Commissioner of Taxation v Rio Tinto Ltd

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 26 May 2025, I conducted a subpoena objection hearing in these proceedings concerning documents produced by WMM Law, a legal firm, pursuant to a subpoena served on them and issued on 28 March 2025.
2. The substantive proceedings are made pursuant to s79 of the Family Law Act 1975 (Cth) ("the Act") seeking property adjustment orders between the parties, who were married in 2005 and separated on 5 March 2024. The Initiating Application filed by Ms Newsome ("the wife") is unparticularised, but the Response filed by Mr Newsome ("the husband") on 8 November 2024 seeks various orders including a final order that the husband:

(a) Appoint the wife as Appointor of the B Discretionary Family Trust ("the BFT");

(b) Resign as trustee of the BFT;

(c) Transfer any interest he has in the BFT to the wife.

1. Pending before the Court for determination is an Application in a Proceeding filed 27 March 2025 seeking to join Ms D, the husband's adult daughter, to the proceedings. The same Application in a Proceeding also seeks orders:
   1. THAT within fourteen (14) days of this Order the Respondent Husband, [MR NEWSOME], do all acts and things, including drafting and executing all necessary documents to:
      1. Revoke in whole the [B] Family Trust - Revocable Deed Poll signed by the Husband on 19 April 2024 ("the Deed") in accordance with paragraph 4.l(b) of the Deed and provide a certified copy of that revocation to the Wife within a further twenty-four (24) hours;
      2. Cause the Wife to be made sole Appointor of the [B] Discretionary Family Trust ("[BFT]") pursuant to paragraph 26 of the [B] Discretionary Family Trust Deed executed on the 3 May 2006 ("[BFT] Deed") and within the same time frame, amend his last Will and Testament to appoint the Wife to act as appointor of the Trust in accordance with paragraph 26 of the [BFT] Deed.
   2. THAT until futher Order and as and from her appointment as Appointor of [BFT] in accordance with this Order, the Wife be and is hereby restrained from:
      1. Making any changes to the number of or the identity of the Trustees of [BFT] pursuant to paragraph 24 of the [BFT] Deed;
      2. Changing the Appointor pursuant to paragraph 26 of the [BFT] Deed.
   3. THAT the question of the Wife's costs of and incidental to this Application be reserved.
2. The subpoena to WMM Law required production of:

1. A copy of this subpoena. 2. The following records on the legal file relating to the drafting of The [B] Family Trust - Revocable Deed Poll as prepared by WMM Law and executed by [MR NEWSOME] on 19 April 2024 ("the Deed"):

(a) attendance notes (in person and telephone); > > (b) all documents (including emails) containing and confirming instructions to prepare, amend and finalise the Deed including any communications from persons other than [Mr Newsome]; > > (c) Any written advice on the Deed.

3. The firm answered the subpoena and produced heavily redacted documents to the Court fitting the description in the subpoena schedule, but at the hearing produced unredacted documents. WMM Law filed a Notice of Objection on behalf of the husband "as a precaution" and Ogilvie Jennings acting for the husband in these proceedings filed a separate Notice of Objection. Both objections related to inspection of the documents.
4. In summary, the grounds for objection to inspection of the documents were said to be relevance, oppression, and legal professional privilege.
5. At the hearing the following evidence was read unopposed:
   • Affidavit of Ms Newsome filed 27 March 2025, marked as Exhibit A1;
   • Affidavit of Ms Newsome filed 6 September 2024 at [45]-[53], marked as Exhibit A2; and
   • Affidavit of Mr Newsome filed 8 November 2024 at [34] and [44]-[46], marked as Exhibit R1.
6. The evidence read uncontroversially establishes the following facts:

(a) The BFT was established by the parties in May 2006 and has property with a net worth of $284,004,[1] even after satisfaction of loans for unpaid distributions made to various named beneficiaries of the BFT;

(b) The unpaid distributions will give rise to tax liabilities of unknown amounts if they are not paid and satisfied;

(c) The parties are joint trustees of the BFT, and have made distributions of capital and income of the BFT, including to themselves;

(d) The husband was the sole appointor of the BFT and there has been doubt about the husband's mental capacity for months, if not longer. The parties have engaged a single expert to assess that capacity;

(e) On 19 April 2024, the husband executed the revocable deed poll ("RDP") concerning the BFT which was prepared by WMM Law. The RDP provides for alternate appointors, namely Ms D, Ms C and Ms E, should a succession event occur, being the husband's mental incapacity or death. The RDP also specifies that incapacity is deemed by the following without further proof:

(i) The relevant person's usual treating physician, or usual treating general medical practitioner, certify that the person is suffering from mental incapacity; or

(ii) Two independent general medical practitioners, where the relevant person does not then have a usual treating physician or a usual treating general practitioner, certify that the person is suffering from mental incapacity; or

(iii) The Guardianship Stream of the Protective Division of the Civil and Administrative Tribunal (or its successor body or its equivalent body in another jurisdiction other than Tasmania) makes a finding that the person is suffering from mental incapacity.

