Glos & Glos (No 4)
[2025] FedCFamC1F 318
•15 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Glos & Glos (No 4) [2025] FedCFamC1F 318
File number(s): BRC 1128 of 2023 Judgment of: HOWARD J Date of judgment: 15 May 2025 Catchwords: FAMILY LAW - PRACTICE AND PROCEDURE – where the husband seeks that the wife’s lawyers be restrained from acting for the wife – where documents belonging to the husband and subject to legal professional privilege were improperly accessed by the wife – where information from those documents was utilised by the wife against the husband in the financial proceedings – where orders are made restraining the wife’s lawyers from acting on behalf of the wife Legislation: Evidence Act 1995 (Cth) Cases cited: Crittenden & Collins [2017] FamCA 716
Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357
Venter & Venter (No 6) (2024) 69 Fam LR 345
Division: Division 1 First Instance Number of paragraphs: 38 Date of hearing: 6 May 2025 and 12 May 2025 Place: Brisbane Counsel for the Applicant: Mr Richardson SC Solicitor for the Applicant: Mills Oakley Lawyers Counsel for the Respondent: Mr Atkinson KC Solicitor for the Respondent: Hopgood Ganim Lawyers ORDERS
BRC 1128 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GLOS
Applicant
AND: MS GLOS
Respondent
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
15 MAY 2025
THE COURT ORDERS THAT:
1.The respondent, Ms Glos (“the respondent”), is restrained from further engaging or instructing any of the following legal firms or legal practitioners in respect of the proceedings in the subject matter number BRC1128/2023:
(a)Hopgood Ganim Lawyers;
(b)Mr M of Counsel; and
(c)Any other Counsel briefed on her behalf since 29 September 2024.
2.The respondent is restrained from discussing or communicating to any other person the contents of any of the documents in the property located at B Street, Town C, NSW accessed by her (Town C documents) other than those documents already disclosed by the applicant in these proceedings.
3.The Respondent is restrained from making any use for the purpose of these proceedings of any information derived from the Town C documents other than those documents already disclosed by the applicant in these proceedings.
4.To the extent not already destroyed by the respondent and her agents by or at the direction of the respondent, the respondent shall forthwith destroy all hard copies and electronic copies of the Town C documents within her possession or control (include any copies held in cloud storage) and direct any of her agents or legal representatives (including previous legal representatives) to also do so and confirm in writing to the lawyers for the applicant when the same has been done.
5.Any costs application must be filed and served within 14 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J
The applicant husband (Mr Glos) and the respondent wife (Ms Glos) are currently involved in property settlement proceedings in this Court.
The proceedings were commenced on 2 February 2023. A final hearing is listed to commence before the Honourable Justice Carew on 26 May 2025. Parenting proceedings were commenced in May 2023 and were settled in April 2025 and consent orders were made.
The husband lives between the former matrimonial home situated at D Street, Suburb E, Queensland (“the Suburb E property”) and B Street, Town C, New South Wales (“the Town C property”). Both of those properties are registered in the name of the wife. The husband normally resides at the Suburb E property. The husband resides at the Town C property when he has the care of the children during school term. That is presently each alternate week from after school on Wednesday to before school on Monday for X (aged 13) and Y (aged 12). The child Z (aged 15) joins the father and her brothers at the Town C property on the relevant weekend. The husband stays at the Town C property when he has the children in order to facilitate their attendance at school.
The wife lives at F Street, Suburb G, New South Wales (“the Suburb G property”). That property is also registered in the name of the wife.
On 31 August 2023 Senior Judicial Registrar Best made an Order (with the consent of the parties), and that Order included the following:
“21. That the Mother and Father shall not enter the other party’s residences without written agreement in advance.”
On 16 April 2025[1], the husband filed an Application in a Proceeding seeking an urgent listing. The orders sought by the husband included an order restraining the wife from further engaging her current lawyers (Hopgood Ganim) and an order to restrain the wife from further retaining one named barrister (Mr M) and any other Counsel briefed on behalf of the wife since 29 September 2024.
[1] The Court record is unclear and two filing dates appear on the document in question – 16 April 2025 and 29 April 2025.
The wife entered the Town C property without the husband’s written agreement on 29 September 2024. The husband was not present at the property. The wife was there to drop off Z. While present at the Town C property the wife saw, reviewed and photographed a number of the husband’s private and confidential papers – including some documents which were subject to legal professional privilege. It was not until 4 April 2025 that the wife (through her lawyers) informed the husband of what had occurred at the Town C property on 29 September 2024.
