R v Bell; Ex parte Lees

High Court of Australia|1980-07-01|Before: Wilson JJ, Gibbs J, Bell J

The applicant for prohibition is a solicitor. He has for a client a Mrs. McJarrow. In proceedings in the Family Court of Australia instituted by his client's husband, Mr. McJarrow, the applicant has been ordered to disclose Mrs. McJarrow's address. He seeks prohibition upon the grounds that he is under a duty not to disclose that information without his client's express permission, that the Family Court lacks the power to compel such disclosure since it would involve him in breach of that duty and that the Court's order is in any event beyond power.

When, on 13th September 1979, the applicant received from Mrs. McJarrow his initial instructions to act for her, the McJarrows had already separated and were living apart. His instructions were confined to the protection of Mrs. McJarrow's interest in the matrimonial home and did not involve any recourse to litigation. At that time Mrs. McJarrow told him how he might communicate with her and asked that this method of communication be kept confidential. He did not then know that she and her husband had already been before the Family Court, which had made a variety of orders.

On 11th September, after a fruitless visit to his wife's flat, which she had vacated, and to the place of her former employment, which she had left, Mr. McJarrow obtained ex parte orders for interim custody of Tanya, for suspension of the previous order for access in favour of Mrs. McJarrow and for the issue of a warrant directing the police to take possession of Tanya and deliver her to him. Since neither Mrs. McJarrow nor Tanya can be found, this warrant remains unexecuted.

It was two days after the making of this last order, and without telling him of these proceedings, that Mrs. McJarrow first instructed the applicant. Her instructions required of him no more than that he should communicate with the mortgagee of the matrimonial home. This he did. Some six weeks later, while still unaware of any proceedings being on foot, he was further instructed to make an offer to Mr. McJarrow by way of property settlement. The applicant accordingly wrote to Mr. McJarrow on 30th October, who promptly informed the applicant that a custody order in respect of Tanya had been made. The applicant immediately wrote to Mrs. McJarrow but has received no reply to that letter, nor to other letters which he has written to her addressed to the forwarding address which she had earlier given him.

On 2nd November Mr. McJarrow's solicitors spoke to the applicant by telephone and asked for his client's address. This he refused to reveal, claiming legal professional privilege while at the same time stating that it should not be assumed that he knew of Mrs. McJarrow's whereabouts.

On 7th November Mr. McJarrow's solicitors gave the applicant copies of the orders obtained on 7th and 11th September. Two days later, on 9th November, he was served, as Mrs. McJarrow's solicitor, with an application by Mr. McJarrow to which Mrs. McJarrow was made respondent and which was made returnable on 13th November before the Family Court. By this application Mr. McJarrow sought orders that the applicant inform Mr. McJarrow or the Family Court of all information in his possession, power or control which would assist in ascertaining the whereabouts of Mrs. McJarrow or of Tanya and that either the applicant or Mrs. McJarrow pay the costs of the application.

Because the applicant's instructions from Mrs. McJarrow were confined to property matters and because he could obtain no further instructions from her, he did not appear on the hearing of the husband's application on 13th and 14th November. On the latter date an order was made in the Family Court in the following terms: "That Julian Lees, Solicitor for the wife, either by himself, his servants or agents, forthwith disclose to the Solicitors for the husband the address of the wife Dianne Carrol McJarrow as at the date of the last communication by her with him." It is this order which has given rise to the present application. It was served on the applicant, together with notice that non-compliance would lead to proceedings to enforce compliance. He then sought and was granted leave to intervene in the proceedings but was refused a stay of the order, which he had sought pending his projected appeal to the Full Court of the Family Court. He thereupon initiated the present application in this Court.

The first question to which the application gives rise is whether the applicant's claim to legal professional privilege is well founded. The scope of the privilege against disclosure of communications between client and legal adviser calls for no general examination. The history of its development is traced in Wigmore on Evidence, 3rd ed. (1961), vol. 8, pars. 2290-2291 and the general limits of the privilege are sufficiently described in pars. 2292-2326 of that work and in Cross on Evidence, 4th ed. (1974), pp. 248-255.

