Vasser and Taylor-Black
[2010] FamCAFC 36
•11 March 2010
FAMILY COURT OF AUSTRALIA
| VASSER & TAYLOR-BLACK | [2010] FamCAFC 36 |
| FAMILY LAW - APPEAL – FROM A DECISION OF A FAMILY COURT JUDGE – Appellant challenged aspects of the process followed and rulings made in the conduct of the trial – Appellant asserted that the trial Judge wrongly refused an adjournment, erred in requiring the appellant to comply with a timetable drawn up whilst represented and erred in dealing with certain matters that raised legal professional privilege – The trial Judge considered relevant factors in relation to the adjournment – Refusal of adjournment was within discretion and did not cause an injustice – No error arose in the treatment of the trial timetable FAMILY LAW - LEGAL PROFESSIONAL PRIVILEGE GROUNDS – Appellant asserted that the trial Judge erred by accepting in to evidence a document drafted by her, without warning as to the possibility of legal professional privilege – The document set out questions for cross-examination as well as the appellant’s commentary on the family report – Consideration of ‘confidential document’ under the Evidence Act 1995 (Cth) – Not satisfied that the mother was victim of unfairness – Diaries kept by the father were ruled inadmissible due to legal professional privilege – Appellant ultimately sought an opportunity to inspect the diaries rather than place them before the court as evidence – Orders had been made, not raised before the trial Judge, allowing a time for inspection of the diaries – Trial Judge may have made errors in respect of the issues involved in the diaries – Appellant did not show that the ruling in relation to the diaries caused a miscarriage of justice Appeal dismissed – No order as to costs |
| Evidence Act 1995 (Cth) s 117; s 120 |
| Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175 Squire v Rogers (1979) 27 ALR 330 |
| APPELLANT: | Ms VASSER |
| RESPONDENT: | Mr TAYLOR-BLACK |
| INDEPENDENT CHILDREN’S LAWYER: | ALEXANDRA WEARNE |
| APPEAL NUMBER: | EA | 63 | Of | 2008 |
| FILE NUMBER: | SYC | 200 | Of | 2007 |
| DATE DELIVERED: | 11 March 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Warnick, May and O'Ryan JJ |
| HEARING DATE: | 8 December 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 May 2008 |
| LOWER COURT MNC: | [2008] FamCA 335 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Messner |
| SOLICITOR FOR THE APPELLANT: | Turner Freeman Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Simpson SC (with Ms Hausman) |
| SOLICITOR FOR THE RESPONDENT: | Ross A Clarke & Associates |
| COUNSEL FOR THE INTERVENOR: | Ms Cleary |
| SOLICITOR FOR THE INTERVENOR: | Legal Aid Commission of New South Wales |
Orders
That the appeal be dismissed.
That there be no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Vasser & Taylor-Black is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 63 of 2008
File Number: SYC 200 of 2007
| Ms VASSER |
Appellant
And
| Mr TAYLOR-BLACK |
Respondent
REASONS FOR JUDGMENT
After the abandonment of most of the grounds, this appeal does not challenge the findings and conclusions in the reasons for judgment for the orders appealed. It does challenge part of the process followed and some of the rulings made during the conduct of the trial.
The trial was between Mr Taylor-Black and Ms Vasser, over parenting arrangements for their child, born in April 2001.
The parties began litigating about parenting issues shortly after separation (they cohabited only between March 2001 – just before the child’s birth – and November 2002. Following a full defended hearing, Moore J made final orders in March 2004. Her Honour ordered parenting arrangements which, after an introductory period, saw the child living in a shared-care arrangement, approximately equal periods of a few days, until the child commenced school, and then on a week-about basis, with school holidays being shared. Those orders were largely put into effect until the beginning of 2007 when the mother withheld the child from the father.
Thus, the question of parenting arrangements for the child came to be again litigated, over some six days, before Watts J in April and May 2008. Though for much of the time the mother had had legal representation in Family Court proceedings, at this second trial she was unrepresented, save for the purpose of requesting an adjournment.
At trial, an Independent Child’s Lawyer (ICL) appeared. The ICL proposed that the father have sole parental responsibility for the child and that she live with the father, but spend time with the mother.
