Strahan & Strahan & Commissioner of Taxation
[2013] FamCAFC 203
FAMILY COURT OF AUSTRALIA
STRAHAN & STRAHAN [2013] FamCAFC 203
FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – PRIVILEGE – where the respondent husband sought production of documents by the appellant wife – where the appellant claimed certain documents were subject to legal professional privilege – where the trial judge determined that some documents were covered by legal professional privilege, whilst others were not – where the trial judge determined that the description given by the appellant of the documents was unsatisfactory and incapable of founding a claim for privilege – where the appellant claims the trial judge erred in finding that the documents were insufficiently described – whether the trial judge erred – no error demonstrated – where the appellant also claims the trial judge erred in not inspecting the documents – where there is no obligation on the part of a trial judge to examine documents subject to a claim of legal professional privilege – where the appellant had two opportunities to adequately describe the documents – where counsel for the appellant submitted the trial judge need not inspect the documents – where no error demonstrated – appellant ordered to pay the respondent’s costs of and incidental to the appeal.
FAMILY LAW – APPEAL – PROPERTY – where the appellant wife sought a partial property settlement, payment for legal expenses and spousal maintenance – where the trial judge dismissed the appellant’s application – where the appellant failed to account for a significant portion of a sum ordered to be paid by the respondent husband to cover the appellant’s legal expenses up to the final hearing – where the appellant had received over $12 million by way of interim spouse maintenance, interim property settlement and/or on account of future legal costs since separation – where the appellant claims the trial judge erred by “conflating” s 79(2) and s 79(4) of the Family Law Act 1975 (Cth) – where it was open to the trial judge to consider all the relevant circumstances, including any relevant s 79(4) factors, in deciding whether any order pursuant to s 79(2) ought be made – where the trial judge did not err in the manner alleged – where no error demonstrated – appellant ordered to pay the respondent’s costs of and incidental to the appeal.
FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – where the appellant wife claims the trial judge erred in refusing to order the respondent husband sign authorities giving the appellant access to documents held by third party entities – where the appellant did not allege non-disclosure on the part of the respondent – where, in any event, the appellant did not challenge on appeal the trial judge’s finding that the respondent had not failed to disclose relevant documents – where no error demonstrated – appellant ordered to pay the respondent’s costs of and incidental to the appeal.
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Australian Competition and Consumer Commission (ACCC) v Visy Industries Holdings Pty Ltd (No 2) (2007) 239 ALR 762
Barnes v Commissioner of Taxation (2007) 242 ALR 601
Bennett & Bennett (1991) FLC 92-191
Clauson & Clauson (1995) FLC 92-595
Coulton v Holcombe (1986) 162 CLR 1
Daniels Corp v ACCC (2002) 213 CLR 543
Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49
Grant v Downes (1976) 135 CLR 674
Interchase Corporation Limited (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 2) [1999] 1 Qd R 163
Kadlunga Proprietors v Electricity Trust of South Australia (1985) 39 SASR 410
Kiesinger & Paget [2008] FamCAFC 23
Kirby v Centro Properties Ltd (ACN 078590682) and Ors (No 2) (2012) 87 ACSR 229
Mee & Ferguson (1986) FLC 91-716
Metwally v University of Wollongong (No 2) (1985) 60 ALR 68
Mitsubishi Electric Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332
Prantage & Prantage [2012] FamCAFC 84
Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd (2007) 242 ALR 181
Re Ian George Holmes; Kerry Mcginley Wright; Harry Gerard Wouters v the Deputy Commissioner of Taxation of the Commonwealth of Australia [1987] FCA 488
Stanford v Stanford (2012) 247 CLR 108
Trade Practices Commission v Sterling [1979] FCA 33
Vartikian & Vartikian(No. 2) (1984) FLC 91-587
Vautin & Vautin (1998) FLC 92-827Heydon, D, Cross on Evidence, 9th ed, LexisNexis, Chatswood, 2012
APPELLANT: Ms Strahan
FIRST RESPONDENT: Mr Strahan
SECOND RESPONDENT: Commissioner of Taxation
FILE NUMBER: ADF 228 of 2005
APPEAL NUMBERS: SOA 37 of 2012 SOA 42 of 2012 SOA 71 of 2012 SOA 26 of 2013
DATE DELIVERED: 18 December 2013
PLACE DELIVERED: Brisbane
PLACE HEARD: Melbourne
JUDGMENT OF: May, Thackray, Murphy JJ
HEARING DATE: 15 October 2013
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATES: 4 April 2012
24 April 2012
23 August 2012
4 April 2013
LOWER COURT MNC: [2012] FamCA 214
[2012] FamCA 248
[2012] FamCA 826
[2013] FamCA 205REPRESENTATION
COUNSEL FOR THE APPELLANT: Mr Brown SC with Mr Barns
SOLICITOR FOR THE APPELLANT: Winter & Co
COUNSEL FOR THE FIRST RESPONDENT: Mr Wilson
SOLICITOR FOR THE FIRST RESPONDENT: Kennedy Partners
SOLICITOR FOR THE SECOND RESPONDENT: Ms Salnes, ATO Legal Services Branch Orders
(1)The application for leave to appeal is refused in respect of each of the following appeals:
(a) SOA 37 of 2012;
(b) SOA 42 of 2012; and,
(c) SOA 26 of 2013.
(2)The husband pay the wife’s costs of and incidental to the appeal in SOA 71 of 2012, which was discontinued upon the filing of a Notice of Discontinuance on 11 October 2013, such costs to be in an amount as agreed in writing or, failing agreement, as assessed.
(3)The wife pay the husband’s costs of and incidental to the appeals in SOA 37 of 2012, SOA 42 of 2012 and SOA 26 of 2013, in an amount as agreed in writing or, failing agreement, as assessed.
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).
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE Appeal Numbers: SOA 37 of 2012, SOA 42 of 2012, SOA 71 of 2012
and SOA 26 of 2013.
File Number: ADF 228 of 2005
Ms Strahan Appellant
And
Mr Strahan First Respondent
And
Commissioner of Taxation Second Respondent
REASONS FOR JUDGMENT
May J
1.I had the considerable benefit of reading the reasons of Murphy J. I agree that for the reasons given by him in each case leave should not be granted.
2.As his Honour correctly records counsel for the husband conceded that an order for the costs in respect of the appeal discontinued prior to the hearing could not be opposed. Similarly counsel for the wife in the three applications for leave to appeal conceded that it would be difficult to oppose a costs order. In each case there are circumstances which would justify a costs order.
Thackray J
3.These three applications for leave to appeal should be refused for the reasons given by Murphy J, with which I agree. I also agree with his Honour’s reasons in relation to the costs of the proceedings, including the costs of the husband’s abandoned appeal.
Murphy J
4.The parties to this appeal have been involved in litigation in the Family Court since 2005. There has been no trial of the issues which divide them, but there have been six appeals in respect of interim orders regarding both parenting and property issues. These reasons relate to a further four appeals from orders made by Dawe J.
5.One of those appeals, SOA 71 of 2012, was brought by the husband. A Notice of Discontinuance was filed in respect of that appeal on 11 October 2013. A solicitor appeared at the commencement of the hearing on behalf of the Commissioner of Taxation (who was named as a respondent to only the discontinued appeal of the husband) and sought, and was granted, leave to be excused.
6.The remaining three appeals brought by the wife each require leave (Family Law Act 1975 (Cth) (“the Act”), s 94AA). The first challenges the refusal by her Honour to order the husband to provide an authority to the Australian Taxation Office and the Hong Kong Inland Revenue Department to provide to the wife various information. This appeal (SOA 26 of 2013) will be referred to for convenience within these reasons as “the authorities appeal”.
