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High Court of Australia |
THE QUEEN v. BELL; Ex parte LEES [1980] HCA 26; (1980) 146 CLR 141
Practice - Infants and Children
High Court of Australia
Gibbs(1), Stephen(2), Murphy(3), Aickin(4) and Wilson(5) JJ.
CATCHWORDS
Practice - Discovery - Legal professional privilege - Communication of address by client to solicitor - Whether privileged.Infants and Children - Family Court of Australia - Custody of child of a marriage - Grant of interim custody to husband - Refusal by wife to deliver child - Concealment of child - Refusal by wife's solicitor to disclose her address - Solicitor not party to any action - Whether compellable to disclose address - Family Law Act 1975 (Cth), ss. 70(6)*, 114(3)*. (1980) 146 C.L.R. at p. 147. (1980) 146 C.L.R. at p. 147.
HEARING
Sydney, 1980, March 5;DECISION
August 5.2. Proceedings are pending in the Family Court between Mr. and Mrs. McJarrow in respect of the custody of a child of the marriage. On 31st August 1979 a judge of the Family Court made an ex parte order that the wife be granted custody, and on 6th September 1979, in compliance with the order, the husband delivered the child to her. On 7th September 1979 another judge ordered that the application for custody be placed on the contested list, and further ordered that the husband should have interim custody. The evidence before each judge may of course have justified the order made, but so rapid a reversal of fortune must have been unsettling both to the child and to the parents. That does not excuse what the wife did next: she disappeared, taking the child with her. On 11th September 1979 a further order for custody in favour of the husband was made and it was ordered that a warrant be issued directing the Deputy Marshall of the Family Court and all officers of police, Commonwealth and State, to take possession of the child and deliver her to the husband. However, the child has still not been found. (at p144)
3. On the hearing on 7th September the wife was represented by a solicitor, Mr. Hulett. On 13th September she gave instructions to another solicitor, Mr. Lees, who is the prosecutor in the present proceedings, to protect her interest as joint tenant in the matrimonial home. She gave no instructions to Mr. Lees to act in the custody proceedings, and indeed did not mention them. She told Mr. Lees of a method by which he could get in touch with her, and expressly requested that this method be kept confidential. (at p144)
4. On 2nd November 1979 the solicitors for the husband telephoned Mr. Lees and requested that he reveal the wife's whereabouts. He refused, saying htat he regarded the information as privileged, and added that no assumption should be made that he was aware of her whereabouts. On 7th November the solicitors for the husband delivered to Mr. Lees copies of the orders made on 7th and 11th September, and on 9th November they filed an application on which was made the order which has given rise to the present proceedings. The application bore the title of the proceedings pending between the husband and the wife, and was addressed to the wife as respondent. It sought (inter alia) an order that Mr. Lees inform the husband of all information in his possession, power or control, which would assist the husband in ascertaining the current whereabouts of the wife and child. Mr. Lees was not made a respondent to the application, but was served with it. He had no instructions to appear for the wife in proceedings of that kind, and did not appear on the hearing of the application, which came before Bell J. The learned judge proceeded ex parte, and on 14th November 1979 ordered that Mr. Lees forthwith disclose to the solicitors for the husband the address of the wife at the date of the last communication by her with him. Mr. Lees was advised that he should test the correctness of this order before he complied with it, and accordingly sought leave to intervene in the proceedings and a stay of proceedings pending appeal. Bell J. gave him leave to intervene but refused the stay. In these circumstances he made the present application for prohibition. (at p144)
5. It is a well settled principle, based on public policy, that communications made confidentially between a client and his legal adviser for the purpose of obtaining or giving legal advice or assistance are privileged from disclosure. In accordance with this principle, a solicitor may not, without the consent of his client, disclose his client's address if that was communicated to him confidentially for the purpose mentioned, although it will not be enough to attract the privilege that the address came to the solicitor's knowledge in consequence of his professional employment if it was not confidentially communicated to him: Ex parte Campbell; In re Cathcart (1870) 5 Ch App 703, at p 705 ; Re Arnott; Ex parte Chief Official Receiver (1888) 60 LTNS 109 . In the present case it is clear that the address of the wife was communicated confidentially to Mr. Lees for the purpose of obtaining legal assistance from him, and that, if nothing more appeared, the general principle would apply and the disclosure of the address would be privileged. (at p145)
6. However, there are exceptions to the general rule - cases in which the
privilege will not exist even though the communication
was made confidentially
for the purpose of obtaining professional assistance. The privilege will not
apply where the communication
was part of a criminal or unlawful proceeding,
or was made in furtherance of an illegal object, e.g., where the client sought
legal
assistance as a step in, or preparatory to, the commission of a crime or
fraud, even though the solicitor was unaware of the purpose
of the
communication at the time it was made: Varawa v. Howard Smith & Co. Ltd.
