Hansen v Tadgell[2024] QDC 80

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   The genesis of the appeal before me is the passing of Audrey Pearl Tadgell in February 2022. Mrs Tadgell had had two children:, Christopher Tadgell, the first defendant in these proceedings, and Lorraine Tadgell, who subsequently married. Lorraine had three children, two sons and a daughter. The sons are David and Jamie. The daughter is Vivienne Patricia Hansen, the plaintiff in this matter. Christopher married Heather Veronica Tadgell, who is the second defendant in this matter. The other player in this drama is Amelinda Ellen Cope (Ms Cope).  She is the sole beneficiary of Mrs Tadgell’s will.  Ms Cope was the daughter of the plaintiff, Vivienne Hansen.
2. [2]
   It is uncontentious that Chris Tadgell brought a family provision application, and that that application was settled by agreement following a court ordered mediation, pursuant to directions made in the family provision application, conducted by a very experienced mediator. It is also uncontentious Chris Tadgell was to be paid something in the order of $260,000. The settlement that was reached at the mediation was given effect to by an order of Judge Sheridan of this Court. The settlement deed is not before me, but I understand it to be uncontentious that the only party who received a payment under that settlement was Mr Tadgell.
3. [3]
   The dispute between the plaintiff and Mr Tadgell pre-dates the family provision litigation. Its genesis was a conversation which Ms Hansen alleges occurred on the 5th of March 2020. It does not appear to be in dispute that there was a telephone conversation between Mr Tadgell and Ms Hansen on or around that date. The dispute concerns what was said in that conversation. Ms Hansen’s version appears in paragraphs 4.1 to 4.5 of her amended statement of claim in the proceedings. It relevantly alleges, by clause 4.1:

At this time he [Mr Tadgell] stated explicitly to me that he had been instructed by his solicitor […] to ask me for my consent for him to act as my agent, and that he would give to me,  and my two brothers, Jamie Sims […] and David Sims […] either $50000 each, or equal one-third each shares of one half of the sum he obtained in settlement of his claim.

[square brackets added]

4. [4]
   The pleading went on, by 4.2 to 4.5 to allege that:

   1. Mr Tadgell said he would keep the other half for himself;
   2. the amount he was seeking was $330,000;
   3. the reason why he said he would do this was so that his deceased sister’s offspring could get a share of their grandmother’s estate in her place; and
   4. in return, for his action on their behalf, he asked Ms Hansen’s support of his claim by way of statements or testimony, should that become necessary in the hearing. This included permission to use Ms Hansen’s name and circumstances in negotiations with the executor.
5. [5]
   The family provision application never progressed to a hearing, being settled in mediation prior to that. Although there is a great deal more alleged in the statement of claim, most of what follows is not relevant to the proper pleading of that claim. Ms Hansen seeks orders to give effect to that alleged agreement based on the $260-odd thousand paid.
6. [6]
   Mr Tadgell’s defence to paragraphs 4.1 to 4.5, in substance, denies any such agreement or offer to act as the plaintiff’s agent. The defence, by clause 4.1, gives two reasons for the denial of the offer to act as the plaintiff’s agent: one being that such an offer was not possible in law, and the second being that there was, in fact, no such promise.
7. [7]
   As I said, the balance of the paragraphs are to deny the words allegedly said. As is commonly the case in family provision litigation, Mr Tadgell was represented by solicitors; in particular, Bernard Klar of Klar Legal. Notices to admit documents were also given by the parties, which are of some relevance to this appeal. During preparation for trial, there was extensive correspondence about whether documents relating to communications between Mr Tadgell and Mr Klar - which Ms Hansen thought might be relevant to the facts she alleges - were to be discovered or were privileged from production because they were covered by legal professional privilege.

