Jeeves & Jeeves (No 2)

[2008] FamCA 1148

FAMILY COURT OF AUSTRALIA

JEEVES & JEEVES (NO. 2) [2008] FamCA 1148

FAMILY LAW – PROPERTY – Alleged theft and retention of documents by one party

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

Burridge (1980) FLC 90-902
English v English (1986) FLC 91-729
F and F (1989) FLC 92-031
Farr v Farr (1976) FLC 90-133

APPLICANT: Mr Jeeves

RESPONDENT: Ms Jeeves

FILE NUMBER: MLF 10167 of 2000

DATE DELIVERED: 12 November 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 12 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P.D. Sweeney

SOLICITOR FOR THE APPLICANT: JA MIDDLEMIS

COUNSEL FOR THE RESPONDENT:

Ms C.E. Molyneux QC,

with Ms B.A. Tulloch

SOLICITOR FOR THE RESPONDENT: TAUSSIG & CHERRIE

Orders

1. That the wife forthwith return to the husband or his appointed agent, all documents removed from G Business on 17 October 2008.

2. That the application of the husband seeking interim orders filed 5 November 2008 be otherwise dismissed.

3. That my reasons for judgment this day be urgently transcribed and be made available to the parties.

4. That my Associate forthwith email to the solicitors and counsel for the parties who have provided their electronic addresses a copy of these orders.

5. That the question of any application for costs arising out of these orders be determined upon written submissions. If any such application is to be made, it be filed electronically with my Associate and served upon the other party by 4 pm on 20 November 2008 and the recipient of any such application have until 4 pm on 27 November 2008 to reply by the same electronic means.

6. That subject to any issue of uncertainty as to matters set forth in such submissions, the determination and outcome of such applications for costs be made in chambers.

7. It is certified that it was reasonable in the circumstances to brief counsel including senior counsel.

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 10167 of 2000

MR JEEVES

Applicant

And

MS JEEVES

Respondent

REASONS FOR JUDGMENT

1. I have an application before me brought on urgently by the husband.  I heard argument this morning and have given some thought to what should be done.  I propose to make orders in similar terms to those sought by the husband.  I say "similar" because I do not want any misunderstanding about these orders.  It has also been suggested that my orders or statements might have some impact upon decisions to be made by the Victorian Police in respect of their criminal investigations.  I hope that is not so.  The relevant police officers will do their duty according to law.

2. I am familiar with this case because under the Court's management of cases, wherever possible, a case should remain with the one judge, if not to finality, at least during the interlocutory stages.  That is what has happened here.  It is only necessary for me to refer back to previous reasons I have given in the proceedings to show that I understand the background.

3. Final orders were made under s 79 of the Family Law Act 1975 (Cth) on 11 December 2003. On 28 December 2006, the wife filed an application seeking to set aside those orders. There can be no dispute at this stage that unless and until there is a favourable order for the wife under section 79A, the jurisdiction of the court is exhausted under section 79.

4. The husband filed an application on 5 November 2008, only some seven days ago.  In essence, he seeks that the wife return some documents to him that he says in his application were stolen.  In support of that application he filed an affidavit on the same day.  I was informed by both counsel that the application was served last Thursday which means at least five days ago.  However, insofar as it is relevant, there was much, some might say, frenetic activity between the lawyers before that.  Today, counsel for the husband sought to proceed and have the orders made by me.  Senior counsel for the wife sought an adjournment to enable a subpoena to issue to a Victorian Police officer to effectively, apparently, ascertain the state of a criminal investigation, if any, into the conduct of the wife and the circumstances that could be said to give rise to the husband's application.

5. The facts are simple enough.  The husband says that on the evening of Friday, 17 October 2008, the premises of his business, known as G Business, were burgled.  He says that it was apparent that the burglar gained entry into the office by breaking through the office door.  The filing cabinets located in the office were smashed and a substantial volume of documents were missing.  He then says in his affidavit - without any basis other than the fact that he says that on previous occasions in 2001 to 2003, events of a similar nature occurred - that he thought that the wife was responsible for the break‑in. 

6. He said the police were contacted on the morning of 18 October 2008 and he names Senior Constable M of E police station as the investigating officer handling the matter.  He said he had been advised by the police officer that since the break-in, that police officer had been in contact with the wife and also her lawyer.  He described the investigations as ongoing.

7. The documents he said that were stolen from his office comprised documents relating to the business.  He said a large portion of the stolen file related to the current proceedings and also previous family law proceedings but dating back to 2000, but they also included letters of advice from his lawyers.  He said in his affidavit that the wife has not, at the point at which he swore the affidavit - and I confirm that I have been told as at this morning, those documents have not been returned to him.