[1910] HCA 11; (1910) 10 CLR 382, at pp 385,
386, 390 . I doubt
whether the present case
comes within that exception. The wife did not communicate
her address to Mr.
Lees for
any illegal or improper
purpose; she had alresdy disobeyed the order
of the court and concealed herself
and the child, and the assistance
that she
sought
from Mr. Lees was for the entirely proper purpose of protecting her
interest in
the matrimonial home. However, there
is another exception,
which
may possibly be regarded as an extension of the rule which excludes
privilege
in the case of crime or
fraud, but which I incline
to think rests upon an
independent foundation. It has been held that
a solicitor is obliged to give
to
the court any information
(including his client's address) which will
enable the court to discover
the whereabouts of a ward of court
whose
residence is being
concealed from the court, and that such information may not
be the subject
of a claim for professional privilege:
Burton v. Earl
of
Darnley (1869) LR 8 Eq 576n ; Ramsbotham v. Senior (1869) LR 8 Eq 575 .
In the
last mentioned case Malins V.C.
said (1869) LR
8 Eq, at pp 578-579 that the
privilege, where it exists, is that of the client
and not of the solicitor,
that a person
who improperly
endeavours to keep children out of the reach of
the court can have no privilege
to conceal their where-abouts, and
that the
solicitor
of such a person also can have no privilege. These cases appear to
have stood
unchallenged for over one hundred
years. In Heath v.
Crealock
(1873) LR 15 Eq 257 , Bacon V.C. refused to give an extended operation
to the
principle which those cases
applied, and declined
to order a solicitor to
disclose the address of his client who had absconded
and whom the other party
sought
to serve with a subpoena
duces tecum, but said (1873) LR 15 Eq, at p
259 :
"The cases which have been cited, Ramsbotham v. Senior and Burton v.
Earl of Darnley, have no application, as they both relate
to the
concealment of wards of court, and in all such cases a solicitor is bound
to give to the court every information which may
lead to the discovery of
their place of abode." (at p146)
7. I am unable to see any distinction, for present purposes, between the
position of a child who has been made a ward of court and
that of a child in
relation to whom an order for custody has been made under the Family Law Act
1975 (Cth), as amended ("the Act").
In both kinds of case the court must
regard the welfare of the child as the paramount consideration.
The privilege
is inapplicable,
in the case of wardship, because the case goes beyond, "mere
questions of civil right" and because
the privilege, if given effect,
might
frustrate the efforts of the court to secure the benefit of the child and
might have the result
that the child remained in
conditions detrimental to his
or her welfare (cf. Ramsbotham v. Senior (1869) LR 8 Eq, at p 579 ). Exactly
the same considerations
apply where an order for custody has been made under
the Act. This view appears to have been accepted in
the United States, where
it has been held that a solicitor is not entitled to withhold information as
to the address of his client
who has removed a child
from her home in
violation of a custody order: Dike v. Dike (1968) 448 P 2d 490 . In that case,
in the course
of giving reasons for
holding that the information was not
privileged, it was said (1968) 448 P2d, at p 498 : "The primary purpose
of
disclosure is to
protect a minor child's welfare which is, at least
potentially, being harmed by the client's continuing wrongful
actions." (at
p146)
8. These cases support the view that where one party to matrimonial proceedings has failed to comply with an order giving custody of a child to another party, and has taken the child into hiding, the public interest in securing the welfare of the child, and in ensuring that an order made for securing that welfare is not deliberately flouted, prevails over the competing public interest that confidential communications between solicitor and client should be protected from disclosure in order that members of the public may be free to seek that legal advice without which justice cannot properly be administered. That in my opinion is the correct view. The privilege, which arises only because the public interest requires it, does not exist when it is seen that it would be contrary to a higher public interest to give effect to it. In my opinion Bell J. correctly held that the communication by the wife to Mr. Lees of her address was not privileged. (at p147)
9. The question then arises, however, whether the Family Court had power to order Mr. Lees to disclose the wife's address. To say that a communication is not privileged means no more than that a party or witness may not decline to give evidence, or produce documents, in the ordinary course of legal proceedings. A person is not obliged to supply information to someone else simply because, if he were called as a witness, he would have no privilege from giving evidence revealing that information. (at p147)
10. Bell J. was of opinion that he had power to make the order which he did
under s. 114 (3), and also under s. 70 (5) and (6) (d),
of the Act. With all
respect I cannot agree that either of these provisions was applicable
in the
present case. Section 114 (3) is
in the following terms:
"A court exercising jurisdiction under this Act in proceedings other
than proceedings to which sub-section (1) applies may
grant an injunction, by
interlocutory order or otherwise (including an injunction in aid of the
enforcement of a decree), in any
case in which it appears to the court to
be just or convenient to do so and either unconditionally or upon such
terms and conditions
as the court thinks appropriate."
