Julien & Perrin
[2024] FedCFamC1F 265
•17 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Julien & Perrin [2024] FedCFamC1F 265
File number: SYC 8105 of 2022 Judgment of: HARPER J Date of judgment: 17 April 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where wife has in her possession a laptop containing documents over which the husband claims privilege – Where wife claims privilege was waived by the husband – Where wife claims the device also has documents over which she claims privilege – Where it is necessary for the Court to know what documents are contained on the device prior to determining arguments pertaining to privilege – Where husband’s proposal protects the privilege of both parties – Orders made in accordance with regime proposed by husband. Division: Division 1 First Instance Number of paragraphs: 17 Date of hearing: 17 April 2024 Place: Sydney Counsel for the Applicant: Mr Kearney SC Solicitor for the Applicant: York Family Law Specialists Counsel for the Respondent: Mr Schonell Solicitor for the Respondent: Milevski Family Lawyers ORDERS
SYC 8105 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PERRIN
ApplicantAND: MS JULIEN
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
17 APRIL 2024
THE COURT ORDERS THAT:
1.Within 42 days the Applicant Husband (“the husband”) shall nominate three persons located in Brisbane with whom the husband has had no prior association for the purpose of preparing a complete copy of all the contents of the laptop the subject of the Application in a Proceeding filed 12 March 2024 and forthwith upon such nomination:
(a)The Respondent Wife (“the wife”) shall select one of those nominated and deliver the laptop to such person; and
(b)Each party shall do all things necessary to cause and permit such person to make three complete copies of all the contents of the laptop in accordance with Order 6.
And the husband shall meet the costs of such copying in the first instance, with the issue of the wife’s contribution to the same being reserved.
2.Pending compliance with Order 1, the wife is hereby restrained from causing and/or permitting any alteration to the contents of the laptop save that the wife is permitted to move to a folder on the laptop named “Privileged Material of the wife” (“Privileged Material Folder”) such of the contents as the wife seeks to maintain a claim for client/legal professional privilege in respect of.
3.Pending further order:
(a)The husband be and hereby is restrained from causing and/or permitting any person or entity to open or otherwise become privy in any way to the contents of the Privileged Material Folder; and
(b)Each party be and hereby is restrained from causing and/or permitting any person or entity to open or otherwise become privy to in any way to the contents of the laptop save for the purpose of complying with Order 4.
4.Within 42 days of receipt of a copy of the contents of the laptop pursuant to Order 1(a), each party shall serve upon the other a list of each document contained therein in respect of which a claim for client/legal professional privilege is sought to be maintained and such list shall sufficiently identify the date, author and nature of the document and the person/entities privy to the same so as to permit any issue as to the claim for privilege is to be determined.
5.Upon compliance with Order 4, each party shall be at liberty to inspect any documents contained on the laptop which are not the subject of a claim for privilege in accordance with Order 4 and the restraint in Order 3(b) shall stand discharged.
6.For the purpose of Order 1(b):
(a)A complete copy of the contents of the laptop shall be made (“the Control Copy”) and delivered by the wife forthwith to the Exhibits section of the Sydney Registry of the Court; and
(b)The person preparing the copy shall then do that which is necessary to ensure that the only copies of the documents contained in the Privileged Material Folder are in that folder and no other copies of such material are otherwise contained in two complete copies of the contents of the laptop, one of each of which is to then be provided to each party.
7.Pending further order, the Control Copy is to be retained by the Court and not accessed by any person without the leave of the Court being first obtained.
8.Within seven days of the date of these orders the husband is to do all acts and things necessary to reinstate the wife’s access to the account …@... for email, calendar and shared drive, with the access so provided to lapse after one month from the date of these orders.
9.The balance of the issues raised by the husband’s Application in a Proceeding filed on 12 March 2024, be stood over to a date to be advised, noting that it will need to be listed after the parties have complied otherwise with the orders made today.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Julien & Perrin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
There is listed before me today an Application in a Proceeding filed on 12 March 2024 by the applicant husband (“the husband”) who is the respondent in the substantive proceedings.
