Jeeves and Jeeves (No. 3)

[2008] FamCA 1149

FAMILY COURT OF AUSTRALIA

JEEVES & JEEVES (NO. 3) [2008] FamCA 1149

FAMILY LAW – EVIDENCE – Discovery – Enforcement of orders – s 128 Evidence Act certificate – Wife ordered to produce copies of documents belonging to the husband coming into her possession as a result of illicit activity of another person

Crimes Act 1958 (Vic)
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: Mr Jeeves

RESPONDENT: Ms Jeeves

FILE NUMBER: MLF 10167 of 2000

DATE DELIVERED: 18 December 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: The Honourable Justice Cronin

HEARING DATE: 18 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR SWEENEY

SOLICITOR FOR THE APPLICANT: TAUSSIG CHERRIE & ASSOCIATES

COUNSEL FOR THE RESPONDENT: MR VAN DE WIEL QC WITH MS MOLYNEUX

SOLICITOR FOR THE RESPONDENT: JA MIDDLEMIS

Orders

1. That by 4.00pm on 12 January 2009, the wife file and serve an affidavit setting out in detail whether she and/or her agents have made or caused to be made copies (including but not limited to photocopies, soft copies and electronic copies) and of which particular documents, relating to those taken from the husband’s business premises on 17 October 2008.

2. Pursuant to s 128 of the Evidence Act 1995 (Cth) a certificate be given to the wife in respect of all of the evidence contained in the affidavit referred to in paragraph 1 hereof.

3. That a sealed copy of the said certificate be attached to the affidavit referred to in paragraph 1 hereof and remain on the court file accordingly.

4. That by midday on 24 December 2008, the wife deliver to either the husband or his legal practitioners all or any copies (including but not limited to photocopies, soft copies and electronic copies) of the documents referred to in paragraph 1 of these orders.

5. That the application in a case filed on 16 December 2008 be otherwise dismissed.

6. That the costs of all parties this day be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Jeeves & Jeeves is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 101671  of 2000

MR JEEVES

Applicant

And

MS JEEVES

Respondent

REASONS FOR JUDGMENT

1. On the afternoon of 18 December 2008, I made orders on an application filed by the husband on 16 December 2008.  I indicated at the time that I would give reasons for those orders.  These are the reasons.

2. On the hearing on 18 December 2008, I had before me, the amended application in a case filed by the husband on 16 December 2008 supported by an affidavit filed on that same day.  No material was filed on behalf of the wife.  Notwithstanding that, the husband was represented by Mr Sweeney of Counsel and the wife by Mr Van Der Weil QC and Ms Molyneux QC.

3. By way of background, the substantive issue between the parties is an application by the wife under s 79A of the Family Law Act 1975 (Cth) (“the Act”) to set aside orders made on 11 December 2003. 

4. On 12 November 2008, I made orders and gave reasons for directing the wife to return to the husband documents removed by a person or persons from the husband’s business on 17 October 2008. 

5. It seems to be common ground that the documents to which I have referred were stolen from the husband in what might be loosely called a burglary.  I do not infer that the wife was the burglar.

6. What is common ground however is that the wife had possession of documents some or all of which may have come from that burglary.

7. I ordered on 12 November 2008 that the wife return the documents that she had in her possession.

8. In the affidavit of the husband filed 16 December 2008 he said that on 20 November 2008, the wife said to him in a telephone conversation words to the effect that she was sending documents to the “ATO”.  I do not necessarily infer from that statement that she was referring to documents from the burglary.  However, there must be a strong suspicion of that.

9. According to the husband, on Sunday 23 November 2008, he discovered that eight boxes of documents had been left on his driveway.  He took photographs of the boxes and annexed the photographs to his affidavit.  He said the majority of the documents contained in the boxes comprised documents which were removed from his premises prior to 17 October 2008 when the burglary occurred.

10. Of the documents that were taken from his business premises on 17 October 2008, the husband said that he estimated that only 10 per cent were contained in the boxes left on his driveway on 23 November. 