7.Secondly, the wife challenges her Honour’s dismissal of the wife’s application that she be paid a further substantial sum by way of partial property settlement. That appeal also challenges her Honour’s finding that a claim by the wife to be paid her future legal costs was not “just and equitable or otherwise appropriate” and, additionally, claims that her Honour’s order for periodic spousal maintenance paid inadequate regard to the “parties [sic] previous lifestyle.” Those challenges are embraced by appeal number SOA 42 of 2012, which will be referred to for convenience in these reasons as “the financial appeal”.
8.Finally, the wife appeals her Honour’s orders which had the effect of rejecting a claim for privilege in respect of the production of specific documents on the application of the husband. This appeal (SOA 37 of 2012) will be referred to for convenience as “the privilege appeal”.
Leave to Appeal
9.An applicant for leave to appeal in this court must demonstrate that there has been an error of principle and/or a substantial injustice to one of the parties (Kiesinger & Paget [2008] FamCAFC 23, at [9] citing Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 177; Rutherford and Rutherford (1991) FLC 92-225 at 78,715).
10.Each of the orders appealed from are interlocutory. As is accepted on behalf of the wife, leave to appeal is required (s 94AA).
11.The question of leave to appeal is “…closely linked to the merits of the proposed appeal…” and, as is common, a direction was made that the application and appeal be argued together (see, r 22.12(b), Family Law Rules 2004 (Cth) (“the Rules”)). As a consequence, as this court said in Waugh and Waugh (2000) FLC 93-052 at [25], “…[o]bviously, if [the appeal] is without merit, the application should be refused. Conversely, if it has merit, the application should be granted unless the merit is confined to the trial judge’s exercise of discretion (involving no error of principle) and/or the orders made work no substantial injustice to the husband.”
12.The issue of whether leave should be granted will be addressed in respect of each separate appeal.
The Privilege Appeal
13.It is convenient to deal first with the privilege appeal in which both an error of principle and an injustice to the wife is asserted. Each assertion is related, in essence, to the central importance of legal professional privilege within the process of litigation.
The Grounds of Appeal
14.Her Honour made orders on 4 April 2012 which required production by the wife of certain documents for inspection by the husband. The wife maintained that the documents were subject to legal professional privilege. The wife contends that her Honour erred in finding to the contrary. That contention is the subject of Ground 1. Ground 4, which was amended orally during the hearing of the appeal asserts error in “finding that the material in Schedule B provided by the wife or her solicitors to government agencies (ATO and AFP) were not adequately described” can, in truth be seen as a particular of Ground 1.
15.Ground 3 asserts error by her Honour in “…not availing herself of the opportunity of viewing the challenged documents, this would have enabled her to identify ‘other parties’ referred to in the documents.” Ground 5 asserts that her Honour erred in finding that the wife had impliedly waived privilege in respect of correspondence between her and “government agencies (ATO and AFP)”. Ground 2 was abandoned.
Background Circumstances and Findings
16.The wife filed a List of Documents on 27 April 2007. On 30 July 2010, the husband filed an Application in a Case seeking orders that the wife produce certain of the documents in her List of Documents for inspection. The wife opposed production on the basis that the documents were covered by legal professional privilege.
17.During the hearing on 11 October 2010, her Honour observed that the “description” of the documents to which the wife opposed production (contained in an affidavit filed by the wife on 7 October 2010) was “totally unsatisfactory” (see, transcript of proceedings, 11 October 2010 , p 21, line 25). Counsel for the wife acknowledged the descriptions were deficient and sought an adjournment to enable the “redraft[ing]” of the schedule “…to provide a more fulsome description…” of the documents over which legal professional privilege was claimed (transcript of proceedings, 11 October 2010, p 25, lines 33-34).
18.Her Honour granted the adjournment and ordered that the wife:
…file and serve … a list of documents to which she objects providing inspection (being a full description sufficient to enable the identification of the legal professional privilege issue) and any further affidavit upon which she seeks to rely in relation to the ‘privilege’ issue.
19.Relevant to the issues in this appeal, the wife, in compliance with her Honour’s order, filed an affidavit on 18 November 2010 which exhibited as an annexure to it (“ES2”) a schedule of documents said to be the subject of her claims for differing privileges. Those documents mirror, by number, the documents referred to in the wife’s affidavit of 7 October 2010, referred to at the 11 October 2010 hearing. It is, however, uncontroversial that they differ in one respect; the description of each document in the exhibit is different to (and purportedly more comprehensive than) that which was contained within the wife’s first affidavit.
20.Her Honour’s reasons (at [27]) identify as one of the issues for determination the claim by the husband that “…the description given for many of the documents, over which privilege is claimed, was not a sufficient description to establish the necessary basis” for the privilege. Her Honour determined that the descriptions given to certain documents were such that the claim for the relevant privilege could not be sustained. It is necessary to reproduce in the table below those documents, and their descriptions so as to properly illuminate her Honour’s findings and the arguments before this court in respect of them. (Also reproduced in the table below is the generic claim preceding the list of documents in each relevant case):
| 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: | ||||||
| Number | ID | Dated | From | To | Description | |
| 245 | […].001.0002.0103 | 17/09/05 | [Mr GL][1] | [Ms T] of ATO/[Mr SG] of ATO | Letter communication from my lawyer to another party bona fide for the purpose of seeking and giving professional advice. | |
| Schedule B, Item 3 | […].005.0150.0205 | 15/09/05 | [Mr SG] (ATO) | [Mr GL]. [Ms T] (ATO)/[Mr AP] | Email communication between my lawyers and another party, the ATO. | |
| Schedule B, Item 4 | […].001.0002.0103 | 17/09/05 | [Mr GL] | [Ms T] and [Mr SG] (ATO) | Letter communication ‘without prejudice’ headed “[CX Company] and Members Heads of Agreement” from my lawyers to another party – ATO. | |
| Schedule B, Item 6 | […].001.0173.0205 | 18/05/06 | [Mr AB] | [Ms LL …] | Letter communication from my lawyers to another party – Department with regard to and seeking information concerning the husband’s Application for an Italian passport and related to these proceedings. | |
| Schedule B, Item 7 | […].004.0097.0143 | 24/02/05 | [IM] & Co | Australian Federal Police | Communication between my lawyers and another party – Australian Federal Police | |
| Schedule B, Item 8 | […].004.0097.0128 | 03/03/05 | [IM] & Co | Australian Federal Police | Letter communication headed “Family Court Proceedings ADF 228 of 2005 – [Strahan Mr & Ms]” from my lawyers to another party – Australian Federal Police re Watch Order made in relation to [the parties’ child]. | |
| Schedule B, Item 10 | […].004.0097.0019 | 15/04/05 | [IM] & Co | Australian Federal Police | Communication between my lawyers for me and another party. | |
| Schedule B, Item 11 | […].004.096.0077 | 19/05/05 | [IM] & Co | Australian Federal Police | Communication 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. | |
| Schedule B, Item 12 | […].001.0310.227 | 13/09/05 | [Ms MA] | Australian Federal Police (Criminal Records) | Letter 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. | |
| Schedule B, Item 15 | […].001.0171.0201 | 16/05/06 | [Mr RE] ([DM Firm]) | Australian Federal Police | Communication between my lawyers for me and another party being [Mr MP] of Australian Federal Police. | |
| Schedule B, Item 17 | […].001.0188.0033 | 28/06/06 | [Mr AB] | Australian Federal Police | Communication between my lawyers for me and another party – Australian Federal Police. | |
| Schedule C, Item 2 | […].001.0166.0206 | 16/09/05 | [Mr GL] | Consular General of Italy, Hong Kong | Communication from my lawyer to another party. | |
| Schedule C, Item 3 | […].001.0171.0333 | 01/11/05 | [Mr GL] | Consulate General of Italy, Hong Kong | Communication from my lawyer to another party. | |
| Schedule C, Item 4 | […].001.0043.0063 | 21/11/05 | [Mr AB] | Italian Ambassador in Australia | Communication from my lawyers to another party. | |