On 15 May 2008, Watts J made orders, including that the father have sole parental responsibility for the child and that the child live with him, spending time with the mother as prescribed. It is those orders that the mother appeals.
As indicated, the appeal attacks aspects of the conduct of the case by Watts J, these being:
(i)The refusal of a request for an adjournment of the trial;
(ii)A requirement that the unrepresented mother comply with a timetable that was drawn up when the mother was represented;
(iii)The trial judge’s acceptance, without informing the mother of the possible ramifications, of a document prepared by the mother in response to the report of an expert witness;
(iv)The trial judge’s rulings in relation to a claim by the father that his diaries were inadmissible, because they were the subject of legal privilege.
The ICL opposed the appeal as, unsurprisingly, did the father.
refusal of the request for an adjournment
As indicated earlier, at the commencement of the trial on 28 April 2008, counsel Mr Stewart of counsel appeared for the mother to seek an adjournment.
Approaching the trial, the mother had been in receipt of legal aid, but that was withdrawn, this communicated to the mother by letter received by her on 8 April 2008. In view of the withdrawal of aid, the ICL caused the listing of the matter for mention before Watts J on 18 April 2008. On that day, the mother sought an adjournment of the trial, but that was refused. In his reasons for dismissing the application for adjournment made on the first day of trial, Watts J said of events on 18 April 2008:
2.…My view then was that the matter should not be adjourned and that the mother should use the time between then and now to prepare for the presentation of her case.
3.The mother was provided by 11.30am on 18 April 2008, with a folder containing copies of the documents which would be the evidence before me at the hearing and a schedule of the documents to be tendered by the father. She was advised to inspect documents to be tendered in the Exhibits section of the Registry between 18 April and today. The mother was given a copy of the trial timetable.
On 28 April 2008, Mr Stewart argued that, because of her emotional disposition, the mother would have difficulty, perhaps more so than other unrepresented litigants, presenting her own case and challenging that of the father.
Some understanding of the case assists in gauging the force of that submission.
In his reasons for judgment of 15 May 2008, Watts J said of the mother’s withholding of the child from the father in January 2007:
14.The reason was that the mother said that [the child] had made disclosures which raised fresh allegations against the father that the father had sexually interfered with [the child].
At the outset of his reasons, Watts J said of the case:
1.…The central feature of this matter is an allegation raised by the mother…that the father had digitally interfered with [the child’s] vagina…The inquiry focused on whether there was any unacceptable risk that the allegations were true and if not, whether there was an unacceptable risk that the allegations were a product of the mother’s either conscious or unconscious behaviour.
Notwithstanding the allegation, the position of the mother at trial was, as Watts J described it:
18.On 18 October 2007 the mother’s then legal representative indicated that the mother’s position was that she sought that [the child] spend equal time with both her parents on a week about basis without any supervision being required for [the child’s] time with her father.
19.During the final phase of the hearing on 28 April 2008 the mother, who was now unrepresented, confirmed that that was still her position.
When Mr Stewart was addressing Watts J, and his Honour was exploring a proposition by Mr Stewart that the case had complexities which would be difficult for a litigant in person to negotiate, the question of whether the mother intended to pursue allegations of abuse arose and the following exchange occurred:
HIS HONOUR: There’s been a previous full hearing between the parties in relation to [the child]. That’s when the previous allegations were raised.
…
MR STEWART: Yes. Although I understand she is not going to be putting those allegations, the fact that there’s been a history involving certain allegations and an understanding that some inappropriate behaviour may have taken place or may not have taken place, that adds a layer of complexity to the matter which requires some serious contemplation before the cross-examination of the father would take place. In my submission it would be wise in those circumstances for [Ms Vasser] to be represented so that she can deal with those issues sensitively taking into account all legal implications. So what my submission is, is that it is to some extent an unusually complex matter, that she would be disadvantaged, seriously disadvantaged by not being legally represented. That’s [sic] it’s not in her best interest and perhaps not in the best interest of the Court in the sense of having both parties properly represented in determining these issues and they’re the grounds for the application for an adjournment your Honour.
