DAS and DAS

[2021] FCWA 215

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: DAS and DAS [2021] FCWA 215

CORAM: O'BRIEN J

HEARD: 22 NOVEMBER 2021 - Ex parte

DELIVERED : Ex tempore

FILE NO/S: 8322 of 2020

BETWEEN: MS DAS

Applicant

AND

MR DAS

Respondent

Catchwords:

PRACTICE AND PROCEDURE - Ex parte application pursuant to Rule 230 of the Family Court Rules 2021 for an Anton Piller order - Relevant principles discussed - While no express requirement in Rule 230 for the appointment of an independent supervising solicitor that will nevertheless be required in almost all cases - Where forensic examination of computer and other devices sought - Safeguards required - Order granted on suitable undertakings being given

Legislation:

Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Federal Court Rules 2011
Rules of the Supreme Court 1971 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr R Hooper SC
Respondent	:	No appearance - ex parte hearing

Solicitors:

Applicant	:	Carr & Co
Respondent	:	Law Mantra Lawyers

Case(s) referred to in decision(s):

Anton Piller KG v Manufacturing Processes Limited and Ors [1976] Ch.55

Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754

Talbot and Talbot (1995) FLC 92-586

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Das and Das has been approved by the Family Court of Western Australia pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).

This copy of the Court's Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

1 The matter for determination is the urgent application of the wife filed on 17 November 2021 seeking what are generally described as "Anton Piller orders"[1] for the seizure and inspection of various electronic devices by which it is suspected the husband conducts transactions and communications relevant to substantial holdings in bank accounts in [Country A], and his wallet.

Background

[1] Anton Piller KG v Manufacturing Processes Limited and Ors [1976] Ch 55 (' Anton Piller').

2 Both parties were born in Country A; the husband in [redacted] and the wife in [redacted]. They were married in [redacted] 1988, and their only child [Saanvi] was born in [redacted]. The parties moved to Western Australia in 1996.

3 The husband is a [scientist]. He was employed in various roles in Western Australia before accepting employment in [Country B] in 2007. The wife and Saanvi remained in Western Australia, where the wife was employed full-time and Saanvi was completing her education. Saanvi completed her [health] degree in [redacted] and commenced employment as a [health practitioner]. She and the wife had regularly visited the husband in Country B from the commencement of his employment in that country.

4 In [redacted] 2018, the husband returned to live in Perth, having reached the compulsory retirement age in Country B. In [redacted] 2019 he left Perth again for the purposes of his employment, returning in [redacted] 2020 on the suspension of the project on which he was working.

5 The parties separated [in] 2020.

6 On 8 October 2020, the wife commenced proceedings. She sought orders for the transfer to her of the matrimonial home at [Suburb A] ("the home") and an investment unit [in Suburb B] ("the Suburb B property"), subject to the relevant mortgage. It has subsequently been agreed between the parties that the Suburb B property should be sold. She otherwise proposed to retain her own superannuation and personal property, and that the husband pay her an unspecified amount to achieve an overall equal division by value of the property and superannuation of the parties after taking into account all liabilities.

7 The wife's claim was, and remains, unquantified because of uncertainty as to monies in bank accounts in Country A. In short, the wife says that she has very limited information about the accounts, and that notwithstanding that at least some of them are apparently in joint names they are effectively controlled by the husband and he has failed to meet his duty of disclosure in relation to them.

8 The husband gave evidence at an earlier stage in the proceedings that there was just over $2 million in 21 different joint accounts with the State Bank of Country A, while seeking a permanent stay of the proceedings in this Court insofar as they relate to property held by the parties or either of them in Country A. In essence, the husband contends that the proceedings in this Court should deal only with the property of the parties in Australia, and that the Country A courts should deal with any dispute between them as to property in that country, including the bank accounts.

9 The husband's application for a stay, and other interim and interlocutory disputes between the parties, are listed for hearing tomorrow. That hearing has been scheduled for some time.

10 In his most recent affidavit sworn 22 October 2021, the husband says that the total sum held in Country A banks is just over $2.196 million, of which the vast bulk is in accounts which he says are in joint names. The importance of the Country A bank accounts in the overall context is made clear by the fact that, on the husband's case, the total property available for division between the parties after taking into account liabilities amounts to just under $3.5 million.