| Schedule C, Item 5 | […].001.0043.0068 | 21/11/05 | [Ms MA] | Ambassador for Italy in Australia | THIS A COPY OF DOCUMENT 4 Unsigned | |
| Schedule C, Item 6 | […].001.0043.0062 | 21/11/05 | [Ms MA] | Italian Ambassador in Australia | Facsimile communication from my lawyers to another party enclosing letter document 4 above. | |
| Schedule C, Item 7 | […].001.0206.0357 | 13/12/05 | [Ms MA] | Italian Consulate Adelaide | Communication from my lawyers to another party. | |
| Schedule C, Item 8 | […].001.0228.0203 | 21/04/06 | [P Law Firm], wife’s Italian lawyers | Italian Consul in Adelaide | Letter communication from my lawyers for me to another party in Italian. | |
| Legal Professional Privilege is claimed on the following documents as they [are] copies of documents with that copy brought into possession of my lawyer for the dominant purpose of seeking and giving professional advice and for the current litigation: | ||||||
| Schedule B, Item 18 | […].001.0183.0229 | 05/07/06 | [Mr MC][2] | 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. | |
| Schedule B, Item 19 | […].001.0183.0234 | 05/07/06 | [Mr MC] | 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 [which was also held not to be covered by legal professional privilege]. | |
| Schedule C, Item 1 | […].004.0099.0046 | 24/08/05 | Italian Ministry of Internal Affairs | [Not specified] | Copy of a document with that copy brought into possession of my lawyer for the dominant purpose of seeking and giving professional advice and for the current litigation. Certificate in Italian. | |
| Schedule C, Item 10 | […].001.0168.0287 | 26/04/06 | [P Law Firm], wife’s Italian lawyers | 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 others but has more enclosures. | |
| Legal Professional Privilege is claimed on the following documents as they [are] “without prejudice” documents and are the work products of my lawyers and were created solely for seeking and giving professional advice in litigation: | ||||||
| Schedule A, Item 4 | […].001.0002.0103 | 17/09/05 | [Mr GL] | [Ms T] and [Mr SG] (ATO) | 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. | |
[1]A person whose status as a “legal practitioner” was the subject of significant consideration by the trial judge, but which such discussion has no relevance to this appeal.
[2] The wife’s brother.
21.During the hearing of the appeal, counsel for the appellant indicated that the wife would not be pressing the challenge to her Honour’s findings in respect of items 2-8 of schedule C. Relevant, then, to the remaining issues in the appeal, her Honour’s findings are as follows:
·Item 245: “No adequate explanation is given for the claim that [Mr GL] was giving or seeking from the Australia Taxation Office … ‘professional advice’ which would within the parameters of ‘legal professional privilege’” (Reasons [82]);
·Items 3 and 4 of Schedule B: “No explanation is given for any basis to claim legal professional privilege for these Items (3 and 4)” ([88]);
·Item 6 of Schedule B: The description given “…does not provide any basis for legal professional privilege” ([89]);
·Items 7, 10, 12, 15 and 17 of Schedule B: “The description [of each of those items] 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 any other protection from disclosure” ([91]);
·Item 8 of Schedule B: “Item 8 provides … some background to the correspondence but does not establish any appropriate ground for privilege” ([92]);
·Item 11 of Schedule B: “…refers to the document being privileged ‘on the grounds that it forms part of information provided by an informant to the police’” ([93]);
·Items 18 and 19 of Schedule B: “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 Australian Police could be copied and a copy provided for the ‘dominant purpose of the Family Court Litigation’. The description is confusing and therefore inadequate” ([112]);
·Items 1 and 10 of Schedule C: “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” ([113]-[112]); and,
·Item 4 of Schedule A: “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” and “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” ([116]-[117]).
Asserted Error in Respect of the Description of the Documents
22.The appellant’s central argument in respect of Grounds 1 and 4 rests upon an assertion that her Honour erred in finding that the descriptions given to the documents in respect of which privilege were claimed was insufficient or inadequate to found the privilege.
23.In written submissions, counsel for each of the parties referred to the decision of the South Australian Supreme Court in Kadlunga Proprietors v Electricity Trust of South Australia (1985) 39 SASR 410, particularly the statement of White J (at 414) that:
…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.
24.In the Queensland Court of Appeal decision in Interchase Corporation Limited (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 2) [1999] 1 Qd R 163, de Jersey J (as his Honour then was), with whom Pincus JA and Thomas J agreed) held that Kadlunga was wrongly decided. Having considered the authorities, de Jersey J held (at 170):
…There is nevertheless a generally recognized requirement that documents in respect of which such privilege is claimed must be identified properly…
…
... In my opinion, the … appropriate assumption is that a claim of privilege, if taken in proper form, is duly taken, that is, honestly and accurately taken, so that further scrutiny by the other party should not be necessary … One difficulty about requiring any indication of the nature of the document, beyond the sworn assertion of the general ground of privilege, is that the further identification could involve a degree of disclosure which could detract from the very privilege against production being claimed. To my mind, the identification will be sufficient if it will facilitate the production of a particular document for which the privilege has been claimed, in the event, for example, of a cesser of the privilege (through, for example, publication dehors the proceedings) or should the court order production upon a ruling that the privilege does not in fact attach. The manner of identification adopted here would allow for retrieval in such circumstances.
(Emphasis added).
25.It must be noted that Interchase was decided prior to the High Court decision in Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49. In Esso the High Court rejected the “sole purpose test”, which had erstwhile been the approach to ascertaining whether a particular communication was covered by legal professional privilege and “…expressed the test at common law for legal professional privilege as being whether a communication is made or a document is prepared for the dominant purpose of a lawyer providing legal advice or legal services…” (Barnes v Commissioner of Taxation (2007) 242 ALR 601 at [7], emphasis in original).
26.This is significant for the issues in this appeal because, as McHugh J observed in Esso (at [73]):
Secondly, a dominant purpose test is much harder to apply than the sole purpose test and its use must increase the volume of interlocutory litigation. When “sole” purpose or “a” purpose is the criterion for existence of the privilege, seldom can it be necessary to go beyond the contents of the document and the identity of its recipient to determine whether privilege protects the document. But if “dominant” purpose becomes the test, it will often be necessary to examine the state of mind of the person creating the document.
(Footnotes omitted. Emphasis added).
27.Further, there is in my view a very significant distinction between identifying documents in a manner that would enable production and describing documents in a manner which enables a court to “…rul[e] that the privilege [claimed] does not in fact attach”, particularly where the “dominant purpose test” is “…much harder to apply than the sole purpose test…” In my respectful view, the observations of de Jersey J in Interchase pertain to the former. Indeed, a description may allow identification of a particular document, but if it does not reveal that the document is a communication, the claim for privilege must fail (see, for example, Esso at [35], per Gleeson CJ, Gaudron and Gummow JJ).
28.Plainly, then, what might be sufficient to “…facilitate the production of a particular document…” may well be insufficient to enable the court, if required, to determine whether privilege attaches, especially where the test is now established as “dominant purpose”. Similarly, whilst “[a] court has power to examine documents in cases where there is a disputed claim, and it should not be hesitant to exercise such a power”, (Esso at [52], per Gleeson CJ, Gaudron and Gummow JJ), a court is not obliged to examine documents which are said to be subject to legal professional privilege and, indeed, there may be good reason for the trial judge not to inspect the documents (see, for example, Grant v Downes (1976) 135 CLR 674 at 677, per Barwick CJ).