The particular aspect which here arises concerns the application of the privilege to the case of a client's address, told to the solicitor in confidence by a client who, in disregard of a custody order, is wrongfully retaining possession of a child.

The circumstances, already recounted, may be summarized as follows: Mrs. McJarrow, in disobedience of the Court's order, has failed to return Tanya to her husband's care and continues to keep Tanya from him; she has left her previous home and place of work, leaving behind no forwarding address and seemingly taking Tanya with her; her present whereabouts are unknown to her husband and all the circumstances of the case, including the confidentiality which she required of the applicant concerning her address, suggests that she intends this ignorance of her whereabouts to continue. It may, I think, be inferred that in instructing the applicant to preserve the confidentiality of her address she intended this to assist her in continuing to frustrate the order of the Court.

In answer to the applicant's claim of privilege it may be said, I think correctly, that to allow a claim to legal professional privilege in the particular circumstances of this case is to subvert the purpose of that privilege, which is to further and not to impede the administration of justice.

At least for some one hundred and fifty years the privilege afforded to communications to legal advisers has been regarded as founded upon the need of laymen for professional assistance in the protection, enforcement or creation of their legal rights. They should have the benefit of that assistance, free of any restraint which fear of the disclosure of their communications with those advisers would impose. In Greenough v. Gaskell [16] , Lord Brougham L.C. spoke of the opportunity which the law must afford, that of "an ignorant man safely resorting to professional advice". The privilege, he said arises "out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on" unless professional advice, based on full and frank instructions, is available free of the fear of subsequent disclosure of those instructions [17] . In Russell v. Jackson [18] , Sir George Turner V.C. treated the privilege As founded upon the client's "prosecution or defence of his rights" and his need, for that purpose, "with safety" (to) "state to his solicitor the true position of his case". In this Court the judgments in Varawa v. Howard Smith & Co. Ltd. [19] acknowledge this to be the basis of the privilege. This being its basis and purpose, it will also dictate its limits. The law, although anxious to ensure unrestrained recourse to professional advice on the part of those whose legal rights or duties are in question, has no concern to encourage those who seek advice so that they may the better undertake or continue criminal or fraudulent conduct.

(1833) 1 My. & K. 98, at p. 101 [39 E.R. 618, at p. 620]. 2. (1833) 1 My. & K., at p. 103 [39 E.R., at p. 621]. 3. (1851) 9 Hare 387, at p. 392 [68 E.R. 558, at p. 560]. 4. (1910) 10 C.L.R. 382.

In Russell v. Jackson [20] it was said that an illegal purpose would prevent the privilege from attaching, since it is no part of a solicitor's duty "to advise his client as to the means of evading the law". In Follett v. Jefferyes [21] Lord Cranworth spoke of "cases of fraud contrived by the client and solicitor in concert together" as not being exceptions to the rule of privilege but rather as cases never coming within the rule at all, since the contriving of a fraud could form no part of a recognized professional relationship.

(1851) 9 Hare, at pp. 392-393 [68 E.R., at p. 560]. 2. (1850) 1 Sim. (N.S.) 3, at p. 17 [61 E.R. 1, at p. 6].

The reasoning of these cases did not extend to the case where, as here, the legal adviser is innocent of knowledge of the illegality proposed. But in Reg. v. Cox and Railton [22] a Court of ten judges concluded that in that case too the privilege did not arise. Speaking for the Court, Stephen J. said [23] that for the rule to apply "there must be both professional confidence and professional employment" and where the illegal object is not disclosed the client "reposes no confidence, for the state of facts, which is the foundation of the supposed confidence, does not exist. The solicitor's advice is obtained by a fraud". This finds support in Williams v. Quebrada Railway, Land and Copper Co. [24] , in Bullivan v. Attorney-General (Vict.) [25] and in Varawa v. Howard Smith & Co. Ltd. [26] . In the latter case Isaacs J., in referring to the judgment of Turner V.C. in Russell v. Jackson, said of the privilege that "the Court must, of course, have regard to the foundation on which it rests, and not extend it to cases which do not fall within the mischief which it is designed to protect" [27] . His Honour added [28] that in the case of a legal adviser innocent of all knowledge of intended wrongdoing, the client is using him "as an unconscious instrument in the commission of a crime, thereby deceiving his legal adviser. The privilege where it exists being that of the client, his guilt is sufficient to destroy it, whether the solicitor is party to it or not. The keynote of the position, however, must be that the information as to which privilege is denied must be as to some act which is in furtherance of an illegal object".