In a decision entitled Venter & Venter (No 6) (2024) 69 Fam LR 345 (“Venter”), Justice Carew undertook a review of the relevant authorities. I agree with Her Honour’s conclusion in relation to the relevant test to be applied in these types of cases. The Counsel engaged for the hearing of the application (Mr Richardson SC for the husband and Mr Atkinson KC for the wife) agreed that the relevant test is:
“[68]…whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a lawyer be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice.” [2]
[2] Note Venter & Venter (No 6) (2024) 69 Fam LR 345 per Carew J at [68].
I also agree with what Justice Carew had to say in paragraph 69 of Venter. In that paragraph Her Honour stated:
“[69] The Court’s power to prevent a lawyer from acting is nevertheless an exceptional one and discretionary. The power must be exercised with appropriate caution and due weight given to the public interest in a party being able to choose their legal representation. (Li v Jin Lian Group Pty Ltd [2018] NSWSC 479 (Li v Jin Lian Group Pty Ltd)). The Court must also be alert to the possibility that such an application may be inappropriately pursued by a party to proceedings. (Li v Jin Lian Group Pty Ltd at [8]; Bahonko v Nurses Board of Victoria (No 3) [2007] FCA 491 at [2]).”
(Footnotes inserted)
I have kept these principles in mind when considering this case – and in particular, the test to be applied is at the forefront of my mind.
I would state at the outset that there are some inconsistencies in the wife’s material. In paragraph 28 of the wife’s affidavit filed 1 May 2025, the wife states, inter alia:
“28. I depose here to the following things:
(a)The only documents from the kitchen that I have read are the ones that I photographed;
(b)Put differently, I did not read any of the documents on the bench other than the ones I photographed (and in the latter case, I read them later);...”
There were 17 photographs taken by the wife. The wife’s evidence contained in paragraph 28(a) and (b) of her 1 May 2025 affidavit is inconsistent with the version provided by the wife’s lawyers in the letter dated 10 April 2025 annexed to the husband’s affidavit filed 16 April 2025. In the paragraph numbered 5 on the second page of that letter, Hopgood Ganim Lawyers state, inter alia:
“…Our client did not read any documents fully. She looked at some documents at random and perused some documents briefly to decide to photograph them...”
I agree with the submission made by Mr Richardson SC that those statements (on instructions from the wife) are clearly suggestive that there were documents looked at by the wife beyond the number that were photographed. That construction is fortified by what is stated next in the same paragraph of that letter:
“…She took photographs at random...”
If the photographs were taken “at random” that implies that the wife looked at some documents that were not photographed.
Further, at paragraph 18 of the wife’s affidavit filed 1 May 2025 the wife states, inter alia:
“…I did not read any documents except to work out whether or not I would photograph them…”
Mr Richardson SC stated that this “is a statement that sits awkwardly with a proposition of every document I read, I photographed.” I am more blunt in my assessment. The statement contained in paragraph 18 of the wife’s affidavit,[3] is entirely inconsistent with what the wife stated 10 paragraphs later in the same affidavit (note paragraph 28(a) and (b)).
[3] Contained in the quotation above.
The internal inconsistencies contained in the wife’s material (including the wife’s affidavit filed 1 May 2025 and the letter from Hopgood Ganim Lawyers dated 10 April 2025) strongly suggest to the Court that the wife saw and, at least read in part, documents belonging to the husband beyond what appears in the 17 photographs that she took. The husband does not know and can never know what those other documents were and what, if anything, was revealed from those other documents and what may have been passed on to her lawyers. This is of considerable concern to the husband. It is also of concern to the Court.
Also of concern to the Court is what happened next. The wife knew that she should not have been present inside the husband’s residence at Town C. The wife herself had insisted that the interim parenting order contain a prohibition (in the form of an agreement as stated) that the husband and wife would not attend the other party’s residence without written agreement. Having entered the husband’s residence (contrary to the order) the wife well knew that she was acting improperly when she decided to look at the documents belonging to the husband that were situated on the kitchen bench. The wife states in her affidavit of 1 May 2025 that she knew the husband would be arriving soon and she “…felt nervous and rushed…”. She states further in the same paragraph that “…in my hurried state and conscious of [Mr Glos’] imminent return…” The wife then left the husband’s residence (having said goodbye to the child Z) before the husband returned home (see paragraph 34 of the husband’s affidavit filed 16 April 2025 and paragraph 21 of the wife’s affidavit filed 1 May 2025). This, again, was strategic on the part of the wife. The wife well knew she should not be inside the house. If the husband had known that the wife had been inside the house – and noting the position of his private papers on the kitchen bench – he may have been concerned as to what the wife might have seen or read. But the wife made herself scarce.