The decision below

8. [8]
   That matter came before the learned Magistrate for hearing on 23 June 2023. Before his Honour, Ms Hansen represented herself, and Mr Ball of Shorestone Legal appeared on behalf of Mr and Mrs Tadgell. (I struggle to see why Mrs Tadgell is a proper party to this proceeding, but I have not discussed that with either party, and it has not been raised before me.) In any event, before his Honour, various affidavits were read, most directly relevant were affidavits filed by Mr Ball on the 27th of April 2023, articulating a claim for legal professional privilege. Also before his Honour were affidavits of Ms Hansen and her daughter, the executor, along with a responsive affidavit to the daughter’s affidavit (which is the only one that asserted specific facts going to the merits of the case).
9. [9]
   Ms Hansen filed an outline of argument before his Honour. At some 17 pages, the outline of argument was long, given the nature of the matter (meaning no disrespect to Ms Hansen, who has worked very hard to articulate propositions consistent with the law).  The outline included a good number of matters that were irrelevant to challenging the claim for privilege. Nonetheless, the outline of argument advanced several relevant reasons why the claim to privilege, even if properly made, could not stand. Those were identified under the heading, “Part 3, Fraud and Privilege.” It went on then to seek to articulate a fraud exception, and express an implied waiver, along with a number of other matters.
10. [10]
    His Honour took some care to identify the material that was relied upon by the parties. His Honour then referred to the outline of argument. He then sought to assist Ms Hansen to articulate what her cause of action was and, ultimately, after a little back and forth, attention finally focused, correctly, on paragraphs 4.1 and following of the amended statement of claim. His Honour thereafter volunteered the observation that the pleading was not a compliant pleading. He was told that a strikeout had been heard before another magistrate, and the application had been dismissed.
11. [11]
    It is fair, I think, to take from his Honour’s observations,^[1] that he thought that another view might have been reached on that day, but once he understood what had occurred, he moved on, accepting the earlier decision. The criticism made in the notice of appeal of the way his Honour dealt with that issue is unjustified.
12. [12]
    His Honour then asked Ms Hansen, in effect, to run her argument. She was admirably able to identify the rule that she was applying, and the documents that she wanted, being the 10 documents described in Mr Ball’s affidavit of 27 April. Where things went wrong occurs on page 10 of the transcript. His Honour asked Ms Hansen how the documents were not properly the subject of a claim for privilege. Ms Hansen articulated her fraud complaint and went on to articulate this proposition:^[2]

Now, after I put my claim in, he’s denied that he ever made that arrangement with me, and the advice that’s in that letter would probably inform the court quite conclusively whether he did or he did not say that. And further, there are mentions of myself and/or my brothers throughout the matter and into, even the mediation. And if what I am saying that my uncle was acting not only for him, but to provide for his deceased sister’s children, there wouldn’t [sic would?] be any mention of us in those documents. So I believe that those documents do have a particular probative value in the case.

His Honour then asked if there was anything else at all, and the applicant responded:^[3]

Only that I’m relying on the submissions that I put in writing because I’m not very good at speaking off-the-cuff.

His Honour then proceeded, without referring to Ms Hansen’s submissions, to dismiss the application for disclosure on the basis that the claim was for privilege was properly made.  I from the transcript that he did so on the basis that, just because a document is probative, or even very probative, that is not a reason why privilege should is abrogated (although the reasons do not specifically state that proposition).

13. [13]
    One of the points that Ms Hansen made on this appeal was that his Honour did not deal with her other arguments in her outline in Part 3.  That submission is correct. The failure to deal with those submissions and give reasons, even brief ones, as to why those submissions were wrong represents an error of law.  The appeal succeeds on that basis.

Determining the underlying application 

14. [14]
    I heard submissions at a length as to whether there was any reason why I could not proceed to then hear the underlying application. I explained to Ms Hansen that it is something that I would ordinarily do, unless there was a reason why it was not fair to one party or the other to proceed on the record that was before me. Ms Hansen told me, and I accept, that it was her understanding from her discussions with the registry that, if the appeal succeeded, it would be referred back for rehearing before another magistrate.