(1884) 14 Q.B.D. 153. 2. (1884) 14 Q.B.D., at p. 168. 3. [1895] 2 Ch. 751. 4. [1901] A.C. 196. 5. (1910) 10 C.L.R. 382. 6. (1910) 10 C.L.R., at p. 389. 7. (1910) 10 C.L.R., at p. 390.

Although the facts of the present case are significantly different from those which gave rise to the precedent decisions, the principle which those decisions reveal as underlying this privilege points clearly enough to what should be the answer to the present question.

It is true that the quite limited professional assistance sought by Mrs. McJarrow from the applicant was not itself to be used by her so as to further any illegal purpose. But there was absent from her relationship with the applicant that reposing of professional confidence of which Stephen J. spoke in Reg. v. Cox and Railton. Mrs. McJarrow, when she instructed the applicant to act on her behalf, was already acting in defiance of the order of the Family Court and she concealed from the applicant not only this fact but all mention of the previous proceedings between her husband and herself which led to the making of that order. When she asked the applicant not to disclose the address with which she supplied him she was using him as "an unconscious instrument" in her continued frustration of the order of the Family Court regarding the custody of Tanya. She was, in effect, seeking to use the processes of the law to protect her interest in the matrimonial home while at the same time acting in defiant disregard of its processes in relation to the custody of Tanya. To confer upon her communication of her address the protection of legal professional privilege would be to allow that privilege to be used for a purpose alien to its whole purpose and history.

There are two wardship cases which not only provide quite close factual analogies to the present case but indicate the operation of this principle in practice. These are Burton v. Earl of Darnley [29] and, in particular, Ramsbotham v. Senior [30] . In each a solicitor had for a client the mother of wards of the Court who was concealing their whereabouts from their legal guardian. In Ramsbotham v. Senior Sir Richard Malins V.C. stressed the fact that the children were wards of the court; yet both cases are, I think, no more than instances of the application of well-established principle which relates to legal professional privilege generally. His Honour has recourse to familiar reasoning when he says [31] that he believes the universal rule to be in relation to this privilege, that it is the privilege of the client, not of the solicitor; he goes on to say that where the client has no claim to privilege, because guilty of great impropriety in keeping the court's ward out of the reach of the court, she can have "no privilege whatever for concealing their residence", and no more can her solicitor.

(1869) L.R. 8 Eq. 576n. 2. (1869) L.R. 8 Eq. 575. 3. (1869) L.R. 8 Eq., at pp. 578-579.

The appellant sought to distinguish these cases, saying that because they were wardship cases special rules applied to them. Some support for this view might at first sight appear to lie in the subsequent cases of Heath v. Crealock [32] and Rosenberg v. Lindo [33] . But in the former case Sir James Bacon V.C., who refused to make an order compelling a solicitor to disclose his client's address, did so upon the ground that there was in fact no evidence that the solicitor knew of his client's whereabouts; his remarks concerning the inapplicability of wardship cases were strictly obiter. In Rosenberg v. Lindo [34] , Chitty J. said that jurisdiction to order personal attendance before the court of those who might help in ascertaining the residence of a ward of the court was based "not on any part of the law of contempt, but on the law which relates to the custody of infants". However, the reported record of argument and his Honour's reasons for judgment both indicate that considerable reliance was placed upon the earlier case of In re Spence [35] , in which case the Lord Chancellor had held that an order for delivery of an infant to a guardian might as well be made in proceedings initiated by petition invoking the Crown's prerogative as parens patriae as under the general jurisdiction on habeas corpus. Chitty J. relied upon the former jurisdiction and in saying what he did was, I think, doing no more than referring to the alternative basis of jurisdiction which was open to him.