As to the prospect of the mother obtaining legal representation during the period of any adjournment, Watts J asked what Mr Stewart said were the chances of “somebody else running it [her case] for her?” and Mr Stewart responded “At this point in time nobody is in a position to run it for her. She does not have the financial resources”. However, shortly after, Mr Stewart refined his response a little, saying that “…if an adjournment were granted for about a month that she may be in a position to pull together sufficient resources to obtain some legal representation”.
Mr Stewart also indicated that an appeal against the termination of the grant of legal aid was pending. However, in response the ICL said that the mother’s appeal had been refused, though the mother had not been formally advised.
The ICL took a neutral stance to the request for adjournment. The ICL had indicated that in the trial she intended to rely on a report by a Dr M. That report recommended a change to the arrangements ordered in 2004. The ICL proposed that if the trial was adjourned the arrangements recommended by Dr M be put in place as interim orders.
In his reasons for refusing an adjournment of the trial, Watts J said:
4.The mother had nine days from 18 April 2008 to prepare for her presentation at trial and the questions she sought to ask the father’s witnesses and [Dr M].
5.In support of today’s application for an adjournment, Mr Stewart says that it would be better, in a matter of this nature, if the mother was legally represented. He says that the mother has told him that she might be able to cobble together some funds for legal representation if an adjournment of about one month is granted. No evidence is led to provide a foundation for that submission and I have no basis to conclude that such a course is feasible. So far as I know, the mother has done nothing, certainly since her previous lawyer ceased to act for her, to attempt to obtain alternate legal representation for the final hearing.
6.The matter had been set down last year for a six day period.
7.It has again been set down for six days commencing today. I do not have another six days in my diary for at least another four months.
8.As Ms Hausman has pointed out, in dealing with this application I have to have, as a very weighty factor in my mind, the best interests of [the parties’ child]. There is a report of [Dr M] dated 31 August 2007 which is now going stale and the recommendations in that report about [the child] spending time with both parents are significantly different from what is the current situation.
9.This case has an experienced independent children's lawyer who can, to some degree, act as a bulwark against deficiencies in the mother's cross-examination of the father's witnesses. There has been significant preliminary work done on narrowing the issues in this case. That work was done during a time when [Ms Vasser] was legally represented. The issues in this case are of a fairly narrow compass and will turn on what factual findings are made. From my involvement with the mother, I know the mother is an intelligent woman and I accept Ms Hausman’s proposition that she is more familiar than any of us in the courtroom, aside from perhaps the father, of the factual underpinnings that will be the subject of exploration during the final hearing.
10.I think it is important for [the child] that this matter be heard in the time which has now been allocated and, for those reasons, I do not allow the adjournment application.
In her Summary of Argument, Ms Messner, counsel for the mother on the appeal, put a number of propositions:
The Appellant had had very little time to prepare the matter after her legal representation was withdrawn.
This proposition that the mother had little time to prepare for trial was not expressly a point raised by Mr Stewart before Watts J.
The alternative interim application made by the ICL for parenting orders in accordance with the recommendations of [Dr. M] pending the adjournment was never properly considered by His Honour.
The ICL’s proposal was not an application, but merely a submission about interim arrangements for the child if an adjournment was granted. In view of Watts J’s conclusion, it seemed unnecessary for him to consider that proposal.
In response to a comment from the Bench to this effect, Ms Messner reframed the argument to be that, in balancing factors bearing on the request for adjournment, Watts J failed to consider that interim arrangements as suggested by the ICL could be made.
In our view, firstly, in respect of reasons given ex tempore for refusing an adjournment, we would not conclude that, because Watts J did not mention what arrangements could have been put in place for the child if he did grant the adjournment, he did not consider that aspect.
In any event, his Honour expressly referred to the best interests of the child and the impact of [Dr M’s] report.
Throughout the hearing the Appellant consistently refers to her lack of preparedness, lack of experience and lack of understanding of evidence, procedure and legal principles.
Additionally the Appellant was advised at the commencement of the hearing that a … Interpreter was not available. A … Interpreter was subsequently not available for two days. In spite of this liability to the Appellant the hearing was commenced without the interpreter and on the second day the appellant was requested to commence her cross examination of the Respondent.
The Appellant submits that she was not accorded procedural fairness by the refusal of her adjournment application, and by the commencement of the hearing without the presence of an interpreter.