11. On 7 December 2008, a further five boxes of documents were delivered to him by his daughter N.  He said some of the documents belonged to the wife but others were documents stolen from his business premises on occasions prior to 17 October 2008. 

12. In his application filed on 16 December 2008, the husband sought a number of orders some of which he did not proceed with.

13. There were three issues therefore before me for determination.  The first concerned the request for an order that the wife “disclose” to the Court “in relation to the documents removed” from the husband’s business premises on 17 October 2008 whether the wife and/or her agents had made copies and if so of which ones. 

14. The second issue related to the husband seeking an order that the wife deliver any copies so made.

15. The third related to the question of an order that in the event that the wife’s legal practitioners had read any of the documents, they no longer act for the wife.

16. In respect of the third issue, the parties reached agreement.  Senior counsel for the wife told me that no legal practitioner had seen the documents.  Mr Sweeney accepted that assurance.

17. In respect of the first of the three issues, the wife was concerned about the prospect of being required to give evidence that would incriminate her having regard to the provisions of s 88 of the Crimes Act (Vic). This is an issue that I touched on in the reasons for judgment previously. Section 128 of the Evidence Act 1995 (Cth) applies if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness has committed an offence against or arising under an Australian law. If the Court is satisfied that the evidence concerned may tend to prove that the witness has committed an offence but the interest of justice required a witness to give the evidence the Court is to cause the witness to be given a certificate under s 128 of the Evidence Act. 

18. In this case, the evidence in chief of the wife would as a matter of course, be given in affidavit form.  She has raised the objection on proper grounds.  In my view the interests of justice require that the wife give the evidence and accordingly a certificate should issue.

19. That resolves the question of requiring the wife to give evidence as to what occurred.

20. Senior counsel for the wife said that my orders of 12 November 2008 requiring the wife to return documents did not prohibit her from copying them before they were to be returned.  With respect, there is no merit in that argument.  The very application before the Court was for the wife to return property that belonged to the husband.  Senior counsel argued that there was no reason to return the documents copied by the wife (if that in fact has occurred) on the basis that the documents were discoverable in the substantive proceedings before the Court.  There is no merit in that argument either on the basis that there has been no application before the Court alleging that the husband has not made proper disclosure.

21. I indicated to the parties at the time that it was of some concern to me that if I permitted the wife to adopt the approach of retaining any copied documents, I would be indirectly endorsing what may be a self-help approach regardless of whether it was contrary to the law or not. The Family Law Rules 2004 set out the fundamental principles upon which the Court operates in financial matters. There is a very clear obligation requiring parties to make disclosure and procedures are available for enforcement of those obligations if the matters pursued are relevant to a substantive issue before the Court. It is therefore not appropriate for the Court to turn a blind eye to conduct outside of that process which may or may not illegal.

22. Senior counsel for the wife suggested that one solution to the problem was that an independent legal practitioner could vet the documents and determine what was confidential in the sense of privileged as against what was discoverable and that exercise could be done at the expense of the wife.  That proposal ignores the fact that the documents belong to the husband and that is a matter about which I have already made a finding.

23. Some of the discussion with Senior counsel for the wife was along the lines that there could be no certainty about the relevant documentation because some of these were in circulation prior to the burglary.  The initial position of the wife was that she wanted a precise list of what documents the husband was asserting had been stolen.  In my view, for the reasons that I have set out, I do not see that as appropriate or necessary.  Only the wife knew what documents she had in her possession as a result of things that she was obviously told and particularly, how those documents came to be in that other person’s possession.  Undoubtedly, as the husband’s own evidence shows, there were other documents including those belonging to the wife that had nothing to do with the burglary.  Importantly however, the wife, as best she can, should be able to identify those that came into her possession subsequent to 17 October 2008 as a result of the actions of persons presumably responsible for the burglary.  It is not necessary therefore for the husband to identify anything in this case.  It is the responsibility of the wife to set out what documents came into her possession which she copied.  For reasons I have set out, I see no reason why she should be entitled to what is clearly the property of the husband.

24. I propose also at the request of the parties to set the matter down for hearing and orders will be made in due course in relation to that.

I certify that the preceding Twenty Four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  24 December 2008