Middendorp v Lygina [No 2] - [2021] WASC 431

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   MIDDENDORP -v- LYGINA [No 2] [2021] WASC 431
CORAM:   STRK J
HEARD:   24 NOVEMBER 2021
DELIVERED          :   3 DECEMBER 2021
FILE NO/S:   CIV 2033 of 2021
BETWEEN:   MICHAEL CHRISTOPHER MIDDENDORP
Plaintiff
AND
IRINA LYGINA
Defendant

Catchwords:

Equity - Restraint of confidential information protected by legal professional privilege - Equitable duty of trust and confidence - Injunctions sought to permanently restrain disclosure of confidential information in the possession of the defendant - Whether the defendant should be restrained from seeking to adduce confidential information protected by legal professional privilege in proceedings before the Magistrates Court of Western Australia which concerns the defendant's application for a family violence restraining order under the Restraining Orders Act 1997 (WA) - Whether the defendant should be restrained from seeking to adduce confidential information protected by legal professional privilege in proceedings before the Family Court of Western Australia which concern a child under the Family Court Act 1997 (WA)

Legislation:

Evidence Act 1995 (Cth)
Family Court Act 1997 (WA)
Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)
Restraining Orders Act 1997 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Declaration made
Injunctive relief granted

Category: B

Representation:

Counsel:

Plaintiff	:	E Greaves
Defendant	:	M Holler

Solicitors:

Plaintiff	:	Leach Legal
Defendant	:	Lawley Legal

Case(s) referred to in decision(s):

AG Australia Holdings Ltd v Burton [2002] NSWSC 170
Attorney‑General (NT) v Maurice (1986) 161 CLR 475
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 492
B v Auckland District Law Society [2003] 2 AC 736
Carter v The Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543
Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 81 ALJR 1107
Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia (2019) 265 CLR 646
Goddard v Nationwide Building Society [1987] QB 670
Grant v Downs (1976) 135 CLR 674
Hutchings v Clarke (1993) FLC 92-373
In the marriage of CW (1988) 22 Fam LR 750
ISTIL Group Inc v Zahoor [2003] 2 All ER 252
Johns v Australian Securities Commission (1993) 178 CLR 408
Lord Ashburton v Pape [1913] 2 Ch 469
Middendorp v Lygina [2021] WASC 409
Moorgate Tobacco Co Ltd v Phillip Morris Ltd (No 2) (1984) 156 CLR 414
Potter v Minahan (1908) 7 CLR 277
R v Secretary of State for the Home Department, ex parte Simms [1999] 3 All ER 400
S & K [2007] FCWA 17
Sullivan v Sclanders [2000] SASC 273
Valantine v Technical and Further Education Commission [2007] NSWCA 208

STRK J:

Summary

The plaintiff and the defendant were partners in a de facto relationship which in or about late 2020 or early 2021 broke down. There is one child from the relationship who is now 5 years of age.
The plaintiff commenced this action by a writ of summons filed on 6 October 2021. The plaintiff seeks to invoke the equitable jurisdiction of this court to restrain the publication of what he says is confidential information improperly or surreptitiously obtained by the defendant. The plaintiff claims that the confidential information is protected by legal professional privilege; and that the defendant owes the plaintiff an equitable duty of trust and confidence not to make use of information protected by that privilege. Injunctions are sought to permanently restrain disclosure of confidential information in the possession of the defendant, and to restrain the defendant from divulging or propagating that information.
There are proceedings as between the plaintiff and the defendant before other courts. The plaintiff and the defendant are parties to a proceeding in the Magistrates Court of Western Australia (known as PE RO 3594 of 2021). An interim family violence restraining order was made by the Magistrates Court which binds the plaintiff. The defendant is the 'protected person'.
The plaintiff complains that his confidential information was divulged by the defendant when she gave evidence at the ex parte hearing for the grant of the interim violence restraining order.
The defendant's application for a family violence restraining order as against the plaintiff pursuant to the Restraining Orders Act 1997 (WA) has been listed for a final hearing in early December 2021.
The plaintiff and the defendant are also parties to a proceeding before the Family Court of Western Australia (known as 7385 of 2021), commenced by the defendant in September 2021. The proceeding concerns the child and property related matters. It was common ground between the parties that the Family Court of Western Australia is a state court; and as the parties were in a de facto relationship, the Family Court of Western Australia will exercise the non-federal jurisdictions conferred on it by or under the Family Court Act 1997 (WA), or any other Act.[1]
[1] Family Court Act s 36(1); as discussed in Middendorp v Lygina [2021] WASC 409.
This proceeding was programmed to an expedited trial. By this proceeding, the plaintiff particularly seeks an order restraining the defendant from seeking to adduce certain documents, or evidence of them or their content, in any proceeding before any court on the basis that the information contained in them is confidential and is protected by legal professional privilege.
The most immediate concern for the plaintiff is that he says that his confidential information, which was before the Magistrates Court at the ex parte hearing for grant of the interim family violence restraining order, should not be before that court when the defendant's application for a family violence restraining order is finally heard and determined in December.
The trial proceeded on 24 November 2021. These are my reasons for decision.
In these reasons, I do not disclose the substance of the confidential information sought to be protected by the plaintiff. Further, for convenience and clarity, in these reasons I refer to this proceeding known as CIV 2033 of 2021 as the Supreme Court proceeding; the proceeding commenced in the Magistrates Court known as PE RO 3594 of 2021 as the Magistrates Court proceeding; and the proceeding commenced in the Family Court of Western Australia known as 7385 of 2021 as the Family Court proceeding.

The plaintiff's case

The plaintiff filed a minute of proposed amended statement of claim on 18 November 2021, which by order made on 19 November 2021 stands as the plaintiff's amended statement of claim. Access to parts of that pleading has been restricted to the court, the parties and their respective legal representatives pursuant to the Rules of the Supreme Court 1971 (WA) O 67B r 5.
So as to not disclose the substance of the confidential information sought to be protected by the plaintiff, it is sufficient to record as follows.
At pars 9 to 15 of the amended statement of claim, the plaintiff identifies and describes the documents the subject of his claim, and when read with pars 4 and 5, the plaintiff pleads the circumstances in which the documents came into existence. These paragraphs are reproduced below.[2]
[2] In reproducing parts of the amended statement of claim, the name of the child and the address of the parties has been redacted. Further, the amendments are not shown in tracking.
4.On 3 May 2021 the defendant's solicitor wrote to the plaintiff by letter headed 'Family law matters' advising that the defendant sought 'to formalise the arrangements for [the child]'.
5.Between 7 May 2021 and 28 July 2021:
a.The parties were both living at … (Salvado Road).
b.The unit at Salvado Road featured a room predominantly used by the Plaintiff as a study/home office.
…
The confidential Documents
9.On 2 July 2021 Leach Legal sent the plaintiff a draft minute of proposed consent orders to be made in the Family Court of Western Australia.
a.The minute was sent by email under cover of a letter of the same date that referred to a proposed meeting to discuss the minute, such meeting to be held on 6 July 2021.
b.The plaintiff printed the minute, and until 28 July 2021 generally kept it in the study at Salvado Road.
10.Between on or about 9 July 2021 and on or about 12 July 2021 the plaintiff wrote notes for the purpose of preparing for a meeting with his solicitor Ms Jessica O'Neil of Leach Legal. The notes were written in a Spirax A4 size spiral bound notebook with yellow cover (Spirax notebook).
11.On 12 July 2021, during a meeting with Ms O'Neil, the plaintiff wrote further notes in the Spirax notebook about matters that he and Ms O'Neil had discussed.
12.The plaintiff generally kept the Spirax notebook in the study at Salvado Road until 28 July 2021.
13.On 20 July 2021 Leach Legal sent the plaintiff a draft minute of proposed consent orders to be made in the Family Court of Western Australia.
a.The minute was sent by email under cover of a letter of the same date that referred to a proposed meeting to discuss the minute, such meeting to be held on 21 July 2021.
b.The plaintiff printed the minute, and until 28 July 2021 generally kept it in the study at Salvado Road.
14.The plaintiff kept the Spirax notebook and the documents referred to in [9] to [13] above (collectively the Documents) confidential as between himself and Leach Legal, and did not share them with any third party.
15.The Documents are protected by legal professional privilege.
The plaintiff complains that unknown to him and without his permission, the defendant accessed, read and copied the Documents (as defined at par 14 of the amended statement of claim), or some of them. It is pleaded that the defendant knew or ought to have known that the Documents revealed communications between the plaintiff and his lawyer, and were for that reason confidential to the plaintiff and his lawyers.
The plaintiff says that therefore, the defendant was at all material times under an equitable duty of trust and confidence towards him in respect of the Documents, and she was not and is not entitled to access, read, copy, use or disclose the Documents or any part of them without his prior consent. He pleads that in the circumstances, the defendant's actions were in breach of the equitable duty of trust and confidence owed to him.
The plaintiff pleads that in further breach of the equitable duty of trust and confidence and without his consent, the defendant unlawfully disclosed and/or made use of the Documents and/or the information contained therein. In this regard, the plaintiff references the transcript of the defendant's evidence given when she applied for an interim family violence restraining order in the Magistrates Court proceeding.
The plaintiff says that he is concerned that the defendant will make further use of the Documents unless enjoined. The orders sought on behalf of the plaintiff as the prayer for relief in the amended statement of claim are reproduced at sch A to these reasons.[3]
[3] The address of the parties and the substance of the confidential information are redacted in the plaintiff's prayer for relief reproduced at sch A.

The defendant's position

While the proceeding was programmed to a trial with expedition on the basis that the plaintiff's claim was wholly denied, shortly before trial the issues between the parties narrowed in scope.
By a defence to the amended statement of claim filed on 22 November 2021, the defendant admitted each allegation pleaded in the plaintiff's amended statement of claim (which allegations are reproduced and otherwise summarised at [13] to [17] above). At trial, counsel for the defendant confirmed that she accepted that the Documents were subject to legal professional privilege and confidential, and through counsel indicated that she would consent to the court making the declarations promoted on behalf of the plaintiff in proposed orders 1 and 2 of the plaintiff's prayer for relief in the amended statement of claim. Counsel also confirmed that the defendant would consent to the making of proposed orders 3, 4, 5, 6 and 10 to 13, but opposed the making of proposed orders 7 to 9.[4]
[4] ts 89 - 90 (24 November 2021).
In summary, the defendant said that the Documents were in her possession, not in the possession of a third party to their various proceedings. She maintained that the Documents were relevant to matters in issue in the Magistrates Court proceeding, and in the Family Court proceeding to the extent that the Family Court proceeding concerned the child.[5] She proffered an undertaking to use the Documents, like discovered or subpoenaed documents, only for the purpose of the proceedings already underway between the parties. She opposed the making of orders which would prevent her from being able to put before the relevant judicial officer in those proceedings what she maintained was very relevant evidence, so that it might be considered and weighed in the final determination of the application of a family violence restraining order and in the Family Court proceeding concerning the child.
[5] ts 104 (24 November 2021).