These of course are not assertions about matters that had arisen before Watts J refused the adjournment, but are alleged manifestations of the consequences of refusal of the adjournment. Nonetheless, we make some observations about those assertions now, as they are connected with the argument that Watts J should not have required the mother to comply with a timetable and with the tenor of the appeal ‑ acknowledged by Ms Messner in response to an observation by O’Ryan J – that the grounds of appeal could really be regarded as particularising an overarching proposition that a miscarriage of justice had occurred.
Before Watts J, Mr Stewart did not raise the absence of an interpreter as a ground for adjournment.
In his reasons for judgment for the orders appealed, Watts J made several observations bearing upon the mother’s conduct of her case:
44.On the last days of the final stage of the hearing, the mother had an interpreter available to her. Over the days the interpreter was in the court room he only was asked to interpret a word or two on no more than six occasions. The mother, in my view, competently presented her case in the English language.
…
48.… However the mother, in my view, ran her case in an extremely competent way. …
Save for what is raised in the other arguments already adumbrated, and later discussed, Ms Messner did not take us to any instance in which the mother’s lack of preparedness or understanding allegedly produced an injustice.
In Squire v Rogers (1979) 27 ALR 330, sitting in the Full Court of the Federal Court, Deane J (as he then was) said of the treatment of applications for adjournment (at p 337):
The question whether an application for adjournment of a matter should be granted or refused is a matter within the discretion of the trial judge to be resolved according to the overall requirements of justice in the particular circumstances: Conroy v Conroy [1917] 17 SR (NSW) 680 at 682. Its resolution may involve the assessment of competing claims by litigants in other cases awaiting hearing in the list of the particular judge or the particular court and may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing. A court of appeal will not, as a general rule, interfere with the decision of a judge of first instance on that question unless it is satisfied that the exercise of his discretion has miscarried in the sense that it had been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material before him. This general rule is subject to any power of the particular appellate court to receive new evidence on the hearing of an appeal (see, for example, Federal Court of Australia Act 1976 s 27) and the benefit of hindsight in a case where it can be seen that serious injustice has resulted or will, in fact, result from the exercise of the discretion.
We are satisfied that the refusal of the adjournment was well within Watts J’s discretion and was adequately explained by him.
We are not satisfied that with the benefit of hindsight of the course of the trial, refusal of the adjournment caused an injustice.
the requirement that the unrepresented mother comply with a timetable that was drawn up when the mother was represented
There is no merit in this argument for the reasons that follow.
As earlier indicated, a copy of the timetable was made available to the mother on 18 April 2008.
As often happens, the timetable was not rigidly applied during the hearing. Some witnesses, for whom allowance was made, were not required for cross-examination. On at least two occasions, the mother was granted extensions of the time available for her to cross-examine the father. On more than one occasion during the trial, including on the first day of trial, Watts J reminded the mother that she should ensure that she conduct her cross-examination so that she covered topics in descending order of importance. Indeed, at the end of the mother’s cross-examination of the father, Watts J referred to having so advised the mother at the mention on 18 April 2008. Though Ms Messner pointed out that the mother complained that her cross-examination of the father was curtailed, Ms Messner did not take us to any indication that, by the end of her cross-examination of the father, the mother had not been able to pursue any particular topic, let alone any topic of significance or likely significance to the outcome.
Ms Messner informs us that, when the time devoted to discussion, for example between Bench and the mother about explanation of legal principle, was deducted from cross-examination, the mother had only half an hour longer to cross-examine the father, than had counsel for the father to cross-examine the mother. The implication is that somehow that was unfair to the mother. This submission is based on a supposition that the unrepresented mother would necessarily need longer to cross-examine the father than counsel representing the father would need to cross-examine the mother. There are many unstated assumptions underpinning that proposition, which we reject.
Ms Messner submits that, throughout the transcript, there are statements by the mother of her concerns about how much time that she had left, what she was supposed to do, whether she would be disadvantaged, how much time would she have with any one witness, and so on. Of themselves, such instances do not demonstrate any lack of fairness.
In her written submissions, Ms Messner refers to a passage in the judgment of Dawson, Gaudron and McHugh JJ in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 where their Honours said at 154:
Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.