(f) The RDP is in evidence before the Court and I was told that it had been disclosed to the wife by production of a copy of it to her solicitors.[2]

1. I was invited to inspect the documents produced and the parties agreed I should. I have informed myself about the nature and content of the documents, which is recognised as permissible and desirable.[3]
2. I am satisfied that the documents comprise of:

(a) Solicitor's file notes dated 15 and 16 April 2024 concerning oral advice sought and given in the presence of the parties named at [8(e)] of these reasons about succession planning in the context of the parties having recently separated and these anticipated legal proceedings;

(b) Solicitor's file note of 16 April 2024 of a phone attendance on the husband's family law solicitor about the topics in (a);

(c) Written communications dated 16 April 2024 between the husband's succession planning solicitor and family law solicitor about the topics referred to at (a);

(d) Written advice dated 17 April 2024 to the husband and copied to the parties referred to at [8(e)] of these reasons about the topics in (a);

(e) Solicitor's file notes and "review copy" of RDP; and

(f) Solicitor's attendance notes on the husband and others on 19 April 2024 for the purpose of executing various documents.

1. In view of the above findings, it is apparent that the parties established the BFT and controlled it during the marriage by virtue of being joint trustees and the husband by being the appointor. They each benefited from the BFT by receiving distributions from it. Soon after separation, the husband executed the RDP on 19 April 2024, barely a month after separation, which provides, by deeming, alternate appointors in the event of his mental incapacity or death.[4]
2. But for the existence of the RDP, the husband would remain the sole appointor of the BFT. The husband's mental capacity is an issue in the proceedings and by operation of the RDP, if the husband has suffered or suffers mental incapacity or dies then the persons referred to at [8(e)] of these reasons become alternate appointors of the BFT, unless the RDP is set aside or invalid.

1. The husband relies on a contention that the documents are not relevant to the dispute between the parties, being one pursuant to s79 of the Act. Counsel submitted that it was a fishing expedition and otherwise oppressive, so impermissible.
2. Both parties in their affidavit material identify the existence of the BFT, the source of its assets, existing and potential liabilities of the BFT, and the fact that they have received distributions from it.[5] The affidavit of the wife evidences that the RDP was executed by the husband post-separation, providing for alternate appointors of the BFT.
3. The RDP enables persons other than the husband to control the BFT by altering the current trustees who presently have legal authority to manage the trust's assets, liabilities and distributions. In the substantive property proceedings, the Court will have to determine whether assets of the BFT are property of one or either party for the purposes of s79 of the Act or, alternatively, whether they are a resource of a party to be taken into account when adjusting the parties' interests in property.[6]
4. The wife's application also, in effect, seeks orders pursuant to s106B of the Act and the Application in a Proceeding filed 27 March 2025 seeks to join a person who is to become one of the alternate appointors by operation of the RDP. Further, the husband's Response seeks specific orders about the BFT, for which his capacity to comply is affected by the operation of the RDP.[7] Accordingly, the creation of the RDP itself is highly relevant to the issues for determination.
5. Counsel for the husband conceded that the RDP itself was relevant, but submits that the documents behind it are not. I reject this submission because the parties agree that there is a question to be determined about the husband's mental and legal capacity. This in turn is relevant to the validity and enforceability of the RDP, which issue materially affects who ought to be joined to the proceedings and what orders the Court ultimately is empowered to make about the trust on a final basis.
6. Essentially, I accept the submissions on behalf of the wife that the documents are relevant to the existing and future control of the BFT. This in turn is relevant to determining what constitutes a just and equitable adjustment of the parties' property pursuant to s79 of the Act.
7. There is no present evidence before the Court to enable it to determine if a succession event has occurred to automatically cause the appointment of Ms D, Ms C and Ms E as the alternate appointors of the BFT. If one has occurred, this will affect the capacity of the wife to receive disclosure of relevant information about the BFT.
8. I reject the submissions for the husband that the subpoena is too vague or wide or that it is a fishing expedition.
9. I also reject the submission that the description of the documents in the schedule is so broad as to be oppressive. By production of the relatively small bundle of documents, WMM Law has demonstrated ability to readily and easily identify the relevant documents.

