Holbert and Holbert
[2018] FamCA 410
•6 June 2018
FAMILY COURT OF AUSTRALIA
| HOLBERT & HOLBERT | [2018] FamCA 410 |
| FAMILY LAW – SOLICITOR – Where the wife’s employment places her in a position of trust with her solicitor – where the solicitor assists the wife to obtain information from the husband’s files within a family computer using the technology company used by the law firm – where the court accepts that the solicitor did not knowingly do anything illegal – where the basis for excluding the solicitor is not made out. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| Billington and Billington (No 2) [2008] FamCA 409 Grimwade v Meagher [1995] 1 VR 446 Kallinicos and Anor v Hunt and Ors [2005] NSW SC 1181; [2005] 64 NSWLR 561) Macmillan and Macmillan [2000] FamCA 1046 Spincode Pty v Look Software [2001] VSCA 248 and Grimwade v Meagher [1995] 1 VR 446 Thevenaz (1986) FLC 91-748 |
| APPLICANT: | Ms Holbert |
| RESPONDENT: | Mr Holbert |
| FILE NUMBER: | MLC | 2024 | of | 2018 |
| DATE DELIVERED: | 6 June 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 5 June 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dixon SC |
| SOLICITOR FOR THE APPLICANT: | Scanlan Carroll |
| COUNSEL FOR THE RESPONDENT: | Ms Burt |
| SOLICITOR FOR THE RESPONDENT: | Coote Family Lawyers |
Orders
That the wife forthwith return to the husband all data files obtained from the computer hard drive given by the wife to B Pty Ltd including instructing B Pty Ltd to destroy all such material held by them.
That the wife be restrained by injunction from using any such material without leave of the Court.
That paragraph 2 of the application by the husband for interim orders contained in his response filed 12 April 2018 is otherwise dismissed.
That any application by either husband or wife for costs arising out of the hearing on 5 June 2018 shall be by written submission to be filed and served no later than 4 pm on 19 June 2018 and any reply thereto shall be filed and served no later than 4 pm on 3 July 2018 and the determination of such application(s) be made in chambers.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Holbert & Holbert has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 2024 of 2018
| Ms Holbert |
Applicant
And
| Mr Holbert |
Respondent
REASONS FOR JUDGMENT
Ms Holbert (the wife) commenced proceedings for a property settlement on 26 February 2018 against her husband Mr Holbert (the husband). The relief sought was drawn in such a way that, although generally indicative of what she was seeking, the orders did not amount to a precise alteration of property interests. It is now clear that the application was brought on hurriedly as the husband, who was then in the UK, was about to return to Australia.
The immediate issue arises out of that February haste.
The husband seeks an order that the wife’s solicitors be restrained from continuing to act for her. The wife opposes that order.
At the conclusion of submissions and after reading the relevant affidavit material, and hearing the cross-examination of the wife’s solicitor, I indicated I would not be making the orders sought by the husband. I raised whether alternate injunctive orders should be made relating to computer details of the husband which the wife had accessed. It is not contentious that the Court is empowered to, and at liberty to, make such orders notwithstanding no such specific relief was initially sought. Both counsel agreed.
The details that follow amount to findings of fact after reading the affidavit material and hearing cross-examination of the wife’s solicitor.
The wife has a close working relationship with her solicitors. Whether that gives rise to the possibility of future conflicts is a matter for the wife to consider.
The first of two grounds pursued by the husband was that, as he had attended social functions at which the wife’s solicitor also attended and their respective children attend the same school, the wife’s solicitor should be restrained from acting for her. I was more concerned about the working relationship because of the objectivity that has come under so much scrutiny in the immediate interlocutory application. Suffice to say, the personal relationship arising from the interaction of the husband, the wife and the wife’s solicitor through their joint interest in a school and the fact that they live close to each other is not a basis for me to say that a conflict arises. I deal with the basis for that in more detail in respect of the other ground. The second ground concerned the solicitor’s involvement in accessing the husband’s information on what was described as the family’s computer.
On 23 February 2018, the wife raised with her solicitor that the husband was about to return from the UK and she wanted advice that she described as:
a home computer which she needed copied.
The solicitor said that she had an IT company with whom the firm dealt. This was B Pty Ltd. The solicitor then called B Pty Ltd to “see if they could assist” with copying the wife’s home computer. Apart from that, the solicitor said that the wife gave instructions to B Pty Ltd and dealt with them directly.
However, the solicitor noted that all communication with B Pty Ltd was automatically linked through her own email so that she received notification of all “IT” issues within the firm. That would mean that if B Pty Ltd was accessing the husband’s computer, the solicitor would presumably have been alerted.
Although there now seems to be some suggestion that the husband cannot be trusted to comply with his disclosure obligations, that was certainly not the basis upon which the application initiating proceedings was first filed by the wife. Indeed, in her affidavit, the wife referred to details of the husband’s infidelity. That sort of information becomes relevant as to what the solicitor subsequently knew and read from the husband’s computer even if the formal “machine” was a family computer.