15. [15]
    I am not assuming that is what the registry said, but I accept that that is what Ms Hansen understood the position to be. If that was said, it should not have been, because it is quite common for an appeal Court when concluding that an order under appeal is affected by error, to proceed to consider the matter that was before the Court below and decide it in the appeal.  I gave Ms Hansen some time to think about things, and as a result of our discussion about the matter, I intimated my intention to proceed on the basis that I would adjourn for half an hour for her to prepare herself for that eventuality.
16. [16]
    I could see no reason why I should not determine the underlying application according to law. Ms Hansen’s submissions before me comprehensively and carefully articulated the grounds upon which she said privilege either did not arise, or had been waived, or was excluded. She flagged the possibility of cross-examination. She did not press that.  I intimated that I was unpersuaded that was called for in this case. I maintain that view. The matter is an interlocutory matter. Ordinarily, cross-examination is not commonly permitted. It can be permitted if justice requires it. However, I did not think it was justified in this case.
17. [17]
    The claim for privilege was in orthodox form. It did not seem to me that there was anything about the nature or character of that claim for privilege which gave rise to issues that could properly be the subject of cross-examination of the solicitor who swore the affidavit, being Mr Ball, the current solicitor. That can be different in other cases, but it seemed that, in this case, the real question was to do with the waiver points or the fraud exception raised in Ms Hansen’s Part 3 submissions below.
18. [18]
    There was no suggestion that the previous solicitor was involved in the alleged fraud. And the implied waiver points arose or fell on the material relating to the acts said to give rise to the waiver.
19. [19]
    I therefore decided to proceed today, and adjourned for half an hour or so, so Ms Hansen could think more about what, if anything, she wanted to say on the application. Ms Hansen’s statements that she is better in writing than she is on her feet, is correct. Nonetheless, I was able to put to her various matters that concerned me, working through her outline.

The documents the subject of the claim for privilege

20. [20]
    Before analysing Ms Hansen’s arguments, I need to say something about the documents that are the subject of the claim for privilege. That is dealt with in the affidavit of Mr Ball, dated 27 April 2023. He identifies 10 documents dated between 5 March 2020 and 9 September 2021. That claim for privilege was in response to an email of 30 March 2023 from the plaintiff, which requested further disclosure including, amongst other things:

[A]ny and all notes, memos, documents, agreements, advices or records of any kind with Klar Legal, in which Mr Tadgell has given or received instructions with specific reference to Vivienne, Jamie and/or David or ‘Lorraine’s children’ or his ‘niece and nephews’ generally in connection with his claim against Audrey’s estate, including the dates on which those interactions took place, from initial consultation regarding the estate of Audrey Tadgell, up to and including the mediation conference and settlement.

[square brackets added]

21. [21]
    In response to that, Mr Ball obtained the file from Klar Legal. He reviewed all the documents. He found 10 documents, emails and other documents, letters and so on, between 5 March 2020 and 9 September 2021. He describes each document, who it was from, who it was to, and the character of what it contained from the perspective of a claim for legal professional privilege. Notably, the first document is an email of 5 March 2020 from Mr Klar to the Tadgells, providing legal advice about the first defendant’s claim for family provision. It is to be noted that Audrey passed in February, so this was within days, if not a few weeks of her passing. There is no reason to think the email of 5 March 2020 was not the first document, much less the first document that referred to Lorraine’s family.
22. [22]
    Mr Ball describes all the documents as either emails, file notes, letters to and from counsel, to and from solicitors, and giving legal advice or obtaining instructions about the family provision application, up to 9 September 2021.  There is nothing surprising about that course of communications in a family provision case that results in a mediation. What we do know is that those 10 documents contain some statement about Lorraine’s children.
23. [23]
    Ms Hansen argues that such documents, depending on what they said, could well be probative of whether there was an agreement in the terms she states, or not. Of course, the mere fact that something is probative, even compellingly probative, is no reason to go behind a proper claim for legal professional privilege, or to waive a privileged document’s status as such. If the documents were not relevant, they would not be discoverable anyway.
24. [24]
    I did notice a submission from the respondents below, and on appeal, that some of the documents might not, in any event, be admissible; but admissibility is not the test for a document to be discoverable.  A document is discoverable if it tends to prove or disprove a fact in issue. It does not have to be admissible at the trial for that purpose.
25. [25]
    But in any event, not much turns on that, because Ms Hansen’s real challenge to his Honour’s refusal to order production of the 10 documents identified by Mr Ball relates to implied or express waiver, or the fraud exception.
26. [26]
    To the extent there is a suggestion by Ms Hansen the claim for privilege was not properly taken, in the circumstances of this particular case, I reject that suggestion.  I accept that the documents were covered by legal professional privilege.
27. [27]
    In her carefully prepared written submissions, Ms Hansen raised a series of bases as to why there would be an express or implied waiver, or the fraud exception applied. I intend to go through those arguments though, ultimately, I was not persuaded that any of them gave rise to any express or implied waiver or any basis to go compel disclosure of privileged documents.