Basis for objection to inspection - legal professional privilege

1. I now turn to whether there is merit in the claim of legal professional privilege which ought to deprive the wife from the ability to inspect the produced documents. I address the objection on this ground by WMM Law and the husband collectively as each is purported to be made on behalf of the husband.
2. Legal professional privilege as it is recognised at common law applies to questions of the rights of parties to proceedings to inspect documents which are subject of subpoena to produce.[8]
3. The husband adduced no evidence at all about the claim for legal professional privilege, nor did WMM Law. Instead, each of them asserted through counsel that the privilege applied either to some or all the documents without identifying them.
4. There is ample authority to the effect that is not sufficient to make a generalised assertion about privilege.[9] Despite this, the parties were agreed that I should inspect the documents produced and my inspection of the documents has informed me of their nature and character. I am satisfied that the documents produced and referred to at [10] of these reasons are subject to legal professional privilege as recognised in many authorities.[10]
5. The claim of legal professional privilege is made out on the face of the documents. However, this does not necessarily mean that this ground of objection should be upheld.
6. I expressly invited Counsel for the husband to address me on whether there had been a waiver of legal professional privilege. In response, he simply stated that the privilege had not been waived, but he failed to advance any meaningful or persuasive submission about why that was so.
7. Counsel for the husband had submitted that there was no power in the Court pursuant to s79 of the Act to set the RDP aside, but this ignores the Court's power wide powers pursuant to s106B of the Act and does not address the issue of waiver.
8. The produced documents were created in circumstances where there is issue about how the trust property is treated for the purposes of adjusting the parties' property and where there a question to be answered about the husband's mental capacity at the time of creation of the RDP. At least one of the parties whom the wife seeks to join was present when instructions were given to the solicitor at WMM Law in respect of the RDP. Yet the husband opposes the joinder application and seeks orders with which he may not be able to comply or which are not enforceable.
9. The foregoing circumstances constitute an issue waiver by conduct in my view. Waiver by conduct, including inconsistent conduct, is recognised to give rise to a waiver of legal professional privilege where the waiver arises to the extent necessary to avoid unfairness.[11]
10. I am satisfied the husband's conduct overall in the circumstances described at [28] and [29] of these reasons constitutes waiver of his legal professional privilege.

1. The documents produced by WMM Law contain communications other than ones relating to the RDP. In respect of the communications about the husband's will and enduring guardianship, there has not been a waiver of legal professional privilege, and they are irrelevant to these proceedings. There will be an order for WMM Law to redact reference in the documents produced to communications, instructions and advice about these topics before inspection of the documents by the wife.
2. In conclusion the wife is permitted to inspect the documents subject to the redactions to be made and described at [32] of these reasons.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri.

[1] Affidavit of the wife filed 27 March 2025 at [32].

[2] Affidavit of the wife filed 27 March 2025 at Annexure F.

[3] X Corporation Pty Ltd & Jess and Anor [2016] FamCAFC 43 at [53]- [58].

[4] Clause 1.1 providing for a succession event and the meaning of mental incapacity.

[5] Affidavit of the wife filed 6 September 2024 at [45]-[53].

[6] Kennon v Spry [2008] HCA 56.

[7] Orders sought in the Response filed 8 November 2024 at [5]-[7].

[8] Grant & Downs (1976) 135 CLR 13; followed in X Corporation Pty Ltd & Jess and Anor [2016] FamCAC 43; Goudarzi & Bagheri [2017] FamCA 656 at [14].

[9] Biondi & Koen (No 8) [2025] FedCFamC1F 26 at [2] 3-[28]; X Corporation Pty Ltd & Jess and Anor [2016] FamCAFC 43 at [35]- [38].

[10] Including those referred to at footnote 8.

[11] Wardrope & Dunne [1996] 1 Qd R 224 at 226; Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341; Liquorland (Australia) Pty Ltd v Anghie [2003] VSC 73; (2003) 7 VR 27 at 39; DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; Council of the NSW Bar Association v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236 at [48].