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Key decisions

  • Bilal & Omar [2015] FamCAFC 30
  • Stone [2015] FamCAFC 18
  • Tindall & Saldo [2015] FamCAFC 1

Financial agreements – Husband wins appeal against rejection of agreement – Waiver of privilege by wife as to her solicitor’s file

In Bilal & Omar [2015] FamCAFC 30 (27 February 2015) the Full Court (Bryant CJ, Murphy and Loughnan JJ) allowed the husband’s appeal against Henderson FM’s decision to set aside a s 90C financial agreement as the wife (who had limited English) had not been given intelligible legal advice. The appellant argued that the court below erred by rejecting his argument that the wife had waived legal professional privilege as to her solicitor’s file of which he had sought production under subpoena, as proof that she had received such advice. The Full Court accepted (at [25]-[28]) the husband’s argument that ‘her Honour directed her attention to whether … advice … to the wife … was understood … whereas the wife’s … case was that no advice was received’.

The Full Court said (at [37]-[38)] that her Honour erred by perceiving that ‘conscious decision on the part of the holder of the privilege’ was necessary for there to be a waiver of it. The Full Court (at [40]) cited s 122(2) of the Evidence Act 1995 (Cth) by which privilege is lost by ‘the behaviour of the holder of the privilege’, not ‘the intention of the holder of the privilege’, concluding (at [45]) that ‘the trial judge erred in failing to adopt the appropriate test for waiver of privilege, namely inconsistency’.

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