8. He said he wanted the immediate return of the documents so that he could operate his business, as well as conduct his personal affairs, and he said without stating any real foundation, that he was concerned that the wife intended to dispose of the documents or some of them.

9. The chronology of the flurry of activity between the lawyers in this case is important.  On 22 October 2008 the solicitor for the husband wrote a letter to the solicitor for the wife.  In that, he said that the matter had been reported to the police who were currently investigating.  He said that the wife had informed the investigating officer that she was entitled to the documents because she had been married to the husband.  The letter then went on to say that the husband required all of the paperwork taken by the wife, and that was the allegation that the letter made at that time, be returned immediately - that is within 24 hours – and that if it was not returned then the husband would commence injunctive proceedings.

10. On that same day, the lawyer for the wife responded saying that his client - that is the wife - had been contacted by an anonymous third party who had caused to be delivered to her a number of packages of documents.  The letter said that the wife was securing the safe custody of those documents and it was intended that an application would be urgently made to the court seeking an order for the release of those documents to the legal practitioners for inspection and, if relevant, they be permitted to be used in the proceedings.  The letter went on finally to say that the urgent application might be made to the registrar who was conducting the telephone mention of the matter that afternoon.

11. On the following day, 23 October 2008, the solicitor for the husband sent by facsimile transmission a letter which said that during the course of the telephone mention to the court the previous day, the solicitor for the wife had indicated that the documents were being couriered to the subpoena section of the Family Court and went on to refer to the fact that an inquiry had been made that morning of the court and that documents had not been received.

12. The documents were clearly to have been sent - as the correspondence would show - but as I understand it, the court was in fact reluctant to receive them in any event.  On the same day the solicitor for the wife then responded, saying that the husband through his solicitors would be served with the wife's application the following morning, that is 24 October 2008, and every endeavour would be made to have the application listed for hearing on 24 October.

13. As I said, there was a flurry of activity.  That same afternoon there is a further letter from the solicitor for the wife in which he said that he had spoken to the police officer whom I have previously mentioned, and that the police officer had said that the husband had indicated that he needed the documents back for work purposes and that he had remarked to the police officer that the wife could have a copy of the documents provided they were returned to the husband.

14. Again, that same afternoon, the solicitor for the husband faxed a letter to the solicitor for the wife referring to that last letter, indicating, firstly, that the husband needed the documents but denying that he had said that the wife could have a copy.  The letter then went on to say that the husband required the documents immediately and then asserted that the wife had no right to "steal them and/or retain them".

15. The following day was 24 October 2008.  Another letter was sent that day from the solicitor for the wife.  Three particular things were said in that letter which are of relevance to the application before me.  The first is that the solicitor confirmed that the wife had received senior counsel's advice that if she, as a director of the company which controls the husband's business, had a genuine belief that she was entitled to the documents then that could be a defence to any criminal charge against her with respect to possession of those documents. 

16. The second thing was that the solicitor said that his comments about the documents having been couriered to the Family Court were in accordance with what his client had instructed him.  He said that he had no personal knowledge of that detail because the arrangements were put in place by the wife. 

17. The third thing was that he then said that that morning he was drafting an application supported by an affidavit to seek urgent orders allowing she, presumably, and the wife's legal practitioners to inspect and photocopy the documents.

18. Some days later, on 23 October 2008, the solicitor for the wife wrote again to the solicitor for the husband.  At that stage the solicitor for the wife was aware that the husband was going to issue an application in relation to the documents.  He said that the wife would oppose the application and then seek an order that the documents be released for inspection as he had said some days before.  On 29 October 2008, a further letter was sent by the wife indicating to the husband's solicitors that the matter needed to be brought before the court as quickly as possible and he was awaiting the receipt of the application that the husband had foreshadowed.

19. Despite the very clear assertions by the solicitor for the wife about issuing an application, no such application was filed.  Having regard to the husband's solicitor having persistently put to the wife's solicitor by notice about issuing an application, there could be no basis for an adjournment on a ground of not having sufficient time.  The ground for the adjournment related to me by senior counsel for the wife was that the wife wanted to issue a subpoena to the police officer to ascertain her legal position, vis‑a‑vis the police, before being in a position not only to proceed with the husband's application but to commit herself to any position relating to the documents.

20. Senior counsel for the wife referred me to s 88 of the Crimes Act 1958 (Vic).  It reads in subsection (1):

    A person handles stolen goods if knowing or believing them to be stolen goods, he dishonestly receives the goods or brings them into Victoria or dishonestly undertakes or assists in bringing them into Victoria, or in their retention, removal, disposal or realisation by, or for the benefit of another person, or if he arranges to do so.

