Procedure – Wife deposed that she had received advice as to having good prospects of obtaining settlement of at least 50 per cent – No waiver of legal professional privilege as deposition an inadvertent and unintentional mistake
In Pickford [2023] FedCFamC1F 1087 (15 December 2023), Altobelli J dismissed a husband’s argument that the wife had waived 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 per cent 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 … ( … )
[9] The High Court described the applicable principles in Mann v Carnell [1999] HCA 66 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 … ( … )
[13] … [T]he 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 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 … the privilege should not be lost …”
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