29.This issue will be canvassed in greater detail below in respect of Ground 3. For present purposes, the important point is that a party cannot rely on the potential examination of documents by the court to cure deficiencies in the description of documents alleged to be subject to privilege. That point is underscored by the summary of the current state of the authorities as to what is required when describing documents said to be covered by privilege in Heydon, D, Cross on Evidence, 9th ed, LexisNexis, Chatswood, 2012 as follows (at 25240):
Given the personal nature of this privilege it must be claimed by the person entitled to it. Where the claim is made with respect to subpoena[ed] documents the witness may assert a claim to privilege when attending the court in response to the subpoena or when application is made for inspection of the documents produced. No particular form of words is necessary provided language is used which is capable of being reasonably understood to invoke the privilege. It is for the party claiming privilege to justify the claim, either by pointing to the nature of the documents or (in the absence of agreement) by evidence describing the circumstances in which they were brought into existence. Resort to verbal formulae or ritual is inadequate. Focused and specific evidence demonstrating the dominant purpose is needed. But in most cases the factual basis for the claim to privilege must be placed before the court by admissible evidence or by agreement. This requirement is not satisfied by the traditional, but reprehensible, practice of parties making an affidavit of documents baldly asserting that the privileged purpose was the dominant purpose for which the document was brought into existence. The assessment of the disputed claim to privilege will then be undertaken upon the facts deposed to, including the circumstances attending the creation of the document including such statutory provisions as are relevant.
(Emphasis added).
30.Further to the point made by the learned authors of Cross, it is instructive to look to what the Full Court of the Federal Court said in Barnes (at [16] and [18]) about the claim for privilege made in the affidavit in that case:
16.This affidavit falls far short of providing any adequate basis for claiming privilege in respect of any individual document. It consists of assertions, conclusions and generalised comments. The documents referred to are from a number of sources. The further and better particulars of statement of claim furnished by the appellants refer to several different persons or entities who are said to have been originators of the documents. However, no evidence has been adduced from any of those persons. Most notable of all is the absence of any evidence from Mr Calder. In this context, the fact that Mr Barnes’ affidavit does not clarify the reason why any specific document came into existence means that the court is left to consider the documents on their face and determine as best it can whether the documents are privileged. This is unsatisfactory.
…
18.The authorities emphasise the need for focused and specific evidence in order to ground a claim for legal professional privilege. In Kennedy v Wallace (2004) 142 FCR 185 (Kennedy), Black CJ and Emmett J reiterated the principles that verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege: see also National Crime Authority v S (1991) 29 FCR 203 at 211 (per Lockhart J); Grant at CLR 689 (per Stephen, Mason and Murphy JJ). Where possible the court should be assisted by evidence of the thought processes behind, or the nature and purpose of advice being sought in respect of, each particular document. The fact that generalised evidence is not challenged in cross-examination does not mean that such evidence must be accepted, particularly when it is as manifestly inadequate as it is in this case. As in Kennedy, mere general assertions of the purpose of creation of the documents are insufficient to discharge this onus. Even though in that case some evidence as to the purpose of particular records was adduced, Allsop J at [168] considered that the onus had not been discharged because the evidence did not permit a conclusion to be drawn as to the dominant purpose of the creation of any particular document or entry in a document. Simply to show that one purpose for creation of the document was to obtain legal advice or assistance is not good enough.
(Bold emphasis added).
31.Consistent with those statements, Kirby J said in Daniels Corp v ACCC (2002) 213 CLR 543 (at 585):
The foregoing conclusion does not mean that a mere claim of legal professional privilege will be sufficient to attract the privilege. In the case of each communication alleged to be privileged the party making the claim must bring it within the applicable principles [Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49]. Legal professional privilege will not be available where a conclusion is reached that particular communications were not prepared for the dominant purpose of giving or receiving legal advice.
(Emphasis added. Footnotes omitted).
32.Further, whilst subsequently deemed to be incorrect in respect of the nature of the “test” to be applied, the following statement of Stephen, Mason and Murphy JJ in Grant (at 689) remains applicable:
He may succeed in achieving this objective [of successfully claiming legal professional privilege] by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But is should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual…
(Emphasis added).
33.The table set out in paragraph [17] plainly reveals, in my view that, many, if not all, of the descriptions comprised “…mere general assertions of the purpose of creation of the documents…” That is clearly “…insufficient to discharge [the] onus…” (Barnes). For example:
·Item 245 is described as “Letter communication from my lawyer to another party bona fide for the purpose of seeking and giving professional advice.” Leaving aside the fact that that “advice privilege” apparently claimed in respect of item 245 does not cover “third party communications”, that description by no means indicates the “dominant purpose” of the communication;
·Item 7 of Schedule B is described as a“[c]ommunication between my lawyers and another party – Australian Federal Police.” Again, leaving aside the fact that it is not apparent whether or not the “communication” was, in fact, a communication capable of attracting legal professional privilege, the description does not contain even a general assertion of the purpose. Rather, it is preceded by a generic heading which asserts that privilege is claimed on the basis that the document is a “…confidential communication between ... my lawyer acting for me and other parties…” Such descriptions are patently deficient and, in the words of the Full Court of the Federal Court in Barnes, “unsatisfactory”.
34.Significantly, there is nothing in the body of the affidavit to which “ES2” is attached which provides any further detail in the description of the relevant documents; the wife merely deposes that:
28. With respect to the schedule “ES2” I further say:
i.I claim privilege over documents designated as drafts prepared by my solicitor,
ii.I claim legal professional privilege over the documents described by me as being “without prejudice” communications as such documents being part of negotiations to settle disputes,
iii.I claim legal professional privilege over documents designated as copies as such copies were brought into existence for the dominant purpose of my seeking advise [sic] or for the purpose of proposed or current litigation in particular I specifically refer to documents 18 and 19 from schedule B and say that these documents were prepared by my brother [Mr MC] on my behalf but that the copies of these documents were given to my then solicitors for use in these proceedings and for the purpose of preparing an Affidavit material.
35.Not only does the wife’s affidavit do no more than repeat the “…mere general assertions of the purpose of creation…” contained in “ES2”, as paragraph 28(iii) makes plain, the wife is seeking to claim legal professional privilege in respect of, inter alia, documents which were not prepared either by her or her solicitors but by a third party and, significantly, were received by a third party.
36.This issue was not addressed by either counsel on appeal and will be dealt with briefly.
37.The wife claims both “advice” and “litigation” privilege in respect of items 18 and 19 of Schedule B. However, the former privilege “is not available were one of the parties to the communication is a third party who is not the agent of the client for the purpose of the communication” (see, for example, Mitsubishi Electric Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 at [9], per Batt JA). There is no evidence that the wife’s brother was a “representative” of the wife nor that, even if he were, a communication effectively between the wife and a third party would be covered by legal professional privilege. Further, whilst a copy of a document is privileged if the original is privileged (see, for example, Buttes Gas and Oil Co v Hammer (No 3 ) [1981] QB 223 at 224), here there was no evidence of the dominant purpose of the creation of the original communication and “[a] non-privileged document … obtains no immunity merely because it is delivered to a lawyer, even if it was so delivered for the dominant purpose of obtaining advice or further litigation.” (Cross on Evidence (9th ed) at [25275].) Plainly, items 18 and 19 of Schedule B are not covered by legal professional privilege.
38.I do not consider it necessary to address each of the individual items the subject of this appeal. The difficulties underpinning the examples just given – or variations of them – infect the other descriptions the subject of this aspect of the appeal. I do not consider that the descriptions proffered in respect of any of those items meet the requirements set out in the authorities earlier referred to; the descriptions are, at best, general statements of purpose. In many instances there is no statement of purpose at all (see, for example, items 10, 15 and 17 of Schedule B).