Much of what was said in J L Holdings has been disapproved of in Aon Risk Services Australia Ltd. v Australian National University. (2009) 239 CLR 175. There, French CJ said:
30.It might be thought a truism that “case management principles” should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, J L Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions…
In our view, no error arose from the way Watts J treated compliance by the mother with a trial timetable.
the trial judge’s acceptance, without informing the mother of the possible ramifications, of a document prepared by the mother in response to the report of Dr M
On the final day of the hearing, the mother sought to tender a 52 page document in response to the report of Dr M. Watts J later described the document in these terms:
…Now, you have this morning provided me with a 52-page document which is a hybrid document relating to [Dr M’s] report. In part it is your commentary on her report, in part it raises questions, in part it seeks to provide further information about material that you may not have mentioned to [Dr M] and in part it’s a critique of things you say [Dr M] has got wrong in her report factually. Now, it’s in evidence. All of this material that you put here is in evidence. It’s before me now so – and Ms Hausman didn’t object to it becoming evidence – so I’ve got your version now of new – of the facts that are in this document. …
In her written summary, Ms Messner states:
The Appellant submits that a cursory inspection of this document, and further questioning of the Appellant as to the circumstances of the preparation of this document may have revealed that the purpose of its preparation was to provide her with questions for her cross-examination of [Dr. M]”. If that is correct then under Section 120 of the Evidence Act that document could have been privileged.
The Appellant submits that His Honour failed to provide her with procedural fairness in not ascertaining the reason behind the preparation of that document, and it [sic] not advising her that she may wish to seek legal advice before tendering that particular document. This is contrary to the revised guidelines for dealing with litigants in person as set out in Re F: Litigants in Person Guidelines (2001) FLC 93-072 (4 June 2001), in particular:
If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;
Section 120 of the Evidence Act 1995 (Cth), as amended, provides:
(1) Evidence is not to be adduced if, on objection by a party who is not represented in the proceedings by a lawyer, the court finds that adducing the evidence would result in disclosure of:
(a)…
(b)the contents of a confidential document (whether delivered or not) that was prepared, either by or at the direction or request of, the party; …
We are by no means convinced that the document was a confidential document, defined in s 117 of the Evidence Act as:
Confidential document means a document prepared in such circumstances that, when it was prepared:
(a) the person who prepared it; or
(b) the person for whom it was prepared;
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
Further, we think there is some strength in the submission of Mr Simpson SC, counsel for the father, that insofar as the document contained the mother’s questions for cross-examination of Dr M, the mother either did, or would have but for the document received, put the content to Dr M in any event.
In any event, as to the submission that his Honour’s handling of the mother’s request to tender the document contravened the guidelines for dealing with litigants in person as set out in Re F: Litigants in Person Guidelines (2001) FLC 93-072, we observe firstly, that the guidelines are no more than that.
Secondly, the particular guideline to which Ms Messner refers is directed to informing an unrepresented litigant of a possible claim of privilege arising in respect of either material tendered against the litigant, or a question asked of the litigant. Here, the mother herself put forward the document.
Ms Messner argues that the receipt of the document which was then read by Dr M worked against the mother, because Dr M placed some weight on it in forming an opinion of the mother. We accept that submission. Dr M indicated that she had changed her mind about the best approach to moving from the week-about arrangement to the child spending the majority of time with the father (which Dr M recommended). She said that whereas she had thought the move should be made gradually, having read the document that the mother tendered, she thought there would be no point in a gradual introduction. She said “it would lead to - be an opportunity for the father to be run down and the subject of further allegations…”. Later, she added:
What led me to change my mind was the amount of distortion that’s in the document and the repeated examples of your kind of narcissistic pathology.
However, we do not accept that the mother was a victim of unfairness. The conclusion that Dr M drew was from what the mother put forward as her own evidence (and/or questions that she wished to ask of Dr M).
The trial judge’s rulings in relation to a claim by the father that his diaries were inadmissible, because they were the subject of legal privilege
In the end, for the reasons that follow, we think that, as a ground of appeal against final orders, this argument fails.
In short:
·The mother still has not seen the diaries. She and we cannot know if there is anything in them which would have made even the slightest difference to the outcome at trial. There seems no reason to think that diaries maintained by the father would more probably than not contain anything to advance the mother’s cause.
