Baghti v Baghti

Judgment (ex tempore) 1HIS HONOUR: In the substative proceedings the plaintiff Secretary seeks an order for adoption of the child NG in favour of proposed adoptive parents. The application is opposed by the birth mother MLC, who has been joined as defendant. By notice to produce dated 9 May 2014, the plaintiff required the defendant to produce to the Court "any report prepared by psychologist Sue Foley in relation to NG born 15 November 2007". Although no motion has been filed seeking to set aside the notice to produce, the defendant objects to producing the report on the ground of litigation privilege under (NSW) Evidence Act 1995, s 119. 2Ms Foley, who is apparently a social worker and not a psychologist, was retained by the defendant for the purpose of preparing an expert report. On 15 April 2014, the Court made orders, inter alia, granting leave to the defendant to provide "expert Ms Sue Foley with a copy of the evidence filed in the proceedings by both parties and the transcript of the preliminary hearing". Subsequently, Ms Foley interviewed, at least, the proposed adoptive mother and the birth mother, and also observed an occasion of contact. She prepared a report for the defendant and, somewhat surprisingly, had a conversation with one of the Barnardos officers having responsibility for the matter on behalf of the plaintiff, to whom she disclosed certain aspects of her report. Her report has not been served. 3There is no doubt that, ordinarily, communications between a party, its solicitor and an expert, including the expert's report - and, for that matter, where there is no solicitor, between the party and the expert, including the expert's report - for the purposes of this litigation are entitled to litigation privilege under s 119 unless and until the report is served, when the act of service has the effect of waiving the privilege. The question is whether these proceedings are different because of their more inquisitorial nature, and because they are essentially in the nature of wardship or parens patriae proceedings in which the Court is primarily concerned with the best interests of a child who is not a party to the proceedings. 4A number of cases have suggested that, in what for the sake of convenience I shall call "child welfare proceedings" (although I do not use that term in its narrow sense of care proceedings, but in its wider sense of proceedings in which the Court is concerned essentially with the best interests of a child, and in which the so called "paramountcy principle" is applicable), litigation privilege of the type that I have described does not arise or may be overridden. 5In Hutchings v Clarke (1993) 16 Fam LR 452, the Full Court of the Family Court of Australia (Nicholson CJ, Ellis and Mullane JJ) held that while there was a general rule that an account of the public interest in encouraging parties to settle their differences, communication made in the course of negotiations were privileged from disclosure, that rule was overridden by considerations of the welfare of the child when non disclosure would have an adverse impact on the child's welfare. That was said in the context of "without prejudice" privilege, rather than that of confidential communications privilege. 6In reaching that conclusion, the Court relied on what was said by Gibbs J, as the later Chief Justice then was, in R v Bell; Ex Parte Lees (1980) 146 CLR 141 (at 146). But it is material to note that the majority in Ex Parte Lees did not decide the case on any basis peculiar to wardship cases, and that their judgment was subsequently described by Deane J in Carter v Managing Partner, Northmore Hale Davy and Leake (1995) 183 CLR 121 (at 134) as anomalous. Even the decision of Gibbs J does not go further than the much older authorities, on which his Honour relied: Burton v Earl of Darnley (1869) LR 8 Eq 576 (note) and Ramsbotham v Senior (1869) LR 8 Eq 575, both of which established no more than that, as a solicitor's client was not entitled to withhold from the Court the address at which she had concealed a ward of the Court, so the client could not insist on the solicitor withholding that information from the Court. In other words, it was, as Lord Nicholls was later to explain in Re L (A Minor) (Police Investigation: Privilege) [1996] 2 All ER 789; [1997] AC 16, to which I shall come, in truth, merely a case of the solicitor having no greater privilege than the client. 7Hutchings v Clarke was decided before the Evidence Act 1955. In 1998, in In the marriage of CW (1998) 22 Fam LR 750, the Full Court of the Family Court (Nicholson CJ, Fogarty and Baker JJ) suggested (at 754), but without having to decide, that Hutchings v Clarke might stand for a more general proposition, that where the best interests of the child are concerned, issues of legal professional privilege do not operate to exclude evidence if, in the discretion of the trial judge, the interests of the child require that the evidence be admitted. But, as the Chief Justice there observed, "It is not necessary for the purposes of these proceedings to consider that matter further". 8In Baghti v Baghti [2010] FamCA 171, Cohen J of the Family Court observed (at [15]), that the provisions of the Evidence Act specifically made inapplicable to children's proceedings by (CTH) Family Law Act 1975, s 69ZT(1), do not include those on legal professional privilege. (In other words, those rules continue to apply). But his Honour added: Section 69ZX(1)(e) can be in conflict with the upholding of legal professional privilege because it allows the court to "ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses ... on matters relevant to the proceedings". It is already well established that where there is conflict between considerations of the welfare of the child; a matter of public interest and a statutory requirement, and privilege from disclosure based on public interest, as legal professional privilege is, each must be weighed on a case by case basis. The court must decide which shall prevail (see Hutchings v Clarke (1993) 16 Fam LR 452). Privilege can be displaced by the need to ensure the welfare of a child. 