39.The rejection of the appellant’s arguments receives added force from the fact that “ES2” came into existence after the wife had been granted an adjournment to enable “redraft[ing]” of the schedule “…to provide a more fulsome description…” of the documents over which legal professional privilege was claimed.
40.Nothing to which this court was otherwise taken suggests that her Honour erred in concluding as she did in respect of the claim of privilege. The wife has failed to demonstrate that her Honour erred in finding that the documents specified in paragraph 1(a)-(f) of the orders made on 4 April 2012 were not subject to legal professional privilege.
The Failure to Examine Documents
41.Ground 3 contends that her Honour erred in not examining the documents so as to decide for herself if the claim for privilege was properly made out.
42.As previously noted, “[a] court has power to examine documents in cases where there is a disputed claim, and it should not be hesitant to exercise such a power.” (Esso at [52], per Gleeson CJ, Gaudron and Gummow JJ). However, as Barwick CJ observed in Grant (at 677):
Whether or not a document does so qualify is a question ultimately to be decided, if need be, upon an inspection by the judge of the document itself, and by the application of the stated principle. I say “if need be” because where the judge who hears the application for inspection may possibly be the trial judge, sitting without a jury, it may be better to decide the matter upon the evidence as to the purpose of the production of the document rather than upon an inspection of it, thus avoiding any complication which might arise from the document having been seen by the judge and privilege from inspection accorded to it.
(Emphasis added).
43.Citing the above statement of Barwick CJ, Heerey J in Australian Competition and Consumer Commission (ACCC) v Visy Industries Holdings Pty Ltd (No 2) (2007) 239 ALR 762 determined not to examine documents subject to a claim for privilege because the matter had been listed for trial before him. Similarly, in Re Ian George Holmes; Kerry Mcginley Wright; Harry Gerard Wouters v the Deputy Commissioner of Taxation of the Commonwealth of Australia [1987] FCA 488, Davies J observed (at [27]) that “[w]hen the claim is made of legal professional privilege in respect of documents brought into existence by reason of the proceedings before him, a trial judge will be reluctant to embark upon an inspection of the documents, for to do so may be thought to prejudice his impartiality.”
44.In Trade Practices Commission v Sterling [1979] FCA 33, Lockhart J said (at [5]):
It is not open to doubt that the court has power, in a proper case, to inspect documents where a claim of privilege is made to resist an application for inspection of documents by the opposite party. See Grant v. Downs [1976] HCA 63; (1976) 135 CLR 674 , and Westminster Airways Limited v. Kuwait Oil Co. Limited (1951) 1 KB 134 . However, it is as well to bear in mind what was said by Jenkins L.J. in Westminster Airways Limited v. Kuwait Oil Co. Limited: “But there is nothing in the rule, or in the authorities, to constrain the court to hold that, in every case where a claim to privilege is made and disputed, the party seeking production is entitled to come to the court and (as it were) demand as of right that the court should go behind the oath of the opposite party and itself inspect the documents. The question whether the court should inspect the documents is one which is a matter for the discretion of the court, and primarily for the judge of first instance…” (1951) 1 KB, at p 146. (at p247)
(Bold emphasis added).
45.The principles just discussed need to be seen, in their application to the present case, in light of the significant uncontroversial fact that neither party requested that her Honour inspect the documents.
46.Indeed, on 11 October 2010 (the first of three days of hearings before her Honour in respect of the issue of privilege), counsel for the wife submitted:
But another issue that raises itself is - on my researching the matter further is that there are some cases that suggest that if a judge does deal with these cases and see the documents, that there might be issues arising about the judge being able to continue with the matter. We’ve been down that road in this case and I’m anxious that it not happen again, with all respect, even if it’s a significant argument about it. I’m just wondering whether or not there might be another judicial officer – a registrar that could hear this, be able to spend the day, or so, at least, that it’s going to take to go through each of these documents, and that would not put your Honour in a possible position of difficulty later. It doesn’t matter to me either way but it’s something that has occurred to me.
(Transcript of proceedings, 11 October 2010, p 20, lines 26-35. Emphasis added).
47.Significantly, that statement was made prior to counsel seeking (and being granted) an adjournment to enable the wife to “redraft” the schedule “…to provide a more fulsome description…” of the documents over which legal professional privilege was claimed. Following the adjournment, and subsequent to the wife redrafting the schedule, the matter returned to her Honour on 24 June 2011. The transcript of proceedings before her Honour that day reveals counsel for the wife stating that:
But the fact of the matter is, we submit, that in this – in the schedule that we have later prepared and is before your Honour, and is the one that we were working off, the different categories of privilege have been identified and then each of the documents have been identified separately with a comment in the right hand column. In my respectful submission that is all we need to do and these documents are sufficiently described to enable your Honour to make a decision on the basis of this document…
(Transcript of proceedings, 24 June 2011, p 5 at lines 4-10. Emphasis added).
48.Further, whilst the husband’s counsel raised the potential need for her Honour to inspect the documents (see, for example, transcript of proceedings, 3 December 2010, p 22, line 3-p23, line 1), the wife’s counsel reiterated in response that the amended schedule was sufficient to enable her Honour to determine the dispute (see, transcript of proceedings, 3 December 2010, p 17-23).
49.It might, then, be seen as disingenuous of the wife to challenge on appeal her Honour’s decision not to inspect the documents when repeated statements by her counsel sought to dissuade her Honour from doing precisely that; indeed on one occasion positively eschewing that course of action.
50.Senior counsel who appeared for the husband in the “privilege hearings” clearly identified the findings available to her Honour in resolving the privilege claim. First, “…[her] Honour might simply find that … the description, as provided by the wife in ES2, is wholly inadequate. In that case, privilege has not been made out. The test of …dominant purpose…has not been made out” (transcript of proceedings, 3 December 2010, p 21, lines 36-43). The second possible finding was that the description is itself sufficient or, alternatively, her Honour “…may have to look at these documents in order to determine – that is, in respect of any category of documents about which your Honour is uncertain or not satisfied – their purpose” (transcript of proceedings, 3 December 2010, p 22, lines 2-7).
51.As her Honour’s reasons make plain, her Honour considered the descriptions to be wholly inadequate. With that finding, I respectfully agree. The wife had been given two opportunities to adequately describe the documents and the matter had been adjourned for almost two months to allow the redrafting of the descriptions. The wife’s counsel did not submit that it was necessary for her Honour to inspect the documents and, on one occasion eschewed the need for her Honour to do so. Nothing dictated by principle or the circumstances of this case required her Honour to inspect the documents.
52.An additional, but by no means insignificant, matter should also be mentioned in respect of this discovery issue determined by her Honour.
53.Her Honour was acutely aware of the need to bring the matter to a conclusion. At the time her Honour heard the husband’s application, the matter had been in the court for five years, had been before the Full Court on five previous occasions and was (and is) yet to reach final hearing. Her Honour said “…I will be looking forward to hearing some indication about the progress to having the matter finalised, the idea being that the sooner it’s finalised, the sooner both the matters in relation to the child and financial matters can come to an end and save everybody a lot of time and money” (transcript of proceedings, 24 June 2013, p 32, lines 21-25).
