Yavuz and Yavuz and Anor

[2013] FamCA 1037

FAMILY COURT OF AUSTRALIA

YAVUZ & YAVUZ AND ANOR [2013] FamCA 1037

FAMILY LAW – PRACTICE AND PROCEDURE – Client legal privilege

Evidence Act 1995 (Cth) – s 119, s 122

Tim BarrPty Ltdv NaruiGold Coast Pty Ltd (2008) NSWSC 1070

APPLICANT: Ms Yavuz

1st RESPONDENT: Mr Yavuz

2^nd RESPONDENT: Dr Yavuz

FILE NUMBER: SYC 1202 of 2009

DATE DELIVERED: 12 April 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 12 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Puckey

SOLICITOR FOR THE APPLICANT: Pearsons Lawyers

COUNSEL FOR THE 1^ST RESPONDENT: Mr Magham

SOLICITOR FOR THE 1^ST RESPONDENT: Farid Fanaian Solicitor

COUNSEL FOR THE 2^ND RESPONDENT: Mr Jackson

SOLICITOR FOR THE 2^ND RESPONDENT: Johnston Tobin Solicitors

Orders

1. That the tender is rejected.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yavuz & Yavuz and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1202 of 2009

Ms Yavuz

Applicant

And

Mr Yavuz

1^st Respondent

And

Dr Yavuz

2^nd Respondent

REASONS FOR JUDGMENT

1. An issue arose in these proceedings which called for an evidentiary ruling.  The relevant principle involved client legal privilege.  I ruled against the wife in declining to admit into the evidence a document which she sought to tender.  I gave the following reasons at the time.

2. The wife is seeking to have admitted into the evidence in the trial a document which was produced on subpoena from a firm of solicitors, Firm G.  The file related to work undertaken by the solicitors on the instructions of the husband’s brother, Dr Yavuz, the second respondent in these proceedings.  The work involved preparation of a shareholders’ agreement and a caveat. 

3. The document which was sought to be tendered was an email communication sent to Firm G by the husband’s then solicitor in these proceedings, a Ms LR. There was no issue that Ms LR’s email was a confidential document within the meaning of s 119 of the Evidence Act 1995 (Cth) (“the Evidence Act”). That is, that the email was prepared for the dominant purpose of the husband being provided with professional legal services relating to these proceedings. Section 119 of the Evidence Act provides, in effect, that evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of a confidential communication or the contents of a confidential document within the meaning of the section.

4. As I have said, the husband has raised the objection. Section 122 of the Evidence Act provides that the barrier provided by s 119 of the Evidence Act will be lost in certain circumstances. These circumstances are set out in s 122(2) of the Evidence Act. This provides, in effect, that the barrier afforded by section 119 of the Evidence Act would be lost if the client has acted in a way that is inconsistent with the client objecting to the adducing of the evidence, because it would result in a disclosure of the confidential document. And s 122(3)(b) of the Evidence Act provides, in effect, that the client would be taken to have so acted, that is, to have acted inconsistently with now taking the objection, if the evidence has been disclosed with the express or implied consent of the client.

5. The submissions on behalf of the wife were as follows. By operation of ss 122(2) and (3)(b) of the Evidence Act, the husband has lost the barrier provided by s 119. It is proper in financial proceedings when there has been a relevant commercial transaction in relation to which a solicitor has been involved for a party to the proceedings, to require production of the solicitor’s file by serving a subpoena on the solicitor. This is what has occurred. On the return of the subpoena, there was no objection to the application on behalf of the wife to inspect the documents produced on subpoena. The email in respect of which client legal privilege was sought was amongst the documents produced and it has been disclosed to the wife and her legal representatives. Accordingly, ss 122(2) and (3)(b) of the Evidence Act operate because there has been implied consent to the disclosure because of action which was inconsistent with the objection.

6. In support of this submission on behalf of the wife, learned counsel for the wife referred to the decision of Barrett J in the New South Wales Supreme Court case of Tim BarrPty Ltdv NaruiGold Coast Pty Ltd (2008) NSWSC 1070, dated 13 October 2008, and in particular to paragraphs 107 to 110 thereof.

7. In that case, an entity NGC was asserting that client legal privilege extended to a written statement by a person who NGC anticipated might be a witness in proceedings in which NGC was involved.  The statement had come into the possession of the police because they had seized it in the execution of a search warrant.  NGCs solicitors subsequently served a subpoena on the police and the police produced their brief of evidence to the Registrar of the Supreme Court.  There was no application on behalf of NGC who had first access to the documents.  The statement was one of the documents in the brief and was thus disclosed to various persons who inspected the documents produced. 

8. Barrett J found that NGC knew, through its solicitors, that the police had the statement and that the statement was among the documents called for by the subpoena.  Accordingly, those acting for NGC must have known that the police production in response to the subpoena would cause the statement to be produced to the court.  Access to the documents was granted to all parties, there being no attempt by NGC to prevent access by the other parties.  In these circumstances, his Honour found that the disclosure had taken place with the “at least implied consent” of NGC and that the privilege was lost. 

9. In my view, that case is quite different from the present case. In the present case, it is the husband who is claiming privilege in respect of his solicitor’s email communication. As I have said, the email was in the file of documents produced by his brother’s solicitors, Firm G, but there is no evidence that the husband had any knowledge that the subpoena had issued. In these circumstances, in my view, the fact that no objection was made to leave being given to inspect the documents produced by Firm G, including the email, cannot operate in some way as constituting inconsistent action by the husband, as referred to in s 122 of the Evidence Act. In my view, the wife’s submission has failed and the email of the husband’s solicitor remains protected by s 119 of the Evidence Act and so I reject the tender.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on Friday, 12 April 2013.

Associate:     

Date:              23 December 2013