(1873) L.R. 15 Eq. 257. 2. (1883) 48 L.T. 478. 3. (1883) 48 L.T., at p. 479. 4. (1847) 2 Ph. 247 [41 E.R. 937].

That Ramsbotham v. Senior was decided upon general principle and not upon a basis applicable only to wardship cases is supported not only by Sir Richard Malins' observations in that case but also by his subsequent remarks in Crawcour v. Salter [36] . He there states that such cases as Robson v. Kemp [37] , Ex parte Campbell; In re Cathcart [38] and Ramsbotham v. Senior were decided on those general and established principles applicable to legal professional privilege generally.

(1881) 18 Ch. D. 30, at p. 36. 2. (1782) 5 Esp. 52 [170 E.R. 735]. 3. (1870) L.R. 5 Ch. 703.

When, as here, it is a client's address for which privilege is claimed special considerations may sometimes arise. In a number of cases it has been said that the identity of a client is not something to which the privilege applies, and this because a litigant is entitled to know who in truth is his opponent, "who is the real defendant": Levy v. Pope [39] per Parke J., and see Gillard v. Bates [40] , Bursill v. Tanner [41] , and Cook v. Leonard [42] . There may be cases in which knowledge of an opponent's address is an element essential to any real knowledge of his identity. In such cases it would seem right that privilege should not attach. On the other hand, if the likelihood of disclosure of a person's address would operate as a real deterrent from his seeking professional advice, this would suggest that the privilege should apply, as James L.J. observed in Ex parte Campbell [43] . Each of these considerations reflect different aspects of public policy. There are, no doubt, other such aspects which may emerge in particular cases. If they may sometimes seem to conflict one with another, it will be for the Court to resolve the conflict by the familiar process of weighing the respective consider ations against each other.

(1829) Moo. & M. 410 [ 173 E.R. 1206]. 2. (1840) 6 M. & W. 547 [151 E.R. 529]. 3. (1885) 16 Q.B.D. 1. 4. [1954] V.L.R. 591. 5. (1870) L.R. 5 Ch., at p. 705.

James L.J. made it clear in his judgment in Ex parte Campbell that it was not enough to attract privilege that the client's address came to the solicitor's knowledge in consequence of his acting for the client; the address might in such a case be a "mere collateral fact, which the solicitor knows without anything like professional confidence". Again it cannot, I think, be enough to attract privilege that the client has asked that his address be treated as confidential. I do not understand what his Lordship says in Ex parte Campbell [43a] as going so far. That fact may, of course, help to establish that privilege should attach on the ground that, but for the expectation of confidentiality, recourse to legal advice would not have been sought. However it cannot of itself be conclusive.

One thing is clear. It is that privilege for an address cannot be claimed when its confidentiality was sought, as here, in order to frustrate the processes of law.

If then, as I have concluded, no claim to privilege could here have been sustained, it remains to consider whether the Family Court's order, requiring the appellant to disclose his client's address, was within power.

The learned judge who made the order relied primarily upon s. 114 (3) of the Family Court Act but also regarded s. 70 (6) as an additional and independent source of power. In so far as the order was directed to the appellant, a stranger to the proceedings, his Honour relied upon the decision of this Court in Antonarkis v. Delly [44] .

Section 114 is one of two sections which comprise Pt XIV of the Act, entitled "Declarations and Injunctions". Sub-sections (1) and (2) of s. 114 relate only to proceedings between the parties to a marriage seeking an order or injunction in circumstances arising out of the marital relationship. They empower the Court both to make orders and to grant injunctions. By way of contrast, s. 114 (3), which applies to all other proceedings, is confined to the granting of injunctions: it says nothing about the making of orders. The contrast is emphasized by the form taken by sub-s. (4). It is a general provision for penalties on non-compliance and for enforcement and it reverts to the language of sub-s. (1), speaking of both orders and injunctions.