The wife maintains that she did not send a copy of any of the 17 photographs she took (of the documents) to her lawyers (Hopgood Ganim). Once the 17 photographs were sent to the husband’s lawyers (Mills Oakley) by the wife (in April 2025) the husband was able to confirm that all of the documents were private and confidential – but only two documents in the 17photographs, attracted legal professional privilege. I read what the husband had to say about the two documents that he said were subject to privilege. I read those documents in the course of this application – and provided reasons for doing so at the hearing on 12 May 2025. I came to the conclusion that the documents were privileged documents and, for the reasons stated on 12 May 2025, I also concluded that the husband had not waived privilege, and, further, that section 125 of the Evidence Act 1995 (Cth) did not apply. I agree with the submission made on behalf of the husband that the number of privileged documents accessed is immaterial.
In her affidavit the wife makes it clear that her eyes were drawn to handwritten notes on one of the documents. These notes included the words “[K Pty Ltd]” and “Mum”. It transpires that those words were written on one of the documents that attracts legal professional privilege.
Three days after 29 September 2024, the wife’s lawyers sent a letter (dated 2 October 2024) to the husband’s solicitors and, as part of that correspondence, Hopgood Ganim sought copies of documents detailing “18. Any payments from the husband or his related entities to [Ms H] or for her benefit since 1 January 2022”. Ms H is the husband’s mother.
It is conceded (on behalf of the wife) that there had been no request for such documents prior to 2 October 2024.
The wife herself states in paragraph 28(h) of her affidavit of 1 May 2025 that “28(h) The photographed documents have not informed or affected my approach to this case except that I have pressed for disclosure going to payments made by [Mr Glos] through related entities to his mother;…” (emphasis added).
In one of the privileged documents there are words which set the wife on this inquiry. Relevant requests for disclosure were made three days after the wife entered the husband’s residence. The wife and her lawyers repeatedly seek to rely upon the fact that the wife did not send copies of the documents to her lawyers. It makes no difference because it is apparent that the wife communicated information contained in the husband’s privileged documents to her lawyers.
At paragraphs 200-203 of exhibit 2 (extracts from the wife’s trial affidavit) the wife states:
“200. On 29 September 2024 I saw documents on the kitchen bench at the [Town C] property, when I was dropping [Z] to [Mr Glos] for a holiday changeover. I am separately deposing to that event, in response to [Mr Glos] bringing an Application in a Proceeding seeking a restraint against HG acting for me. At the time of my deposing to this affidavit, [Mr Glos’] Application has not yet been listed and my affidavit in response has not been filed in those interim proceedings.
201. From documents that I saw and photographed on 29 September 2024, I believed that [Mr Glos] was making payments to his mother from [J Company], and that these payments were connected to a business called [K Pty Ltd] ([K Pty Ltd]). I did not understand the connection.
202. I was told by my solicitors and believed that [Ms H] was not an officeholder or shareholder of [K Pty Ltd] and that [K Pty Ltd] had been deregistered [in late] 2020.
203. On 2 October 2024 I caused HG to make an updated request to MO for a list of disclosure documents from [Mr Glos]. A copy of that HG letter and the attached list is annexed and marked [MSG]-26. One such document requested by me was:
“18. Any payments from the husband or his related entities to [Ms H] or for her benefit since 1 January 2022.””
The way that the affidavit is written suggests the sequence of events was that the wife read the documents on the kitchen bench at Town C; the wife spoke to her lawyers about her suspicions that the husband was making payments to his mother via K Pty Ltd; the solicitors conducted a company search of K Pty Ltd and provided advice to the wife as outlined by the wife in exhibit 2; and the letter dated 2 October 2024 was drafted and sent by Hopgood Ganim.
