Willmann &Willmann (No 6)

[2023] FedCFamC1F 197

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Willmann &Willmann (No 6) [2023] FedCFamC1F 197

File number(s):

SYC 6037 of 2021

Judgment of:

SCHONELL J

Date of judgment:

23 March 2023

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Privilege – Where a subpoena had been issued to a litigation funder for production of documents provided by the husband and his solicitors – Where the husband claims privilege to those documents – Consideration of whether the documents are subject to legal professional privilege and whether there has been a waiver – Where the documents fall within the ambit of privilege – Where the Court is satisfied that there has been a waiver of privilege for a few documents – Leave granted to inspect those documents only.   

Legislation:

Evidence Act 1995 (Cth) ss 118, 119

Cases cited:

Bulk Materials (Coal Handling) Services Pty Ltd v Coal and Allied Operations Pty Ltd [1998] 13 NSWLR 689

Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66

Re Global Medical Imaging Management Ltd (in liq) [2001] NSWSC 476

Division:

Division 1 First Instance

Number of paragraphs:

18

Date of hearing:

23 March 2023

Place:

Sydney

Counsel for the Applicant:

Mr Mathews

Solicitor for the Applicant:

Barkus Doolan Winning

Counsel for the First Respondent:

Mr Williams SC

Solicitor for the First Respondent:

Watts McCray

Counsel for the Second and Third Respondents:

Mr Moses SC with Ms Petrie

Solicitor for the Second and Third Respondents:

Pigdon Norgate Family Lawyers

ORDERS

SYC 6037 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS WILLMANN

Applicant

AND:

MR WILLMANN

First Respondent

MR ANDREWS

Second Respondent

MS ANDREWS

Third Respondent

order made by:	SCHONELL J
DATE OF ORDER:	23 MARCH 2023

THE COURT ORDERS THAT:

1.Leave is granted to the second and third respondents to inspect documents identified as numbers 3 and 22 in Exhibit 1 and otherwise uphold the claim for privilege to the balance of the documents in Exhibit 1.

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  Willmann & Willmann has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

SCHONELL J:

1. The parties to this litigation are presently involved in a hearing before a judge of Division 1 of this Court. In that respect I am informed that the husband is still being cross-examined. A subpoena has been issued to a litigation funder for production of documents provided to that funder by the husband and by the husband’s solicitors.

2. The husband claims privilege in relation to those documents. Given that the proceedings are at present being determined by the other judge to whom I referred to earlier, the claim for privilege has been referred to me for determination. It has some urgency and on that basis I give these ex tempore reasons.

3. The documents the subject of the claim for privilege are Exhibit 1 in this application. Exhibit 1 is to the following effect:

   SCHEDULE OF PRIVILEGE DOCUMENTS – HUSBAND’S CLAIM

   Prepared based on “MO-1” to Affidavit of Mr O filed 17 March 2023

No	Date	Electronic file name	Description of document	Basis of privilege	Second & Third Respondent’s position
1. 3	12.10.2022	Correspondents from Mr O dated 12 October 2022 RE WILLMANN WILLMANN – FAMILY LAW MATTER 239621	Email between Mr O and Mr T re discussion of issues with budget	Litigation privilege	Production pressed.
22.	17.10.2022	Correspondence from Mr Willmann dated 13 October 2022 Re WILLMANN – Matter of Willmann – commercial terms for funding	Email from Mr Willmann to Mr T re negotiating reduction in Funding Fee percentage, commercial terms for funding (follows email from Mr Willmann to Mr T re the legal issues in the proceedings, potential outcomes compared to funding fee)	Legal advice privilege Litigation privilege	Production pressed.
56.	21.11.2022	Correspondence from Ms U dated 21 November 2022 Matter 239621 – Willmann Willmann – Property Parenting	Email from Ms U to Mr T enclosing hyper-link to brief	Litigation privilege	Production pressed.
97.	06.10.2022	Correspondence to Mr Willmann dated 2 October 2022 RE update.msg4	Email from Mr T to Mr Willmann re meeting (follows email chain with Mr Willmann on thoughts on counsel and meeting with Watts McCray)	Litigation privilege	Production pressed.
98.	13.10.2022	Correspondence to Mr Willmann dated 12 October 2022 FW WILLMANN WILLMANN – FAMILY LAW MATTER 239621	Email from Mr T to Mr Willmann re email from Ms V of 13.10.2022 with views on application filed)	Litigation privilege	Production pressed.
118.	21.09.2022	Correspondence to Mr Willmann dated 21 September 2022 RE Willmann Orders	Email from Mr T to Mr W re costs application, counsel	Litigation privilege	Production pressed.
119.	21.09.2022	Correspondence to Mr Willmann dated 31 August 2022 RE Willmann Orders	Email from Mr T to Mr W re costs application, counsel	Litigation privilege	Production pressed.

1. The documents the subject of the claim cover a period between 31 August 2022 and 21 November 2022, albeit I accept that they may in fact cover greater periods of time than just what are identified on the face of the document. They include correspondence between the husband and the litigation funder and the husband’s lawyers and the litigation funder.