11 The husband denies the wife's allegations that he has failed to comply with his duty of disclosure.

The legal principles

12 The application is brought pursuant to r 230 of the Family Court Rules 2021. That rule is in the following terms:

230. Application for Anton Piller order

(1)A party may apply for an Anton Piller order —

(a)requiring a respondent to permit the applicant, alone or with another person, to enter the respondent's premises and inspect or seize documents or other property; and

(b)requiring the respondent to disclose specific information relevant to the case; and

(c)restraining the respondent, for a specified period of no more than 7 days, from informing anyone else (other than the respondent's lawyer) that the order has been made.

(2)The applicant may apply for an Anton Piller order without notice to the respondent.

(3)An application for an Anton Piller order must be supported by an affidavit that includes —

(a)a description of the document or property to be seized or inspected; and

(b)the address of the premises where the order is to be carried out; and

(c)the reason the applicant believes the respondent may remove, destroy or alter the document or property unless the order is made; and

(d)a statement about the damage the applicant is likely to suffer if the order is not made; and

(e)a statement about the value of the property to be seized; and

(f)if permission is granted, the name of the person (if any) who the applicant wishes to accompany the applicant to the respondent's premises.

(4)If an Anton Piller order is made, the applicant must serve a copy of it on the respondent when the order is acted on.

13 The power to make such orders is grounded in the inherent power of the Court to ensure that proceedings are not rendered nugatory by actions taken by a respondent to destroy or conceal documents or information to which the duty of disclosure applies.[2]

[2] Talbot and Talbot (1995) FLC 92-586, 81,804.

14 It is generally recognised that there are three preconditions for the making of such an order. Firstly, the applicant must demonstrate a strong prima facie case in the substantive proceedings. Second, the damage said to be potentially suffered by the applicant if the order is not made must be serious. Third, there must be clear evidence that the respondent has in his possession important and relevant evidentiary material, and that there is a real possibility of such material being destroyed or otherwise put beyond reach.[3]

[3] Anton Piller at 62.

15 While in other courts, where an Anton Piller order is made relevant rules expressly require the appointment of an independent solicitor to supervise the execution of the order, and undertake such other role as the relevant court considers appropriate[4] no such requirement appears in the Family Court Rules 2021 (WA) ("the Rules"). Of course, the absence of an express requirement in the Rules does not in any sense inhibit the discretion of the Court to make an order on such conditions as it considers appropriate.

[4] See for example Rules of the Supreme Court 1971 O 52B R 6, Federal Court Rules 2011 Division 7.5 r 7.46 (1), Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 5.21.

16 The role of the independent supervising solicitor in circumstances where the respondent is already represented is more limited than in circumstances where, for example, the Anton Piller order is sought at the outset of litigation, before even the application for substantive relief has been served. Nevertheless, the role properly includes ensuring the protection of privileged documents (if any), attempting to reach agreement on suitable search procedure where necessary, in the case of dispute assessing whether particular items or documents come within the terms of the order, ensuring that an appropriate list is prepared of all items or documents to be removed, and generally assisting in the smooth execution of the order.[5]

[5] Microsoft Corporation v Goodview Electronics Pty Ltd [1999] FCA 754.

17 The involvement of a supervising solicitor, acting as an officer of the Court, obviates the clear potential for factual disputes as to the execution of the order, and actions taken by those representing each of the parties in that process. That in turn avoids the potential for the representatives of the parties or either of them to become witnesses in the case.

18 In my view, notwithstanding the absence of an express requirement in the Rules for the appointment of an independent solicitor to supervise the execution of an Anton Piller order, such an appointment should be made in nearly all cases.

19 Where, as in this case, it is envisaged that an independent computer specialist will take a forensic copy of the hard drive of a computer, or data stored on other electronic devices, the clear risk exists of information irrelevant to the proceedings, or the subject of legal professional privilege, being accessed. It is therefore appropriate for the nominated forensic specialist to give an undertaking to the Court to act in accordance with the order, and not, without leave, use any information or documents obtained as a result of the order for any purpose other than the relevant proceedings.

20 The applicant for an Anton Piller order will usually be required to give at least an undertaking as to damages. The applicant's solicitor will usually be required to give an undertaking to pay the reasonable costs and disbursements of the independent solicitor, and of any independent computer expert. That undertaking should also include an undertaking to act in conformity with the order, not to use any information received or document obtained as a result of the order for any purpose other than the relevant proceedings, and (critically) not to disclose to the applicant any information the solicitor acquires during or as a result of the execution of the order without the leave of the Court. The latter aspect of the undertaking is required so as to ensure that any proper objection of the respondent either to the order itself, or to the disclosure of information or documents to the applicant, may be heard and considered before it is, in practical terms, too late.