The evidence

At a hearing on 19 November 2021, counsel for the parties submitted that the narrowing of the issues was a good reason why evidence in chief should not be given orally. Counsel for the plaintiff foreshadowed that at trial, he would seek to tender a number of affidavits filed in this proceeding. Counsel for the defendant indicated that he did not object to the same, nor would the deponents of the affidavits be required to attend trial to be cross-examined.
On 19 November 2021, I made an order that to the extent that either party might seek to adduce evidence at the trial, an affidavit now filed in this proceeding (if read and subject to any objection taken) will stand as the witness' evidence-in-chief.
At trial, five affidavits were tendered into evidence by counsel for the plaintiff. Three of the five were affidavits sworn by the plaintiff. The first was sworn on 28 September 2021, with attachments marked MM-0 to MM-3. The second was also sworn on 28 September 2021. It was marked as being confidential, with attachments marked MM-4 to MM‑6. The third was sworn on 17 November 2021, with attachments marked MM-7 to MM-14, and with confidential attachments being marked MM-11, MM-12 and MM-13.
The remaining two were the affidavits sworn by Jessica Leigh O'Neil, a solicitor with Leach Legal who acts on behalf of the plaintiff. The first was sworn on 1 October 2021, with attachments marked JO‑1 and JO-2. The second was sworn on 16 November 2021, with attachments marked JO-3 and JO-4.
The affidavits stood as the evidence-in-chief of the plaintiff and Ms O'Neil. They were only read so as to provide the factual context.[6] No objection was taken to the evidence on that basis,[7] and the defendant did not seek to adduce evidence at the trial.
[6] ts 87 (24 November 2021).
[7] ts 87 (24 November 2021).
The affidavits tendered on behalf of the plaintiff provide the evidential foundation for the making of the declarations pressed by the plaintiff and now consented to by the defendant.
Counsel for the plaintiff also referred to and relied upon written outlines of submission filed on 20 October 2021, 18 November 2021, 19 November 2021 and 23 November 2021.[8] Counsel for the defendant referred to and relied upon written submission filed on 18 November 2021 and 22 November 2021.[9]
[8] ts 97 (24 November 2021); the plaintiff's submissions filed 18 November 2021 state they should be read together with the plaintiff's submissions filed 6 October 2021. I have had regard to the same.
[9] ts 101 (24 November 2021). The defendant also filed submissions on 3 November 2021 and 8 November 2021, to which I have had regard.

Issues to be considered

The trial proceeded on the basis that there were no questions of fact to be determined.[10] Shortly prior to the trial, counsel conferred and between them agreed that in order to resolve the remaining controversy as between the parties, there were broadly two issues that arose for consideration. Their respective submissions filed in the 48 hours prior to the commencement of trial were framed so as to address the following:
[10] ts 87 (24 November 2021).
Does it matter to the scope of the relief sought by the plaintiff in this proceeding whether legal professional privilege is modified by the statutes that govern child and property matters in the Family Court of Western Australia, and family violence restraining order proceedings in the Magistrates Court of Western Australia?
If the answer to the first issue is 'yes':
(a)is legal professional privilege modified by the statutes that govern child and property matters in the Family Court of Western Australia?; and
(b)is legal professional privilege modified by the statutes that govern family violence restraining order proceedings in the Magistrates Court of Western Australia?
I understood that neither party sought that this court make declarations as to the power of the Family Court of Western Australia or the Magistrates Court of Western Australia to admit into evidence documents or information that is subject to a claim of legal professional privilege. Further, I understood that the plaintiff did not seek any order which would restrain either court in the performance of their respective functions, nor in the exercise of any power. The issues framed by counsel were suggested steps in the reasoning to determine the scope of the restraint proper to impose upon the defendant.

The plaintiff's submissions

Issue 1

Turning then to the first issue, the position of the plaintiff was no, it does not matter to the scope of the relief sought by the plaintiff in this proceeding whether legal professional privilege is modified by the statutes that govern child and property matters in the Family Court of Western Australia, and family violence restraining order proceedings in the Magistrates Court of Western Australia.
The plaintiff contends that it is not the function of a court exercising equitable jurisdiction on the principles set out in Lord Ashburton v Pape [1913] 2 Ch 469, 475, to inquire into the processes, procedures and rules of evidence of another court. Put differently, counsel for the plaintiff submitted that this court exercising equitable jurisdiction ought not be concerned with whether the information is material and admissible in the Family Court proceeding and/or the Magistrates Court proceeding.[11]
[11] ts 90, 96 (24 November 2021).
The plaintiff says that he is entitled to an order that restrains the defendant from seeking to adduce into evidence the Documents, or evidence of them or their content, in any proceeding before any court.

Applicable principles

Counsel for the plaintiff referred to five authorities, the first being Lord Ashburton v Pape at 477, where Swinfen Eady LJ at the end of his Honour's judgment stated:
The fact, however, that a document, whether original or copy, is admissible in evidence is no answer to the demand of the lawful owner for the delivery up of the document, and no answer to an application by the lawful owner of confidential information to restrain it from being published or copied.
Counsel also referred to the reasons of Kennedy LJ in Lord Ashburton v Pape at 474, where his Honour stated:
… if, before the occasion of the trial when a copy may be used, although a copy improperly obtained, the owner of the original can successfully promote proceedings against the person who has improperly obtained the copy to stop his using it, the owner is nonetheless entitled to protection, because, if the question had arisen in the course of the trial before such proceedings, the holder of the copy would not have been prevented from using it on account of the illegitimacy of its origin.

Counsel described this as a 'race to equity', as a court of equity may prevent the admission of evidence on the application of the aggrieved party, which evidence might otherwise be admissible in another proceeding, despite that evidence having been procured illegitimately.
The second authority relied upon was the decision of Hunt CJ in Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468, where his Honour summarised the general observations made by Nourse LJ in Goddard v Nationwide Building Society [1987] QB 670 at 684 - 686, in relation to the case where the communication in question is both confidential and privileged, and where the privilege has not been waived. In particular, counsel in his oral submissions referred to the second observation made by Nourse LJ, and in written submissions referred to the fourth observation.[12] It is helpful to reproduce here all six observations, as summarised by Hunt CJ:
[12] Plaintiff's submissions filed 19 November 2021 par 3(a).
... First, it is crucial that the holder of the privilege seek relief before the party to whom the confidential communication was disclosed has adduced it in evidence or otherwise relied on it at trial. Secondly, this equitable jurisdiction can prevail over the rules of evidence relating to privilege. Thirdly, the right of the party seeking equitable relief 'does not in any way depend on the conduct of the third party into whose possession the record of the confidential communication has come'. Nourse LJ went on to say:
This view seems to give effect to the general rule that equity gives relief against all the world, including the innocent, save only a bona fide purchaser for value without notice. It is directly in point in the present case and our decision necessarily affirms it.
Fourthly, once the equitable jurisdiction employed in Lord Ashburton v Pape is available, there is no discretion to refuse to exercise it according to any views formed as to the materiality of the communication or the justice of admitting or excluding it or like considerations. He went on to say:
The injunction is granted in aid of the privilege which, unless and until it is waived, is absolute. In saying this, I do not intend to suggest that there may not be cases where an injunction can properly be refused on general principles affecting the grant of a discretionary remedy, for example on the ground of inordinate delay.
Fifthly, even if that equitable jurisdiction can no longer apply, public policy (rather than the exercise of discretion) may nevertheless preclude a party who has acted improperly in the proceedings from using the communication. Finally, there should be no distinction in the exercise of the equitable jurisdiction in relation to civil and criminal proceedings.
The third authority relied upon was the decision of the Full Court of the South Australian Supreme Court in Sullivan v Sclanders [2000] SASC 273. Counsel referred particularly to the statement by Gray J at [57] as follows:
Equity responds to unconscionable conduct. The fundamental notion is that a relationship of trust and confidence has been breached or that the information has been obtained by reprehensible means. The dictum cited from Lord Ashburton v Pape also emphasises that information which is not obtained consensually cannot be freely used. Equity will intervene by reason of the circumstances in which the defendant obtained the information, rather than by any intrinsic value or importance in the information itself or by any apprehended damage which might result from its misuse.
The fourth authority was the decision of Campbell J in AG Australia Holdings Ltd v Burton [2002] NSWSC 170. Counsel sought to rely upon the last sentence of [150], reproduced below:
While the basis of the order made in Lord Ashburton v Pape was that the documents were confidential, the particular form of order which it was appropriate to make was also influenced by the fact that the documents were the subject of legal professional privilege. When a court grants a remedy to enforce an equity of confidence, it aims to provide a remedy which ensures that the defendant gains no advantage from there having been a breach of confidence. In Lord Ashburton v Pape, if the breach of confidence had not occurred, the copied documents would never have been made, and would not have been available to tender in evidence. It is well in accord with the principle on which a remedy for breach of equitable obligations of confidence is founded, that copies so made should not be, ever, tendered in evidence.
Counsel submitted that equity should restore the plaintiff to the position before the defendant breached the equitable duty of trust and confidence owed to the plaintiff. Excising from the relief use by the defendant of the confidential information in the Magistrates Court proceeding and the Family Court proceeding would not achieve this end. Rather, it would allow the defendant to further divulge confidential information improperly obtained, thereby gaining an advantage in those proceedings.[13]
[13] Plaintiff's submissions filed 23 November 2021 par 8; plaintiff's submissions filed 20 October 2021 par 22, citing AG Australia Holdings Ltd v Burton [150].
Counsel also referred to the decision of the High Court in Carter v The Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121. Mr Carter had been charged with conspiracy to defraud the public and four other offences. By subpoenas, Mr Carter sought production to the court of documents for the purpose of his defence, some of which were brought into existence by a legal practitioner solely for the purpose of giving of confidential legal advice, and fell within the ambit of legal professional privilege. It was argued on behalf of Mr Carter that the legal professional privilege of others should yield to the public interest of an accused person having a fair trial, where the material the subject of the privilege may establish his innocence or materially assist in his defence. In particular, counsel for the plaintiff relied upon the following passage from the decision of Deane J at 133 - 134:
Where legal professional privilege attaches, there is no question of balancing the considerations favouring the protection of confidentiality against any considerations favouring disclosure in the circumstances of the particular case. The privilege itself represents the outcome of such a balancing process and reflects the common law's verdict that the considerations favouring the 'perfect scrutiny' of communications and documents protected by the privilege must prevail. The common law's verdict in that regard was explained by Knight Bruce VC in a judgement (69) which Lord Selborne LC was later to describe (70) as 'one of the ablest judgments of one of the ablest Judges who ever sat in this Court':
The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficiency of torture is not, I suppose, the most weighty objection to that mode of examination … Truth, like all other good things, may be loved unwisely - may be pursued to keenly - may cost too much. And surely the meanness and the mischief of prying into a man's confidential consultations with his legal advisor, the general evil of infusing reserve and dissimulation, easiness, and suspicion and fear into those communications which must take place, and which, unless in a condition of perfect security, must take place uselessly or worse, are too great a price to pay for truth itself. (emphasis added)