2. It is contended by Mr Williams SC that all of the documents are covered by either litigation privilege pursuant to s 119 of the Evidence Act 1995 (Cth) (“the Evidence Act”) or legal advice privilege pursuant to s 118 of the Evidence Act. I am not satisfied that the Evidence Act has any relevance to this application. Sections 118 and 119 are specifically directed to the adducing of evidence. I am not ruling on that issue. I am only concerned with the common law position, namely whether the documents are the subject of a claim for legal professional privilege and whether there has been a waiver.

3. Mr Moses SC, who appears for the second and third respondent to the application, contends that the documents are either not the subject of a claim for privilege, being documents that pre-date the application for funding and, in relation to other categories of documents, there has been a waiver.

4. Each of the counsel who appeared raised no objection to my inspection of the documents and I have undertaken that task.

5. The husband swore an affidavit setting out the documents the subject of the claim and the basis upon which the claim arises. No one sought to cross-examine the husband’s solicitor.

6. The principles applicable to this issue I am asked to determine are not controversial.

7. In Mann v Carnell (1999) 201 CLR 1, the High Court said:

   28.… Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. …

   (Footnote omitted)

8. At paragraph 29, their Honours in the plurality said:

   29.Waiver may be express or implied. … What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.

9. I accept that documents provided to a litigation funder can be the subject of privilege. In determining that issue, it is permissible to have regard to the nature of the documents in question and the purpose and context. In that respect see Bulk Materials (Coal Handling) Services Pty Ltd v Coal and Allied Operations Pty Ltd [1998] 13 NSWLR 689 at 695E.

10. In Re Global Medical Imaging Management Ltd (in liq) [2001] NSWSC 476, Santow J considered the question of whether a funding agreement between a liquidator and certain third parties satisfied the requirements for litigation privilege pursuant to s 119 of the Evidence Act. His Honour held:

    6. At first blush, one might be inclined to treat a funding agreement as falling outside s119, being provided not for the dominant purpose of the provision of professional legal services but, rather, for a purpose anterior to their provision, namely, the funding thereof. Such a view would comport with the trend of a hardening judicial attitude to narrow the scope of the legal professional privilege; see the discussion of the cases cited in “Legal Professional Privilege in Australia” by Dr R J Desiatnik (Prospect, 1999) at 53 as reflected for example that it is not enough for a person merely to assert a claim for privilege (National Crime Authority v S (1991) 100 ALR 151 at 159 per Lockhart J) That trend of the general law as so interpreted is however not consistently reflected in its statutory counterpart. The Evidence Act 1995 to some extent widens its scope, notably by substituting the dominant purpose test for the sole purpose test, though the general law has now caught up; Esso Australia Resources Ltd v Commissioner of Taxation of the Cth of Australia (1999) 74 ALJR 339.

    7. But that first blush view is not the view that I would, on consideration adopt. To deny legal privilege to a funding agreement of this sort would fail to give proper weight to its inextricable connection with the very subject matter of the legal advice that might be given and the nature of the professional legal services to be rendered. It has the potential to reveal the litigant’s likely legal strategy. The funding agreement in a literal and substantive sense, fulfils the purpose of providing legal services in terms not only of the overall capacity to have them at all, but also their availability at critical junctures in the case. While it may not reveal the content of legal advice, it reveals the confidential circumstances of its availability and throws oblique light on the confidential circumstances to which the advice is directed.

    8. One could, for example, infer from a funding agreement the likelihood of tactical advice being given of a particular kind at different stages of the litigation or, for that matter, of the likelihood of an appeal being advised or not advised. I consider this funding agreement could do so.

    9. Accordingly I would conclude that the dominant purpose element is made out.

11. I with respect adopt his Honour’s reasoning. I am satisfied that the documents the subject of Exhibit 1 fall within the ambit of privilege. As to the claim for privilege, I am satisfied that there has been conduct that is inconsistent with the maintenance of the privilege in relation to some of the documents but not all.

12. Part of the documents that are the subject of disclosure by the husband include a document at page 53 of Tender Bundle No. 2, being an email dated 6 October 2022 from a Mr T at the litigation funder addressed to the husband’s solicitor, and a further document identified in page 67 of Tender Bundle No. 2, being correspondence from someone at the litigation funder’s office to the husband referencing the quantum of funding available and the percentage charged.

13. It does not appear to be controversial that the husband has given evidence in the proceedings before the Division 1 judge that he negotiated a lesser percentage. I am satisfied in those circumstances that there has been a waiver of those documents that are referable to that particular issue. I am not, however, satisfied that a claim for privilege has been established in relation to the other documents. To maintain a waiver, the onus falls on the party asserting the waiver to establish it with precision. I am not satisfied that I can determine upon a mere assertion from the bar table, even from someone as eminent as Mr Moses, that there has been a waiver in relation to the other documents.

14. This does not, however, preclude a further application when more definitive evidence is available.

15. Accordingly, I make the following orders.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell.

Associate:

Dated:       23 March 2023