Express or implied waiver 

28. [28]
    Waiver of privilege arises from some act which is substantively inconsistent with the confidentiality in a privileged communication; or act which, as a matter of fairness, is inconsistent with maintaining the privilege.  
29. [29]
    The first act relied on is the principal point in this case: the telephone conversation of 4 March. Like a lot of matters in the law, it is not the principles so much as the facts to which they must be applied that is important in the end.
30. [30]
    What we have here is an assertion, in a pleading by Ms Hansen, that Mr Tadgell said he had been instructed by his solicitors, in effect, to obtain their authority to act for them. Mr Tadgell denies that.
31. [31]
    In Lu v Fenson [2021] QDC 253, I had to deal with the question of when privilege can be waived by allegations made in pleadings. That case dealt with the situation where allegations arguably going to the state of mind of the defendant were raised in the defendant’s pleading.
32. [32]
    Here, from a pleading perspective, all we have is the plaintiff’s allegation, and the defendant’s denial of the fact. Without more, that cannot possibly be a sufficient basis to give rise to a waiver of privilege, because if it did, the plaintiffs would simply be able to force the waiver of privilege anytime they alleged such a statement. As a matter of pleading, it does not give rise to an implied waiver.
33. [33]
    I then turn my mind to whether there was a sufficiently case arguable, on the evidence before me, that the statement alleged by Ms Hansen was, in fact, made. I bear in mind, in approaching that question, that while it might not be necessary to get to the level of the balance of probabilities favouring the statement, there has to be some sufficient basis, or sufficient level of persuasion to go behind a proper claim for privilege.
34. [34]
    The mere fact that a plaintiff asserts, by affidavit, something was said about legal advice, and that conversation is denied by the other side - at least to the extent it relates to legal advice in a further affidavit – by itself, I do not think can be sufficient to give rise to an implied waiver. At least something more is required of direct relevance. The truth of the allegation in the conversation was asserted by Ms Hansen’s daughter in her affidavit.  Mr Tadgell responded to that and denied the conversation. Even if Ms Hansen had sworn directly to it, I would have been left with, literally, a case of “she said, he said.”
35. [35]
    One can develop a higher level of confidence that some oral statement was made, inconsistent with privilege, from other extrinsic evidence, but it needs to be something that goes beyond the mere repetition of the alleged statement relied upon as giving rise to waiver. The only truly objective piece of evidence I have in that regard is an exchange of letters between Ms Hansen’s daughter, acting as executor of the estate, presumably written on her instructions, by her then solicitors, John Healy & Co, to Mr Tadgell’s then solicitors, Klar Legal, on the 23rd of April 2020; and the response on 16 May 2020. Not only is this the only piece of truly objective evidence I have, but the 16 May 2020 letter is relied upon as the second substantial basis for the implied waiver.
36. [36]
    The John Healy & Co letter is mostly concerned with rejecting Mr Tadgell’s assertion of an entitlement to family provision on his own account, and makes an offer to settle Mr Tadgell’s claim on the basis that five per cent of the net value of a certain property be transferred to Jamie and David, and five per cent to Mr Tadgell, with Amelinda retaining the balance and Ms Hansen missing out entirely. It is not in dispute that, at that time, Ms Hansen and her daughter had been alienated for some time. Ms Hansen relies strongly on the letter in response.
37. [37]
    Both of these letters are without prejudice; the first one by implication, and the second one expressly. Without prejudice privilege is a joint privilege. It cannot be waived by one party. Ms Cope, the executor, not only discloses without prejudice communications, but having seemingly made up with her mother, was willing, in January 2023, to file an extensive affidavit describing all her dealings, including conduct at the subsequent mediation - despite apparently understanding the nature of without prejudice privilege, because she refers to it, seemingly relying on advice from her mother that the fraud exception applies.
38. [38]
    There are real difficulties with an executor purporting to ignore without prejudice privilege on the quite serious ground of fraud without taking independent advice; much less doing it on the basis of advice from someone who has an interest in using that information in their own proceedings. That should definitely not be done by an executor; but it is too late now, for her evidence is before the Court, and no objection was taken.  
39. [39]
    In any event, Ms Cope saw fit to disclose, in her affidavit, the response on the 16th of May. That document appears at exhibit A to her affidavit. The Klar Legal response on the first page is concerned exclusively with articulating, in response to the John Healy letter, the financial and personal position of Mr Tadgell as a claimant. It then calls on Ms Cope to set out her financial position.  The letter goes on to say this:

