Conlan v Walker [2011] FCA 347

Conlan v Walker [2011] FCA 347

Documents described in the schedule to the amended interim application which came into existence for the purpose of obtaining legal advice or use in family law litigation are subject to legal professional privilege and not admissible; privilege has not been waived except for specific without prejudice communications relied upon in evidence and argument, where conduct of the parties amounted to a waiver.

Parties
First Applicant/cross Respondent: MARK ANTHONY CONLAN AS TRUSTEE OF THE BANKRUPT ESTATE OF DUNCAN ALLISTER WALKER; Second Applicant: LINCOLN AGENCIES (WA) PTY LTD ACN 071 035 160; Respondent/cross Claimant: BEVERLY CLARE WALKER AS TRUSTEE OF THE DUNCAN WALKER FAMILY TRUST
Jurisdiction
Australia
Judgment Date
12 April 2011
Procedural Posture
Interlocutory Application in Bankruptcy/family Property Proceedings / Interim Application – Privilege Determination
Outcome
Application granted in part. Privileged documents may not be used and are to be returned; costs to respondent.
Legal Topics
Legal Professional Privilege, Without Prejudice Privilege, Waiver of Privilege
Evidence Bankruptcy Family Law Legal Professional Privilege Without Prejudice Privilege Waiver of Privilege

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Parties

MARK ANTHONY CONLAN AS TRUSTEE OF THE BANKRUPT ESTATE OF DUNCAN ALLISTER WALKER

First Applicant/cross Respondent

LINCOLN AGENCIES (WA) PTY LTD ACN 071 035 160

Second Applicant

BEVERLY CLARE WALKER AS TRUSTEE OF THE DUNCAN WALKER FAMILY TRUST

Respondent/cross Claimant

Procedural Posture

Interlocutory Application in Bankruptcy/family Property Proceedings / Interim Application – Privilege Determination

Legal Issues

  1. 1 Whether documents are subject to without prejudice privilege or legal professional privilege
  2. 2 Whether any privilege attaching to the documents has been waived

Ratio Decidendi

Documents described in the schedule to the amended interim application which came into existence for the purpose of obtaining legal advice or use in family law litigation are subject to legal professional privilege and not admissible; privilege has not been waived except for specific without prejudice communications relied upon in evidence and argument, where conduct of the parties amounted to a waiver.

Court Disposition

Application granted in part. Privileged documents may not be used and are to be returned; costs to respondent.

Orders

  • The documents described in paragraphs (a), (b), (c), (d), (e), (h) and (j) of the Schedule to the respondent's amended interim application filed 17 March 2011 and currently in the possession of the first applicant are the subject of legal professional privilege and may not be used in these proceedings and ought be...
  • The applicants pay the respondent's costs of the interim application to be taxed if not agreed.