9In Benson v Hughes (1994) 17 Fam LR 761, Chisolm J considered Hutchings v Clarke and said (at 771-2): The Full Court pointed out that the parents are not the only persons whose interests are to be considered as might be the case in property negotiations: 'If the welfare of the child is the subject of the enquiry, there comes a point when it must override any privilege which either parent may possess as was the case in Re Bell; Ex parte Lees'. It is clear from this decision that the law requires a balancing exercise and this requires analysis 'on a case by case basis'. 10With respect, the notion of a balancing exercise in the context of deciding whether or not legal professional privilege is established is difficult to comprehend. Whether legal professional privilege exists or does not exist depends, for relevant purposes, on the matters referred to in Evidence Act, s 119. No balancing exercise is involved in that determination. It does not involve a discretionary judgment. (It may conceivably be otherwise, as to whether legal professional privilege, once established, can be overridden, and I shall come to that in due course). 11In England, in Re L, the House of Lords divided three to two on the question whether, in child welfare proceedings, privilege attached to reports of the type I have described. The majority (Lord Jauncey of Tullichettle, Lord Lloyd of Berwick and Lord Steyn) held that there was a clear distinction between the privilege attaching to communications between solicitor and client, and that attaching to reports by third parties prepared on the instructions of a client for the purposes of litigation. In the first case, the privilege was absolute and attached to all communications whether related to the litigation or not, but in the second (being reports by third parties prepared for a client) the privilege attached only to documents or other written communications prepared with a view to litigation. Moreover, there was no property in the opinion of an expert witness, who could be subpoenaed to give evidence by the other side, and could not refuse to answer questions as to his or her factual findings and opinion. 12The leading judgment was that of Lord Jauncey, who said that care proceedings were not adversarial but investigative proceedings, in which the judge was concerned to make a decision in the best interests of the child in question. Accordingly, not only was the notion of a fair trial between opposing parties of far less importance in care proceedings than in normal adversarial actions, but care proceedings were so far removed from adversarial proceedings that litigation privilege had no place in relation to an expert report which could not have been obtained without leave of the Court to disclose documents already filed or to examine the child. The crucial passage in Lord Jauncey's judgment (at All ER 86B) is to the effect that litigation privilege never arose in the first place, (rather than that the Court had power to override it), because "it is excluded by necessary implication from the terms and overall purpose of the 1989 Act. This does not of course affect privilege arising between solicitor and client." 13Lord Nicholls of Birkenhead, with whom Lord Mustill concurred, delivered a powerful dissent. His Lordship stressed the importance and absolute character of legal professional privilege; that it was an established ingredient of the right to a fair hearing, including the right to present one's case and to call evidence; and that there was no reason why parties to family proceedings should not be as entitled to those features and safeguards as parties to other court proceedings. His Lordship - with respect, rightly, in my opinion - also emphasised that it was incorrect to draw a dichotomy between adversarial and inquisitorial proceedings for the present purpose. (I would add that while this Court endeavours to adopt a less adversarial approach to proceedings under the (NSW) Adoption Act 2000, just as the Family Court adopts a less adversarial approach to children's proceedings, this does not deprive them of the underlying characteristic that the proceedings are ultimately adversarial once a defendant is joined. It is the parties, and not the Court, who adduce evidence. It is the parties who conduct the case, call witnesses and cross-examine, and make their competing submissions, on which the Court adjudicates. The fact that the Court may be more interventionist than in a common law or criminal trial does not remove the fundamentally adversarial character from the proceedings.) 14His Lordship - also, with respect, rightly, in my view - emphasised that the paramountcy principle was not a new concept and that, notwithstanding its importance, it did not sweep away or override legal professional privilege. 15Adoption Act, s 126, provides as follows: Except as otherwise provided by this Act or the regulations, the Court, in the hearing of any proceedings or in determining any application or matter under this Act or the regulations, may act on any statement, document, information, or matter that may, in its opinion, assist it to deal with the matter of the proceedings or before it for determination whether or not the statement, document, information or matter would be admissible in evidence. 16In R v P (2001) 53 NSWLR 664, the Court of Appeal considered an argument that s 13(2) of the (NSW) Protected Estates Act 1983, which provided for the Court to receive evidence in such form and in accordance with such procedures as it thought fit and otherwise to inform itself as to a person's capability to manage his or her affairs as it thought fit, displaced legal professional privilege. Hodgson JA, with whom Mason P and Ipp JA relevantly agreed, said: As with regard to section 13 of the Protected Estates Act, in my opinion it is not sufficient to displace either common law legal professional privilege or section 119 of the Evidence Act. Cases such as Baker v Campbell and Corporate Affairs Commission of NSW v Yuill (1991) 172 CLR 319 stress that legal professional privilege will be displaced by statute only if the statute manifests a clear intention to do so and, in my opinion, section 13 does not manifest such a clear intention. In so far as cases such as Parry-Jones, Brayley v Wilton, Church v Price and Re L may suggest otherwise, in my opinion that is inconsistent both with the High Court authorities to which I have referred and with the terms of section 119 of the Evidence Act. 17The reference in that passage to Re L was to the decision of the House of Lords to which I have referred. 