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- Unreported Judgment
DCPL v LGC QChCM 1
MAGISTRATES COURTS OF QUEENSLAND
DCPL v LGC & DJC  QChCM 1
LGC and DJC
4 July 2019
4 July 2019
The Application by DCPL for an Order for inspection of a report of Ms Barclay-Timmis, delivered to the Court pursuant to a subpoena served upon her, is dismissed.
Watkins v State of Queensland  QCS 57
Mann v Carnell  HCA 66
Attorney-General for Northern Territory v Maurice  161 CLR 475
Bell v Bell  FMCAFam 595
Osland v Secretary to Department of Justice  HCA 37
Bennett v Chief Executive of Australia Custom Service  FCAFC 237
Mr Anderson, Counsel for DCPL
Mr Lewis, Legal Aid Queensland for the Father
Ms Hawden, Forrest Glen Lawyers, Separate Representative.
Ms Trost Solicitor, Condon Charles for the Mother
- In this matter, the underlying application is for a long-term guardianship order in respect of three children, HCC, SC and DC. The children have been in care for four or more years. Ms Black, psychologist, has provided a report for the DCPL in which she expresses the view, inter alia, that the father, DJC, has a current mental age of seven years.
- Mr Lewis for the father, upon receipt of that report, obtained a report from Ms Barclay-Timmis, a psychologist, as to the capacity of DJC to give instructions to him. Ms Barclay-Timmis has provided a report and Mr Lewis has informed the parties and the Court that Ms Barclay-Timmis' report had sufficiently satisfied him that DJC does have capacity to instruct him. He further advised that his client claimed legal professional privilege in respect of the report.
- Upon oral application made to the Court on 18 April 2019 for production of the report, her Honour Magistrate Keegan refused the application, accepting Mr Lewis’ submission that the report was privileged. DCPL has now served a subpoena on Ms Barclay-Timmis for production of the report. I understand it has been produced to the Court without objection. The subpoena is in very broad. In its terms, it requires her to produce:
“…all reports, assessments, and assessment tools and notes in relation to DJC, date of birth 17/4/64, including but not limited to intellectual and or parental capacity reports, and mental health reports, and or notes.”
- In his written submissions to the Court today, Mr Anderson for the DCPL, simply asked the Court to order that the report be produced and nothing else. Mr Lewis has, in effect, brought an application to the court today for an order that as the report is privileged, it should not be produced under the subpoena. The questions for the Court are (1) is the report privileged? I accept Mr Lewis’ submission that the report was obtained for the purpose of him satisfying himself that DJC had capacity to give him instructions and would advise DJC accordingly. See the passages contained at paragraph 67 of Mr Anderson’s very helpful submission.
- The next question is: has Mr Lewis’ letter advising the parties that Ms Barclay-Timmis’ report satisfied him as to his client’s capacity to give him instructions waived that privilege? Both parties have provided detailed submissions and also oral submissions have been received today from Mr Anderson, Ms Hawden, the Separate Representative, Mr Lewis, and Ms Trost for the mother.
- At paragraph 69 of Mr Anderson’s submission, reference was made to the case of Watkins v State of Queensland  QSC 57. At paragraph 10, her Honour Atkinson J said:
“The limiting effect of legal professional privilege on the availability of evidence otherwise relevant is confined, inter alia, by the doctrine of waiver. A litigant can of course waive his privilege directly through intentionally disclosing protected material. He can also lose that protection through a waiver by implication. An implied waiver occurs when, by reason of some conduct on the privilege holder’s part, it becomes unfair to maintain the privilege.”
- At paragraph 16, her Honour went on:
“The High Court held in Mann v Carnell that implied waiver occurs when the person claiming the privilege acts inconsistently with the maintenance of the privilege by, for example, failing to maintain the confidentiality of the communication which the privilege is designed to protect. It is widely accepted that the disclosure of part of a document may lead the Court to require the disclosure of the whole of the report, if part disclosure is misleading or unfair to the other side…”
- In the case of Attorney-General for the Northern Territory v Maurice  161 CLR 475, at 492-493, his Honour Deane J said:
“Waiver of legal professional privilege by imputation or implication of law is based upon notions of fairness. It occurs in circumstances where a person has used privileged material in such a way that would be unfair for him to assert that legal professional privilege rendered him immune from procedures pursuant to which he would otherwise be compellable to produce or allow access to the material which he has elected to use to his own advantage. Thus, ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings before a Court or quasi-judicial tribunal be treated as a waiver of any right to restrict scrutiny of the proprietary of the use he has made of the material by reliance upon legal professional privilege.”
- In Bell v Bell  FMCAFam 595, which is referred to at paragraph 74 of Mr Anderson’s submission, the Court was again considering the issue of waiver of privilege. At paragraph 21 of the judgment, referred to at the bottom of paragraph 74 of Mr Anderson’s submission, the Court said:
“At paragraph 34 of the decision of Osland v Secretary to the Department of Justice, the majority notes with approval that Maxwell P, agreeing with Tamblin J in Bennett v Chief Executive Office of the Australian Customs Service, said the disclosure of a conclusion expressed in legal advice, without disclosing reasons, may or may not result in a waiver of privilege, depending on consideration of the whole of the context in which it occurs.”
- The majority then refer to paragraph 35 of Maxwell P’s reasons, observing that part thereof is in these terms:
“Among the circumstances relevant to determining the inconsistency, it’s clear from Carnell and Bennett that the purpose for which the privilege holder made the disclosure is highly relevant. The question here was whether the use made by the Minister of the disclosed portion of the privileged communication – more particularly, the purpose for which the conclusion was disclosed – was inconsistent with the maintenance of confidentiality in respect of the content of the advice.”
- As noted earlier, Mr Lewis submits that Ms Barclay-Timmis’ report was obtained for a very specific and narrow purpose. It was obtained to satisfy himself that DJC had capacity to instruct him. It was not obtained to address the primary, underlying issue in the case of whether or not DJC had the capacity to protect his children from harm. Mr Lewis is an officer of the Court and in light of the report of Ms Black, he was duty-bound to satisfy himself of the matters the subject of Ms Barclay-Timmis’report.
- The issue of a party’s capacity to provide instructions to a solicitor is often raised in litigation. If after making due enquiry the party’s solicitor informs the other parties and the Court that his or her client has the relevant capacity, it would, in my view, be contrary to public policy if the solicitor has to disclose all and every inquiry he or she had made to satisfy himself or herself of the relevant matters. Litigation would become unnecessarily prolonged and expensive.
- I accept Ms Hawden’s submission that simply advising the other parties to these proceedings, and the Court, of the fact that his client does have capacity to instruct him does not waive DJC’s claim for privilege in respect of the report. Accordingly, I do not think it is necessary for me to view the report.
- Published Case Name:
DCPL v LGC & DJC
- Shortened Case Name:
DCPL v LGC
 QChCM 1
Acting Magistrate Carroll
04 Jul 2019