GALLOW and WIMPLE

[2017] FCWA 45

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: GALLOW and WIMPLE [2017] FCWA 45

CORAM: THACKRAY CJ

HEARD: 3 FEBRUARY 2017

DELIVERED : Ex tempore

FILE NO/S: PTW 147 of 2015

BETWEEN: MS GALLOW

Applicant

AND

MR WIMPLE
Respondent

Catchwords:

APPLICATION IN A CASE - Appointment of a single expert to examine mobile phone - Extent of investigation - Expert to be perceived to be independent and be bound by the rules relating to experts - More extensive inquiry appropriate - Phone to remain in the custody of the court

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: [Mr H]

Respondent: [Mr D]

Solicitors:

Applicant: [Law Firm A]

Respondent: [Law Firm B]

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

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The application before the court today was commenced by the filing of an Application in a Case by [Mr Wimple] (“the applicant”) on 10 January 2017. The application has since been amended by a document filed on 31 January 2017. [Ms Gallow] (“the respondent”) filed a response on 24 January 2017. I also now have before me a Minute of Proposed Orders filed on behalf of the respondent, setting out the relief she now seeks.

2The background to the application and response is that the de facto couple involved are parties to significant financial and other proceedings that are pending before the Family Court of Western Australia and which have now reached an advanced stage and are ready for the allocation of a trial date in the relatively near future. The other salient background is that the applicant became aware (from reading the respondent’s trial affidavit) that the respondent had access to what he thought was a useless mobile phone. The respondent had managed to have the mobile phone reconstructed and from this phone she was able to extract a considerable amount of what the applicant regards as private information, but also, importantly for the purposes of today’s proceedings, communications which the applicant says are privileged communications between him and his solicitors.

3It turns out that there is a substantial measure of agreement between the parties and that the applicant ought to be permitted to have access to the mobile phone in question. I am asked to rule only on five issues which have been conveniently identified by Queen’s Counsel for the applicant, as confirmed by Senior Counsel for the respondent. I do not consider the matter warrants anything more than some fairly perfunctory reasons, which I will now proceed to give.

Issue one

4The first issue is the identity of the person who will be employed to carry out the examination of the mobile phone and potentially examination of at least one other device. The applicant has already engaged an expert, a [Mr R], whose expertise is not in issue, and the applicant asks that it be Mr R who conducts an examination of the device or devices on behalf of the applicant himself as his expert. The respondent proposes that there ought be a single expert, [Dr S]. Dr S has provided consent to act in that capacity.

5The respondent says it is appropriate in these circumstances and, in particular, if more than the mobile phone is to be examined, for the person who is engaged to undertake the examination to be thoroughly independent of the parties and bound by the provisions of the rules relating to experts. The applicant, through his counsel, says that there is sufficient protection for the applicant in the form of an injunction that is proposed which would limit the way the expert would be permitted to deal with information that comes to hand. In my view, it is appropriate that the person engaged be perceived to be independent and, more importantly, that they be bound by the various restrictions laid down in the rules for the engagement of an expert. As such, I propose to order that it be Dr S who undertakes the investigation.

Issue two

6The second issue is whether or not the investigation should be one only of the mobile phone or, alternatively, whether it should include the main [computer] that was held in [Property D] in which the parties resided and to which the phone was, from time to time, backed up. The next question is then whether the investigation should extend to the respondent’s personal computer and other computers or devices, including her current mobile phone, which she has used or caused any other person to use to access the applicant’s private and other communications.

7I am persuaded that it is appropriate there be the more extensive inquiry that is proposed by the applicant. One of the most telling arguments in support of that proposition was that made by [Mr D] in his responding remarks regarding the other expert’s previous statement about the potential for the home computer to be used as the primary-based evidence for part of the inquiry. The other matter of significance is the fact there is at least the potential that the material backed up to the hard drive on the desktop office computer was then forwarded to either the respondent’s solicitors or to third parties. For those reasons alone the inquiry, in my view, should be more extensive.

8There was also a question about the possibility that the respondent’s other devices may have been involved in this exercise. As Mr D says, it is potentially the case that this inquiry will go no further in view of whatever position the respondent adopts as to whether or not her other devices had been used in the way that has been suggested. However, if the respondent’s other devices have been used in that way, then, in my view, the inquiry should extend to those devices, noting that [Mr H] based his submission in relation to the first issue on the very possibility that these other devices might be involved.

Issue three

9As for the third issue, the Terms of Reference for the expert are largely agreed. The only point of difference, now that we have tidied up the question relating to the period over which this inquiry is to range, concerns paragraph 3(h) of the minute of proposed orders handed up today, and this seeks to obtain evidence from the expert as to whether or not the applicant might have been able to prevent access to his emails at an earlier stage. I am simply not convinced that this is an issue worth exploring. The real issue, if there is an issue worth exploring, is what the applicant himself understood, not what some highly qualified expert might now say.

Issue four

10The fourth issue was raised in the amended Application in a Case. The applicant seeks that the solicitors (specifically three named solicitors who are involved in the conduct of the litigation at [Law Firm A]) should be required to file and serve an affidavit setting out the information contained at paragraphs 7.1 to 7.4 of the amended application. That application stands to be considered in light of the fact that exhibit 2 in today’s proceedings is a letter from Law Firm A, who represent the respondent, to [Law Firm C], who represent the applicant, in which it is said at paragraph 6:

no member of [Law Firm A] staff has read any communications between your client and his past or present solicitors in these proceedings and further none of the material provided by our client to our office has been disseminated other than in affidavit or for the purpose of disclosure in these proceedings.

11The difficulty in relation to that statement, if there is one, is that the correspondence is simply signed Law Firm A. It is not a sworn statement. I myself would be more than inclined to accept it as an accurate statement. It is, however, in my view in the interests of justice that the applicant himself at least sees all of the solicitors make the statement and that, like other statements made by other people, it assumes a greater degree of solemnity and importance if it is sworn to by affidavit. I think it proper in the circumstances that those members of the firm confirm that statement.

12As to the other parts of paragraph 7 of the amended application, these deal, in my view, with the way in which the solicitors have dealt with their client and the way in which they have conducted their proceedings. I am not persuaded that it is appropriate that they be required to provide that information to the other party and his legal representatives. It is unnecessary, I think, to address 7.4, as I have no doubt that paragraph 6 of the letter of Law Firm A will be sworn to in those terms by the members of the firm.

Issue five

13The remaining issue is what happens to the mobile phone which presently is in the custody of the court but which will shortly go into the custody of the single expert for examination. Something has to happen to it after he has finished with it. The applicant says it is his phone and therefore it should go back to him. The respondent says there is no inconvenience to the applicant because he thought it was a broken down old phone anyway. The respondent also says there is at least the potential that there may still be a dispute following the examination by the single expert, notwithstanding that there may be an expert report about what is on the phone. The respondent therefore submits that out of an abundance of caution it may be appropriate to leave the mobile phone in the custody of the court, particularly as the proceedings are getting towards an end.

14Whilst the argument is far from strong, I am persuaded that the phone should continue to be held by the court until the proceedings have been completed, at which time it is conceded that the phone can be returned to the applicant.

15I add for the sake of completeness that it is common ground that both the experts who have been mentioned in these reasons ought be able to obtain an image of the mobile phone currently held by the court, and that can be retained.

16 If it is not inconvenient to counsel, I would invite them to provide a Minute in accordance with those reasons.

I certify that the preceding [16] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
3 February 2017