21 In the present case, when filing the application the solicitors for the wife sought an ex parte listing for directions, "on the basis that any substantive arguments on the application [could] be made" at the already scheduled hearing of other applications, at which the husband and his lawyer would be present. The request for the ex parte listing was accommodated, albeit the solicitors' letter was not particularly clear in its terms. At the hearing, Senior Counsel confirmed that in fact what was sought was to proceed with the application for the Anton Piller order today.

22 At the commencement of the hearing I squarely raised with Senior Counsel for the wife my preliminary view that should I be persuaded to make the Anton Piller order sought, it would be on the conditions that:

(a)the wife gave an undertaking as to damages;

(b)the wife's solicitors gave an undertaking as outlined above;

(c)the independent computer experts gave an undertaking as outlined above; and

(d)a supervising solicitor was appointed and gave an appropriate undertaking.

23 The matter was adjourned briefly to permit Senior Counsel the opportunity to take instructions. On the resumption of the hearing, appropriate undertakings were tendered.

24 I record also that, appropriately, Senior Counsel advised that since the filing of the wife's materials, the husband has given some further disclosure in the form of accounts rendered by his Western Australian lawyers, but without disclosure of the sources from which payments totalling some $70,000 have been made to those lawyers.

The first question – does the wife demonstrate a strong prima facie case in the substantive proceedings?

25 This question is readily answered in the affirmative.

26 Both parties seek orders for alteration of their property interests, having been separated since [redacted] 2020 in circumstances where neither seeks to maintain joint ownership of property and the mutual assumptions in place prior to separation are long past.

27 On the wife's case, at the commencement of this long marriage neither party had property of significant value and both made significant contributions throughout the relationship. The wife is employed as a technician earning a modest salary. In his financial statement filed on 18 November 2020 the husband deposed to being unemployed, and estimated the amount held in bank accounts in Country A at $800,000. In his more recent financial statement filed on 18 August 2021, the husband deposed to having no income and estimated the amount held in the Country A bank accounts at $2.194 million. The wife asserts that the husband, albeit he has some health difficulties, nevertheless has an earning capacity.

28 Clearly, the wife has a strong prima facie case for relief in the substantive proceedings. That conclusion should not be misunderstood; while it is a necessary conclusion for present purposes, it goes no further than that. I express no view as to the relative merits of the positions adopted by the parties in the substantive proceedings as to what orders for alteration of property interests are just and equitable. Those positions are presently untested.

Second question – is the potential damage to the wife if the order is not made serious?

29 Again, this question is readily answered in the affirmative. As already noted, even on the husband's case the funds which he admits to being in existence in Country A represent a very significant proportion of the wealth available for division between the parties. The funds are presently the subject of injunctions, but only so as to restrict the husband from dealing with more than 50 per cent of them. The husband is presently restrained by injunction from leaving Australia. The orders just described were made on an ex parte basis in October 2020, and the husband has consistently sought to have them set aside. The uncertainty complained of by the wife in relation to the amounts actually held in the Country A accounts is further illustrated by the fact that at a hearing [in] July 2021 counsel then appearing for the husband informed the Court of his instructions that an amount of approximately $2.93 million was held.

30 The potential prejudice to the wife if the husband is able to deal with even 50 per cent of the amounts in the Country A bank accounts other than transparently is obvious. Even if he does not, the potential prejudice to the wife in the proper conduct of her case, and for that matter any efforts that might be made to resolve it short of trial, in circumstances where the husband's disclosure is lacking is equally obvious. Both forms of prejudice are serious.

31 While the husband would assert that he has complied with his duty of disclosure and that there is no cause for suspicion on the part of the wife, the following may be noted from his evidence in the proceedings to date, and from the court record:

(a)in his affidavit sworn on 27 November 2020, the husband said that he had "identified nine bank accounts" which he was "positive [the parties] do have", while alleging that there might be other accounts within the knowledge of the wife;

(b)in the same affidavit the husband said that none of the bank accounts are accessible via the Internet;

(c)in subsequent disclosure given by the husband, 23 separate accounts were referred to, and asserted to have balances totalling just over $862,000;

(d)on 5 March 2021, the husband wrote to the Principal Registrar, saying that he needed his passport to be returned to him temporarily for 7 to 10 days to make copies due to "some urgent work", saying that he would return the passport after completion of that work. That request, which had not been copied in any event to the solicitors representing the wife, was rejected;

(e)the husband's undertaking as to disclosure filed on 30 April 2021 had annexed to it a disclosure schedule as at 5 April 2021. While the description of documents in the list was not overly clear, bank statements in relation to only six accounts were disclosed;