The wife brought the hard drive of the computer into her office and B Pty Ltd’s technician attended. The copying was commenced at the solicitor’s office. The task took four hours but during that time, the technician noted in the log that the husband’s various materials on the computer were password protected. The log indicated the technician had to find a way around that and was successful. That was late afternoon on 27 February.
Part of this process led to the technician accessing the husband’s email but that led to the husband being alerted. Unsurprisingly, he contacted the technician. The husband was again, perhaps unsurprisingly, angry. Curiously, the technician saw the problem and wrote in the log which then went to the wife’s solicitor, the following about the husband:
He was quite upset about his accounts being accessed.
I was unaware that he wasn’t their client/office member/relative. I thought that it was just a normal computer data move.
I have stopped the work that I was doing from our office.
The technician said he tried to call the wife’s solicitor but was unsuccessful so he sent her an email. It read that the husband was very angry. The solicitor then replied to the technician:
The computer also belongs to our client and our client has access to it. This matter is a matrimonial matter and our client is entitled to copy the computer contents. (my emphasis)
In cross-examination, the solicitor was at pains to point out that she gave no instructions to do what B Pty Ltd was apparently doing. She was also at pains to point out that she did not understand that the husband’s material was private and had anything to do with passwords.
With some hesitation, I am prepared to accept the solicitor’s evidence that she did not understand the nature of what B Pty Ltd was doing at that time. She stressed she had not seen the log of B Pty Ltd. My hesitation comes from the fact that even had she done so, I am not entirely sure that she would have recognised the problem namely that the technician was troubled about getting around a password protected area. Having done so, the technician began a monitoring service such as to have access to the husband’s emails.
The husband apparently contacted his solicitors and the following morning at 8.21 am, the husband’s solicitor wrote to the wife’s solicitor alleging that the solicitor’s firm was seeking to “hack” into the husband’s email accounts. It was alleged (and not denied by senior counsel for the wife) that “such conduct is illegal and highly inappropriate”. It was clearly denied by the wife’s solicitor that she or the firm was trying to “hack” into anything. Her argument was that all of these activities were being undertaken by the wife.
The husband’s solicitor asked the wife’s solicitor to immediately provide an undertaking to:
(a)Instruct B Pty Ltd to destroy the data files;
(b)Not access the files;
(c)Destroy information obtained from the husband’s hard drive.
Almost one hour later, the wife’s solicitor responded. It is unnecessary for me to set out the detail except to say that she repeated what she had said to the technician namely that the computer was “property” of the relationship and the wife had “all access codes” and used the computer. Indeed, by that time, the wife probably did have access to all of the relevant codes because they had been accessed by the technician but otherwise that was not correct because the wife could not access the husband’s emails without the technician’s skill. The wife’s solicitor refused to provide any undertakings and simply said she understood her legal obligations about privileged communication.
It is the wife’s solicitor’s response that came to so much focus. Importantly, the log set out what had occurred and she had that. She had the email of the technician and had responded to him. She had an understanding that the husband was angry about his email (as distinct from his files) being accessed. She had the husband’s solicitors complaining not just about the issue of privilege but also the letter referred to “your firm or your client accessing his personal and business data on his hard drive, or his emails”. This was not just an issue about legal professional privilege; the husband was complaining about a breach of the law and indeed, one that seemed to be recognised by the technician.
What convinces me to give the solicitor the benefit of a doubt is that she seemed not to understand that what was causing confusion and consternation was the privacy issue. She thought that everyone in the family had access to all of the data on the computer; hence the reference to the computer being relationship property. Had she examined the log, considered the consternation of the technician and then spoken to the husband’s solicitor, this matter might not have occurred. I am satisfied she did not do that.
The trouble did not end there though because it was the solicitor’s position that this data was all under the control of the wife who had not given it to her. That submission could not be sustained because, apropos the husband’s argument about a breach of privacy, the wife herself said:
[11]I have not shown (the solicitor) nor has she viewed the content of the hard drive or the computer, save for the emails relating to my husband’s infidelity… (my emphasis)
Thus, this issue was about legal professional privilege but it is also about the issue of the breaking into the husband’s computer folders (or whatever they are called) even if it was one shared machine. To waive away concern on the basis of joint property ignores the issue. That is particularly so where, at least on the evidence before me, there was no indication that the husband would not comply with his discovery obligations, nor assertion that he was hiding assets or moving them out of the jurisdiction of the court.
Counsel for the husband submitted that the position of the solicitor was “unsatisfactory” in that she permitted the accessing of emails for which there was password protection. It was submitted that the solicitor should have attempted to find out what had occurred rather than have taken the blunt position she did particularly when the husband’s solicitor’s email was so particular, even if wrong, in terms of the assertions. There was no doubt that B Pty Ltd was concerned about what it had done and may have mistaken its instructions. I am uncomfortable with the solicitor’s view that these were matters for the wife who was responsible for the instructions. That does not answer the question of why she did not stop and think before responding to the technician and to the husband’s solicitor that this was a family relationship matter and the property belonged to the wife.
