WA Is Other Party's Lawyer in Breach of Privacy?

[Unknown entity]

Hi all,

As part of the family court proceedings, I was ordered to attend a Communicare assessment. On completion, a report marked “Strictly Confidential” in big bold red letters was sent to family court by Communicare psychologist.

The opposing lawyer requested to be provided with this court ordered document (S121) and once received, passed the document onto his client who then used the document to assist her claims in child support.

Is the lawyer in breach of privacy by passing this strictly confidential document onto his client by electronic (email) communications? Did the lawyer fail in his obligations to the court by breaching implied undertakings?

Thanks in advance

 

[Lennon]

The implied undertaking means that a person cannot use a document provided under compulsion in proceedings for any reason other than the proceedings.

Presumably when the lawyer sent the report to his client it was for the purpose of the proceedings.

It is your ex-wife who has breached the implied undertaking, by using the report to pursue child support.

 

[Unknown entity]

But but but, when the lawyer provides an expert report to his client, a lawyer has a fiduciary duty in ensuring that the implied undertaking and breach of confidence is well communicated to mitigate against misuse of court documentation. If this information was not provided knowing the strictly confidential status of the report, would this not be viewed as being equally at fault?

Does court transcripts and court orders also fall under the implied undertaking (Harman rule) or would these be considered to be documents able to be shared to the public with out the need for leave of court?

Thanks for response to first question, well appreciated.

 

[Rod]

While the cause of action likely exists based on your example, the relevant principle is wrong, The lawyer has a duty to the court, along with a heap of other duties, and it may well be he may also face a sanction albeit for different reasons.

BTW, have you asked Child Support to destroy the report or return the report? They may not be aware it as a privileged document.

 

[Unknown entity]

Correct Rob, but would be interesting to hear about other “deferent reasons”

I have yet to inform Child Support as I have raised Application in an existing case and breach of confidence under S121. Once the court has handed down its findings in regard to potential beach of Confidence (Harman Rule) I shall act accordingly with child support.

Sounds like u know your stuff, so thanks