(f)in an affidavit affirmed on 15 July 2021 the husband said that he had received only a small number of statements from Country A banks, and had disclosed them. He did not deny moving funds between the various banks, saying he did so "for the benefit of acquiring a better rate of interest and currency conversion". He went on to say that he was attempting to obtain access to his Country A bank accounts by setting up online banking, but that there appeared to be several steps involved in doing so and it was quite an involved process. He asserted that he was required to be physically present in Country A to set up online banking. He denied having given any instructions to Country A banks directing them to withhold cooperation from the wife in her efforts to obtain information directly;

(g)the parties were ordered [in] July 2021 to file undertakings as to disclosure with lists of documents attached - the husband's undertaking filed on 31 August 2021, later than ordered, had no such list;

(h)prior to filing that undertaking, the husband's disclosure in relation to Country A bank accounts had largely taken the form of the preparation of tables setting out what he would say to be the relevant balances, and a limited number of statements; and

(i)the husband's financial statement sworn on 18 August 2021 listed some 25 Country A bank accounts, two of which he asserted to be the sole name of the wife and the balance in joint names.

32 In short, the husband has not complied to date with his duty of disclosure in anything like proper form. His non-compliance extends to clear non-compliance with the order [in] July 2021 as noted above. His conduct of the proceedings has also been marked by significant delay, including lack of readiness for scheduled interim and interlocutory hearings, resulting in costs orders being made against him which have not yet been met.

The third question – is there clear evidence that the respondent has in his possession important and relevant evidentiary material, and that there is a real possibility of such material being destroyed or otherwise put beyond reach?

33 The wife's affidavit in support of the present application has annexed to it a disclosure list provided by the husband's most recent solicitors on 21 October 2021. It is apparent from that list that the husband has been able to obtain at least some statements for the various Country A bank accounts, and that he has been in email communication with the banks over at least the last several months. On the wife's evidence, the husband has disclosed only piecemeal statements for the various accounts, and the information she has independently obtained is that the Country A banks will communicate by email only via the email account of the primary holder, which is the husband. The wife does not accept that the husband will have disclosed all his relevant communications with the banks, and her suspicions are aroused further by the delays in the giving of the required undertaking.

34 The wife's affidavit also lists other requests for relevant disclosure (for example, in relation to payment of legal fees) which have not been met.

35 The wife further gives evidence that documents produced under subpoena from service providers demonstrate that the husband receives text messages from [Bank B] and the State Bank of Country A.

36 In order to test the husband's assertion that he would need to be physically present in Country A to establish online access to the accounts, the wife says that she has herself taken steps to establish online access to a recently established account in her sole name in Country A.

37 The wife says that the husband has three separate mobile telephones, one Vonage telephone device, a laptop computer, and an Apple watch through which he can access the other devices. She says that in her experience the husband would keep all three mobile telephones on his person at all times, and that in the past he told her that they were, in her words, "loosely differentiated to being used for work, banking and social communication".

38 I am satisfied, particularly based on the evidence of recent communications between the husband and the banks by email and text message, that it is likely that he has in his possession important and relevant evidentiary material. I am satisfied based on his conduct of the proceedings to date that there is a real possibility of that material being destroyed or otherwise put beyond reach if the orders sought by the wife are not made.

The next question – to what conditions should the orders be subject?

39 In her most recent affidavit, the wife undertakes to meet the costs associated with the independent computer expert.

40 Otherwise, the materials initially filed by the wife did not include provision for the appointment of an independent supervising solicitor, nor any form of undertaking either by her own solicitor or by the independent computer expert both as to the execution of the orders sought, and the maintenance of confidentiality of the documents and information obtained pending the proper hearing of any dispute in that regard. No undertaking as to damages was proffered.

41 As earlier noted, I regard undertakings of that nature as essential in the present circumstances.

42 I have received, and accept:

(a)an undertaking of the wife as to damages, and that she will not without leave use any material or information obtained as a result of the orders for the purpose of any civil or criminal proceeding either within or outside Australia other than the present proceedings;

(b)an undertaking of the wife's lawyer Nicole Bernadette Croft to pay the costs of the independent solicitor and the independent computer expert, to act in conformity with the order, to provide the relevant documents to the independent lawyer for service on the husband, not to use any material information obtained as a result of the order for the purpose of any other proceedings without leave, and not to disclose to the wife any information that she acquires during or as a result of execution of the order, without leave;

(c)an undertaking of Vincent Sean Bradley, the proposed independent supervising solicitor, confirming his willingness and ability to act in that role, and undertaking to serve the documents, offer to explain the terms of the orders and the right of the husband to take legal advice should that become necessary for any reason (notwithstanding the husband is presently represented), provide a written report in relation to the execution of the order, deliver the material seized in execution of the order and a list of the items seized to the court, and not to disclose the contents of the documents or information obtained without leave; and

(d)undertakings of [Mr A] and [Mr B], the independent computer experts, to act in conformity with the order, and not to disclose any materials or information without leave.