Due effect must be given to this confining of the grant of power in s. 114 (3) to injunctions. The Act supplies no definition of "injunction" and while, in its ordinary meaning, it no doubt extends to orders expressed in positive as well as negative terms, as in the case of mandatory injunctions, it will not aptly describe any such order as that here in question. Only by understanding "injunction" as a synonym for "order" can s. 114 (3) be thought to extend to the present order; however, I regard the terms of sub-ss. (1) and (4) as negating such an interpretation. Moreover s. 114 (3) would, in any event, be a strange place in which to discover such a grant of power; its function seems to be quite narrowly confined to the specific cases for which it legislates rather than extending to some power to make orders generally.

Section 70 (6) does, however, in my view confer the power necessary to support the making of the present order. The section of which it forms part is concerned to prevent interference with the custody of children such as Tanya, in respect of whom custody orders have been made. Section 64 (9) empowers the Court to issue, in respect of such a child, the form of warrant which was issued in this case. Section 70 (5) then provides that a person shall not "prevent or hinder the execution" of such a warrant. Section 70 (6) goes on to provide as follows:

(6) If a court having jurisdiction under this Act is satisfied that a person has knowingly and without reasonable cause contravened or failed to comply with a provision of this section that court may -

(a) order that person to pay a fine not exceeding $1,000;

(b) require that person to enter into a recognizance, with or without sureties, in such reasonable amount as the court thinks fit, that that person will comply with the relevant order, or order that person to be imprisoned until that person enters into such a recognizance or until the expiration of 3 months, whichever first occurs;

(c) order that person to deliver up to the court that person's passport and such other documents as the court thinks fit; and

(d) make such other orders as the court considers necessary to enforce compliance with this section.

For the applicant to refuse to disclose Mrs. McJarrow's address did hinder the execution of the warrant in this case. Accordingly, it involved him, albeit in perfect good faith, in knowingly failing to comply with s. 70 (5). As no privilege attached to his client's address, his failure was without reasonable cause. It follows that the Family Court had power to make orders pursuant to subs. (6). To have made any order under pars. (a), (b) or (c) would, of course, have been quite inappropriate in the circumstances. But the order that was made appears to fall precisely within the terms of par. (d).

I would accordingly refuse the application for a writ of prohibition.

On 31st August, 1979, Lambert J. of the Family Court of Australia ordered that Mrs. McJarrow be granted custody of the child of the marriage and ordered that Mr. McJarrow deliver the child to her, which he did on 6th September 1979. On 7th September, Bulley J. ordered that Mr. McJarrow have the care, possession and control of the child and that the application for custody be put in the contested list. The McJarrows agreed that Mrs. McJarrow have custody of the child until 9th September when she was to return her to Mr. McJarrow. She has not done this. Mr. McJarrow tried to ascertain his wife's whereabouts but could not. On 11th September, Bulley J., on Mr. McJarrow's ex parte application, ordered that, pending the determination of the custody application, he was to have custody of the child, that the order for access be suspended and that a warrant issue directing that the child be delivered into his possession. The police have been unable to find the wife or child.

By Bell J.'s order, the Court is seeking to learn the whereabouts of the child. The solicitor may know where the child is or have information which could result in the child being found. He claims privilege as a ground for not obeying the court's order. The importance of legal professional privilege for the administration of justice is undoubted (see J.A. Gardner, A Re-Evaluation of the Attorney-Client Privilege, Villanova Law Review, vol. 8 (1963), p. 279; G.C. Hazard, Jnr, An Historical Perspective on the Attorney-Client Privilege, California Law Review, vol. 66 (1978), p. 1061; M. Radin, The Privilege of Confidential Communication Between Lawyer and Client, California Law Review, vol. 16 (1928), p. 487; B. McLachlin, Confidential Communications and The Law of Privilege, University of British Columbia Law Review, vol. 11 (1977), p. 266).