·We do not see that the interests of justice would be served by sending the parenting orders for rehearing, because inspection of diaries merely might have produced something which assisted the mother in her cause.
·Though, as later explained, we think the trial judge was led into and/or made errors in respect of the issues that arose, the mother may well still have failed in obtaining inspection of the father’s diaries.
·The mother has not shown that there has been a miscarriage of justice, due in whole or in part to the ruling challenged.
The issue about the diaries arose in the following way.
On 8 February 2007 the father had been interviewed by police in relation to the mother’s allegations of abuse of the child. In the course of that interview, the father had referred to diaries which he kept. The father said to the police:
I have diaries of absolute [sic] everything that I do that concerns [the mother] and myself…
When asked what made him start making diaries he responded:
I was advised to by my family law solicitor.
The father actually read into the record of interview his diary entry related to a particular date. Later on in the interview, the following exchange in relation to the diaries, occurred:
CONSTABLE [S]: …do you have a problem with us seizing the diaries in regards to the history since 2003 of you and your daughter, …?
A Yes.
…
Q112 What are your concerns with regard to it?
…
A …there will be a final hearing in the next few months and I actually need these books for that matter.
…
A Well, I’m prepared to let you photocopy whatever you want to photocopy, …
When cross-examining the father on the afternoon of the second day of the trial, the mother asked him about matters related to alleged abuse by him of the child. She asked a series of questions about the diaries, and then said to Watts J:
…may we request the diary of [Mr Taylor-Black] to be presented as evidence, ….
In the exchanges that followed, Watts J, correctly in our view, identified that what the mother really sought was not to present the diaries as evidence, but the opportunity to inspect the diaries, and he dealt with the issue on that basis. Thus, despite the way the mother framed her request to the trial judge, the ground of appeal containing the argument under discussion does not attack any finding incorrectly ruling that evidence tendered was inadmissible, but rather that inspection of documents would be declined because the material concerned was privileged.
Watts J also enquired whether the diaries had been produced or discovered previously. He was given rather vague and, as we can now see, incorrect information. The mother indicated that before a judicial officer, perhaps Watts J, in the preceding year, a request had been made to see the diaries and the mother was “allowed without objection”. What the mother then said about whether Ms Messner then saw the diaries is unclear. The father’s counsel before Watts J said that the mother’s information was “perhaps half right”. She added:
MS [HAUSMAN]: Well, your Honour I would object to that, first of all, if I could say that it seems on the evidence that these were kept by [Mr Taylor-Black] on the basis of legal advice that he was given. In the case of further litigation arising, that would be the first thing, so I would say that they would certainly be – well, certainly in my submissions, they would fall under – they would be privileged under that. Secondly, it’s not in response to any particular matter, it is just a call at large, almost like a fishing expedition, to [go] through documents that haven’t been shown to have any particular relevance to any particular matter that is before the Court. So, on those bases, I would object to the production of the books.
…
Speaking of what had happened in the previous year in relation to the diaries, she said:
MS [HAUSMAN]: …I think that at that stage Mr Clark told Mr Shehadi that the diaries would be available at Mr Clark’s office, if somebody wanted to come around and have a look at them, and I think nobody did come to look at them. Nothing was followed up. …
That gave rise to the following exchange:
HIS HONOUR: Well, isn’t that a waiver of your privilege then, if you have made that offer?
MS [HAUSMAN]: Well, since that time, your Honour, my understanding is that the books were prepared on the advice from his lawyer in relation to the possibility of future litigation.
…
HIS HONOUR: Have the diaries been used in any way for the purpose of the preparation of the affidavit that has been published?
MS [HAUSMAN]: No, I’m told.
HIS HONOUR: …[Ms Vasser], a claim for legal professional privilege is being made, at least so far as the diaries are concerned, from January ’07 onwards I am told that an offer was made to look at the diaries that existed up until that point of time, so, just so, I am clear about this, Ms Hausman, are you claiming privilege in relation to the diaries prior to January ’07?
MS [HAUSMAN]: Yes, all of the diaries, because they were maintained, and it is the evidence of [Mr Taylor-Black], since the last proceedings, on advice, and in contemplation of potentially future litigation.