54.In Kirby v Centro Properties Ltd (ACN 078590682) and Ors (No 2) (2012) 87 ACSR 229 (at [12]) Bromberg J said:
It should be appreciated that when it comes to issues relating to the discovery of documents, a practical and cost efficient approach is to be encouraged. As Austin J said in Re Southland Coal Pty Ltd (2006) 203 FLR 1 at [30]…, in a passage to which I shall return, the court has a duty to promote the cost efficient resolution of disputes about discovery. It should also be kept in mind that discovery processes depend for their efficiency upon parties and their practitioners making fair and honest conclusions about the discoverability of documents in their control including as to questions of relevance…
55.Of course, the point is not only true of issues of discovery in this court but, by statutory mandate and the provisions of the Rules, more broadly applicable (see, s 97(3) of the Act and, for example, rr 1.04; 1.05 and the pre-action protocols there referred to;1.06 and 1.07). Here:
·As her Honour observed, there were 596 documents on the file in June 2011 (at [10] of the reasons);
·The Full Court had heard five appeals and the matter was yet to progress to final hearing;
·The wife had been given two opportunities to adequately describe the documents claimed to be subject to legal professional privilege and had failed to do so;
·The wife had failed to demonstrate otherwise, as was incumbent upon her, that the dominant purpose of the creation of communications should attract legal professional privilege; and,
·Specifically in respect of inspection, the wife’s counsel had repeatedly indicated that inspection was not necessary.
56.In my respectful view, her Honour’s approach to the issues before her in respect of this appeal were dealt with correctly in conformity with principle and no error is demonstrated. Moreover, I am respectfully of the view that in doing so, her Honour had proper regard to the dictates of the Act and Rules. No error is demonstrated in respect of Ground 3.
Implied Waiver of Privilege?
57.Ground 5 asserts that her Honour erred in finding that “…information provided by the wife or her solicitors to government agencies (ATO and AFP) were correspondence for which privilege had been impliedly waived.”
58.Her Honour observed, with respect correctly, that a consideration of the argument advanced by the husband before her was necessary only if her Honour’s findings that “[t]he communication between the [wife’s] 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 …were found to be incorrect…” (at [120]).
59.Her Honour was in my view entirely correct in finding that privilege did not attach. As a result it is not necessary to consider further this ground of appeal.
The Documents Appeal - Conclusion
60.No error has been demonstrated by the appellant. Leave to appeal in SOA 37 of 2012 should be refused.
The Authorities Appeal
61.It will be recalled that “the authorities appeal” challenges the refusal by the learned Judge below of the wife’s application to order the husband to provide an authority to the Australian Taxation Office and the Hong Kong Inland Revenue Department so as to provide to the wife various information.
62.As originally pleaded, three grounds founded this appeal. However, senior counsel for the wife “did not press” the second and third of those grounds. They are taken to have been abandoned.
63.The remaining ground is not, in terms, a ground of appeal at all; it asserts error but does not particularise what the error is asserted to be:
1.The Learned Judge erred in refusing to make the Orders sought by the Appellant Wife in Paragraphs 1 and 2 of the Appellant Wife’s Application in a Case namely;
a.That the Husband does forthwith execute an authority to the Australian Taxation Office in terms of the document annexed hereto;
b.That the Husband does forthwith executive [sic] an authority to the Hong Kong Inland Revenue Department in terms of the document annexed hereto.
64.Senior Counsel for the wife’s oral submissions made frequent reference to the matters raised in Grounds 2 and 3 despite having abandoned them. The arguments adduced were not, as was ultimately conceded, raised below. “Exceptional circumstances” consistent with the interests of justice must be demonstrated to raise those matters for the first time on appeal (see, for example, Metwally v University of Wollongong (No 2) (1985) 60 ALR 68 at 71, Coulton v Holcombe (1986) 162 CLR 1 at 7 and Prantage & Prantage [2012] FamCAFC 84 at [88]). No such exceptional circumstances were elucidated before us.
65.No challenge is made to her Honour’s application of the relevant provisions of the Rules, including, in particular, her Honour’s analysis of the “test” of relevance.
66.Specifically, no challenge is made to her Honour’s finding (at [38]) that the “… breadth with which [the relevant authorities] are drafted may result in documentation that has no apparent relevance to the proceedings at hand being produced by the ATO and the Hong Kong Internal Revenue Department”. Nor is any challenge made on this appeal to her Honour’s specific findings that:
37.…there are no allegations on behalf of the wife directed towards the husband to the effect that he has withheld any particular document or class of document. The extraction by [counsel for the wife] of various documents referred to in the Notice of Decision document [from the ATO] and his subsequent comments upon their relevance was unhelpful given the fact that the husband asserts that he is not in possession of any of these documents. The recurrent reference to the wife’s mistrust of the husband (as repeated by her counsel at the hearing of this matter) is not supported by any solid example of non-disclosure of any document on behalf of the husband.
(Emphasis added).
67.Nothing to which this court has been taken, nor any argument advanced on behalf of the appellant, elucidates any error of principle said to have been made by the trial judge or substantial injustice to the appellant.
68.Leave to appeal should be refused.
The Financial Appeal
69.Sixteen grounds of appeal found the application for leave in the financial appeal which challenges the learned trial judge’s dismissal of the wife’s application seeking $24 million by way of “further interim property settlement” and $2 million “or such sum as the Court deems fit” “for solicitors [sic] costs” and a “lump-sum or periodic payment for 12 months of $2,000,000 or other such amount as the Court deems fit” “by way of interim maintenance”.
70.Those grounds, and the challenges which underpin them, must be seen in the context of an important background to them.
71.First, her Honour was well familiar with this matter, having had much involvement in it during its already long and tortuous litigation history. As her Honour points out in her reasons (at [7]), when judgment was reserved in February 2012, there were at least 611 documents on the file pertaining to an extraordinary number of applications. As has already been mentioned, there have already been six earlier appeals to this court and, despite being in the court for some eight years with the litigation history just referred to, allotted trial dates have been abandoned, and the matter is, it seems, yet some distance from what would appear to be an inevitable trial.
72.Equally importantly, it needs to be observed that the history just described has seen the expenditure of many millions of dollars on legal fees. As an illustration of the level of expenditure by each of the parties, including a breathtaking amount on legal fees, her Honour’s unchallenged finding (at [39]) is that the wife has received, since January 2007 “lump sums totalling $12,732,250 by way of interim spouse maintenance, interim property settlement or on account of future costs …”
73.In the proceedings before her Honour there was evidence that the husband had been assessed by the Australian Taxation Office as owing that office $72 million. The ramifications of that assessment were then unknown. Exhibit 1 in this appeal, tendered by consent, reveals that the husband has compromised this assessment by agreeing to pay the Australian Taxation Office the sum of $17 million.
The Grounds of Appeal
74.The wife relies upon the following grounds in respect of the financial appeal:
Interim Property
1.The learned Judge erred in finding that she should exercise her discretion against an award for interim property settlement.
2.The learned Judge failed to give any adequate reasons for her finding that she “is not able to be satisfied that at this interim stage the payment of any further monies by way of interim property settlement is just and equitable or appropriate”.
3.The learned Judge failed to give any weight to the circumstances of the husband and his ability to utilise the assets of the marriage in comparison to the wife.
4.The learned Judge confused the requirement of the Court in considering an application for interim property settlement to firstly decide whether in circumstances “it is appropriate to exercise the jurisdiction” with the second step of making an appropriate assessment.
5.The learned Judge erred in her findings with regard to the size of the likely asset pool.
6.The learned Judge failed to direct her mind to the question as to whether or not the $24 million claimed was an appropriate sum for an interim property settlement or such lesser sum was appropriate.
Application for Costs
7.The learned Judge erred in finding that there were no circumstances which would justify the making of the order.
8.The learned Judge erred when she found that on an interim basis the payment of a further sum on account of costs was not just and equitable or otherwise appropriate.
9.The learned Judge failed to give any or any adequate reasons as to her finding as referred to in paragraphs 7 & 8 hereof.