In Grant v. Downs [45] , the Court dealt with a claim to resist discovery of documents on the ground of the privilege. The majority said [46] :

The existence of the privilege reflectes, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. However, they pointed out that "there are powerful considerations which suggest that the privilege should be confined within strict limits." It seems that the concept of the privilege has never been based on any precise and generally accepted theory. Because of this lack of theory, the scope of privilege has always been somewhat flexible. Thus, as Wigmore stated, one of the four fundamental conditions for its existence was that "the injury that would be done to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of the litigation" (Evidence (1961), vol. 8, p. 527, par. 2285.). 1. (1976) 135 C.L.R. 674. 2. (1976) 135 C.L.R., at p. 685.

(1) In proceedings with respect to the custody or guardianship of, or access to, a child of a marriage -

(a) the court shall regard the welfare of the child as the paramount consideration .

The applicant's counsel, Mr. Broun, submitted that the paramountcy of the child's welfare overrides even considerations touching the Family Court's authority in relation to defiance of its orders, and that the Family Court would therefore entertain an application for variation of a custody order by a person defying an existing order, because the variation might advance the child's welfare. If this is so, it would be curious if the child's welfare were not paramount over legal professional privilege in circumstances such as those in this case. The wardship cases of Burton v. Earl of Darnley [47] and Ramsbotham v. Senior [48] suggest that the child's welfare should prevail over the privilege. 1. (1869) L.R. 8 Eq. 576n. 2. (1869) L.R. 8 Eq. 575.

The applicant conceded that, apart from the question of professional privilege, the Court had authority to make such an order.

It has not been necessary to consider whether this case fits within the category of cases in which prohibition may be granted even if the applicant's contentions on legal professional privilege were correct.

I have had the advantage of reading the reasons for judgment prepared by my brother Wilson in the matter. I agree with those reasons and have nothing to add. The application should be refused.

This case raises the short but important point as to whether the Family Court of Australia is empowered to require Mr. Lees ("the prosecutor"), who is a solicitor for one of the parties engaged in matrimonial proceedings, to disclose the address of his client, that address having been communicated to him in confidence in the course of the professional relationship with the client.

The story begins on 31st August 1979, in the Family Court in Brisbane. On that day Lambert J., upon the ex parte application of Dianne Carroll McJarrow ("the wife"), granted her the interim custody of Tanya Kay McJarrow, the child of the marriage who was born on 13th September 1975. He ordered the husband, in whose possession the child then was, to deliver the child forthwith to the wife, and adjourned the application to 7th September 1979. The child was handed over to the wife on the 6th September. On the 7th September Bulley J. ordered that the husband have the care possession and control of the child with access to the wife, and ordered that the application for custody be placed on the contested list. Thereafter the wife failed to deliver the child to the husband, and, indeed, went into hiding with her. All endeavours to locate the wife and child were unsuccessful. On 11th September 1979, Bulley J. gave custody of the child to the husband pending the determination of the application, and issued a warrant for the delivery of the child to him. The warrant remained unexecuted at the date of the hearing before this Court.

On 13th September 1979 the prosecutor received instructions from the wife to act on her behalf in connexion with the matrimonial property. He had no knowledge of the custody proceedings, and the wife did not enlighten him. She informed him of a method whereby he could contact her if necessary and expressly requested that the method be kept confidential.

On 30th October 1979 on instructions from the wife the prosecutor wrote to the husband proposing a property settlement. This communication led to demands from the husband and his solicitors that the prosecutor disclose the whereabouts of the wife, and to the latter's claim that the information in his hands was the subject of legal professional privilege. The husband pursued the matter, and on 14th November 1979 Bell J. ordered the prosecutor to disclose to the husband's solicitors the address of the wife as at the date of her last communication with him. That order was made in the absence of the prosecutor, he having been unable to secure any instructions from his client. Thereafter he sought a stay of the order, but this was denied; hence the present application to this Court for a writ of prohibition directed to Bell J.

There would seem to be three questions requiring the consideration of the Court:

In the circumstances, was the communication by the wife to the prosecutor of the method by which she could be contacted the subject of legal professional privilege?

If yes, does the Family Law Act override such privilege?

In any event, did the Family Law Act empower Bell J. to make the order he did against the prosecutor?

