Yavuz and Yavuz and Anor

In the Family Court of Australia, the applicant, Ms Yavuz, sought to tender a document into evidence during proceedings against the first respondent, Mr Yavuz, and the second respondent, Dr Yavuz. The document in question was an email communication from Mr Yavuz's then solicitor to a firm of solicitors instructed by Dr Yavuz. The dispute centred on whether this email, which was produced on subpoena from Dr Yavuz's solicitors, was protected by client legal privilege.

The primary legal issue before the court was whether client legal privilege, as established by section 119 of the *Evidence Act 1995* (Cth), applied to the email, or if that privilege had been lost under section 122 of the *Evidence Act*. Specifically, the court had to determine if Mr Yavuz had acted inconsistently with claiming privilege, thereby waiving it, by virtue of the document being disclosed to the wife and her legal representatives without objection.

The court reasoned that while the email was a confidential communication for the dominant purpose of providing legal services to Mr Yavuz, and thus ordinarily protected by section 119, the wife argued that privilege was lost under section 122. This argument relied on the assertion that Mr Yavuz had implicitly consented to the disclosure by not objecting to the wife's inspection of the documents produced on subpoena. However, the court distinguished the present case from the precedent cited, *Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd*, finding that there was no evidence that Mr Yavuz had any knowledge of the subpoena or the subsequent inspection of the documents. Consequently, the court held that the failure to object to the inspection did not constitute inconsistent action by Mr Yavuz, and therefore, the privilege remained intact.

The court accordingly rejected the tender of the document, ruling that it remained protected by client legal privilege under section 119 of the *Evidence Act 1995* (Cth).