Section 114 (1) provides that in proceedings of the kind referred to in
paragraph (e) of the definition of "matrimonial cause" in
sub-section
4 (1) of
the Act, i.e. in proceedings for an order or injunction in circumstances
arising out of a marital relationship,
the court
"may make such order or grant
such injunction as it thinks proper with respect to the matter to which the
proceedings relate
. .
.". Section 114 (4) deals with the contravention of "an
injunction or order" under the section. Clearly s. 114 draws a distinction
between injunctions and orders, and s. 114 (3) gives power to grant an
injunction but not to make orders of other kinds. In my opinion
the order made
against Mr. Lees cannot
properly be described as an injunction, even as a
mandatory injunction. (at p147)
11. Section 70 (5) and (6) provide as follows:
"(5) A person shall not prevent or hinder the execution of a warrant
issued in pursuance of section 64.
(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;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;
(b) require that person to enter into a recognizance, with or without
12. Although I do not agree that there is express statutory power to order the disclosure of information of this kind, in my opinion the Family Court had an inherent power to make the order which it did. For many years the courts have exercised power summarily to order a person who can give information as to the place of concealment of a ward of court to attend before the court and give the information: Rosenberg v. Lindo (1883) 48 LT 478 . This was the power that was exercised in Burton v. Earl of Darnley (1869) LR 8 Eq 576n and Ramsbotham v. Senior (1869) LR 8 Eq 575 ; in those cases the court did not question the existence of the power, but exercised it against a solicitor who had received the information as a professional confidence. According to Chitty J. in Rosenberg v. Lindo (1883) 48 LT, at p 479 , the jurisdiction of the court to make an order of this kind is based on the law which relates to the custody of infants, and there is no reason in principle why it should not extend to cases of custody as well as to cases of wardship. In Dike v. Dike (1968) 448 P2d, at pp 492-493 it was held that the court did have inherent jurisdiction and power to make an order of that kind in a case where a custody order was being disobeyed. There is no reason why the Family Court, which in Australia now has power to make orders with respect to the custody of a child of a marriage, and which is a superior court of record, should not possess this inherent power: cf. Taylor v. Taylor [1979] HCA 38; (1979) 143 CLR 1, at p 8 . (at p149)
13. For these reasons in my opinion Bell J. was entitled to make the order that he did. It was however quite proper for Mr. Lees to secure the protection of an order of the Court before divulging the information. The husband was not represented in the proceedings before us so no question arises as to the cost of those proceedings. (at p149)
14. For these reasons I would refuse the application for prohibition but would make no order as to costs. (at p149)
STEPHEN 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. (at p149)
2. 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. (at p149)
3. A fortnight earlier, on 31st August 1979, Mrs. McJarrow had obtained an order ex parte entitling her, until the further hearing of her application, to possession of the four year old child of the marriage, Tanya. In compliance with that order Mr. McJarrow had handed Tanya over to his wife on 6th September 1979. Mrs. McJarrow's application apparently came on for further hearing on the next day, 7th September, and, in circumstances of which this Court is unaware, it was then ordered that her husband have the care, possession and control of Tanya with access by Mrs. McJarrow, the application for custody being placed in the list of contested matters. The order for access entitled Mrs. McJarrow to have Tanya during week-ends and Tanya accordingly spent the next weed-end with her mother who, however, failed to return Tanya to Mr. McJarrow on the afternoon of 9th September. He has not seen either Tanya or Mrs. McJarrow since. (at p150)
4. 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. (at p150)
5. 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. (at p150)
6. 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. (at p150)
7. 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. (at p151)
8. 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. (at p151)
9. 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. (at p151)
10. 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. (at p151)
11. 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. (at p151)
12. 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 administra tion of justice. (at p152)
13. 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 [1833] EngR 333; (1833) 1 My & K 98, at p 101 [1833] EngR 333; (39 ER 618, at p 620) , 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 (1833) 1 My & K, at p 103 (39 ER, at p 621) . In Russell v. Jackson [1851] EngR 955; (1851) 9 Hare 387, at p 392 [1851] EngR 955; (68 ER 558, at p 560) , 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. (1910) 10 CLR 382 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. (at p152)
14. In Russell v. Jackson (1851) 9 Hare, at pp 392-393 (68 ER, at p 560) 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 [1850] EngR 919; (1850) 1 Sim (NS) 3, at p 17 [1850] EngR 919; (61 ER 1, at p 6) 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. (at p152)
15. 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 (1884) 14 QBD 153 a Court of ten judges concluded that in that case too the privilege did not arise. Speaking for the Court, Stephen J. said (1884) 14 QBD, at p 168 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. (1895) 2 Ch 751 , in Bullivan v. Attorney-General (Vict.) (1901) AC 196 and in Varawa v. Howard Smith & Co. Ltd. [1910] HCA 11; (1910) 10 CLR 382 . 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" (1910) 10 CLR, at p 389 . His Honour added (1910) 10 CLR, at p 390 that in the case of a legal adviser innocent of all knowlege 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". (at p153)
