HIS HONOUR: In this matter, Kenneth Frederick Neal and Rachelle Eileen Vader, the Defendants, by notice of motion filed on 16 August 2018, and made returnable, urgently, on 23 August 2018, seek access to inspect documents produced to the Court, by the firm of solicitors formerly acting for John Robert Neal, the Plaintiff, in property adjustment proceedings involving his former wife.
The substantive proceedings in this Court involving the parties were commenced by the Plaintiff by Summons filed on 8 June 2017, in which he seeks a family provision order under s 59 of the Succession Act 2006 (NSW) out of the estate or notional estate of his mother, Maureen Patricia Flis.
The substantive proceedings were set down for hearing as long ago as 8 March 2018. They are listed for hearing before Slattery J, for 4 days, commencing on 8 October 2018.
The Defendants issued a subpoena on 1 June 2018, which was returnable on 14 June 2018, on the partners of Willis & Bowring, solicitors. In that subpoena they sought, relevantly, the following documents:
"1. …
2. A copy of any and all correspondence between Willis & Bowring in acting for [the Plaintiff] date of birth … July 1968 and the solicitors acting for Sharon Louise Neal in the Family Law matter in approximately 2010 - 2014.
3. A copy of any and all documents filed in Court for the matter of [the Plaintiff] and Sharon Louise Neal in the Family Law matter including, but not limited, to, affidavits, reports, exhibits, annexures and expert evidence.
4. A copy of the file held by you in relation to the family law proceedings between [the Plaintiff] and the solicitors acting for Sharon Louise Neal."
Documents were produced in answer to the subpoena on 14 June 2018. The Plaintiff was granted first access for a period of 7 days. He objected to the Defendants having access to the documents produced in answer to the subpoena upon the grounds that the documents would reveal communications between the Plaintiff and his legal representatives in the family law matter.
The service of a subpoena to produce documents acts as a command to the person(s) to produce the documents called for. Upon production to the Court, the documents fall within the Court's custody and are under its control. It may grant, or refuse, access, that question being one for the discretion of the Court.
In support of the notice of motion, the Defendants relied upon an affidavit of Mr Michael Corbett-Jones, the solicitor with the day-to-day conduct of the matter. In his affidavit, Mr Corbett-Jones stated, amongst other things:
"3. The documents sought in the subpoena to produce to Willis & Bowring Solicitors are relevant to matters deposed by the Plaintiff in his affidavit sworn on 8 June 2017, in particular his financial circumstances and obligations arising out of and after his divorce."
Taking the statement made by Mr Corbett-Jones at its highest, it seems clear that the documents sought in the subpoena would exceed what are said to be the documents relevant to the issue identified as deposed to by the Defendants' solicitor. (The suggestion made by counsel for the Defendants, from the bar table, in the context of a family provision claim, that documents produced may be used as "tendency evidence" cannot be taken seriously and I have ignored the submission: T7.27 - T7.28.)
Furthermore, I note, in this regard, that the affidavit of the Plaintiff, referred to in Mr Corbett-Jones' affidavit, is one sworn by the Plaintiff as long ago as 8 June 2017. No explanation for serving the subpoena months after the date on which the substantive matter was set down for hearing, was given. His counsel did not provide any explanation during his submissions.
Also annexed to the affidavit of Mr Corbett-Jones was a copy of an affidavit sworn 28 June 2018, of Ms Roslyn O'Reilly, the Plaintiff's solicitor in the substantive proceedings, in which she stated that she had "reviewed the documents produced to the Court in response to the [s]ubpoena". She asserted that:
"The Plaintiff claims legal professional privilege at common law on the grounds that the documents would reveal communications between the Plaintiff and his family lawyers at Willis & Bowring made for the dominant purpose of giving or obtaining legal advice and the provision of legal services".
Ms O'Reilly referred to s 118 of the Evidence Act 1995 (NSW) stating that producing the documents would result in "disclosure of confidential communications between the Plaintiff and his lawyers and confidential documents prepared by the Plaintiff's lawyer(s) or other persons for the dominant purpose of the Plaintiff's lawyer(s) providing legal advice to the Plaintiff". She also referred to s 119 of the Evidence Act (relating to confidential communications given for the dominant purpose of providing professional legal services relating to anticipated legal proceedings).
Bearing in mind the width of the subpoena, the Plaintiff's reliance on these sections of the Evidence Act is hardly surprising.
Mr Brown, counsel for the Defendants referred to Hancock v Rinehart (Privilege) [2016] NSWSC 12, per Brereton J, at [5], [7], [32] and [35], as authority for the proposition that inferences as to privilege should not readily be drawn in the absence of direct evidence. In particular, he submitted that in [5], Brereton J had stated that the person making the claim for privilege bears the onus of proving the facts on which the claim for privilege is said to be founded and that that "involves establishing that the disputed documents comprised or contained confidential communications made for the dominant purpose of obtaining legal advice and/or conducting anticipated or pending litigation".
