is described as “2005”. The author is described “[Mr GL]” and the description of the document is “Confidential copy document created and prepared for the dominant purpose of providing me with professional legal services relating to my Family Court proceedings headed “Anti Money Laundering” – “Una Panoramica Della Strategia Anti Ricicladdio in Australia” containing the document prepared by [Mr GL] and with the United Nations Economic Community for Europe at Geneva forwarded to the Italian Senate in 2005. The text is in Italian. The copy document was obtained for the sole purpose of these proceedings”. This is a reference to a copy of the document when the original document, which had been forwarded to the Italian Senate in 2005, would not presumably be the subject to professional privilege. It is asserted that the copy was obtained for the sole purpose of these proceedings and therefore falls within the privilege claimed.
It is not clear from the description however whether the copy is a copy provided by Mr GL or whether the original document was created by Mr GL. In any event if the purpose of obtaining the copy was for these proceedings then the same qualifies for legal professional privilege.
The same would apply to the next Item 88 in that section.
The next section is headed “Legal Professional Privilege is claimed on the following documents as they are draft documents and are the work products of my lawyers and were created solely for seeking and giving professional advice in litigation”.
Each of the documents is described as a “Draft” of a letter or document. The authors are Mr GL or the wife’s solicitors. They are described as documents created “solely for seeking and giving professional advice in these proceedings”. As such the same would appear to qualify for the claim to legal professional privilege.
The next section is headed “Legal Professional Privilege is claimed on the following documents as they are material that was created and collected at the instigation of my agent or lawyer for the dominant purpose of conducting this litigation”.
Each of the items refers to communication between the wife and Mr GL or the solicitors and investigators acting for the wife and solicitors and qualifies for the legal professional privilege claimed.
The next section on page 58 is headed “Legal Professional Privilege is claimed on the following documents as they are material that was disclosures and documents made by myself and the husband during settlement negotiations during litigation with a view to reaching settlement of our disputes”.
The Schedule A is a reference to correspondence from Mr GL or the wife’s solicitors, the wife or her agents to various parties, including documents described as “settlement negotiations”.
The documents in Schedule A being communications between the various persons in relation to settlement negotiations are therefore protected from disclosure.
The next section is headed, “Legal Professional Privilege is claimed on the following documents as they copies (sic) of documents with that copy brought into the possession of my lawyer for the dominant purpose of seeking and giving professional advice and for the current litigation”.
Schedule B relates to the following items:
Item 18
Date: 05/07/2006
Author: [Mr MC]
Recipient: South Australian Police
Copy of a document with that copy brought into the possession of my lawyer for the dominant purpose of seeking and giving professional advice and for the current litigation.
Item 19
Date: 05/07/2006
Author: [Mr MC]
Recipient: South Australian Police
Copy of a document with that copy brought into the possession of my lawyer for the dominant purpose of seeking and giving professional advice and for the current litigation. THIS IS AN IDENTICAL DOCUMENT TO 17.

Schedule C related to the following items:
Item 1
Date: 24/08/2005
Author: Italian Ministry of Internal Affairs
Recipient: “Blank”
Copy of a document with that copy brought into the possession of my lawyer for the dominant purpose of seeking and giving professional advice and for the current litigation. Certificate in Italian.
Item 10
Date: 26/04/2006
Author: [P Law Firm], Italy
Recipient: Consul
Copy of a document – final letter with attachments sent on behalf of the wife to the Italian Consul in Adelaide- with that copy brought into the possession of my lawyer for the dominant purpose of seeking and giving professional advice and for the current litigation. This letter is in identical terms to the other but has more enclosures.

Items 18 and 19 refer to the author as “[Mr MC]” who is the wife’s brother. The recipient is described as “South Australian Police”. The reference is therefore presumably to a document created by the wife’s brother, being some form of communication to the South Australian Police, a copy of which was then provided to the wife’s solicitors. The descriptions for Items 18 and 19 which refer to the “current litigation” do not adequately explain why correspondence between the wife’s brother and the South Australia Police could be copied and a copy provided for the “dominant purpose of the Family Court litigation”. The description is confusing and therefore inadequate.
Item 1 Schedule C is a document created by the Italian Ministry of Internal Affairs, a copy of which came into the possession of the wife’s lawyer. It is a Certificate in Italian. We are not told how the copy document assists the wife in obtaining professional advice in the Family Court proceedings. Again the description is inadequate and insufficient to establish any legal professional privilege.
The same applies to Item 10, being a letter from the wife’s Italian solicitors to the Italian Consul in Adelaide.
The last section on page 61 is headed “Legal Professional Privilege is claimed on the following documents as they “without prejudice” documents (sic) and are the work products of my lawyers and were created solely for seeking and giving professional advice in litigation”.
The first two Items 172 and 198 are correspondence between the wife’s solicitors and Mr GL and the wife. Item 4 is dated 17/09/2005 between Mr GL as the author and Ms T and Mr SG (ATO) and is described as “A “Without Prejudice” document (letter headed “[CX Company] and Members Heads of Agreement”) and the work product of my lawyers and was created solely for seeking and giving professional advice from my lawyers to another party – ATO”. This appears to be a similar document to Item 245. This would also appear to be an incorrect description as it would appear to be a letter from Mr GL to the Australian Taxation Office seeking information or providing information. The description of the document as “Without Prejudice” is not explained.
It does not appear on the face of the documents or the arguments provided by the wife’s affidavit or counsel for the wife that any privilege from inspection of this document has been established.