10.The learned Judge erred in finding that there was no evidence which identified how much of $401,626.00 paid to Winter & Co or $116,846.00 paid to Hampton Winter & Glynn was in respect of solicitor and counsel fees for the Family Court of Australia proceedings.
11.The learned Judge erred in finding that the Appellant had not properly explained how the $1,687,250.00 paid by the husband pursuant to the orders of 13th August 2010 and the 10 June 2011 [sic] were used in accordance with the terms of the orders.
12.The learned Judge failed to take into account the evidence of the wife’s solicitor Mr Winter in paragraph 24 of his affidavit sworn on the 8th February 2012 to the effect that if a further substantial sum of money was not awarded the wife would not be able to engage solicitors and Counsel for the trial.
13.The learned Judge erred in not finding that the fact that the husband had available to him sufficient monies, to enable him to be represented by Counsel and solicitors, for the purposes of preparation and attendance at a complex trial and the wife could not, did not amount to circumstances which were just and equitable and as a result sufficient basis for making an award.
Spousal Maintenance
14.The learned Judge erred in failing to give adequate consideration to the evidence in the wife’s affidavit filed on the 8th of December 2011 in relation to the parties [sic] previous lifestyle and the award of $26,021.00 per calendar month.
15.The learned Judge failed to take into account that the amount awarded does not enable the wife to maintain the lifestyle that she was accustomed to during the marriage and that the husband continues to enjoy.
16.The learned Judge’s ruling has discriminated against the wife which has resulted in a deterioration of her social standing and cultural life in disregard of the fact that the husband continues to maintain his while having the benefit of the matrimonial assets.
a) Interim Property
75.The applicant wife sought an order that “the husband pay to the wife by way of further interim property settlement the sum of $24,000,000 or such other amount as the Court deems fit.”
76.In considering the appellant’s claim for further partial property settlement, her Honour had regard, in particular, to the fact that the wife had received “lump sums totalling $12,732,250 by way of interim spouse maintenance, interim property settlement or on account of future costs…” That finding is not challenged on appeal.
77.It is, with respect, difficult to discern what is intended, or contended, by Ground 1. In any event, in its unparticularised form, it does not assert an appealable error.
78.In respect of Ground 2, no argument advanced on behalf of the wife persuades us that her Honour’s reasons were less than adequate. The path by which her Honour arrived at the conclusion which she did is evident in the reasons. No challenge is made to any factual finding made by her Honour. Her Honour’s reasons reveal proper consideration of the fact that the wife had previously received over $12 million by way of interim spouse maintenance, interim property settlement and/or on account of future legal costs since separation and, within that context, had failed to account for about $750,000 which her Honour had ordered by way of future costs in August 2010.
79.Her Honour had proper regard to “…the financial resources of the husband and particularly that he had greater control of substantial funds than the wife” and that the wife had “…care and control of [the parties’ child] and his special needs.” Her Honour’s ultimate conclusion (at [87]) was that:
Carefully considering the matters which are not capable of finally being determined, taking into account the provisions of section 79 and section 75(2), the history of litigation and past financial orders, the Court is not able to be satisfied that at this interim stage that payment of any further monies by way of interim property settlement is just and equitable or appropriate.
80.The reasons for her Honour’s conclusion are more than adequately illuminated. No error is demonstrated in respect of Ground 2.
81.It is observed that Ground 3 relates solely to her Honour’s attribution of weight to one aspect of the evidence in respect of an interlocutory order in respect of which leave to appeal is required.
82.Leaving aside the inherent difficulties attendant upon that fact in attracting leave to appeal, her Honour’s reasons reveal plainly, contrary to that which is asserted in Ground 3, that her Honour was aware of, and gave weight to, “…the financial resources of the husband and particularly that he had greater control of substantial funds than the wife” (see, for example, reasons at [83]).
83.Ground 4 contends that her Honour “conflated” the “procedural and substantive steps” in considering the appellant’s application for interim property settlement. The basis of the wife’s contention remains, despite attempts at its elucidation, somewhat unclear. As eventually summarised, the contention appears to be that, by reference to the recent decision of the High Court in Stanford v Stanford (2012) 247 CLR 108, and in particular what was said by their Honours at [35], [36] and [40], her Honour conflated the s 79(2) task and s 79(4) requirements.
84.It should be observed that her Honour’s reasons were delivered prior to the decision of the High Court in that case. That matter notwithstanding, no error is demonstrated in her Honour’s approach.
85.While Stanford had not yet been decided, her Honour plainly identified that which the decision in that case makes clear should be done in compliance with s 79. In particular, her Honour clearly addressed the question posed by s 79(2) and determined, by reference to a number of factors that any order would not be just and equitable. So much is clear from her Honour’s specific finding at [87] that “…the Court is not able to be satisfied that at this interim stage that payment of any further monies by way of interim property settlement is just and equitable or appropriate”. (emphasis added).
86.It is not asserted that in arriving at that conclusion her Honour took account of irrelevant considerations or failed to take account of relevant considerations. No other error of principle is asserted by the appellant in her Honour’s conclusion.
87.No error is demonstrated in respect of this ground.
88.Ground 5 appears to assert an error of fact. That ground was not pursued in oral submissions, nor do the written submissions elaborate on the nature of the alleged error. We can ascertain no error in the manner alleged in Ground 5.
89.The assertion in Ground 6 is answered simply by reference to her Honour’s reasons and, specifically, her Honour’s finding at [87] referred to above. That finding clearly demonstrates in its terms that her Honour considered the sum sought and, concluded that the ordering of any further sum, was not just and equitable.
90.There is no merit to Ground 6.
b) Interim Costs
91.As can be seen, Grounds 7 to 13 deal with this aspect of the appeal. No ground of appeal asserts that her Honour made any error of principle. It is not asserted that her Honour took account of irrelevant considerations or failed to take account of relevant considerations. No factual finding made by her Honour is the subject of any challenge.
92.Again, it needs to be said that many of the grounds in respect of this aspect of the appeal do not, in terms, particularise any appealable error at all. Again, and with respect to those who drew the Notice of Appeal, many of the grounds in respect of this aspect of the appeal are difficult to understand. In what was taken as, effectively, a concession to each such effect, senior counsel for the applicant wife conceded before this court that this aspect of the appeal is “essentially about reasons”.
93.Contrary to the submissions made on behalf of the appellant, her Honour’s reasons plainly illuminate the path to the ultimate conclusions reached by her Honour.
94.In particular, her Honour was acutely aware of, and sought to emphasise – with respect, properly – the fact that there remained unaccounted for on the wife’s evidence a significant sum emanating from an earlier order in favour of the wife. The wife’s application for additional costs before her Honour was made some six months after this court had allowed an appeal in respect of an earlier application for costs and increased the amount payable by the husband to the wife in respect of future legal costs from $825,000 to some $1,687,250. It is common ground on this appeal that, from that sum, an amount of $300,000 was to be held in court and an additional amount of $75,000 was to be paid to the Independent Children’s Lawyer in respect of the costs of other proceedings. However, as counsel for the respondent pointed out in oral submissions, the wife failed to account for $750,000 of the $1.687 million (being the sum initially ordered by her Honour on 13 August 2010).
95.The transcript of the proceedings on 14 February 2012 reveals both her Honour’s awareness of that fact and the importance her Honour (with respect properly) attached to it:
HER HONOUR: Is there an affidavit which explains where the previous 825 or 550,000 went?
MR BROWN: Yes, your Honour. If your Honour just pardon me for a moment. Paragraph 26, your Honour, of her affidavit and continuing.
HER HONOUR: Sorry, whose affidavit?
MR BROWN: The wife’s.