Prior use of the confidential information

The defendant had relied on the confidential information at the ex parte hearing for an interim family violence restraining order. In these circumstances, I raised with counsel the first of the general observations made by Nourse LJ in Goddard v Nationwide Building Society.[14]
[14] ts 92 - 96 (24 November 2021).
The purpose of my enquiry was to test whether this proceeding had been brought too late, and adopting the expression used by counsel, the plaintiff had not been fast enough in his race to equity.
In response, counsel submitted that the plaintiff ought not be denied relief because the defendant had already divulged some or all of the confidential information in the Magistrates Court proceeding. Counsel observed that the Documents had not been tendered or used at a trial, and sought to distinguish use of the confidential information at an interlocutory hearing from use of the confidential information at a trial.[15] Counsel sought to make good his submission by reference again to a number of authorities, the first being Sullivan v Sclanders.
[15] ts 93 (24 November 2021).
Sullivan v Sclanders concerned the confidential documents of Robert Sullivan, which documents had improperly come into the possession of Adrian Sclanders and his wife, and Goldwell International Pty Ltd.
Mr and Ms Sclanders and Goldwell, the plaintiffs to the proceeding, sought an order that they be permitted to use the documents. Mr Sullivan and his fellow defendants sought orders that the documents be delivered up and their use restrained. At first instance, the court granted the defendants partial relief, but allowed the plaintiffs to make use of certain confidential documents for the purposes of the proceeding.[16]
[16] Sullivan v Sclanders [29].
As observed by Gray J at [9], two broad issues arose for consideration on appeal. First, should equity provide relief against the use of copies of confidential documents in the hands of a third party when they have been improperly obtained? Secondly, should equity restrain the use of information gleaned from the confidential documents?[17]
[17] Sullivan v Sclanders [9].
The appeal was allowed and the plaintiffs were restrained from making use of the confidential information. An order was made that the statement of claim be struck out, sealed, preserved and not opened without an order of a judge of that court.[18] It was also ordered that the plaintiff be at liberty to file a fresh statement of claim, making no use either directly or indirectly of the confidential documents or their contents.
[18] Sullivan v Sclanders [72].
Counsel sought to rely upon Sullivan v Sclanders as an occasion where material had been used in a proceeding before a court, yet it had not been too late for equity to intervene.[19]
[19] ts 93 (24 November 2021).
Counsel also sought to rely upon Lord Ashburton v Pape. Counsel submitted that the reference by Kennedy LJ at 474 to 'if, before the occasion of the trial…' (which passage is reproduced at [36] above), further supports the proposition that there is a distinction to be made as between an interim hearing and a trial.
The third authority referred to by counsel was Goddard v Nationwide Building Society. As noted above, Nourse LJ had made a number of observations in relation to the case where the communication in question is both confidential and privileged, and where the privilege has not been waived. It is helpful to reproduce Nourse LJ's first general observation, the final line of which was particularly relied upon by the plaintiff:
First, it is desirable to emphasise that the proceedings in which the rule of evidence denies protection to the confidential communication are not proceedings whose purpose is to seek that protection. The question is an incidental one which arises when the party who desires the protection asserts a right to it as if he were the plaintiff in an action seeking to invoke the equitable jurisdiction. When Lord Ashburton v Pape was decided, the practice and procedures of our courts were note doubt such that it was necessary to issue fresh proceedings. Nowadays I think that we would at the most require an undertaking to issue a pro forma writ, perhaps not even that, a consideration which no doubt explains the agreement not to require fresh proceedings in the present case. The crucial point is that the party who desires the protection must seek it before the other party has adduced the confidential communication in evidence or otherwise relied on it at trial. (emphasis added)
Finally, counsel referred to Director of Public Prosecutions (Commonwealth) v Kane, where Hunt CJ summarised the general observations made by Nourse LJ in Goddard v Nationwide Building Society, and particularly relies upon the first observation (reproduced at [38] above).
In addition to referencing these authorities, counsel submitted that the hearing of the defendant's application for an interim family violence restraining order had taken place in a closed court,[20] and without notice to the plaintiff. It was submitted that the plaintiff had no notice of the defendant's breach of her duty to the plaintiff, and no opportunity to seek the relief now pursued before the defendant improperly used the Documents in the Magistrates Court proceeding.[21] It was submitted that these were matters that ought to weigh in favour of equity intervening, despite the confidential information having been referenced in the Magistrates Court proceeding.

Issue 2

[20] ts 96 (24 November 2021); by operation of the Restraining Orders Act s 27(4).

[21] ts 94, 96 (24 November 2021).

The plaintiff submitted that if the first issue was answered as he contends, then he would be entitled to unqualified relief. The plaintiff further submitted that if the court was against him and answered the first issue in the affirmative, then legal professional privilege is not modified by the statutes that govern child and property related matters in the Family Court of Western Australia; nor is it modified by the statutes that govern family violence restraining orders in the Magistrates Court of Western Australia.
As to the applicable principles, the plaintiff submitted that clear, unambiguous language was required, as fundamental rights cannot be overridden by general or ambiguous words.[22] Further, the plaintiff accepts that legal professional privilege can be abrogated by statute: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; Valantine v Technical and Further Education Commission [2007] NSWCA 208 [37]. But again, only by clear words or necessary implication.
[22] Plaintiff’s submissions filed 19 November 2021 par 7, citing R v Secretary of State for the Home Department, ex parte Simms [1999] 3 All ER 400; and Potter v Minahan (1908) 7 CLR 277, 304.
When regard is had to the Restraining Orders Act and to the Family Court Act, counsel for the plaintiff submitted that legal professional privilege is neither abrogated by clear words nor by necessary implication.

Family Court Act

As to the Family Court Act, counsel drew the court's attention to s 202H. Section 202H is a section within pt 5 (which is headed 'Children'), div 11A (which is headed 'Principles for conducting child related proceedings'), sub-div 4 (which is headed 'Matters relating to evidence'), and provided as follows:
202H.Rules of evidence not to apply unless court decides - FLA s. 69ZT
(1)The excluded rules of evidence do not apply to child related proceedings.
(2)A court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1906 or the rules of evidence not applying because of subsection (1).
(3)Despite subsection (1), a court may decide to apply one or more of the excluded rules of evidence to an issue in the proceedings, if -
(a)the court is satisfied that the circumstances are exceptional; and
(b)the court has taken into account (in addition to any other matters the court thinks relevant) -
(i)the importance of the evidence in the proceedings; and
(ii)the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4)If a court decides to apply an excluded rule of evidence to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the application of the excluded rule of evidence.
(5)Subsection (1) does not revive the operation of -
(a) a rule of common law; or
(b) any written law,
that, but for subsection (1), would have been prevented from operating because of an excluded rule of evidence.
(6)In this section -
child related proceedings includes proceedings that are child related proceedings within the meaning of the Family Law Act;
excluded rules of evidence means such provisions of the Evidence Act 1906 and the rules of evidence as most closely correspond to the provisions of the Evidence Act 1995 of the Commonwealth referred to in section 69ZT of the Family Law Act.
Section 202H must therefore be read with s 69ZT of the Family Law Act 1975 (Cth) and the Evidence Act 1995 (Cth).
Section 69ZT of the Family Law Act relevantly provides:
69ZTRules of evidence not to apply unless court decides
(1)These provisions of the Evidence Act 1995 do not apply to child related proceedings:
(a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re examination and cross examination), other than sections 26, 30, 36 and 41;
Note: Section 26 is about the court’s control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c)Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
…
Counsel for the plaintiff noted that s 69ZT does not refer to pt 3.10 of the Evidence Act, which deals with privileges, and in particular, deals with 'client legal privilege' in div 1 of pt 3.10.[23] It was said that inclusion of pt 3.10 as an excluded rule of evidence would have abrogated or modified legal professional privilege as a rule of evidence in child related proceedings by clear, unambiguous words. Further, as legal professional privilege was not included within the meaning of 'excluded rules of evidence', it was not intended to be abrogated or modified. Counsel submitted that the decision not to include it must have been a conscious decision by Parliament.[24]
[23] ts 99, 122 (24 November 2021).
[24] Plaintiff's submissions filed 23 November 2021 par 33; ts 99 (24 November 2021).
Counsel also submitted that the plaintiff's submission that there has been no abrogation of legal professional privilege in child related proceedings is entirely consistent with the Family Court Rules 2021 (WA) (which I note apply to jurisdictions which include the non-federal jurisdictions of the Family Court of Western Australia).[25] That is because r 209 of the Family Court Rules provides a mechanism for a party to object to giving disclosure to the other party where the producing party claims privilege from production. Counsel noted that while the reference to privilege is not defined, from its context it clearly extends to the important common law privileges upon which production of materials may be resisted.[26] Counsel submitted that the inclusion of a rule that provides a mechanism for the claiming privilege from production is consistent with there having been no abrogation of privilege in the Family Court Act.

Restraining Orders Act

[25] Family Court Rules r 3.

[26] Plaintiff’s submissions filed 23 November 2021 par 28; ts 99 (24 November 2021).

Again, counsel for the plaintiff submitted that the language of the Restraining Orders Act does not contain clear, unambiguous language that abrogates legal professional privilege. Further, the plaintiff said that the defendant's submission that there is abrogation by necessary implication was not made out.
The plaintiff submitted that the parallels of this case with Valantine v Technical and Further Education Commission are obvious. The wording of the statute considered by the New South Wales Court of Appeal (the Government and Related Employees Appeal Tribunal Act 1980 (NSW)), bore a close resemblance to s 44A of the Restraining Orders Act. Counsel for the plaintiff submitted that the reasoning in Valantine v Technical and Further Education Commission is plainly correct and entirely apposite.[27]
[27] Plaintiff's submissions filed 23 November 2021 par 34; ts 100 (24 November 2021).

