Procedure – Wife deposed that she had received advice as to having good prospects of obtaining a settlement of at least 50% – No waiver of legal professional privilege as her deposition was an inadvertent and unintentional mistake
In Pickford [2023] FedCFamC1F 1087 (15 December 2023), Altobelli J heard an argument as to legal professional privilege in matrimonial property and parenting litigation that was part-heard.
The wife filed an affidavit that read “I have been advised that: I have a strong prima facie case and good prospects of obtaining a final property settlement of at least 50% of the non-superannuation net asset pool” and that “the amount I will ultimately receive by way of property settlement will be more than sufficient to cover the amount now sought by me for interim costs” ([2]).
The husband said that the wife had waived legal professional privilege in relation to the advice referred to in her sworn material and asked that it be produced. The wife said that she had mistakenly sworn a draft version of her affidavit, with a subsequent version of the draft deleting the paragraph that referred to her legal advice ([12]).
The Court referred to s 118 of the Evidence Act 1995 (Cth) (as to legal professional privilege) and s 122 of that Act (as to the loss of such privilege) and said (from [7]):
“The Full Court in Morris & Morris (No 3) [2023] FedCFamC1F 927 has recently summarised the relevant law …
[8] [In that case, the] … primary judge identified … the applicable legal principles by reference to the authorities, including the two leading High Court authorities of Mann v Carnell [1999] HCA 66 … and Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 …
[9] The High Court described the applicable principles in Mann v Carnell as follows:
28. … It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. …
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.
[10] In Expense Reduction, the High Court described the applicable principles as follows:
30. According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege). It may be express or implied. In most cases concerning waiver, the area of dispute is whether it is to be implied. In some cases waiver will be imputed by the law with the consequence that a privilege is lost, even though that consequence was not intended by the party losing the privilege. The courts will impute an intention where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.
31. In Craine v Colonial Mutual Fire Insurance Co Ltd, it was explained that “‘[w]aiver’ is a doctrine of some arbitrariness introduced by the law to prevent a man in certain circumstances from taking up two inconsistent positions … It is a conclusion of law when the necessary facts are established. It looks, however, chiefly to the conduct and position of the person who is said to have waived, in order to see whether he has ‘approbated’ so as to prevent him from ‘reprobating’”. In Mann v Carnell, it was said that it is considerations of fairness which inform the court’s view about an inconsistency which may be seen between the conduct of a party and the maintenance of confidentiality, though “not some overriding principle of fairness operating at large”.
( … )
[13] When the totality of the evidence put before the Court is examined, the Court is satisfied that s 122(3) of the Evidence Act does not apply, that is that the wife did not knowingly and voluntarily, expressly or impliedly, waive the privilege that attached to the advice that she referred to. It was not an intentional act with that knowledge: Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64 … ; Commonwealth of Australia v Verwayen [1990] HCA 39. It was an inadvertent and unintentional mistake, and the wife’s solicitors acted quickly, and reasonably, to protect confidentiality. The Court also accepts that the mistake must have been obvious and apparent to the husband, and on that basis, and in the circumstances of this case, the privilege should not be lost: Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd [1997] FCA 545 … per Goldberg J.
[14] The Court is … not satisfied that the production of the advice and supporting materials in question would have such probative value that it would justify the extraordinary private and public cost and inconvenience consequent upon the inevitable delay of the conclusion of a hearing that is already in day eight and has two more days of hearing listed in January 2024.”
The Court dismissed the husband’s claim that the wife had waived legal professional privilege.