HIS HONOUR: But the offer that was made by your client for inspection, does that amount to a waiver of the privilege, so far as the diaries were concerned up to January ’07?
MS [HAUSMAN]: Well, your Honour I wouldn’t see it that way.
HIS HONOUR: Well, just let me have a look at section 122. [Ms Vasser], there is a claim for legal professional privilege in relation to the diaries. What that means is that if a document is prepared for the purposes of litigation by a person, the dominant purpose is connected with being provided legal services in relation to pending proceedings, then a person can do that with their lawyer without that document having to be disclosed. Now, I think it is clear from the police transcript at least that is in evidence, that that was the primary purpose these diaries were being kept. Now, the question is whether or not that privilege has been lost as a result of the offer that was made by Mr Clark and Mr Shehadi, so far as the diaries are concerned that exist up until January ’07. Now, the question of whether or not there has been a publication, is a fairly interesting question. The Act says that privilege is lost if there has been a knowing and voluntary disclosure of the substance of the evidence. Now, there would have been if Mr Shehadi had taken up the offer and looked at them, but that didn’t happen, so, in fact there hasn’t been a disclosure because there was no inspection. Now, the offer clearly has been withdrawn, that is the offer to look at them has been withdrawn, and I do not think on what I have been told that there has been a publication, a knowing and voluntary disclosure. So, I don’t think you have got the right to look at them.
…
HIS HONOUR: Well, I mean, it might be another thing entirely, if you can demonstrate to me that JIRT have copies of these diaries, that they have in fact been published, but the evidence from the father was inconclusive as to whether or not they photocopied them. I mean they may well have. They seem to have intended to, that is the diaries that exist up till February. But the father said he wasn’t aware that that had happened. So, that if that had happened, the diaries are published and there is no privilege, then you can look at them, but I don’t know as we sit here now, whether or not that even happened.
The court’s attention then turned to other matters.
We have been provided with much greater particularity than was provided to Watts J with regard to what happened about prior inspection of the diaries. Indeed, included in the appeal book is an order made by Watts J on 4 May 2007, when all parties were legally represented, which included:
7.The solicitor for the father will ensure that relevant pages of the father’s diary, indicating entries by the father relating to his interaction with the mother and [the child] since March 2003, are tabbed.
8.Within the next 10 days the solicitor for the father inform the solicitor for the mother and the Independent Children’s lawyer, as to the availability of the father’s diaries for inspection.
9.The solicitor for the mother and the Independent Children’s Lawyer can, by appointment during normal office hours, carry out an inspection of the diaries at the premises of the father’s solicitors and request photocopies.
10.The party requesting photocopying will pay for the photocopying at 50 cents per page.
No party argues that we should not have regard to the order.
We have not been told anything of the terms of any application leading to the orders, or of any response or of material in support of that response. We have been told that these orders were in fact consented to by the parties, though such a circumstance does not appear on the face of the order. We have also been told that there was no discussion between the parties about legal professional privilege.
We have been told that shortly after the orders were made, a letter was forwarded by the solicitors for the father to solicitors for the mother and the ICL, saying that order 7 had been complied with and that the diaries were available for inspection.
In the light of what we now know (but which Watts J did not) of the order of 4 May 2007, we think that his Honour’s consideration of the question of inspection of the diaries was flawed.
On the face of it, the mother was in a position simply to enforce the order for inspection. She was not limited by those orders as to time to inspect.
Further, while we reject Ms Messner’s submission that the claim of privilege by the father should have been made by way of written application, heard only after a period of proper notice, we think the approach that his Honour took to determining the question of privilege had some questionable aspects. In so saying, we bear in mind that an appeal court examining the determination at trial of a question of admissibility of material or the production of or inspection of documents ought bear in mind the immediacy with which such questions arise and are generally determined. However, we think that real difficulties for the mother as an unrepresented litigant were overlooked.
Counsel for the father asserted various factual matters from the bar table. She asserted that the diaries were “kept by [Mr Taylor-Black] on the basis of legal advice that he was given in the case of further litigation arising”. She did not identify the material upon which she relied for that assertion or any other assertion made in relation to the claim of legal privilege.