21. Importantly, subsection (2) reads:

    A person guilty of handling stolen goods is guilty of an indictable offence and liable to level 4 imprisonment which is 15 years maximum.

22. Quaintly, but perhaps relevantly, subsection (3) reads:

    Where a married woman handles stolen goods, the fact that the person from whom she receives the goods is her husband shall not of itself constitute a defence to a charge under this section.

23. It is because of the prospect of something happening with the police and specifically sub-s (2) of s 88, the wife seeks that I make no orders today, let alone any orders in relation to the husband's application. The question otherwise of the relevance of these documents was not mentioned, other than the wife says they have something to do with the substantive family law proceedings.

24. The wife also says that she cannot be expected to file any material on any application which would prejudice her potential criminal law position.  Senior counsel for the wife said that it would be inappropriate for the husband to be able to wave a finding by me to police that could give impetus to any criminal charges.  That is so because the wife says the wording of the orders that the husband seeks makes it clear that he asserts that she has stolen them.  I have already said I do not think that the Victorian Police would do that and, in any event, I reject that as a possibility.  In addition to all of those problems, Mr Sweeney, on behalf of the husband, says that the husband has withdrawn his complaint to the police.

25. I have some difficulty understanding how the wife can resist the husband's application. On 22 October 2008, the solicitor for the wife said that a number of packages of documents were delivered to her and she was "safe-keeping" them. In that same letter the wife said she was going to apply to the court about them, but she has not. In his letter dated 23 October 2008, the solicitor for the wife said things from which there is an obvious inference the wife had the documents and the police were aware of that. The letter of 24 October, to which I have referred, by the solicitor for the wife, said that the wife had had legal advice about her defence to the section 88 charge. In that same letter, the only inference I can draw is that the wife had possession on or about 24 October 2008.

26. There seems to be no dispute, therefore, that the documents in question are the husband's, were taken from him and the wife has them in her possession or control. That is not a finding of fact after contested evidence, but it is on her own admission. I see no legitimate basis for the wife to seek to avoid the husband's application based upon protection from the criminal law. It is also to be noted that no s 128 application under the Evidence Act 1995 (Cth) for a certificate has been made.

27. The husband's application is brought based upon s 114 of the Family Law Act, it having been enlivened by the wife bringing the application under s 79A. Section 114 of the Family Law Act says that:

    In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1) the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate including:

    (e)an injunction in relation to the property of a party to the marriage.

28. I do not think I need to look further than s 114(1), although Mr Sweeney mentioned s 114(3). I do not need to go that far because I am being asked to make a mandatory injunction in relation to property of the husband. That squarely falls within sub-s (1) of s 114.

29. In the case of F and F (1989) FLC 92-031, Lindenmayer J said:

    I am of the opinion that so long as the Court is satisfied that the proceedings before it have their genesis in circumstances arising out of the marital relationship, the section constitutes a separate and independent grant of jurisdiction and power to the Court, and that it does not merely provide the machinery for enforcing rights, the existence of which must be found elsewhere in the statute, or in the common law.

30. There is no doubt here the proceedings have their genesis in the s 79A application and the wife cannot argue, other than that the circumstances arise out of the marital relationship.

31. The Full Court looked at s 114 in the case of English v English (1986) FLC 91-729. There the Full Court said:

    …an injunction or undertaking in general terms, such as in this case, must be understood and construed so as to be confined to conduct arising out of that relationship. Although the categories of injunctions in sec. 114(1) are expressed widely, the ambit of the section is limited by its introductory words to ``proceedings of the kind referred to in paragraph (e) of the definition of `matrimonial cause''', and that definition relates to ``proceedings... arising out of the marital relationship''. It would not apply, so as to be the subject matter of proceedings for breach, to conduct unrelated to that relationship;

32. For reasons I have already mentioned, these are proceedings referable to paragraph (e) and within the definition of matrimonial cause in s 4. Section 114, more importantly, is a discretionary remedy and the consideration is whether it is proper to grant the injunction.

33. That has been interpreted to mean reasonable and just in the circumstances.  For example, in Farr v Farr (1976) FLC 90-133, the court took the view that that is what the word "proper" meant.

34. The extent of the power is also a matter that I have considered.  In Burridge (1980) FLC 90-902, Nye J said:

    …there is little doubt that under sec. 114(1) a party may seek an order for the restoration to him or her of property which undoubtedly belongs to the claimant. The very terms of sec. 114(1) which allows the court to make an order or an injunction ``in relation to the property of a party to the marriage'' indicate this.

35. There is no evidence before me upon which the wife can justify retention of the documents.  I propose to exercise my discretion in the circumstances and order that they be returned forthwith.

I certify that the preceding Thirty Two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  13 November 2008