The application relates to a laptop computer (“device”) which is currently in the possession of the respondent wife (“the wife”), who is the applicant in the substantive proceedings, and upon which are stored a large number of documents in electronic form.
Without descending into much unnecessary detail, the evidence of the parties concerning the circumstances in which the device came into possession of the wife differs substantially in the sense that the wife contends the husband gave the device to her willingly, while he contends it was given willingly but for a narrow purpose.
The wife asserts that when the presence of documents located on the device was raised with the husband he said words to the effect that he was not “fussed” about those documents.
The proceedings are property proceedings which presently do not have a final hearing date. The parties are in the process of trying to refine the material which will ultimately form the evidentiary basis for final orders of the Court.
It has transpired that there are documents on the device over which the husband presently claims privilege. In the course of the hearing on 17 April 2024, it also transpired that there may be documents on the device over which the wife claims privilege.
After discussion between bench and bar table, the dispute, ultimately, was refined to a question of what regime ought be put in place, to enable each party’s position concerning claims for privilege to be protected and ultimately adjudicated by the Court if that became necessary.
It was the primary submission of the wife, shorn of unnecessary verbiage, that the fact that the husband had willingly handed the device to the wife at a point of time in the past meant that he had waived any claim for privilege over any document currently stored in electronic form upon it.
The husband contended that, in light of the well known authorities about privilege and the role of intention, in relation to claims for privilege and their possible waiver, it was not open to the Court to form what might be described as a blanket view about every document on the device. Whilst presently I incline to accept the latter submission of the husband, I do not yet form a final view.
However, I do not think it is appropriate in a case management sense for the Court to exclude any appropriately defined argument about claims for privilege at a point in time before the documents, in respect of which such a debate might be held, have been clearly identified, in full at least, by each party.
The parties have provided contending proposals for orders to move the matter forward. The proposal of the husband, in summary, would require the nomination and selection of a person expert in information technology (“IT”) in Brisbane, where the device is located, and at his cost for that person to make copies of the hard drive of the device including a control copy which would be lodged with the Exhibits section of the Sydney Registry of this Court pending the final determination of these proceedings. Thereafter, a process could be undertaken whereby each party could isolate those documents upon which a claim for privilege is made and that would then place the parties and the Court in the position of determining any remaining dispute about such documents.
The regime proposed by the husband would require the nomination and selection of the relevant expert within 21 days and then a period of six weeks after each party receives a copy of the device hard drive in which to identify any documents in respect of which a claim for privilege is made.
Apart from agreeing that the husband should nominate an IT expert in Brisbane the wife proposed a somewhat different regime which would have isolated any documents in contention to the period before 2 August 2022 when she contends the parties separated. She expressed concern that there are documents upon the device over which she claims privilege which may be inadvertently disclosed to the husband. Furthermore, she is apparently mostly to be self‑represented in these proceedings so the task of trawling through the electronic copies of documents on the device would fall to her. I do not consider those matters to be a sufficient reason to depart from the proposal of the husband.
I am satisfied that the husband’s proposal protects the position of both parties in relation to privileged material and if the wife is self represented then she will simply have to carry out the task herself. Even on her proposal she would have to undertake the same the task, so whether it is done by her or a legal representative on her behalf seems to me to be an unimportant consideration in the wider context of these proceedings.
I also note that the wife has already embarked upon part of the exercise, in the sense that she has isolated some 100 documents which she claims to be the relevant ones for these proceedings and submitted a list by way of disclosure to the husband.
I consider it important that there be retained by the Court a separate copy of the contents of the device’s hard drive in the Exhibits section pending final determination of the proceedings. I also consider it to be important that the wife, who currently holds the device, be subject to a restraint from causing or permitting any alterations to the contents of the device’s hard drive, other than in accordance with orders of the Court and pending compliance with copies being made in accordance with the Court’s orders.
I therefore make the orders set out at the commencement of these reasons.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Harper delivered on 17 April 2024. Associate:
Dated: 19 April 2024
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