Wei & Xia (No 3)
[2022] FedCFamC1F 195
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wei & Xia (No 3) [2022] FedCFamC1F 195
File number(s): SYC 196 of 2017 Judgment of: HARPER J Date of judgment: 29 March 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena objection – Where Applicant Wife issued subpoena to Second and Third Respondent’s solicitor – Wife argues legal privilege waived as result of affidavit filed by the respondent’s solicitor – Where privilege had not been waived – Subpoena set aside. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67 Cases cited: Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
Osland v Secretary to the Department of Justice (2008) 234 CLR 275; [2008] HCA 37Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: On the papers Place: Sydney Solicitor for the Applicant: Broaden Legal The First Respondent: Litigant in Person Counsel for the Second and Third Respondents: Mr Reynolds Solicitor for the Second and Third Respondents: MLH Lawyers ORDERS
SYC 196 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WEI
Applicant
AND: MR XIA
First Respondent
MR B XIA
Second Respondent
MS SIANG
Third Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
25 MARCH 2022
THE COURT ORDERS THAT:
1.The subpoena issued to “The Proper Officer, MLH Lawyers Pty Ltd” by the Applicant Wife, be set aside.
2.By no later than 6.00pm on 29 March 2022, the First Respondent Husband provide to the solicitors for the Applicant Wife and Second and Third Respondents, a proposal for the manner in which he may be cross-examined if located in China, together with clear instructions as to what documents he has in his possession which are relevant to the case and have been provided to him by any other parties, and how he proposes to access said documents during cross-examination.
THE COURT NOTES THAT:
A.In the event that the First Respondent Husband fails to comply with Order 2, or otherwise fails to make himself available for cross-examination in a manner which the court deems effectual, the court will give consideration to proceeding to judgment without receiving into evidence any of his affidavits.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wei & Xia has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
These are complex property proceedings in which the Applicant Wife (“the wife”) seeks property adjustment orders. They have a long history which is unnecessary to rehearse for the purposes of this judgment.
On 3 March 2022, the wife issued a subpoena to “The Proper Officer, MLH Lawyers Pty Ltd”. MLH Lawyers are the solicitors on the record for the Second and Third Respondents, who are the parents of the First Respondent Husband. I will refer to them as the respondent parents for the purpose of this judgment.
The schedule to the subpoena seeks the following documents.
1. A copy of this subpoena
2. Documents referred to in Mr FF's affidavit sworn or affirmed 8 February 2022 in these proceedings, and documents which touch upon or concern those documents, in relation to the preparation of Ms Siang or Mr B Xia's affidavit sworn or affirmed 7 February 2022, including but without limiting the generality of the foregoing:
a. Briefs to counsel;
b. Memoranda or correspondence to or from counsel;
c. Notes taken in or of any conferences with counsel;
d. Notes taken in or of any conferences with Ms Siang or Mr B Xia;
e. Notes taken in or of any conference with any third parties;
f. Your correspondence to and from Ms Siang or Mr B Xia;
g. Your correspondence to and from any third parties;
h. Records of all advice provided to Ms Siang or Mr B Xia;
i. The "first draft affidavit for both the second and third respondent" (paragraph 25 of Mr FF's affidavit sworn or affirmed 8 February 2022);
j. List of supporting documents required (paragraph 26 of Mr FF's affidavit sworn or affirmed 8 February 2022);
k. "Further list of information" (paragraph 26 of Mr FF's affidavit sworn or affirmed 8 February 2022); and
l. "Further supporting documents" (paragraph 26 of Mr FF's affidavit sworn or affirmed 8 February 2022), between 1 July 2021 and 7 February 2022.
between 1 July 2021 and 7 February 2022.
The respondent parents object to production and seek an order that the subpoena be set aside. They rely upon five grounds, namely:
(a)The documents have not been identified with reasonable particularity;
(b)No legitimate forensic purposes have been identified;
(c)The subpoena is a fishing expedition or substitute for discovery;
(d)The subpoena is oppressive and inconsistent with the overarching purpose of s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth); and
(e)The documents sought are privileged and there has not been a waiver of privilege.
For the reasons which follow, I am satisfied that the subpoena should be set aside.
It is only necessary to consider the arguments concerning client legal privilege. The wife accepts that all the documents sought in the schedule to the subpoena attract client legal privilege. However, she contends that the privilege has been waived. The principles relevant to waiver of client legal privilege are well known. In Mann v Carnell (1999) 201 CLR 1 the High Court said at [28]:
Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and the maintenance of the confidentiality which effects a waiver of the privilege.
At [29], the High Court went on to articulate the test as to what may bring about a waiver as
… the inconsistency which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and the maintenance of the confidentiality; not some overriding principle operating at large.
These principles have been applied many times in this jurisdiction and other jurisdictions.
Later in Osland v Secretary to the Department of Justice (2008) 234 CLR 275, the High Court said at [45] that the privilege which the principle is meant to protect “is to be made in the context and circumstances of the case, and in light of any considerations of fairness arising from that context or those circumstances.” The Court further stated at [49] that “questions of waiver are matters of fact and degree.”
The wife argues that waiver in the circumstances of this case has come about by reason of certain paragraphs of an affidavit sworn by the respondent parents’ solicitor, Mr FF, on 8 February 2022. Specifically, she relies upon paragraphs 25 and 26 of that affidavit, which are as follows:
25. On or around 6 July 2021 working together with counsel, and after a conference with the Respondents, I had a first draft affidavit for both the Third and the Fourth Respondents ready. However, at this point a number of supporting documents and further instructions were still required from the Respondents.
26. By around mid-July 2021, I compiled and summarised a list of supporting documents and information required, and translated the same Into the Chinese language in order to obtain further instructions from the Respondents. Following discussions with the Third Respondent, further list of information was provided to them in August 2021.
The wife argues that these paragraphs impliedly made an assertion about an otherwise privileged communication, in that they put in issue, by implication, that the supporting documents referred to in paragraph 25 and the list of documents referred to in paragraph 26 provided a proper basis to explain the delay in the respondent parents preparing their affidavits. I note here that the purpose of Mr FF’s affidavit, sworn on 8 February 2022, was to explain why the respondent parents have sought to file and rely upon affidavits which are some six months outside the directions made by the court.
Putting to one side for present purposes whether the court will be persuaded that they are entitled to rely upon those affidavits, the point here is that in explaining their lateness, Mr FF set out the evidence in paragraphs 25 and 26.
I do not accept, in accordance with the principles set out above, that there has been conduct which is inconsistent with the maintenance of any privilege. In my view, paragraphs 25 and 26 do no more than identify certain steps taken in July and August 2021 in relation to the preparation of the respondent parents’ late affidavits. There is nothing in those paragraphs which indicate what the contents of the documents referred to are, or that those contents are connected in any particular way to the lateness of the affidavits.
In my view, neither paragraph creates an inaccurate perception of protected communications.
In those circumstances, I am not satisfied that there has been a waiver of privilege established as contended for by the wife. It follows, necessarily, that the documents sought in the schedule to the subpoena are protected by client legal privilege and that the subpoena should therefore be set aside.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Harper delivered on 29 March 2022. Associate:
Dated: 28 April 2022
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