(e) Waiver

Counsel for the husband maintained that if some of the documents could fall within the description of legal professional privilege nonetheless the document may be required to be provided for inspection because of an imputed waiver.
The wife’s claim of legal professional privilege is a privilege of the client and not of the lawyer. Mr GL’s provision of documents to the husband’s Hong Kong solicitors was without her knowledge or consent and is therefore not within the required parameters of “waiver”.
The communication between the solicitors and other third parties, including the communications between the Australian Federal Police, the Australian Taxation Office and various Consuls and Ambassadors, have not been adequately described. If however this were found to be incorrect then it would be necessary to consider whether the information being communicated to such third parties falls within the category of documents for which the claim to privilege has been waived.
The implied waiver is asserted to have occurred because of the conduct of the wife (the privilege holder) in corresponding with the other third parties in a manner which gave up the right to claim privilege.
This is not a case in which the disclosure has been made or correspondence conducted with persons who have a common interest in the pending litigation. The wife has not established how the Australian Taxation Office, Australian Federal Police or the various Consulates and Embassies, could have a common interest in the Family Court property settlement litigation between the husband and the wife or any other litigation..
The provision of the information to those third parties does not fall within the specific circumstances which maintained the common interest privilege in British Coal Corporation v Dennis Rye Ltd and another (No 2)[1988] 3 All ER 816.
The information therefore provided by the wife or her solicitors to government agencies (ATO and AFP) and to Embassies and Consulates (being correspondence which was not adequately described) is also correspondence for which any claim of privilege has been impliedly waived.

Summary

The wife has therefore established that some of the documents contained in ES2 fall within the parameters of legal professional privilege whilst others do not.
Item 576 on page 25 refers to the author as the wife and the recipient as “[Ms DB] (ADM Amro Bank, Switzerland)”. The description of the document however is “Facsimile communication from myself to my lawyer bona fide for the purpose of seeking professional advice and authorising withdrawal and payment of money for legal fees”.
The description therefore contradicts the description of the recipient as the bank in Switzerland and suggests that it is an email communication received by the wife’s lawyers. As such the document is therefore on the face of it the subject of legal professional privilege.
Item 5 on page 29 is referred to as an email communication between the wife’s former solicitors and the wife which as such would qualify for the legal professional privilege. However, the description also refers to letters enclosed from the wife’s lawyer to the Department of Immigration & Multi Cultural and Indigenous Affairs. Privilege is not necessarily established in relation to that document as it is only the email communication which is protected not the enclosed document.
The same applies to Item 221 on page 32, being the email communication between lawyers which refers to and includes “Australian Federal Police Reports”.
Similarly, Item 376 on page 34, being the email communication between lawyers which refers to “AFP Statements by … and …”.
Similarly, Item 445 on page 35. The email communication itself is between lawyers or their agents and therefore capable of being maintained as subject to legal professional privilege, however this is not a ruling in relation to the police report which was enclosed.
Item 245 on page 43, being the letter communication from Mr GL to “[Ms T] of ATO/[Mr SG] of ATO” which appears to be incorrectly described as “Letter communication from my lawyer to another party bona fide for the purpose of seeking and giving professional advice” is correspondence for which the wife has failed to establish the proper claim for legal professional privilege, common interest privilege or any other ground which would provide a basis to prevent inspection. This document should therefore be the subject of the orders sought by the husband.
All of the items in Schedule B on pages 52 and 53 and Schedule C on page 54 of ES2 are correspondence by way of letters or emails between various government agencies (Immigration Department, AFP, Consular General of Italy and Hong Kong, the Italian Ambassador in Australia or Italian Consul in Adelaide) and the wife’s solicitors or Mr GL. As previously discussed the descriptions of the documents are inadequate to establish that such communications could fall within the parameters of legal professional privilege. In any event the communications with these government agencies or agencies of other countries, appear to be communications which impliedly waive the claim for any possible privilege.
Similarly, Schedule B and Schedule C on page 60, being Items 18, 19, 1 and 10 and Item 4 on page 61 under Schedule A, being correspondence between the wife’s agent, her brother and the South Australian Police (Items 18 and 19) and a document created by the Italian Ministry of Internal Affairs (Item 1 of Schedule C of page 60), correspondence between the Italian solicitors for the wife and the Italian Consul in Adelaide (Item 10 under Schedule C page 60) and correspondence from Mr GL to the Australian Taxation Office are all correspondence between Australian Government departments or other foreign entities for which the legal professional privilege has not been established.
For those reasons the wife should be required to produce for inspection by the husband’s solicitors the documents referred to in the above summary, but not others.

I certify that the preceding one hundred and thirty five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 4 April 2012.

Associate:

Date: 4 April 2012