The defendant's submissions

Issue 1

The position of the defendant was that it does matter to the scope of the relief sought by the plaintiff in this proceeding whether legal professional privilege is modified by the statutes that govern child and property matters in the Family Court of Western Australia, and family violence restraining order proceedings in the Magistrates Court of Western Australia.
For the reasons summarised below from [77] below, the defendant says that this court ought to conclude that the Family Court Act and the Restraining Orders Act have, by necessary implication, modified the common law doctrine of legal professional privilege. The statutory modification was described by counsel as a modification as to whether a claim for legal professional privilege will be permitted to restrain the relevant evidence being admitted.[28]
[28] ts 101, 104 (24 November 2021).
The defendant further submitted that if this court was to conclude that either Act had this effect, then it should stop short of making orders in the 'wide and forever' terms promoted on behalf of the plaintiff.[29] I understood the reasoning advanced in support of this submission to be as follows.[30]
[29] Defendant's submissions filed 22 November 2021 par 14.
[30] Defendant's submissions filed 22 November 2021 pars 1 - 4. (The defendant's submissions have been summarised however references to the substance of the confidential information in the submissions have been excluded.)
First, the scope of relief available to the plaintiff must be limited by the principle that restoration of the historical position by court order is necessarily restoration to both the pre-existing factual and legal position.
Secondly, for the purposes of the Magistrates Court proceeding and the Family Court proceeding, legal professional privilege has been modified by the Restraining Orders Act and to the Family Court Act. That is, the pre-existing legal position was one where legal professional privilege had already been modified.
Thirdly, the 'wide, forever and in any court' prohibitive orders sought by the plaintiff do not restore the pre-existing legal position, but limit it, such that the discretion of the relevant judicial officer would be curtailed.
The defendant says that in circumstances where legal professional privilege has been modified by the Restraining Orders Act and the Family Court Act, the removal of statutory discretion should not occur by order of this court. Rather, whether to admit the Documents into evidence should be left to the magistrate and judge, to exercise in their respective discretion at trial.
Fourthly, the authorities that deal with a breach of legal professional privilege and the return of documents and non-use of information have been decided in a context where the privilege is absolute and has not been modified by statute.
As to this point, I understood the defendant to accept that legal professional privilege can be abrogated by statute by clear words or necessary implication. However, counsel on behalf of the defendant sought to draw a distinction between the abrogation of legal professional privilege and the modification of the same. Further, I understood that the defendant sought to distinguish the authorities referred to and relied upon on behalf of the plaintiff, and in this regard, counsel referred by example to:[31]
… the discussion and list of authorities collected by Campbell J in Ag Australia Holdings Limited v Burton & Anor [2002] NSWSC 170 at paragraph 141 (and following). Also of particular interest is the reference at {162} to Sullivan v Sclanders [2000] SASC 273; [2000] 77 SASCR 419, a decision of the South Australian Full Court in which it was said: … 'the granting of equitable relief as sought in this matter does not preclude the truth from being ascertained. Discovery and production, either pre-action or during an action, will ensure that the relevant documentary material is available, according to the ordinary rules of procedure. If the documents are relevant, they may well be discovered and produced, subject to claims of privilege.' The wide forever and any court order sought by the plaintiff here will preclude the truth from being ascertained.
[31] Defendant's submissions filed 22 November 2021 par 4.
Counsel further submitted that Carter v The Managing Partner, Northmore Hale Davy & Leake concerned abrogation rather than modification of privilege, and therefore had no application to the circumstances of this case.[32] The decision of the New South Wales Court of Appeal in Valantine v Technical and Further Education Commission was also said to be distinguished on this basis.[33]
[32] ts 104 (24 November 2021).
[33] ts 106 (24 November 2021).
Counsel submitted that equitable relief is flexible and ought be moulded according to the circumstances, and the circumstances do not warrant the defendant from being restrained in seeking to adduce at the final hearing for a family violence restraining order, or in child related proceedings in the Family Court of Western Australia, relevant and persuasive information.
I understood the defendant to submit that equity ought not impose the absolute restriction promoted on behalf of the plaintiff as it would, for example, prevent the defendant from giving truthful answers to questions put to her by a judicial officer, in circumstances where the confidential information had already been referred to by the defendant at the interim hearing. Further, it was submitted that the confidential information is relevant to whether a family violence restraining order ought be granted, and ought to be before the magistrate at the final hearing.[34]

Issue 2

Family Court Act

[34] Defendant's submissions filed 22 November 2021 par 18 (without reference to the confidential information summarised at par 18).

Counsel for the defendant submitted that it was established that concern for the welfare and interest of the child may modify the rules of evidence;[35] and at a trial concerning a child, the judicial officer should not be precluded from exercising their discretion to obtain material information, even if it is subject to legal professional privilege. The defendant submitted that this is because the statutory mandate (as prescribed by the Family Court Act) is that in child related proceedings, the court must regard the best interests of the child as the paramount consideration.[36]
[35] Defendant's submissions filed 18 November 2021 par 11; citing Hutchings v Clarke (1993) FLC 92 - 373, [15].
[36] Family Court Act s 66A; defendant's submissions filed 18 November 2021 par 12; citing S & K [2007] FCWA 17 [32].
Counsel sought to make good his submission by reference to the text of the Family Court Act, and by reference to a number of authorities.
As to the text, the defendant submitted that legal professional privilege has been modified under s 66 and s 66A of the Family Court Act.[37]
[37] Defendant's submissions filed 18 November 2021 pars 6 and 9.
I note that both sections are provisions within pt 5, div 1 of the Family Court Act, headed 'Children' and 'Introductory', respectively. Section 66 is within subdiv 1, headed 'Objects and principles'. Section 66A is within sub-div 2 headed 'Best interests of the child: court proceedings'. Sections 66 and 66A of the Family Court Act are reproduced at sch B to these reasons.
Further, as to the text, the following submissions were made:[38]
Family Court Act 1997 textual considerations
8.The court by s202E 'must ask' each party about whether they consider the child is at risk of 'family violence' (as broadly defined at s 9A) and decide if a full investigation and hearing is warranted and which may be disposed of summarily. A truthful and complete answer is therefore required by necessary implication.
9.Section 66A mandating that the court 'must regard' the best interests of the child as the paramount consideration appears in Part 5. The objects and principles of Part 5 Children are contained in s 66(1) and (2). The mandated primary considerations for the court in determining what is in the child's best interests are at s 66C(2) and (3), and at (3)(m) 'any other fact or circumstance that the court thinks is relevant'.
10.The principles for conducting child related proceedings are at Division 11A s 202A to s 202L. By s 202D the court may exercise powers under the court's own initiative. By s 202H many statutory rules of evidence are excluded.
11. The above indicate the proceedings are not just adversarial and there is an inquisitorial role. The court has a mandated role to ask questions and consider mandatory considerations in a relaxed evidentiary rule environment.
[38] Defendant's submissions filed 22 November 2021 pars 8 - 11.
As to the submissions made at par 11, counsel for the defendant referred to the decision of Crisford J in S & K [2007] FCWA 17 at [27], where her Honour observed:
It is very clear that a children's jurisdiction is not a strictly adversarial jurisdiction. If this was ever in doubt the amendments made to the Family Court Act 1975 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 will have laid that to rest.
I also understood the defendant to rely upon s 37 of the Family Court Act, which sets out the principles to be applied, and matters to be considered, by the Family Court of Western Australia when exercising its non-federal jurisdiction.[39]
[39] Defendant's submissions filed 3 November 2021 par 8.
As to s 202H of the Family Court Act, counsel for the defendant acknowledged that while the application of certain rules of evidence were expressly excluded, Parliament had not extended the operation of that exclusion to legal professional privilege.[40] However, counsel submitted that the answer was found in s 66A. There was no need to expressly modify legal professional privilege when a 'paramount consideration' had been mandated.[41]
[40] ts 111, 122 (24 November 2021).
[41] ts 111 (24 November 2021).
Counsel for the defendant also submitted that processes prescribed by the Family Court Rules are not determinative of the proper construction of the Family Court Act.[42]
[42] ts 107 - 108 (24 February 2021).
As to the authorities relied upon, counsel for the defendant submitted as follows:[43]
The issue of legal professional privilege does not operate to exclude evidence if, in the discretion of the trial Judge, the child's interests require that evidence to be admitted. See Crisford J in S & K [2007] FCWA 17 at [30] referring to Hutchings v Clarke (1993) FLC 92-373, [15] and [20] a unanimous decision of the Full Court of the Family Court of Australia comprising Nicholson CJ, Ellis and Nygh JJ. In Hutchings the trial Judge properly admitted into evidence without prejudice communications between the parties relating to settlement negotiations but which, if the mother's version was accepted, showed that the father's real motivation for seeking custody was to avoid any obligation to pay child support. See also In the Marriage of CW 22 Fam LR 750 at 754, a 1998 unanimous decision of the Full Court of the Family Court of Australia comprising Nicholson CJ, Fogarty and Baker JJ.
[43] Defendant's submissions filed 18 November 2021 par 7.
In his oral submissions, counsel referred to the following passage in the decision of In the marriage of CW (1988) 22 Fam LR 750, where at 754 Nicholson CJ, with whom Fogarty J and Baker J agreed, observed as follows:[44]
I propose to briefly deal with the issue of the alleged privileged communication. Her Honour in arriving at the decision that she did relied upon decisions of this court, and particularly Hutchings v Clark (1993) 16 fam LR 452; FLC 92-373 which stands for the proposition that where the best interests of the child are concerned, issues of legal professional privilege do not operate to exclude evidence if in the discretion of the trial judge, the interests of the child require that the evidence be admitted.
[44] ts 102 (24 November 2021).
Counsel submitted that uniformity of decision making in the interpretation of uniform national legislation is a sufficiently important consideration to require that this court should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless concluding that interpretation to be plainly wrong.[45]

Restraining Orders Act

[45] ts 102 - 103 (24 November 2021); Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 492; and Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 81 ALJR 1107.

As to the terms of the Restraining Orders Act, the following submissions were made.[46]
Restraining Orders Act 1997 textual considerations
12.Section 44A is the primary provision. It is in wide terms that the court is not bound by the rules of evidence and may inform itself on any matter in such manner as it considers appropriate. It may limit the use of any evidence if satisfied it is just and equitable to do so. It has a discretion to exercise. There is no basis for reading down these wide words which include informing itself on any matter in such manner as it considers appropriate. That may well involve asking the defendant wife questions.
13.The objects and principles are at s 10A and s 10B. Mandatory considerations 'must have regard to' are at s 10B and concern 'family violence' as defined at s 5A. By s 10F the court is to have regard to a list of matters and at s 10F(n) 'any other matter the court considers relevant.'
[46] Defendant's submissions filed 22 November 2021 pars 12 - 13.
As to the modification of legal professional privilege, counsel also referred to the Restraining Orders Act long title, which describes the Act as being:
An Act to provide for orders to restrain people from committing family violence or personal violence by imposing restraints on their behaviour and activities, and for related purposes.
It was submitted that the stated purpose and objects of the Act support the construction promoted on behalf of the defendant.
Counsel also sought to distinguish the authority of Valantine v Technical and Further Education Commission, on the basis that the purposes of the Restraining Orders Act are quite different to the purposes of the Government and Related Employees Appeal Tribunal Act 1980 (NSW), and therefore a different construction is warranted, one that promotes the purposes of the Restraining Orders Act.[47] It was submitted that the words in s 44 of the Restraining Orders Act, in light of the purposes of the Act, ought not be read down.
[47] ts 112 (24 November 2021).
In summary, counsel for the defendant submitted that on the proper statutory construction of each of the governing Acts in the Family Court proceeding and the Magistrates Court proceeding, the discretion as to what evidence to admit and the weight to be given to such evidence, sits properly with the relevant judicial officer hearing the trial, and they should not be precluded from exercising their respective statutory discretion by an injunction of this court.[48]
[48] Defendant's submissions filed 22 November 2021 par 17; ts 101 (24 November 2021).