[…] [M]y client instructs me to inform you that he has also been speaking with your client’s mother Vivienne and her brothers Jamie and David. Without legal obligation to do so, he had nevertheless intended to provide a similar amount (as is represented by the percentage in your client’s proposal) [that is the five per cent amounts] to each of Vivienne, Jamie and David from the amount sought by him as set out in his letter. In that respect, he had intended to do something to “right the wrong” implicit in his late mother’s will in which she completely ignored her legal and moral obligations to her deceased daughter Lorraine and her children Vivienne, Jamie and David.My client is therefore gratified to see that your client intends to consider her great-grandmother’s obligations to Jamie and David but is appalled to see there is no such intention concerning Vivienne.

My client therefore has instructed me to propose the following modified offer – […]

[square brackets added]

40. [40]
    He then lists four points. The first two are:

1. that each of Vivienne, Jamie and David be the recipients of an amount equivalent to 5% of the net sale proceeds of the Mitchelton property, with David’s share […] to be held on trust for him;
2. that my client receive an amount equivalent to 18.3% of the net sale proceeds of the Mitchelton property (i.e. the residue of the one-third originally proposed)

[…]

[square brackets added]

And then, relevantly:

4. due to the involvement of Vivienne, Jamie and David, they would also have to be parties to any Settlement Deed and that Deed would need to contain provisions providing access to information concerning any contract for the sale of the Mitchelton property and potentially security to them and my client for the payment of the funds. 

[square brackets added]

41. [41]
    Ms Hansen submits that the 16 May letter both supports her version in a way that would sustain the allegation of the disclosure of the communication in clause 4.1 sufficiently to amount to a waiver of privilege about that matter, and to itself constitute a waiver of privilege.
42. [42]
    In my respectful view, the 16 May letter does no such thing, in either respect. The defendant accepts that he spoke with Ms Hansen at around the time she says and that he instructed her to think about making her own claim. That the 16 May letter is simply a proposal to set out the idea that the children of Lorraine should get something, seems to be uncontentious. The idea that they get five per cent is sourced in John Healy & Co’s letter to which the 16 May letter is responding (as it terms make clear).
43. [43]
    Indeed, the letter itself does not make use of any information, at least on its face, about Vivienne’s position; and it also makes it clear that any settlement would have to involve, relevantly, Ms Hansen as a party. All of that is either neutral or directly against the version of the conversation Ms Hansen pleads. 
44. [44]
    Further, it does not give rise to waiver of privilege generally, much less in respect of specific advice.
45. [45]
    Ms Hansen relied on the proposition in the letter that the mother had ignored legal and moral obligations to Lorraine and her children, but that is an ordinary observation that flows from her omission of them from her will.
46. [46]
    I am not persuaded that either the telephone conversation or the letter dated 16 May 2020, looked at in context, sustain any waiver of privilege, much less a waiver of privilege over the 10 documents involved.
47. [47]
    The other matters relied on in respect of waiver of privilege can be more quickly disposed of. Ms Hansen submitted that the allegation that there was a telephone conversation in a notice to admit facts sent by Mr Tadgell gives rise to some kind of inconsistency. It does not. It just articulates something different that was said. In fact, the Defence, contrary to Ms Hansen’s submission, never says that there was no discussion; just that the words Ms Hansen puts in the mouth of Mr Tadgell were not said. Even if it were, I do not understand how it could give rise to any waiver of privilege.
48. [48]
    She also refers to a reference in the Defence to paragraph 4, where it said it would not be possible in law for Mr Tadgell to act as agent for the plaintiffs. Not surprisingly, Mr Ball says that is particularised as being because Lorraine’s children were not eligible applicants in Mrs Tadgell’s estate. I am not sure that that logically, as a matter of law, excludes the factual assertions made by Ms Hansen, but it certainly does not give rise to any waiver of privilege. It is just a proposition of law, correct or not.  The plea is not, for example, that he was advised by his solicitors that that was true at the time or some such allegation which might have created a slightly different position.