Mr Simpson SC argues that the mother raised no objection to the manner in which counsel for the father informed the court, nor as to the content of that information. However, we think that there was a need for the issues and options to be made clear to the mother.
The consequences of that not being done include that the mother had no opportunity to consider whether to put on any material or to ask, albeit unusually, to cross-examine the father.
As earlier seen, Watts J alluded to the uncertainty over whether the police had copied the diaries or not. Given the opportunity, the mother may have wished to explore whether or not copies had been made.
Further, it will be noted that his Honour made an enquiry of Ms Hausman as to whether the diaries had been used in any way for the purpose of preparation for the affidavits that had been published and was told that counsel’s instructions were that that had not occurred. The mother was not asked whether she wished to make any submission about that aspect. Ms Messner has pointed to statements by the father which might well have been relied on in opposition to Ms Hausman’s submission.
Evidence before Watts J indicated that the diaries were kept from 2003 to at least 2007. Privilege was claimed in respect of all of the diaries. Counsel indicated that the privilege was claimed because of the evidence of the father that since the last proceeding, the diaries were maintained on advice and in contemplation of potentially future litigation. Again, the mother was not asked her response to that claim. The father’s statement to the police that he was advised by his family law solicitor to keep diaries does not necessarily imply a purpose for which the diaries might be kept. Different considerations as to whether litigation was pending or anticipated, rather than merely being a possibility, may well have applied at different points in time over the period the diaries were kept.
Thus, we consider that the approach to the determination of the mother’s request, effectively to inspect the diaries, was deficient.
In addition to the arguments before us about the process by which the legal privilege question was resolved, counsel for each party argued the question of legal privilege, as if for us to determine it. We do not intend to do so.
There was some argument about:
·Whether the order for inspection of the diaries remained alive or not, or whether later procedural orders, for example, for inspection of subpoenaed documents, meant that the 4 May 2007 orders had “expired” or been “extinguished”;
·Whether, absent physical examination of the diaries by someone other than the father or his advisors, the offer to the police to copy and/or the order of 4 May 2007, constituted waiver of privilege;
·Whether that point, not having been raised by the mother before Watts J, could be argued now;
·Whether, in relation to the offer to the police that they could copy the diaries, disclosure was involuntary, because of the police powers of seizure.
·Whether Watts J’s reasons on the privilege point were inadequate.
As we have said, the approach taken by the trial judge did not provide an opportunity for the mother to address certain matters or to test propositions put forward by counsel for the father, or put on evidence of her own. We think it undesirable for us to rule on whether legal professional privilege applied or not, based on a process which largely remains affected by a less than fair approach below.
Furthermore, as stated at the outset of discussion of this ground, the critical question in this appeal is not whether the diaries were privileged or not, but whether, even assuming inspection was wrongly denied, or the process of determining that question flawed, the parenting orders of 15 May 2008 should be set aside.
As stated at the outset of discussion of this argument, what the mother was refused was a chance to inspect documents. Whether the contents would have helped her cause is unknown.
Leaving aside the father’s claim of privilege, there were several grounds upon which the mother’s request might well have been refused. She had the opportunity to inspect from late May 2007. The request to inspect was made to Watts J well into the trial. Inspection, let alone questions possibly arising, could well have prevented the trial finishing within the time allocated. The issue to be agitated at trial had been refined while the mother was legally represented. Inspection may have been of no use to the mother.
We do not consider that the refusal of the mother’s request constitutes a miscarriage of justice in the trial proceedings leading to the orders appealed.
In any event, the application to inspect was in the nature of an interlocutory application. The mother would require leave to appeal and need to show error of principle and/or substantial hardship. Given the matters to which we have just referred, we are unable to conclude that if leave is or was necessary, such leave should be given.
Conclusion
As indicated earlier in these reasons, Ms Messner accepted that the points that she raised could be seen as particulars of an assertion that the trial process had miscarried. We are not satisfied that that argument has been made out, whether the points are taken individually or together. The appeal should be dismissed.
Costs
In the event, both the father and the ICL seek costs, Ms Messner advises (without objection) that the mother is of limited means.
On the extremely limited material bearing on the factors for consideration, notwithstanding the result of the appeal, we do not perceive that an order for costs is justified.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Warnick.
Associate:
Date: 11 March 2010
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