Disposition

For these reasons, I find that it is appropriate that equity intervene so as to restrain the use of the Documents and confidential information obtained by the defendant in breach of her duty to the plaintiff. There is no discretion to refuse to exercise the equitable jurisdiction according to any view that I might hold as to the materiality of that information in the determination of matters in issue in the Magistrates Court proceeding and/or the Family Court proceeding.[49] However, if through legitimate means, independent of the circumstances in which the defendant now has possession of the Documents and knowledge of their contents, the plaintiff reveals his confidential information in the Magistrates Court proceeding or in the Family Court proceeding, the use that the defendant may make of the Documents and/or the confidential information will not be restricted by the orders of this court.
[49] Goddard v Nationwide Building Society, 685.
Addressing the first issue as framed by the parties, for these reasons I find that does it does not matter to the scope of the relief sought by the plaintiff in this proceeding whether legal professional privilege is modified by the statutes that govern child and property matters in the Family Court of Western Australia, and family violence restraining order proceedings in the Magistrates Court of Western Australia.

Concessions made by the defendant

The parties accept that the Documents, and each of them, are protected by legal professional privilege and are confidential. They also accept that the defendant owed the plaintiff the obligation of trust and confidence in respect of the Documents, and the defendant was not and is not entitled to access, read, copy, use or disclose the Documents or any part of them without the plaintiff's prior consent. The parties accept that in the circumstances, the defendant's actions were in breach of the equitable duty of trust and confidence. Having regard to the evidence tendered and the submissions made, these were appropriately made concessions by the defendant,[50] made good by the plaintiff's evidence.

Equity will intervene

[50] Supported by Sullivan v Sclanders [58].

As was accepted by the High Court in Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia (2019) 265 CLR 646, equity will restrain an apprehended breach of confidential information, and will do so with respect to documents which are the subject of legal professional privilege and which are confidential.[51] Equity will also restrain third parties if their conscience is relevantly affected.[52] The rational for the rule being that it promotes the public interest because it 'assists and enhances the administration of justice by facilitating the representation of clients by legal advisors'.[53]
[51] Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia [6], citing Lord Ashburton v Pape.
[52] Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia [6], citing Johns v Australian Securities Commission (1993) 178 CLR 408 and Lord Ashburton v Pape. See also Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia [39].
[53] Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia [27], citing Grant v Downs (1976) 135 CLR 674, 685, and also Attorney‑General (NT) v Maurice (1986) 161 CLR 475, 487.
In Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia, it was acknowledged that there is another, more general, public interest which legal professional privilege does not promote. That is, public interest lies in the fair conduct of litigation which requires all relevant documentary evidence to be available. However, the High Court confirmed that the public interest which supports the privilege is paramount to the more general public interest,[54] and once the privilege is found to exist, no more is required for effect to be given to it.[55] It is also now well established that although the policy upon which legal professional privilege is founded is not irrelevant to the exercise of the jurisdiction, the juridical basis for relief in equity is confidentiality.[56]
[54] Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia [29], citing Grant v Downs [66].
[55] Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia [29], citing Goddard v Nationwide Building Society, 685.
[56] Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia [34], citing B v Auckland District Law Society [2003] 2 AC 736, 762 [71].

The effect of the combination of the confidential nature of the Documents and the circumstances in which they came into the possession of the defendant, was that the defendant was under a duty, enforceable in personam by equitable remedies, not to disclose or make use of the confidential information.[57]
[57] Moorgate Tobacco Co Ltd v Phillip Morris Ltd (No 2) (1984) 156 CLR 414, 437; cited in Sullivan v Sclanders [49].
I accept that the circumstances in which the defendant obtained the information call for the intervention of equity, as equity will respond to protect confidential information surreptitiously or improperly obtained.[58] While there can be no confidentiality in iniquity, and equity is also subject to the defence of clean hands, neither was in issue in this proceeding.

Was confidentiality lost?

[58] Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia [19], citing Lord Ashburton v Pape; Sullivan v Sclanders [57].

To be protected by equity, information must have the necessary quality of confidentiality. I accept that it is crucial that the holder of privilege seek relief before the party to whom the confidential communication was disclosed has adduced it in evidence or otherwise relied on it at trial.[59] However, in the circumstances of this case, I find that the defendant having referenced the Documents and certain confidential information during the course of the ex parte hearing for an interim family violence restraining order to not be fatal to the plaintiff's claim.
[59] Director of Public Prosecutions (Commonwealth) v Kane, 479; ts 92 - 96 (24 November 2021).
That is, while I accept that if the plaintiff's information is to be protected by equity the information must be confidential,[60] I do not consider that confidentiality in the Documents was 'lost' by the defendant's use of the information in the ex parte hearing to secure the interim family violence restraining order.
[60] Lord Ashburton v Pape, 475.
The fact that the hearing of the ex parte interim application was in a closed court weighs heavily in the balance. Orders may be made to ensure that the transcript of that ex parte hearing will never be published, such an approach being consistent with that adopted in Sullivan v Sclanders, when on appeal it was ordered that a statement of claim disclosing confidential information be struck out and sealed. The documents were not formally tendered or before the learned Magistrate. In this case, I find that the Documents have not lost their character of being confidential, and equity requires a response.

Scope of the restraint sought by the plaintiff

The defendant accepts that a response is appropriate and consents to orders which compel broad, but not absolute restraint. The defendant opposes the making of orders 7 to 9 as promoted on behalf of the plaintiff, and seeks that there be two exceptions to the intervention of equity to protect the confidential nature of the information. The first is use of the Documents in the Family Court proceeding, and the second is use of the Documents in the Magistrates Court proceeding.
The exceptions proposed by the defendant are not appropriate in the circumstances of this case, where the Documents are confidential and protected by legal professional privilege; and the conscience of the defendant has been relevantly affected. The first issue raised by the parties is answered by the following observation made by Swifen Eady LJ in Lord Ashburton v Pape at 477:
The fact, however, that a document, whether original or copy, is admissible in evidence is no answer to the demand of the lawful owner for the delivery up of the document, and no answer to an application by the lawful owner of confidential information to restrain it from being published or copied.
In this case, it is no answer to the application by the plaintiff to restrain use or publication of the Documents improperly obtained by the defendant that the Documents may be material and admissible in the Family Court proceeding and/or the Magistrates Court proceeding. This conclusion is supported by various authorities,[61] including the decision of Campbell J in AG Australia Holdings Ltd v Burton, where at [150] his Honour stated:
While the basis of the order made in Lord Ashburton v Pape was that the documents were confidential, the particular form of order which it was appropriate to make was also influenced by the fact that the documents were the subject of legal professional privilege. When a court grants a remedy to enforce an equity of confidence, it aims to provide a remedy which ensures that the defendant gains no advantage from there having been a breach of confidence. In Lord Ashburton v Pape, if the breach of confidence had not occurred, the copied documents would never have been made, and would not have been available to tender in evidence. It is well in accord with the principle on which a remedy for breach of equitable obligations of confidence is founded, that copies so made should not be, ever, tendered in evidence
[61] See Carter v The Managing Partner, Northmore Hale Davy & Leake, 133 - 134; and Sullivan v Sclanders, 424.
I accept that characterising the defendant as seeking to 'gain an advantage', given the matters in issue in the Magistrates Court proceeding and the Family Court proceeding, is not a comfortable characterisation. I accept that the defendant is concerned to ensure all material information is before those courts, and unsurprisingly, seeks that all material information be weighed in the balance in the determination of proceedings which concern the child.
That said, it is appropriate that the defendant be ordered not to directly or indirectly make use of the confidential information obtained in breach of her duty to the plaintiff. Once established that the Documents are confidential; that they are subject to legal professional privilege; and that the defendant's conscience is affected, there is no discretion in the court to refuse to exercise the equitable jurisdiction according to its view of the materiality of the Documents, the justice of admitting or excluding them or the like.[62] It weighs heavily in the balance that the documents should never have been in the defendant's possession at all.[63]
[62] Goodard v Nationwide Building Society, 685, cited in AG Australia Holdings Ltd v Burton [157].
[63] Lord Ashburton v Pape, 474; AG Australia Holdings Ltd v Burton [152].
I note that counsel for the defendant sought to rely upon the passage of Campbell J's decision reproduced at [106] above to support his submission that the absolute restraint sought by the plaintiff goes too far. Counsel submitted that the making of an order that did not excise from its operation use of the Documents in the Family Court proceeding and the Magistrates Court proceeding would not be an appropriate remedy to enforce 'an equity of confidence'. He submitted that equity aims to provide a remedy that would not afford the plaintiff an advantage in the Family Court proceeding and the Magistrates Court proceeding by restraining admission of relevant information otherwise admissible in those proceedings. With respect, the passage of Campbell J's decision referred to by counsel is not authority for the submission made, nor can the restraint promoted by the plaintiff be properly viewed as affording the plaintiff an advantage in the conduct of the other proceedings. Again, it is important that the documents should never have been in the defendant's possession at all.
I also accept and adopt the reasoning of Gray J in Sullivan v Sclanders, where his Honour held at [31] and [32]:
… A person who has confidential information belonging to another may be restrained from using it without the owner's consent, by injunction. Equity acts in regard to the unconscionable circumstances in which the confidential documents were obtained and disseminated. Equity may grant relief from the consequences of reprehensible conduct. To be effective, this relief may bind third parties who may have come into possession of the information and can protect the defendants from oral or written dissemination or other use.
The granting of equitable relief as sought in this matter does not preclude the truth from being ascertained. Discovery and production, either pre-action or during an action, will ensure that the relevant documentary material is available, according to the ordinary rules of procedure. If the documents are relevant, then they will be discovered and produced, subject to claims of privilege.
Orders made in this proceeding should not prevent the defendant making use of the Documents or the confidential information contained therein if obtained by a process that does not affect her conscience. As was the case in Sullivan v Sclanders,[64] the information or much of it may be discoverable in due course in the Family Court proceeding. The production and admissibility of relevant information will be addressed in that forum and in the Magistrates Court. So, if through legitimate means, the plaintiff is ordered to produce the Documents, or is otherwise compelled to reveal his confidential information in the Magistrates Court proceeding or the Family Court proceeding, use that the defendant may make of the Documents and/or the confidential information ought not be restricted by orders of this court.
[64] Sullivan v Sclanders [68].
Counsel for the defendant submitted that the authorities, including those authorities that I have referenced and applied from [104] of my reasons, were decided in a context where legal professional privilege 'is absolute and not modified by statute',[65] and therefore the circumstances of this case warrant a different outcome.
[65] Defendant's submissions filed 22 November 2021 par 4.
I do not accept the defendant's argument. Legal professional privilege is a rule of substantive law and not merely a rule of evidence.[66] If documents come into the possession of another person in circumstances which raises an equity, an injunction may be granted in order to protect their confidential nature.[67] The basis upon which an injunction may be granted is the confidentiality of the privileged material, to be deployed in circumstances where the documents have been acquired surreptitiously and offending conscience.[68] I do not accept that it is relevant to the determination of the plaintiff's claim that in some other proceeding, the confidential information may be material and admissible. As noted by Nourse LJ, '…the proceedings in which the rule of evidence denies protection to confidential information are not the proceedings whose purpose is to seek protection.'[69] Any modification or abrogation of legal professional privilege in such other proceeding is not a matter to be weighed in the balance.
[66] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [9] ‑ [11]; affirmed in Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia [23].
[67] Lord Ashburton v Pape, cited and applied in Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia [19].
[68] Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia [35]; citing Lord Ashburton v Pape 473; Goddard v Nationwide Building Society 679 - 680; Commissioner of Australian Federal Police v Propend Finance Pty Ltd(1997) 188 CLR 501, 565; ISTIL Group Inc v Zahoor[2003] 2 All ER 252 [74].
[69] Goddard v Nationwide Building Society, 684.
The plaintiff's claim and the remaining controversy between the parties is answered by the above. The second issue as framed by counsel was an agreed step in the reasoning to determine the scope of the restraint proper to impose upon the defendant. In this proceeding, no conclusion therefore need be expressed as to whether legal professional privilege is modified by the statutes that govern child and property matters in the Family Court of Western Australia; and/or modified by the statute that governs family violence restraining order proceedings in the Magistrates Court of Western Australia. The answer can have no bearing on the only controversy which remained in issue as between the parties in this proceeding.
The orders of restraint made in this proceeding will bind the defendant, however, neither the Family Court of Western Australia nor the Magistrates Court of Western Australia will be restrained in the exercise of their respective powers and functions, as prescribed under the applicable Acts.
While it has been the subject of forceful obiter in the context of child related proceedings in the Family Court of Western Australia,[70] from my review of the authorities referred to by counsel, it appears that whether legal professional privilege has been abrogated or 'modified' under the Restraining Orders Act or under the Family Court Act in child related proceedings is not certain.
[70] In the Marriage of CW, 754.