The common law right to claim legal professional privilege enshrines a principle of great importance. The basis and extent of the right was expounded in Bullivant v. Attorney-General (Vict.) [49] , by Lord Halsbury L.C. as follows:

I think the broad proposition may be very simply stated: for the perfect administration of justice, and for the protection of the confidence which exists between a solicitor and his client, it has been established as a principle of public policy that those confidential communications shall not be subject to production. But to that, of course, this limitation has been put, and justly put, that no court can be called upon to protect communications which are in themselves parts of a criminal or unlawful proceeding. Cf. also Grant v. Downs [50] . 1. [1901] A.C. 196, at pp. 200-201. 2. (1976) 135 C.L.R. 674.

Ordinarily, the address of a client is a mere collateral fact the solicitor's knowledge of which does not arise out of any professional confidence: Ex parte Campbell; In re Cathcart [51] . However, it may become a matter of professional confidence if the client has communicated it confidentially, for the purpose of being advised by the solicitor, and has not made it known to the world at large: Ex parte Campbell; Ex parte Schneider (St. Louis Court of Appeals) [52] . There can be no doubt in the present case that the wife intended the solicitor to treat the information she gave him with the utmost confidence. But it is necessary to consider the second limb of the principle as stated by Lord Halsbury in Bullivant's Case. The privilege is grounded in public policy. It is in the public interest that confidential professional communications between solicitor and client should be uninhibited by any fear of disclosure. But it would be odd if the privilege extended to protect communications which were directed against the public interest. It is therefore necessary to ask whether the attachment of confidentiality to the wife's address was against the public interest in such a sense as to deny to it the cloak of privilege. The test in this regard has been variously described in the cases. In Bullivant it was stated as "communications which are in themselves parts of a criminal or unlawful proceeding". In Schneider , it was said that privilege "does not extend to, or shelter advice concerning, or assistance in, proposed infractions of the law". In Varawa v. Howard Smith & Co. Ltd. [53] , Isaacs J., speaking of legal professional privilege said: "Certainly the rule adopted for the protection of the administration of justice cannot be applied to things which would prevent the disclosure of crime or fraud." Finally, there is the recent case in the United States which was referred to by Bell J. in which it was held that an attorney may validly assert the privilege as to his client's name and address in the limited instance where the client intended such information to be confidential and provided that the cloak of secrecy will not "aid in carrying out an unlawful purpose". The attorney's duty cannot extend to aiding and abetting the client to evade the impact of the orders of the court either by acts of commission or omission: In re Jacqueline F. [54] .

(1870) L.R. 5 Ch. 703. 2. (1927) 294 S.W. Rep. 736. 3. (1910) 10 C.L.R. 382, at p. 389. 4. (1978) 4 Fam. L. Rep. 2,391; affd. (1979) 5 Fam. L. Rep. 2,637.

One must therefore examine the circumstances to discern the purpose of the action of the wife in attaching confidentiality to her address. It is irrelevant that the prosecutor had no knowledge of the custody proceedings, or of her reasons for instructing him in the manner she did. The privilege is the client's privilege, and it is the knowledge and purpose of the client which determines whether or not the privilege will attach to the communication. Mr. Broun, counsel for the prosecutor, argued that no illegality tainted her action in communicating her address to the prosecutor because the purpose of that communication was to enable the wife to negotiate in relation to the property question. But this argument fails to have any regard to the critical aspect of the communication, which was not the communication of her address but the attachment to that information of strict confidentiality.

No reason appears to suggest that the subject matter of her instructions to the solicitor, namely, a settlement of the matrimonial property, called for any secrecy to attach to her whereabouts. In my view, there is only one construction that can be placed on the action of the wife in this regard. Confidentiality was imperative in order to enable her to avoid discovery of herself and the child, and so continue her defiance of the order of the Court. To extend privilege to such a communication does nothing in the circumstances to facilitate "the perfect administration of justice". On the contrary, it enables the continuance of a contempt of court, and bears on its face the taint of illegality.