Whether the fraud exception applies

49. [49]
    That leaves Ms Hansen’s fraud allegations. It is important to be precise in respect of the fraud exception to privilege relating to communications to facilitate crime or a fraud. The proposition is put sufficiently in the first line of the relevant section of Cross on Evidence:^[4]

If a client applies to a lawyer for advice intended to guide the client in the commission of a crime or fraud, the legal adviser being ignorant of the purpose for which the advice is wanted, the communication between the two is not privileged.

50. [50]
    Now, there is two aspects to that. First, what is the fraud? It is very important the fraud be identified with precision, because it will not have any relevance unless it is a fraud which, to a sufficient level of persuasion, the Court is satisfied the client applied to the lawyer for advice to guide the fraud. In writing, Ms Hansen made a fairly broad assertion that the respondents (though I do not see what Mrs Tadgell has got to do with this aspect of the case either), fraudulently used the valuable consideration of the appellant’s name and circumstances that they needed for their own benefit, to assist them to obtain money from the estate of Audrey Tadgell, then refused to honour their agreement with the appellant. Now, that seems to me to arguably give rise to two distinct kinds of alleged fraud.
51. [51]
    The first seems to be an argument that, at the time the statements were made – according to Ms Hansen, that being March 2020, right after Audrey Pearl Tadgell died – that Mr Tadgell was basically engaging in what might, in the old money, have been called “false pretences”. That is, he never had any intention of delivering on his promise.
52. [52]
    The second is that he committed a fraud by having obtained the benefit of the settlement, simply refusing to comply with his contractual promise after the settlement. Now, as to the latter, I am not sure that is a fraud at all. He is breaking the contract. It would be very difficult in that case to articulate the mens rea that has to accompany an act to make it an offence under section 408C of the Criminal Code, or any other fraud offence. 
53. [53]
    If it was a decision, once the money was in his pocket, to just breach the contract, I do not see how that is a fraud, but more importantly, it is impossible to see how the advice he received in the conduct of the proceeding is intended to guide him in the commission of his fraud. Because if there was a fraudulent state of mind, it was only developed at the last minute.
54. [54]
    The alternative proposition is that there was a fraud arising from a fixed intention to make use of the information he was obtaining, never intending to give any benefit to Ms Hansen. To be satisfied of that, of course, there has to be more than a mere allegation of fraud or some illegal purpose. That fraud is not alleged in clear terms in the statement of claim. And there is no evidence which is sufficiently persuasive that any promise was made in the first place, as I have already found.
55. [55]
    There is another difficulty. Even if Mr Tadgell had the state of mind alleged, how could he have obtained advice intended to guide him in the commission of that fraud from his solicitor in the family provision proceeding. It is Ms Hansen’s case, at least on the evidence before me now, that Mr Tadgell consistently, right up until the end of the settlement, maintained that he was negotiating on behalf of Lorraine’s children as well as himself, and so on. And he would have obtained advice as to how to conduct his proceedings in that regard. But that does not provide him with advice guiding him on how to commit the alleged fraud or reneging on such a promise.   There is no suggestion that anything that was advised to him assisted him in that process, and it is for that reason why I say careful attention has to be given to exactly what an alleged fraud is when seeking to apply the fraud exception.
56. [56]
    Further, I think that the exchange of letters in April and May 2020 are against her proposition that Mr Tadgell had an intention not to comply with the alleged agreement, even if it had been made.  The May 2020 letter contained an offer in express terms to seek to obtain a benefit for Ms Hansen and her children and to ensure that a settlement deed was prepared to ensure they would get it. That would be odd behaviour Mr Tadgell if he was someone harbouring a fraudulent intention to make sure that Ms Hansen and others did not get anything despite his alleged promise.

Concluding remarks

57. [57]
    There was one other point raised by Ms Hansen. She relied on section 126 of the Uniform Evidence Act. That section does not apply in Queensland but the common law doctrine which underpins it probably would do. The difficulty, though, is that that section assumes that there are documents which have privilege which is lost for whatever reason; and that has not been made out.
58. [58]
    For those reasons, although I think his Honour erred in failing to give proper reasons, his Honour was correct to dismiss the application for disclosure of the documents the subject of the claim for privilege.  The appeal is dismissed.