Conclusion and orders

For these reasons, equity will respond, and the plaintiff's claim must succeed. The observations made by Williams J in Sullivan v Sclanders at [4] as to the possibility of embarrassment appear equally applicable to the defendant's representatives. Whether a change of solicitors is necessary may depend upon the precise scope of intended further instructions, which must then be given and taken without any reliance on the confidential information.
As there is urgency, in these reasons I set out the orders that I propose to make, such orders not to be entered until counsel for the parties have been heard. I will also hear the parties in relation to costs.
1.It is declared that the Documents (as defined in the Schedule to this order) and each of them are confidential and are protected by legal professional privilege.
2.The defendant by herself, her servants or agents is restrained from passing, publishing, communicating, using in any way, or disclosing to any person:
a.any of the Documents;
b.any copy of the Documents; and
c.any information contained in any of the Documents,
save in respect of any Document or information contained in any Document that falls within any of the following exceptions:
a.any Document or the information contained therein ceases to be protected by legal professional privilege; and/or
b.any Document or the information contained therein is produced by the plaintiff or ordered to be produced by the plaintiff or the defendant in any other proceeding as between the plaintiff and the defendant, including the proceeding in the Magistrates Court of Western Australia known as PE RO 3594 of 2021, and the proceeding in the Family Court of Western Australia known as 7385 of 2021; and/or
c.any Document or the information contained therein which is now or subsequently comes to be known to the public other than by a breach by the defendant of this order; and/or
d.any Document or the information contained therein is obtained through sources who hold that Document or information independent of the defendant having accessed the Documents on a date or dates in July 2021, or by a breach by the defendant of this order.
3.The defendant by herself, her servants or agents is restrained from passing, publishing, communicating, using in any way, or disclosing to any person the Documents or the information contained therein for the purposes of seeking that any Document or the information contained therein be ordered to be produced in any other proceeding as between the plaintiff and the defendant.
4.By 4.00 pm on Friday, 10 December 2021, the defendant is to make, file in this proceeding and serve on the solicitors for the plaintiff an affidavit disclosing:
a.what access she has had to the Documents;
b.whether she read the Documents or any of them;
c.whether, and if so how, and how many copies of each Document/s she made;
d.the present location of all such copies still under her control;
e.when and the circumstances in which she last saw any such copies that are no longer under her control; and
f.the identity of any person who may now have either copies of the Documents or the information contained in them.
5.By 4.00 pm on Friday, 10 December 2021, the defendant is to deliver, and or cause to be delivered, to the court all physical documents and physical materials that are in her possession, power, custody or control and that constitute either or both:
a.a copy of any of the Documents or part thereof; and/or
b.a record of the content of any of the Documents or part thereof.
6.By 4.00 pm on Monday, 27 December 2021, the defendant is to permanently delete, and/or as the case may be, cause to be permanently deleted, all electronic documents and electronic materials that are in her possession, power, custody or control and that constitute either or both:
a.a copy of any of the Documents or part thereof; and/or
b.a record of the content of any of the Documents or part thereof.
7.The operation of order 6 of these orders will be stayed pending the determination of the outcome of any appeal of these orders.
8.By 4.00 pm on Friday, 31 December 2021, the defendant is to make, file in this proceeding and serve on the plaintiff an affidavit confirming her compliance with orders 5 and 6 above.
9.The solicitors and counsel for the plaintiff have leave to inspect any physical documents and physical materials delivered to this court pursuant to order 5, but otherwise that material shall not be accessed or inspected by any person otherwise than by an order of this court.
10.The plaintiff shall by 12.00 noon on Monday, 6 December 2021 provide to the Principal Registrar of this court a copy of the transcript of the hearing before Magistrate G Benn on 26 July 2021 in the proceeding known as PE RO 3594 of 2021, redacting those parts referred to in pt E of the schedule to this order.
11.The Principal Registrar of this court shall upon receipt of the redacted transcript referred to in order 10 above provide a copy of the redacted transcript, this order, and the reasons for decision of the Hon. Justice Strk published on 3 December 2021, to the Chief Magistrate of the Magistrates Court of Western Australia.
12.The unredacted transcript of the hearing before Magistrate G Benn on 26 July 2021 in the proceeding known as PE RO 3594 of 2021 shall be placed into an envelope and sealed, subject to further order.
13.The final hearing of the defendant's application for a family violence restraining order in the proceeding known as PE RO 3594 of 2021 shall be heard by a magistrate other than Magistrate Benn.

Schedule

The 'Documents' comprise each and every document, whether physical or electronic, as listed below:

A.Any note made in a Spirax notepad used by the plaintiff at [Salvado Road][71] at any time in 2021.
[71] The address of the parties has been redacted.
B.Any draft minute prepared by Leach Legal.
C.Any record of a communication between the plaintiff and Leach Legal.
D.Any document referred to by the defendant as 'his written notes' in her application form lodged with the Magistrates Court of WA for a family violence restraining order.
E.Any document (including but not limited to notes and screenshots) referred to by the defendant in the following portions of her evidence to the Magistrates Court of WA on 26 July 2021:
i.second paragraph of transcript page 5 after the words 'to work,' to the end of that paragraph;
ii.third paragraph of transcript page 5;
iii.sixth paragraph of transcript page 7 after the words 'I'm afraid' to the end of that paragraph;
iv.fifth paragraph of transcript page 8 after the words 'remove her from school without my permission' to the end of that sentence;

Calderbank offers

Further, it is well established that an order for indemnity costs may be justified by the rejection of an offer of compromise made in accordance with the principles articulated in Calderbank v Calderbank [1975] 3 All ER 333.
The relevant principles which govern the exercise of the court's discretion to make an award for indemnity costs in the context of a Calderbank offer are settled, and were set by Buss JA in Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1 [16] - [32] (Wheeler JA agreeing). In Eccles v Koolan Iron Ore Pty Ltd [No 3] [2013] WASC 418 (S) [9], Le Miere J summarised the principles explained by Buss JA in the following way:
(1)a Calderbank offer will not justify an award of indemnity costs unless its rejection was unreasonable;
(2)all of the relevant facts and circumstances must be considered in determining whether a party's rejection of a Calderbank offer was unreasonable;
(3)the mere fact that the recipient of a Calderbank offer is ultimately worse off than he or she would have been had the offer been accepted, does not mean that its rejection was unreasonable;
(4)whether conduct is reasonable or unreasonable always involves matters of judgment and impression;
(5)it is not possible nor desirable to enumerate exhaustively all circumstances which must be taken into account, in a particular case, in deciding whether the rejection of a Calderbank offer was unreasonable, but, ordinarily, regard should be had to, at least, the following:
(a)the stage of the proceeding in which the offer was received;
(b)the time allowed to the offeree to consider the offer;
(c) the extent of the compromise offered;
(d)the offeree's prospects of success, assessed as at the date of the offer;
(e)the clarity with which the terms of the offer were expressed; and
(f)whether the offer foreshadowed an application for indemnity costs in the event of the offeree's rejecting it;
(6)the party who makes a Calderbank offer that is rejected bears the onus of satisfying the court that it should make an award of indemnity costs in his or her favour; and
(7)the standard to be applied in awarding indemnity costs should not be allowed to diminish to the extent that an unsuccessful party will be at risk of an order for costs assessed on an indemnity basis absent some blameworthy conduct on its part ‑ a test of unreasonableness should not be upheld on other than clear grounds.
Where an unsuccessful party submits that the rejection of the Calderbank offer was not unreasonable, the unsuccessful party is to point to a reason for not accepting the offer beyond the usual prospects of being successful in litigation.[78]
[78] Stewart v Atco Controls Pty Ltd (In liq) [No 2] [2014] HCA 31; (2014) 252 CLR 331 [4]; Brown v Barber [2020] WASC 84 (S) [8].
The Court of Appeal reiterated in Strzelecki Holdings Pty Ltd v Jorgensen that Calderbank offers must be assessed without the benefit of hindsight, and having regard to the strength of the parties' cases as they then stood.[79] The court observed that it is well‑established that a party's erroneous prediction about the prospects of litigation, on the basis of which they reject a Calderbank offer, may not be regarded as unreasonable if that party was not, at the time, and for good reason, in possession of sufficient information to make a proper assessment of its prospects, or if the circumstances upon which the assessment was based later changed.[80]
[79] Strzelecki Holdings Pty Ltd v Jorgensen [87].
[80] Strzelecki Holdings Pty Ltd v Jorgensen [88]; as noted in Brown v Barber [23].
It is also established that the terms of a Calderbank offer must be unambiguous, that is, the terms must be certain. Consequently, it will not be unreasonable to reject a Calderbank offer if there is some reasonable doubt about the nature and extent of what was being offered, that is, its value.[81]
[81] Mount Lawley Pty Ltd v Western Australian Planning Commission [2006] WASC 82 (S); (2007) 157 LGERA 1 [92] (Templeman J), applying Duncan & Weller Pty Ltd v Mendelson [1989] VR 386, 401; Grbavac v Hart [1997] 1 VR 154, 155 (Winneke P); see also Rapuano (t/as RAPS Electrical) v Karydis-Frisan [2013] SASCFC 93.
I adopt and apply these principles in determining the question of costs.