Senior counsel for the wife submitted that the husband should have set out what materials he said were protected but that did not answer the question of whether the solicitor should have thought more carefully. It is inappropriate for litigants to take matters into their own hands particularly in circumstances where there is no indication of why the wife needed some form of self-help.
Counsel for the husband submitted the conduct of the solicitor was sufficient to meet the relevant test such that the court could not permit the wife to continue to instruct her. Having given the solicitor the benefit of the doubt, I do not accept that the husband has met the requisite test. That requires some consideration of how the law views the specific topic of the court protecting the administration of justice.
The foundation of the Court’s jurisdiction is the fiduciary obligation of a solicitor and the inescapable conflict of duty which is inherent in the situation of acting for clients with competing interests. The court always has inherent jurisdiction to restrain solicitors from acting in a particular case as an incident of its inherent jurisdiction over its officers and to control its processes in aid of the administration of justice. (see Billington and Billington (No 2) [2008] FamCA 409 and Kallinicos and Anor v Hunt and Ors [2005] NSW SC 1181; [2005] 64 NSWLR 561).
Family law is a highly sensitive area of practice and there is no better example than here where the wife’s apparent interest lay in satisfying herself about his infidelity However, that does not justify improper action in the gathering of evidence of the nature considered in s 135 of the Evidence Act 1995 (Cth). It is important therefore that legal practitioners look beyond just matters of legal professional privilege. As Frederico J said in Thevenaz (1986) FLC 91-748, restraint may be justified where the risk might be more theoretical than practical a theme supported by the Full Court of this Court in Macmillan and Macmillan [2000] FamCA 1046. The Court also has to cautiously consider the beliefs of the husband that his information, whatever that may be, might be used against him or to his disadvantage as against him taking some advantage by virtue of feeling sleighted by a person continuing to act where he considers the professional relationship is not necessarily objective.
The administration of justice is what lies at the heart of this dispute rather than some concern about the solicitor having had an opportunity to give advice to the wife objectively where she has had at least the theoretical opportunity to assess the husband at some social function. In this case, it is hard to see how any such advantage could affect the advice the solicitor might give. However, as the focus of this case was on the complaint of the husband that the wife should not be allowed to have the solicitor of her choice, it is important to look at what test should be applied.
The authorities set out that test and that is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that the legal practitioner be prevented from acting for a client (see for example Spincode Pty v Look Software [2001] VSCA 248 and Grimwade v Meagher [1995] 1 VR 446). The test involving the fictional member of the public is an objective one based on what the general public could expect of the administration of justice (op cit Grimwade).
I consider that the general public here, properly informed about the need not to simply ignore rights, would also understand that hindsight is a wonderful thing. The solicitor in this case did not give enough consideration to what the technician was doing, whether on the instructions of the wife or otherwise. The fact that the wife showed the solicitor some of the material (see paragraph [11] of the wife’s affidavit) indicates that there was exposure to the husband’s private material (or alternatively, it indicates some prurient interest in his infidelity which must be questioned). I consider the general public would say that care should have been taken but the actions have not so offended the sensibilities of justice as to have the wife lose her solicitor of choice.
That same reasonably informed person, and indeed the general public, would say that litigants should not be deprived of their choice of representation without good cause. The husband and wife differ as to whether or not good cause has been shown. I do not consider cause has been shown. No serious injustice has occurred that could not be otherwise rectified by other injunctive relief. It is also perhaps fortuitous here that the technician’s actions brought the matter to a head quickly.
I accept that the public’s interest in the administration of justice overrides any right of legal representation. The administration of justice requires confidence in the legal profession. Gross negligence or malevolent action by a solicitor would justify intervention but not what happened here in the confusion that seemed to reign. I am not satisfied that an injustice would be seen by the general public as having occurred to the husband by the court not stepping in to override the wife’s right of choice of legal representation.
Over the lunch break, senior counsel for the wife apparently offered an undertaking which included the destruction of the relevant material but the husband rejected that presumably on the basis that he wanted the injunction relating to the solicitor not acting. The fact that the wife was prepared to give that undertaking (as distinct from the solicitor) gives me comfort that she now acknowledges she should not have been involved in what occurred. That is not a criticism of her even though she said that she understood her obligations. I consider she had not contemplated the breaking into the husband’s coded computer area would occur or that it was wrong. Her focus was apparently on his infidelity.
As there is no evidence of substance to indicate that the husband would not comply with his disclosure obligations or evidence that he would thwart the wife’s entitlements, the material accessed by the wife should be given back entirely to the husband and he can do as he wishes with it. Obviously, if, as I suspect, the wife has seen the husband’s material and he subsequently does not make adequate disclosure, the issue of his privacy would not then be a protection. The injunctive relief pronounced will be now ordered.
In the busy duty list, I did not have time to deal with costs arguments and that can be done by submissions in writing.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 6 June 2018.
Associate:
Date: 6 June 2018
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