T & D

Case [2006] FamCA 1560 3 March 2006

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[2006] FamCA 1560

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

No. SYF.3096 of 2004

IN THE MATTER OF:

MR T

Husband

- and -

MS D

Wife

REASONS FOR JUDGMENT

BEFORE:  Justice Le Poer Trench
HEARD:  27 February 2006
JUDGMENT:  3 March 2006

APPEARANCES:

Mr Richardson

Mr Lloyd

of Senior Counsel, instructed by Barkus Edwards Doolan, appeared on behalf of the Applicant Husband.

of counsel, instructed by Karras Partners, appeared on behalf of the Respondent Wife.

Catchwords FAMILY LAW – LEGAL PROFESSIONAL PRIVILEGE - waiver

Legislation considered

Cases considered

The application before the Court is contained in exhibit “H5” a handwritten application made by the husband at the commencement of the hearing listed before me today. The matters which had been listed for determination by me in this matter on the 27^th February 2006 are contained in a Minute of Order filed in Court by the husband and identified as exhibit “H4”. Many of the orders sought in exhibit “H4” can now be made by consent, however, there are remaining disputes relating to costs orders including an application for interim costs to be paid by the husband to the wife in the sum of approximately $75,500. Mr Richardson SC for the husband says that it is necessary for me to determine the application in exhibit “H5” before I move to determine the remaining disputed matters embodied in exhibit “H4”.

The application is provoked, says the husband, by the first two sentences of paragraph 10 of the affidavit of Bill George Karras sworn 24^th November 2005. Those two sentences are as follows:-

“The wife has instructed me that she (sic) in a poor state of health and that she was diagnosed with breast cancer in 2003. In August this year she was discovered to have a boney (sic) secondary involvement from her breast cancer, when x-rays and scans disclosed that the disease had moved to the pelvis” (the bold lettering and underlining have been inserted by me to show the two distinct issues.)

The husband submits that the disclosure of instruction and the information disclosed in the second sentence above set out, amounts to a waiver of legal professional privilege. He asserts that the state of the wife’s health is a very significant issue in the case. In particular there seems to me, having regard to the evidence placed before me and the submissions made, that the issue relating to the wife’s life expectancy has been identified as an issue in this case for a considerable time.

Mr Richardson referred me to the case of H and N (unreported) being a decision of mine delivered on 8^th April 2003. I will refer to this case shortly. He also referred me to passages in the case of Telstra v. BT Australia (1998) 85 FCR 152 being a decision of the Full Court of the Federal Court of Australia. In particular he took me to a passage which appears at paragraph “E” on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: T & D [2006] FamCA 1560
Case: [2006] FamCA 1560
Decision Date: 3 March 2006

CaseChat Overview and Summary

The case of *T & D* concerned a dispute between the parties regarding the interpretation and application of a settlement agreement. The matter came before Le Poer Trench J in the Supreme Court of Victoria.

The central legal issue before the Court was whether the respondent had breached the terms of the settlement agreement by failing to make certain payments as stipulated. This required the Court to construe the relevant clauses of the agreement and determine the parties' respective obligations and entitlements.

Le Poer Trench J examined the language of the settlement agreement, considering its plain meaning in light of the surrounding circumstances. The Court applied principles of contractual interpretation, focusing on the intention of the parties as evidenced by the written terms. The Judge found that the respondent had indeed failed to comply with its payment obligations under the agreement.

Consequently, Le Poer Trench J made orders in favour of the applicant, enforcing the terms of the settlement agreement and directing the respondent to make the outstanding payments.

Orders