Competing positions of the parties

The submissions filed on behalf of the parties did not disclose any difference or disagreement as to the principles to be applied. The parties' respective positions may be summarised as follows.

The plaintiff's position

The plaintiff seeks an order that the defendant pay his costs on a full indemnity basis on three grounds. First, the defendant's conduct had been improper or unreasonable as the proceeding ought not to have been necessary. Secondly, the defendant's conduct in the course of the proceeding had been improper or unreasonable. Thirdly, the defendant imprudently refused offers advanced by the plaintiff on two occasions.
As to the first ground, the plaintiff says that there was nothing remarkable about this proceeding. It required a routine application of the principles established in Lord Ashburton v Pape [1913] 2 Ch 469 (if not earlier), recently confirmed in Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia (2019) 265 CLR 646. The proceeding required an application of well‑established principles to facts that were not in dispute: Middendorp v Lygina [No 2] [96].
The plaintiff says that the defendant's failure to meaningfully confer (through their respective legal representatives), in this context was improper or unreasonable, leaving the plaintiff with no alternative but to commence this proceeding.
By the defence filed on 22 November 2021, the defendant admitted all allegations pleaded by the plaintiff. The plaintiff says that this 'speaks volumes' about the defendant's assessment of the legal and factual principles, which assessment and concession the plaintiff says ought to have occurred when the plaintiff's solicitors wrote to the defendant's solicitors on 19 August 2021 (before the proceeding was commenced).
The plaintiff notes that the defendant was at all relevant times represented, having engaged Lawley Legal on 6 January 2021 to act on her behalf.
The plaintiff says that absent explanation from the defendant to the contrary, the court may infer that the defendant was seeking to delay the commencement of this proceeding in order that she might be first in time to the door of the court (namely the Family Court of Western Australia). The plaintiff notes that the defendant relied on the fact that she was 'first in time' in her jurisdictional argument.[82]
[82] Middendorp v Lygina [61]; defendant's submissions filed on 3 November 2021, par 21(a).
As to the second ground, the plaintiff complains that conduct of the defendant did not improve after the proceeding commenced. He complains that defendant chose to prosecute her case in such a way as to cause a loss of time and resources to the court and to the plaintiff. The plaintiff relies upon the following matters to make good his submission:[83]
[83] Plaintiff's submissions filed on 3 December 2021, par 23.
a.The unsuccessful 'jurisdictional' argument run by the defendant and the unwarranted impost on the time and resources of both the Court and plaintiff. The defendant's arguments on jurisdiction could kindly be described as a moving feast; few of which the plaintiff was called upon to respond to orally. The court will recall that during that hearing on 5 November (albeit not relevant to the point then immediately being agitated), the defendant's solicitor attempted to cast doubt over whether equity had any application as between a de facto couple.
b.The tardiness of the Defendant's practitioners in arriving at Court on the date of the jurisdiction hearing, without apology to the Court.
c.The filing of the Defendant's second affidavit which set out gratuitous irrelevant material, only to then not read that material when pressed. Importantly, the decision not to read the Affidavit was made only after:
(i)the Plaintiff had been put to the time and expense of preparing a responsive affidavit; and
(ii)the Plaintiff required the Defendant to be available for the purposes of cross-examination.
The inutility of the Defendant's affidavit ought to have become apparent in the process of drafting it.
d.The Defendant's delay in responding to the Plaintiff's Notice to Produce the screenshots. The failure imposed further cost on the Plaintiff in seeking a response and a delay in the filing of the Plaintiff's 3rd affidavit.
e.The Defendant's failure to engage in enquiries posed by the Associate to Justice Strk in relation to proposed orders to be made. The failure consumed further resources of the Court and the Plaintiff in seeking a response and the delay in the publication of Orders.
f.The Defendant's failure to concede the privileged nature of the Plaintiff's information until 22 November 2021, in circumstances where the claim of privilege was first made on 19 August 2021. No explanation was proffered for a delay of over 3 months in making an entirely unremarkable concession.
g.The Defendant's failure to serve submissions in accordance the programming orders, in circumstances where the importance of doing so had been canvassed in Court on 19 November 2021:
i.Pursuant to Paragraph 15 of the Orders pronounced 19 November 2021, the defendant was to 'file and serve a written outline of supplementary submissions by 12 noon on Monday, 22 November 2021'.
ii.At Court 19 November 2021, discussion was had as to the time at which the above material was to be filed and served. Justice Strk declined to make an order for the material to be filed by 11am. Rather, Justice Strk encouraged the Defendant to be 'courteous'. Counsel acknowledged the position.
iii.In contravention of the Order, the Plaintiff was not served by 12pm on 22 November 2021.
iv.At approximately 12.20pm, Counsel for the Plaintiff contacted Counsel for the Defendant to query when service may occur.
v.At 12.27pm, the Plaintiff's solicitors were served with the Defendant's material. Service occurred without apology.
vi.It is understood the Defendant's Submissions had been filed at 9.45am on 22 November 2021.
h.The Defendant's failure to promptly confer in relation to the Minute of Proposed Orders filed by the Plaintiff on 26 November 2021 was contrary to the position canvassed during the hearing on 24 November 2021, to the effect that the parties' confer prior to the filing of the Minute. The failure imposed further cost on the Plaintiff in seeking a response.
I understand the plaintiff to acknowledge that each of these matters, in isolation, are worthy of little comment. Rather, he submits that together they show that the defendant conducted herself in the proceeding in an unreasonable or improper way.
The plaintiff acknowledges the efforts of counsel for the defendant to narrow the issues. He submits that with the exception of her counsel, the defendant's discourtesy to the court and plaintiff was consistent. The plaintiff complains that lack of a strategy or theme to the defence was also a constant.
The plaintiff complains that the defendant ought not to have put in play 'issue 2'. (That is, whether is legal professional privilege is modified by the statutes that govern child and property matters in the Family Court of Western Australia; or by the statutes that govern family violence restraining order proceedings in the Magistrates Court of Western Australia: Middendorp v Lygina [No 2] [30].)
The plaintiff refers to [114] of the reasons for decision, where I concluded that the answer to the second issue could have no bearing on the only controversy which remained in issue as between the parties in this proceeding. The plaintiff complains that he had nevertheless been put to the cost and trouble of responding to 'issue 2'.
As to the third ground, the plaintiff says that the defendant imprudently refused offers advanced by the plaintiff on two occasions: first, the offer contained in the initial letter of 19 August 2021, by which the plaintiff offered to resolve the matter by a simple return of the documents and the defendant's agreement not to make further use of them; and secondly, the offer made following the directions hearing on 19 November 2021.
Attached to the plaintiff's submissions filed on 3 December 2021 is a copy of an email communication headed 'Without prejudice save as to costs', sent by the plaintiff's solicitors to the defendant's solicitors on 19 November 2021. A copy of the email communication is reproduced at sch A to these reasons.
The plaintiff submits that the letter of 19 August 2021 should also be considered to have like effect as a Calderbank offer, as it was an offer capable of acceptance which would have brought the matter to an end.
The plaintiff says that the final orders are more extensive in their protection of the information than the measures proposed by the plaintiff to the defendant by the letter of 19 August 2021. In that sense, the plaintiff says that he has achieved a more favourable result by the prosecution of this proceeding.
Further, the plaintiff says that of importance in an indemnity costs application is the imprudence of the refusal of that offer. The plaintiff says that in this proceeding there was nothing that emerged that the defendant, properly advised, did not know at the outset. He says that the defendant was from the outset armed with all relevant information to make a 'proper assessment' of her prospects of defending the claim.

The defendant's position

I do not understand the defendant to suggest that the court ought now to depart from the usual position. That is, I do not understand her to oppose the making of a costs order in favour of the plaintiff. Rather, I understand that she opposes the making of an order for indemnity costs.
Counsel for the defendant submits that the defendant's conduct was not such that might properly ground the court exercising its discretion to make an indemnity costs order, and says that regard should be had to the following:[84]
[84] Defendant's submissions filed on 20 December 2021, par 4.
a.The parties are not involved in a commercial dispute. The context of the action is Family Court proceedings and the Defendant's application for a family violence restraining order ('FVRO'). Both involve the parties' child, their daughter … who is not yet 6 years old.
b.The Defendant did not engage in fraudulent or deceitful behaviour.
c.The Defendant did not actively search for the Documents, nor did she commit any unlawful act to obtain them. The Defendant came across the Documents because the Plaintiff had left them visible in the shared residence of the parties.
d.The Defendant did not hide her knowledge of the Documents.
e.The Defendant did not seek to use the Documents (or the knowledge of their contents) for commercial advantage.
f.The Defendant's use of the Documents (or the knowledge of their contents) was motivated out of concern for the parties' child, and her relationship with their child.
g.The Defendant's position was arguable.
h.The Defendant's argument was of public interest, as it involved the concept of privilege in relation to the statutory powers of the Family Court of Western Australian and the Magistrates Court (in the exercise of its powers under the Restraining Orders Act 1997). The Court's decision has clarified that area of law.
Counsel responds to the submissions made on behalf of the plaintiff, submitting that:[85]
(a)the issue before the court in this proceeding was not straightforward and was novel, she was entitled to obtain her own legal advice;
(b)as to the plaintiff's submission that it may be open to the court to infer that the defendant was seeking to delay the commencement of this proceeding in order that she might be first in time to the door of the court, there was no evidence which supports such an inference being made, and the court ought not proceed on mere inference;
(c)the defendant did not put the plaintiff to proof as to his factual assertions, acting reasonably by narrowing the issues to be determined at trial. Appropriate concessions were made;
(d)the various acts complained of by the plaintiff (including those reproduced at [23] above, do not either individually nor when considered as a whole, justify the granting of an indemnity costs order; and
(e)as to the defendant's application to set aside the plaintiff's writ of summons filed on 3 November 2021, the defendant was entitled to consider and to challenge the court's jurisdiction. The delay complained of did not impact on the hearing of the action or the final decision, and a costs order was made in favour of the plaintiff against the defendant in relation to the same.
[85] Defendant's submissions filed on 20 December 2021, pars 7 - 8.
As to the plaintiff's third ground (expanded upon in the plaintiff's submission filed on 3 December 2021 at pars 28 - 32), counsel for the defendant says as follows:
9.In relation to paragraphs 28 to 31, it is submitted that as this action was not in relation to commercial issues, it is difficult to conceive of the Plaintiff's solicitor's correspondence as a Calderbank offer. Even if it is so considered, given the novelty of the issue the subject of the action, the making of the offer should not be determinative of the issue of whether to grant costs on an indemnity basis. Further, there is no evidence that the request was refused.
On behalf of the plaintiff, submissions were filed on 23 December 2021, in reply to the submissions filed on behalf of the defendant. While I do not summarise the plaintiff's response in any detail here, I note that the plaintiff joins issue with nearly all of the submissions made on behalf of the defendant. I have had regard to all of the submissions made by the parties in determining the appropriate costs order.