It is clear that between 29 September and 2 October 2024 the wife communicated with her lawyers and gave to those lawyers (Hopgood Ganim) information which she had obtained from the husband's privileged documents which she had improperly accessed in the husband's residence at Town C. Hopgood Ganim then utilised that information in the litigation against the husband. The use of that information in the litigation against the husband commenced with the letter of 2 October 2024. Would Hopgood Ganim have asked their client (as at 2 October 2024) to identify the source of the information? The husband does not seek a finding to that effect. The outcome of this application does not hinge on such a finding in any event. Far from it. The crucial point is that, as soon as 2 October 2024, the wife utilised the improperly accessed privileged documents belonging to the husband; garnered information from those documents; communicated that information to her lawyers; and her lawyers then deployed that information from those documents in the financial litigation against the husband.
There is no evidence to explain the delay between 29 September 2024 and 4 April 2025. I agree with the submission made by Counsel for the husband that the wife’s claim that she will be prejudiced if the restraints are granted must suffer by the absence of evidence called as to why it was that these matters have been disclosed so late in the day.
Further, as submitted by Counsel for the husband, it is more likely than not that the wife did look at other documents beyond the 17 photographs she took. It is not known what is contained in those other documents. The wife may have utilised information from those documents and passed that information on to her lawyers. The point is, if the husband had been told soon after 29 September 2024 what had occurred – he would have had a chance of remembering what had been situated on the kitchen bench on the day in question and could have known whether or not he had reason (or further reason) to be concerned.
I also agree with the submission made by Counsel for the husband that the fact that by improperly viewing some of the husband’s documents the wife may have uncovered a mischief is not relevant. The wife accessed privileged documents and she should not have done so.
As early as 2 October 2024 there was a willingness displayed by the wife to use improperly obtained material for forensic advantage in the litigation.
I have been told by both sides that, since 29 September 2024, there has not been any exchange of offers to settle. The wife, of course, had access to some of the husband’s instructions to his lawyers concerning possible settlement offers. This much is clear from the husband’s affidavit where he refers to his documents which are subject to privilege – and which the wife read and copied. Having access to that privileged information (containing instructions relating to offers or possible offers of settlement) most certainly would impact a person's decision (in this case the wife) to make or to accept an offer to settle. It could well assist in strategising the entire course of the negotiations and the running of the litigation generally.
It was submitted, on behalf of the wife, that the wife will not be able to forget the contents of what she saw, and she will always have that knowledge. I do note that the wife has stated that she will accede to any injunction preventing her from passing privileged information to lawyers. Further, I agree with the comment made in paragraph 58 of Crittenden & Collins [2017] FamCA 716. In that paragraph Carew J stated, inter alia:
“[58]… the fewer persons involved in the proceedings with knowledge or potential knowledge of the content of the documents is still of benefit [to] the [husband].[4]
[4] I have adapted Her Honour’s words to suit the facts in this case.
When speaking about information which solicitors ought not to have been in possession of, Ipp J stated in Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357:
“…There is, in my view, the real prospect that, even with the best will in the world, that information would colour, at least subconsciously, the approach of the solicitors and influence them in the performance of the tasks I have mentioned….[5]
[5] As cited by Carew J in Crittenden & Collins [2017] FamCA 716 at paragraph 57.
The trial is due to commence shortly. It may well be the case that the trial is delayed because of the restraints which will be imposed. So be it. The prejudice to the wife of not having her lawyer of choice and the prejudice to the wife (and husband) of a delay of the trial are matters that I have taken into account in exercising my discretion. In the circumstances of this case – in particular noting the delay in disclosing the wife’s improper conduct to the husband and the use by the wife (through her lawyers) of information subject to legal professional privilege lead me to the conclusion that issues of delay and not having her preferred lawyers must give way to the interests of protecting the integrity of the judicial process and the appearance of justice.
The conclusion that I have reached is that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that Hopgood Ganim be prevented from acting for the wife in this case – in the interests of the protection of the integrity of the judicial process and the appearance of justice.
The injunctions sought by the husband are appropriate. Hopgood Ganim should be restrained – as should the barristers retained by that firm on behalf of the wife. It is entirely probable that the Counsel briefed in the case have inadvertently been made aware of information that was accessed improperly and was subject to legal professional privilege. The restraint, so far as the barristers are concerned, is unavoidable.
Counsel for the husband did not pursue an order for the delivery of the wife’s telephone. Orders will therefore be made in terms of paragraphs 2, 3, 4 and 6 of the Application in a Proceeding filed 16 April 2025. The applicant seeks costs on an indemnity basis. An application for costs will need to be filed in accordance with Order 5.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 15 May 2025
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