Mr. Broun argued that the Court should take a less serious view of the wife's conduct in disregarding the order for custody in favour of the husband because in this particular case they were only interim orders and such orders were frequently disregarded and treated as no more than a starting-point for negotiations. He argued that the Act made it clear that the welfare of the child was paramount, even to the order of the Court. I find the argument surprising, and cannot accept it. The legal machinery of the Act in relation to custody is the vehicle whereby the welfare of the child is to be discovered and secured, and any approach which would substitute the view of one of the parties even for only an interim order of the Court is untenable.

Courts both in England and in the United States of America have taken a stern view of conduct which interferes with the discharge of their responsibility in relation to the care of children. In England, in each of the cases of Ramsbotham v. Senior [55] , and Burton v. Earl of Darnley [56] , a mother had absconded with her child and the court denied to her solicitor any claim of professional privilege in relation to matters which might lead to discovery of the whereabouts of the child. Mr. Broun sought to distinguish these cases on the basis that in each case the child was a ward of court, but, in my opinion, the provisions of s. 64 (1) (a) of the Family Law Act furnish a basis for drawing a strong analogy. In the State of Washington in the United States in 1968 the Supreme Court adjudged an attorney to be in contempt for refusing to disclose his client's whereabouts in a case where she had forcibly removed her child from its custodial home in violation of a custody order in a pending divorce action: Dike v. Dike [57] .

(1869) L.R. 8 Eq. 575. 2. (1869) L.R. 8 Eq. 576n. 3. (1968) 448 P.2d 490.

I would therefore answer the first question in the negative. In the circumstances of this case the communication to the prosecutor by the wife of the manner in which she could be contacted was not privileged, notwithstanding her wish and intention that it should be confidential.

This conclusion makes it unnecessary to consider the second question, which was directed to the problem whether the Family Law Act evinces a sufficiently clear intention to over-ride a claim of legal professional privilege.

It remains to consider whether Bell J.'s order was within power. The strength of Mr. Broun's argument on this point is seriously affected by my conclusion that the communication of the wife was not privileged. It is fair to say that the whole thrust of his argument in the case was that the communication was protected by a principle of the common law which was fundamental to the administration of justice, and that the Family Law Act on its proper construction did not evince an intention to override that principle. Since we are now concerned only with the question whether in the circumstances of this case there was a power in the Court to make an order directed to a third party in the person of the prosecutor, I think the question can be answered quite shortly. In my opinion, such a power is to be found in s. 114 (3) - of the Act. This provision empowers a court exercising jurisdiction under the Act in custody proceedings to grant an injunction in any case in which it appears to the court to be just or convenient to do so. The power may be exercised in a proper case in relation to persons other than those who are parties to the matrimonial cause: Sanders v. Sanders [58] ; Antonarkis v. Delly [59] . Bell J. considered the circumstances in the light of the requirements of the provision, and concluded that it was just to direct the prosecutor to disclose the address of his client so that the court's order could be perfected. I can find no reason to disagree with his exercise of the power conferred by s. 114 (3). He also expressed the opinion that his order could be supported by reference to s. 70 (6) (d). This section deals specifically with non-compliance with a custody order; in terms, sub-s. (6) (d) is wide enough to support the order made by Bell J., but Mr. Broun argued for a limited construction derived from the context provided by the earlier paragraphs in the sub-section. It is unnecessary to express a concluded view on the argument, but I may say that in construing the provision one cannot disregard the imperative command of the Parliament contained in s. 64 (1) (a) that in proceedings with respect to the custody of a child of a marriage the court shall regard the welfare of the child as the paramount consideration.

(1967) 116 C.L.R. 366. 2. (1976) 51 A.L.J.R. 21; 10 A.L.R. 251.

It follows from the views that I have expressed that I am of the opinion that Bell J.'s order was proper. I would therefore refuse the application for a writ of prohibition.

High Court of Australia Gibbs, Stephen, Murphy, Aickin and Wilson JJ. R v Bell; Ex parte Lees [1980] HCA 26

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Judgment (74 paragraphs)

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