Disposition

It is appropriate that costs follow the event. The plaintiff was successful in the prosecution of his claim and he is entitled to recover his costs, at least to the extent that the costs incurred were not unreasonable or unreasonably incurred, as compensation (and vindication) for the successful action.
I am satisfied that from 5.00 pm on 19 November 2021, the plaintiff should recover his costs on an indemnity basis, but not for the whole of the proceeding. I have weighed the following in the balance.

Conduct prior to the commencement of this proceeding

I have had regard to the manner in which the defendant, through her solicitors, conducted herself prior to the commencement of this proceeding. I accept that there was a failure by the defendant, through her solicitors, to engage in meaningful conferral.
While there is no copy of the letters of 19 August 2021 nor 2 September 2021 in evidence before me, the plaintiff deposed in his affidavit affirmed on 17 November 2021 that: [86]
(a)he instructed his lawyers to write to the defendant's lawyer (which they did on 19 August);
(b)apart from saying that they were 'in the process of investigating', the defendant's lawyers never responded;
(c)from 19 August 2021, if not earlier, the defendant had been aware that the plaintiff claimed the information in the Documents to be confidential; and
(d)the defendant failed to provide any assurance that she would not make further use of them.
[86] Exhibit 3.
Further, in the plaintiff's amended statement of claim, the plaintiff pleaded that: [87]
(a)the defendant was expressly put on notice of the confidential nature of the Documents (as that term is defined in the pleading) by letter dated 19 August 2021 from the plaintiff's solicitor to the defendant's solicitor;
(b)the letter of 19 August 2021 was acknowledged by reply on 26 August 2021 in which the defendant's solicitor advised he was 'in the process of investigating the matter' and would 'revert … as soon as possible';
(c)by letter of 2 September 2021, the plaintiff's solicitor again wrote to the defendant's solicitor seeking an assurance that the defendant not make further use of the Documents;
(d)there had been no response to the letter of 2 September 2021; and
(e)in the circumstances, the plaintiff feared the defendant would make further use of the Documents unless enjoined.
[87] Amended statement of claim filed 22 November 2021 pars 21 - 25.

The plaintiff's memorandum of conferral filed on 6 October 2021 pursuant to RSC O 59 r 9 is in terms consistent with the pleading and records a lack of conferral on the part of the defendant.
By her defence, the defendant admitted each of the matters pleaded in the statement of claim, including that she did not respond to the letters from the plaintiff's solicitors of 19 August 2021, nor 2 September 2021.
The failure to engage in meaningful conferral prior to the commencement of this proceeding does not reflect well upon the defendant, nor the firm instructed to act on her behalf. However, I am not satisfied that this failure of itself warrants the making of an indemnity costs order. When regard is had to the proceeding as a whole, it is not so special or unusual a feature in the case to justify the court exercising its discretion in that way.[88]

Conduct after the commencement of the proceeding

[88] Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd, 400.

I have had regard to the conduct of the defendant after the commencement of the proceeding.
I have considered the strength of the defendant's objection to the relief sought on behalf of the plaintiff. While the defendant did not succeed in resisting the relief pressed on behalf of the plaintiff, this is not determinative. While the defendant's case was not strong, on balance, I do not consider her case to have been so hopeless as to warrant the exercise of discretion to award indemnity costs.
Significant factual admissions were made shortly before trial. A review of the court record reveals a number of delays and omissions on the part of the defendant's solicitors. (It is important to note that this observation, and my comments below, do not extend to counsel who appeared on behalf of the defendant at trial.)
The delays and omissions do not reflect well upon the firm instructed to act on behalf of the defendant. However, when regard is had to all of the circumstances and the proceeding as a whole, I find that they do not warrant the making of an inference that the defendant sought to delay this proceeding for forensic advantage, nor the making of an indemnity costs order as against the defendant for the whole of the proceeding.
It is also unfortunate that admissions were not made by the defendant sooner. However, I am cognisant that this proceeding was programmed to trial on an expedited basis. The issues in contention as between the parties were significantly narrowed a little over six weeks from the filing of the writ. In this period, there were six appearances before the court, and the court also programmed, heard and determined the defendant's application to strike out the writ of summons on an expedited basis. While it would have been preferable for the factual admissions to have been made earlier, in all of the circumstances, the delay is not such that warrants an indemnity costs order.
The plaintiff refers the defendant's application to set aside the plaintiff's writ of summons filed on 3 November 2021. On 9 November 2021 the defendant's application was dismissed, and the defendant was ordered to pay the plaintiff's costs of the application, including the costs of the appearances on 2, 5 and 9 November 2021, to be taxed if not agreed. I do not understand the plaintiff to seek to disturb that costs order, so as to allow him to recover his costs of defending that application on an indemnity basis. Rather, I understand that the plaintiff refers to the application as an example of how the defendant, by her conduct, unnecessarily increased the cost of the litigation. I have had regard to the application only to that end.
I have given careful consideration to the defendant's conduct as a whole, before and during the course of the proceeding, and to the issues raised by the defendant at trial. I am not satisfied that the defendant's conduct, when considered as a whole, was so unreasonable or improper as to warrant the making of an indemnity costs order.

The offer of 19 August 2021

The plaintiff has not established that the letter of 19 August 2021 was an offer of compromise made in accordance with the principles articulated in Calderbank v Calderbank. While described in the plaintiff's affidavit affirmed on 17 November 2021,[89] a copy of the 19 August 2021 letter is not in the evidence before me. The terms of a Calderbank offer must be unambiguous, and in the circumstances, I cannot be satisfied of the same.

The offer of 19 November 2021

[89] Exhibit 3.

However, I am satisfied that an order for indemnity costs is justified by the unreasonable rejection of the plaintiff's offer of compromise, made orally and repeated in the communication of 19 November 2021. I have weighed the following in the balance.
First, the offer was received at a very late stage in the proceeding. Until the directions hearing on the morning of Friday, 19 November 2021, the trial was intended to commence on Monday, 22 November 2021.
By 19 November 2021, the defendant had the benefit of having received the plaintiff's amended statement of claim; all of the affidavit evidence intended to be read at trial on behalf of the plaintiff; and plaintiff's written submissions for trial. By 19 November 2021, the defendant ought to have had the benefit of advice as to her prospects of success at trial.
Secondly, by that time, the defendant's solicitors would have been aware that there was good authority that it was no answer to the application by the plaintiff to restrain use or publication of the Documents improperly obtained by the defendant that the Documents may be material and admissible in the Family Court proceeding and/or the Magistrates Court proceeding.[90] As at 19 November 2021, the defendant's prospects were not strong.
[90] Middendorp v Lygina [No 2] [106], citing Carter v The Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121, 133 - 134; Sullivan v Sclanders [2000] SASC 273; (2000) 77 SASR 419, 424; AG Australia Holdings Ltd v Burton [2002] NSWSC 170; (2002) 58 NSWLR 464 [150].
Thirdly, the offer was open to be accepted for a relatively short period, being hours, not days. It appears that the offer was made orally on 19 November 2021 and confirmed in writing later that day. The offer was capable of being accepted until 5.00 pm on 19 November 2021.
While the timeframe for acceptance was short, I find that it was not unreasonable in circumstances of an expedited proceeding, with a trial that had then been listed to commence on Monday, 22 November 2021, and that morning relisted to commence on Wednesday, 24 November 2021.
Fourthly, I have had regard to the extent of the compromise contained in the 19 August 2021 offer. The extent of the compromise was limited to the plaintiff capping recovery of his costs at $20,000, with previous costs orders and reserved costs to be vacated. There was no compromise to the scope of relief sought by the plaintiff in this proceeding. However, acceptance of the compromise would have resolved the proceeding in its entirely, the defendant would have been saved from incurring further costs in defending the proceeding, and her costs exposure to the plaintiff would have been capped. Also, the final orders made in favour of the plaintiff after the trial were more extensive in their protection of the information than the measures proposed by the plaintiff to the defendant by the letter of 19 August 2021, being the relief sought by the plaintiff in the amended statement of claim.
Fifthly, I am cognisant that the terms of a Calderbank offer must be unambiguous. In this case, the terms of the offer were expressed with clarity.
Sixthly, the offer foreshadowed an application for indemnity costs in the event of the defendant rejecting it.
As noted above, where an unsuccessful party submits that the rejection of the Calderbank offer was not unreasonable, the unsuccessful party is to point to a reason for not accepting the offer beyond the usual prospects of being successful in litigation.[91] The matters raised by the defendant are not persuasive.
[91] Stewart v Atco Controls Pty Ltd (In liq) [No 2] [2014] HCA 31; (2014) 252 CLR 331 [4], as observed in Brown v Barber [22] n 8.
I do not accept that this matter was one of public interest. Nor do I accept the defendant's submission that the determination of the plaintiff's claim clarified the law. It did not. As noted at [114] - [116] of my reasons for decision published on 3 December 2021:
114In this proceeding, no conclusion therefore need be expressed as to whether legal professional privilege is modified by the statutes that govern child and property matters in the Family Court of Western Australia; and/or modified by the statute that governs family violence restraining order proceedings in the Magistrates Court of Western Australia. The answer can have no bearing on the only controversy which remained in issue as between the parties in this proceeding.
115The orders of restraint made in this proceeding will bind the defendant, however, neither the Family Court of Western Australia nor the Magistrates Court of Western Australia will be restrained in the exercise of their respective powers and functions, as prescribed under the applicable Acts.
116While it has been the subject of forceful obiter in the context of child related proceedings in the Family Court of Western Australia, from my review of the authorities referred to by counsel, it appears that whether legal professional privilege has been abrogated or 'modified' under the Restraining Orders Act or under the Family Court Act in child related proceedings is not certain.
I do not accept that the factual context which gave rise to the plaintiff's claim warrants the court refraining from making an indemnity costs order, in circumstances where such an order is otherwise justified.

Conclusion and orders

In all of the circumstances, I find that it is fair and just between the parties to make an order that the defendant pay the plaintiff's costs of the proceeding on a party/party basis to be taxed if not agreed to 5.00 pm on Friday, 19 November 2021, and thereafter on an indemnity basis.
The parties will receive an advance copy of these reasons. Subject to either party giving notice that they wish to be heard as to the precise form of order, I propose to make an order in the following terms:
1.The defendant do pay the plaintiff's costs of the proceeding to 5.00 pm on Friday, 19 November 2021 on a party/party basis and thereafter on an indemnity basis, save insofar as the costs of the plaintiff were unreasonably incurred.

Sch A: Email communication of 19 November 2021

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AI
Associate to the Honourable Justice Strk

19 JANUARY 2022