Mr Brown also criticised the statements made by Ms O'Reilly as not going far enough. He submitted that she had asserted a global claim, and that, instead, specific evidence was required in relation to each communication: T5.42 - T6.06.
However, in my view, bearing in mind the generality of the documents identified in the subpoena, and the fact that the privilege relied upon protects confidential communications between a lawyer and a client made for the dominant purpose of the lawyer providing legal advice or professional legal services to the client, or the communications are for use in (then) current litigation, the evidence given by Ms O'Reilly in regard to the claim for legal professional privilege would, as a matter of common sense, be more likely than not. It is an inference that can, and should, be drawn.
In any event, Ms O'Reilly gave direct evidence as the lawyer involved. There was no good reason advanced for the Court not to accept her evidence.
Furthermore, in correspondence annexed to the affidavit Mr Corbett-Jones is a letter dated 6 July 2018, from Ms O'Reilly, in which it is said that:
"The file consists of approximately 1,000 pages. Your demand that we identify all of these documents is oppressive."
(In these circumstances, there was no suggestion that the Court inspect the document or documents, to determine the question.)
Mr Brown pointed to Ms O'Reilly's affidavit, saying that she has "reviewed the documents produced to the Court". However, I read that assertion, bearing in mind the number of documents, as being no more than that she had reviewed the documents, generally, and had come to the view that the claim for legal professional privilege could be made.
There was no suggestion that the assertion of there being about 1,000 documents in the Willis & Bowring file was inaccurate. Indeed, the copy of Ms O'Reilly's affidavit was itself annexed to the affidavit of Mr Corbett-Jones.
During the course of the argument, the Court asked Mr Brown whether the Defendants were prepared to undertake to pay the costs of the further, and more detailed, inspection of the Willis & Bowring file, by the solicitor for the Plaintiff in order to determine the precise documents that were, or were not, privileged. After taking instructions from the Defendants, both of whom were present in court, counsel for the Defendants indicated that they were not prepared to give that undertaking: T4.21 - T4.41.
I infer that this failure to give an undertaking was based upon the realisation that the costs of so doing might be substantial as a significant amount of time would, or could, be involved.
I should also note that the Defendants have already made a request to the Family Court of Australia to have its file of the proceedings between the Plaintiff and his former wife produced to this Court. As I understand the submissions by Mr Vindin, counsel for the Plaintiff, the Family Court file has been produced and remains in this Court. No access has, as yet, been granted to inspect that file.
Counsel for the Plaintiff indicated that the Plaintiff is unlikely to object to the inspection of the Family Court file by the Defendants' legal representatives. Counsel also indicated that, in light of the fact that the Plaintiff's former wife has sworn an affidavit in the Plaintiff's case, it is likely that she will also not object to the Family Court file being inspected by the legal representatives of the Defendants: T2.30 - T2.48.
Bearing in mind the explicit assertion made by Mr Corbett-Jones that documents sought are relevant to matters deposed by the Plaintiff, in particular his financial circumstances and obligations arising out of, and after, his divorce, the documents in the Family Court file are likely to reveal all of the information relevant to that issue.
A further matter that it seems to me is important in the application for access relates to the fact that the substantive hearing before Slattery J is about 6 weeks away. The Defendants' legal representatives should have issued any subpoenas going to the matters that are now said to be relevant long before 1 June 2018, being almost three months after the matter had been listed for hearing. I have earlier referred to the fact that the affidavit identified as having resulted in the subpoena being issued was one sworn by the Plaintiff on 8 June 2017.
One might have thought that if the documents sought in the subpoena were relevant to that affidavit, a subpoena would have been issued long before the matter was set down for hearing, or, alternatively, that the matter should not have been set down for hearing until all of the evidence upon which it was intended to rely was properly gathered.
Taking into account all of these matters, and remembering s 56 of the Civil Procedure Act 2005 (NSW), the Defendants should not, at this late stage of the proceedings, require the Plaintiff to have to go through the Willis & Bowring file, for the purpose of enabling them to be permitted to inspect the documents the subject of the subpoena that are said to be the subject of a privilege claim. To require that to be done, before determining the notice of motion, would give rise to the Plaintiff's legal representatives being deflected from the proper preparation of what, as I understand it, is simply a claim for a family provision order.
Finally, it is difficult to see how an inspection of all of the documents between the Plaintiff and his former wife, other than in respect of the financial resources and needs of the Plaintiff, would be relevant to the defence of the Plaintiff's claim.
In all the circumstances of the case, I order that the Defendants' notice of motion be dismissed with costs.
[2]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 03 September 2018