HER HONOUR: The wife’s affidavit?
…
HER HONOUR: No, I’m talking about the previous moneys that were ordered to be paid by me in – which was the subject of the appeal to the Full Court which created the extra eight hundred and forty
MR BROWN: That was the 750-odd – the net 750.
HER HONOUR: Yes.
MR BROWN: Yes. That was a couple of years ago, your Honour, but there has been material, your Honour – I thought your Honour was referring to the funds received last year, the 840,000-odd.
HER HONOUR: Right. I’ve seen the explanation for that. It’s the previous amounts that were ordered and which were paid as a result of the orders I made before it went to the Full Court.
MR BROWN: There is an affidavit dealing with it, your Honour. Unfortunately, I hadn’t anticipated that question, your Honour. I apologise to your Honour. We will unearth it, your Honour.
Counsel for the respondent before us indicated that the relevant affidavit was not “unearth[ed]” and the transcript of the hearing before her Honour confirms this.
96.Her Honour was, with respect, entirely correct to point out that, in circumstances such as the present, no proper explanation had been given as to the disbursement of the monies ordered in August 2010. This was a powerful consideration and properly so in the context of this litigation. Her Honour properly so found. Nothing to which we have been taken by the appellant suggests that the trial judge made any error in that respect.
97.Further, as submitted by counsel for the respondent in the instant appeal (at 3.4.2.4(a) of the written submissions filed on 30 August 2013):
…the primary judge referred to the order of the Full Court of 10 June 2011, [and] there was a very considerable overlap between the sum of $1.6million … assessed and allowed by the Full Court as the Appellant’s costs of preparation for and representation at the final hearing … In effect, the Appellant in April 2012 claimed again what the Full Court had already allowed her in June 2011. In these circumstances, it was appropriate, if not obligatory, to focus attention on how the Appellant had spent the money already paid and whether the Appellant had shown sufficient reasons to be permitted to claim the same expenses twice.
98.In that respect, her Honour observed (at [100]-[101] of the reasons):
100.The failure of the wife to fully explain the use of approximately $1.2million dollars which was required to be used only for solicitor and counsel fees for Family Court of Australia proceedings is significant. ($1.6 million dollars less $300,000 retained by the Family Court and $75,000 paid to the Independent Children’s Lawyer is approximately $1.2 million dollars).
101.It is also significant that the Full Court of Australia made orders as recently as June 2011 based upon the reasonable anticipated legal costs to be incurred by the wife to the conclusion of these proceedings.
99.No error has been demonstrated in respect of Grounds 7 through to 13.
c) Spousal Maintenance
100.The original application for the wife was framed in a manner that suggested that, by way of interim order pending the trial, the wife ought receive a lump sum of some $2 million by way of spousal maintenance.
101.Her Honour correctly refers to the wife’s submission in that respect at paragraph [104] of the reasons and reproduces there the wife’s contention: “[t]he wife seeks lump sum or periodic payment for 12 months of interim maintenance of ‘$2,000,000 or other such sum as the Court deems fit’” (italics in original). At [110] her Honour referred to [4] of the wife’s affidavit in which she deposes that her current income and expenses “[…]reflects a drastic change in my financial position from that enjoyed by me prior to separation when I had virtually unlimited access to funds from marital income and investments’” (italics in original).
102.It will be appreciated that no application for interim periodic spousal maintenance had been made.
103.The authorities in respect of lump sum maintenance, and in particular interim lump sum maintenance, are well known (see, for example, Vartikian & Vartikian(No. 2) (1984) FLC 91-587, Clauson & Clauson (1995) FLC 92-595 at 81,908 and Vautin & Vautin (1998) FLC 92-827 at 85,423). It seems abundantly clear that her Honour had precisely those principles in mind when her Honour raised with the parties the possibility of a periodic sum (noting that they themselves had not raised it with her Honour):
HER HONOUR: And what if the court were to consider making an order of an amount that would meet some of the wife’s expenses, making an order by way of regular weekly or monthly payments, as distinct from a lump sum? I will ask you first, Mr Berman [counsel for the husband], and then I will hear from Mr Brown [counsel for the wife].
…
HER HONOUR: Well, I want counsel to be clear that I want to hear submissions on the fact that the court might contemplate considering – and I will hear from Mr Brown – an order that required a monthly payment until the trial commences in August of this year. Mr Brown, on that point.
104.It is in that context (as well as the broader context of an interim application pending trial) that her Honour made findings in respect of the reasonable needs of the wife. It is common ground on this appeal that no distinction had been made by the applicant (or indeed the respondent) between what was said to be “expenses” and what was said to be “needs”. It is the latter to which the relevant sections (ss 72-77 and 80) of the Act are directed. The two concepts, and the amounts referable to them, can be different and almost always are (see, for example, Mee & Ferguson (1986) FLC 91-716).
105.Contrary to the contention advanced on behalf of the appellant wife, her Honour was well aware of, and made a specific finding in respect of, the extraordinary standard of living that the parties had enjoyed pre-separation. Her Honour also found (uncontroversially on this appeal) that the parties had been separated for seven years; that the husband had a new partner and new child whom he supported; and that the husband had (at that stage) an unresolved prospect of a significant claim for taxation from the Australian Taxation Office.
106.Within that mixture of facts, her Honour made the following findings (at [122]):
Reducing some of the expense amounts claimed by the wife to those which could be found to be necessary and reasonable taking into account the wife’s standard of living, produces the following figures per week:
Food $1,000.00 (*$1,283)
Entertainment $1,000.00 (*Nil)
Household supplies $500.00 (*$1,210)
Household repairs $220.00
Telephone $165.00
Petrol $41.00
Motor vehicle maintenance $245.00
Fares/car parking $15.00
Clothing and shoes $500.00 (*$1,147)
Children’s activities $346.00
Medical, dental and optical $351.00
Holidays $216.00
Chemist $73.00
Gardening $299.00
Cleaning $227.00
Dry-cleaning $7.00
Books and magazines $36.00
Gifts $14.00
Hairdressing and toiletries $500.00 (*$776)
Other “unknown commitments” (say) $250.00 (*$2,711)
Total: $6,005.00Or $26,021 per calendar month
Items in brackets marked with an * are amounts claimed by the wife which are not accepted as reasonable. Other amounts are as claimed by the wife.
(Bold emphasis and asterisks in original)
107.Her Honour’s findings in the context of interim proceedings for spousal relief – and in the circumstances of this particular case – were well open to her. Nothing to which we have been taken by the appellant suggests any error of principle nor that any substantial injustice has been caused.
108.There is no merit to Grounds 14 through to 16.
Conclusion as to Leave in the Financial Appeal
109.Nothing to which this court has been taken, nor any argument advanced on behalf of the appellant, elucidates any error of principle said to have been made by the trial judge. Nothing to which we have been taken, nor any argument adduced by the appellant, either in respect of written submissions or orally, is persuasive of there being a matter of substantial injustice or an issue of general principle.
110.Leave to appeal in SOA 42 of 2012 should be refused.
Costs
111.Counsel for the husband conceded that an order for costs against the husband in respect of the discontinued appeal in SOA 71 of 2012 “could not [be] opposed”. In the circumstances of this case I consider an order that the husband pay the wife’s costs of and incidental to appeal SOA 71 of 2012 to be just.
112.Similarly, senior counsel for the wife conceded that he could not “oppose a costs order” if any of the appeals were unsuccessful. In the circumstances of this case I consider it just that an order be made for the wife pay the husband costs of and incidental to the appeal in SOA 37 of 2012, SOA 42 of 2012 and SOA 26 of 2013.
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Thackray and Murphy JJ) delivered on 18 December 2013.
Associate:
Date: 18 December 2013
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