18In my view, s 126 of the Adoption Act should not be construed as intended to abrogate legal professional privilege. To accommodate such an intention, it would be necessary to suppose that it intended to adopt the dichotomy between third party communications and solicitor/client communications referred to in Re L, which dichotomy is not reflected in the Evidence Act. To the contrary, while the Evidence Act distinguishes between legal advice privilege (in s 118) and litigation privilege (in s 119), s 119 captures solicitor/client communications as well as third party communications. In any event, the decision of the Court of Appeal in R v P tells against this Court following Re L in that respect. 19Accordingly, in my view, neither the nature of the proceedings, nor the dictates of the paramountcy principles, nor Adoption Act, s 126, impinge on the legal professional privilege that attaches to communications between a lawyer or litigant and a potential witness, including an expert witness. No "balancing exercise" is involved. 20An important part of the reasoning of the majority in Re L appears to have been that the leave of the Court was required for the expert to have access to material that was otherwise confidential and to examine the child. That feature was present in this case, as evidenced by the order granting leave to which I have referred. However, that feature is also present in many cases in which the best interests of a child are not involved but in which expert evidence is adduced. It seems to me that the mere circumstance that the Court's leave is required to obtain access to material, and/or to interview or observe a child, does not involve a waiver on the part of a client of what would otherwise be the entitlement to obtain confidential advice and a report for possible use in proceedings. 21There are two regulatory provisions which potentially affect this question. The first is (CTH) Family Law Rules, r 15.55, which provides as follows: (1)A party who has obtained an expert's report for a parenting case, whether before or after the start of the case, must give each other party a copy of the report: (a)if the report is obtained before the case starts - at least 2 days before the first court event; or (b)if the report is obtained after the case starts - within 7 days after the party receives the report. (2)The party who discloses an expert's report must disclose any supplementary report and any notice amending the report under subrule 15.59 (5). (3)If an expert's report has been disclosed under this rule, any party may seek to tender the report as evidence. (4)Legal professional privilege does not apply in relation to an expert's report that must be disclosed under this rule. 22For the Secretary, it was argued that because the defendant seeks a contact order in this case - which order would, if made, be made under the provisions of the Family Law Act - this is a "parenting case", and accordingly that r 15.55 applies. 23I accept that a contact order, if made, would be made under the Family Law Act, and that, to that extent, this is a parenting case. But the fact that this Court is exercising cross-vested jurisdiction in making a contact order does not import into this Court the rules of the Family Court. This Court exercises the jurisdiction of the Family Court, but it does so in accordance with its own rules, or such other rules of procedure and evidence as the Court may determine are appropriate: see (CTH) Jurisdiction of Courts (Cross-Vesting) Act 1987, s 11(1)(c). It may be that the Court could determine that the rules of evidence and procedure to be applied in dealing with a matter should be those that apply in the Family Court of Australia; but it would be inappropriate to do so at this stage of proceedings, for the purpose of invoking, effectively retrospectively, a rule that would impinge on legal professional privilege. 24Secondly, it might be thought that Supreme Court Rules, Pt 56 r 3, which unquestionably applies to these proceedings, would have the effect of requiring disclosure of the report. Ultimately, however, I do not think that the rule has that effect. The reference in that rule to a "matter" is, I think, to be taken as a reference to a matter of fact rather than a matter of opinion. Moreover, Pt 56 r 3 contains no such clear express words as would be required, consistent with Baker v Campbell (1983) 153 CLR 52 and Corporate Affairs Commission v Yuill (1991) 172 CLR 319, to override the well-established right to legal professional privilege. 25Accordingly, I do not accept that litigation privilege does not attach to communications between a party's lawyer and an expert in child welfare proceedings. 26That then leaves the question whether the privilege can be overridden. For the reasons indicated by Lord Nicholls, and by the Court of Appeal in R v P, it seems to me that once established, the only circumstances in which legal professional privilege can be overridden are those provided for by the Evidence Act (or by some other Act). The fact that the proceedings relate to the welfare of children is not sufficient to have that consequence, in the absence of statutory provision to that effect, which there is not. 27Although in some circumstances the disclosure of the substance of the report can waive the privilege (see Evidence Act, s 122), in this case it is clear enough that such disclosure took place without the consent of the client, and in those circumstances, the grounds for waiver under s 122 are not sustained. 28For those reasons, I order that the defendant need not comply with the notice to produce.