16. 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. (at p153)
17. 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 process 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. (at p154)
18. 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 (1869) LR 8 Eq 576n and, in particular, Ramsbotham v. Senior (1869) LR 8 Eq 575 . 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 (1869) LR 8 Eq, at pp 578-579 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. (at p154)
19. 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 (1873) LR 15 Eq 257 and Rosenberg v. Lindo (1883) 48 LT 478 . 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 (1883) 48 LT, at p 479 , 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 (1847) 2 Ph 247 (41 ER 937) , 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. (at p155)
20. 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 (1881) 18 Ch D 30, at p 36 . He there states that such cases as Robson v. Kemp (1782) 5 Esp 52 (170 ER 735) , Ex parte Campbell; In re Cathcart (1870) LR 5 Ch 703 and Ramsbotham v. Senior were decided on those general and established principles applicable to legal professional privilege generally. (at p155)
21. 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 (1829) Moo & M 410 (173 ER 1206) per Parke J., and see Gillard v. Bates [1840] EngR 94; (1840) 6 M & W 547 (151 ER 529) , Bursill v. Tanner (1885) 16 QBD 1 , and Cook v. Leonard (1954) VLR 591 . 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 (1870) LR 5 Ch, at p 705 . 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. (at p155)
22. 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 (1870) LR 5 Ch, at p 705 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. (at p156)
23. 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. (at p156)
24. 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. (at p156)
25. 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 independant 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 (1976) 51 ALJR 21; 10 ALR 251 . (at p156)
26. 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. (at p156)
27. 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. (at p157)
28. 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;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;
(b) require that person to enter into a recognizance, with or without
29. I would accordingly refuse the application for a writ of prohibition. (at p157)
MURPHY J. 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. (at p158)
2. 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). (at p158)
3. In Grant v. Downs [1976] HCA 63; (1976) 135 CLR 674 , the Court dealt with a claim to
resist discovery of documents on the ground
of the privilege.
The majority
said (1976) 135 CLR, at p 685 :
"The existence of the privilege reflects, 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.).
(at p159)
4. The Family Law Act 1975 (Cth) provides that:
"64. (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 (1869) LR
8 Eq 576n and Ramsbotham v. Senior (1869) LR 8 Eq
575 suggest that the child's
welfare should prevail over the privilege. (at p159)
5. The applicant conceded that, apart from the question of professional privilege, the Court had authority to make such an order. (at p159)
6. 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. (at p159)
7. The application should be refused. (at p159)
AICKIN J. 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. (at p159)
WILSON J. 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. (at p159)
2. 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 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 unseccessful. 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. (at p160)
3. 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. (at p160)
4. 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. (at p160)
5. There would seem to be three questions requiring the consideration of the
Court:
1. 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?
2. If yes, does the Family Law Act override such privilege?did against the prosecutor? (at p161)
3. In any event, did the Family Law Act empower Bell J. to make the order he
6. 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 Bullvant v. Attorney-General (Vict.) (1901) AC 196, at pp 200-201 , 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 [1976] HCA 63; (1976) 135 CLR 674 . (at p161)
7. 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 (1870) LR 5 Ch 703 . 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) (1927) 294 SW Rep 736 . 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. [1910] HCA 11; (1910) 10 CLR 382, at p 389 , 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. (1978) 4 Fam L Rep 2, 391; affd (1979) 5 Fam L Rep 2, 637 . (at p162)
8. 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. (at p162)
9. 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. (at p162)
10. 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. (at p163)
11. 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 (1869) LR 8 Eq 575 , and Burton v. Earl of Darnley (1869) LR 8 Eq 576n , 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 (1968) 448 P 2d 490 . (at p163)
12. 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. (at p163)
13. 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. (at p163)
14. 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 [1967] HCA 33; (1967) 116 CLR 366 ; Antonarkis v. Delly (1976) 51 ALJR 21; 10 ALR 251 . 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 subsection. 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. (at p164)
15. 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. (at p164)
ORDER
Application for a writ of prohibition refused.No order as to costs.
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