43 Those undertakings are in appropriate form, complying broadly with the examples set out in Consolidated Practice Direction 9.6.2 issued by the Supreme Court of Western Australia. While the practice direction self-evidently does not directly apply to proceedings in this Court, it is nevertheless instructive and reflects well-established authority in civil litigation.

44 I am satisfied that the undertakings, and the form of the orders as amended by me from those originally presented by the wife, afford appropriate safeguards to the proper interests of the husband. I am accordingly prepared to make orders in the following terms:

Upon the ex parte application of the wife, and upon the Court noting:

(a)the undertaking of the wife as to damages;

(b)the undertaking of Nicole Bernadette Croft ("the wife's solicitor")

(c)the undertaking of Vincent Sean Bradley ("the independent solicitor") and

(d)the undertakings of Mr A and Mr B ("the independent computer specialists");

And noting that in these orders the wife's solicitor, the independent solicitor and the independent computer specialists are collectively referred to as "the search group";

It is ordered:

1.The husband, at Court on Tuesday 23 November 2021, forthwith deliver up to the search group to take into their custody, the following:

(a)any mobile telephone(s) owned or used by the husband;

(b)Vonage device used by the husband;

(c)any iPad(s) or tablet(s) owned or used by the husband;

(d)any laptop computer(s) owned or used by the husband;

(e)any Apple Watch owned or used by the husband; and

(f)any wallet of the husband.

2.To the extent that the husband's mobile telephone(s); Vonage device, iPad(s) or tablet(s), laptop computer(s), Apple Watch and wallet are not on the husband's person at Court on 23 November 2021 then, the nominated solicitor(s) for the Husband and the search group forthwith accompany the husband from the Family Court of Western Australia to [redacted] Hotel Perth situated at [redacted], Perth in order to take possession of the said items to be placed into the custody of the independent computer specialists or either of them.

3.Upon possession of the husband's mobile telephone(s), Vonage device, iPad(s) or tablet(s), laptop computer(s), Apple Watch and wallet:

(a)The wife's solicitor be permitted to photocopy the contents of the husband's wallet including but not limited to any bank or financial institution cards and information notes and immediately return the wallet to the husband;

(b)The independent computer specialists or either of them must:

(i)Complete a Forensic Copy "forensic image or images", of any laptop(s), iPad(s), tablet(s) and mobile telephone(s);

(ii)identify and forensically extract copies of any email, text message or WhatsApp communications they locate on any of the seized devices, with any bank or financial institution in Australia, or outside of the Commonwealth of Australia, including but not limited to Bank B, State Bank of Country A, United Bank of Country A and Bank D;

and immediately deliver the same to the independent solicitor, who must then deliver same to the Family Court Subpoena office to be held until further order of the Court.

4.For the purposes of paragraph 3(b) hereof:

(a)the husband provide to the independent computer specialists any passwords (including but not limited to online connected accounts), user credentials, or other information required by them to comply with the order; and

(b)in the event the order cannot be complied with or completed on the day of 23 November 2021, the laptop(s), iPad(s) tablet(s), mobile telephone(s), Vonage device and Apple Watch be delivered to the Family Court subpoena office by no later than 3:45 pm that day, and be held in the Subpoena office for completion of the order on the subsequent business days.

5.Upon completion of paragraph 3(b) hereof, the independent solicitor must promptly facilitate the return of the laptop(s), iPad(s), tablet(s), mobile telephone(s) and Vonage device to the Husband through the husband's solicitor.

6.Pending compliance with paragraph 3(b) hereof, the husband be restrained and an injunction be granted restraining the husband from:

(a)logging into any of his email accounts, iCloud or online accounts through any third parties' computer; and

(b)accessing directly or remotely accessing, changing, modifying or deleting any information from any of his devices or online accounts.

7.Service of a sealed copy of this order be effected on the solicitor for the husband at the Court precincts on 23 November 2021.

8.The husband is at liberty to apply to set aside or vary these orders at short notice.

9.The parties have liberty to apply in relation to inspection of the material delivered up to the Court pursuant to paragraph 3 hereof.

These reasons are the reasons for decision delivered on
22 November 2021, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM

Associate

23 NOVEMBER 2021