Q and Crest and Anor

[2009] FamCA 1043

FAMILY COURT OF AUSTRALIA

Q & CREST AND ANOR [2009] FamCA 1043

FAMILY LAW – PRACTICE AND PROCEDURE – File inspection

Family Law Act 1975 (Cth)
Family Law Rules 2004
Evidence Act 1995 (Cth)
Legal Profession Act 2004 (NSW)
Crimes (Domestic & Personal Violence) Act 2007 (NSW)

Harris v Caladine (1991) 172 CLR 84
Waind v Hill & National Employers’ Mutual General Association Limited [1978] INSWLR 372

APPLICANT: Ms Q

HUSBAND: Mr Crest

WIFE: Ms Oates

FILE NUMBER: SYF 2939 of 2006

DATE DELIVERED: 2 October 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 28 August 2009

REPRESENTATION

THE APPLICANT: In person

THE HUSBAND: In person

THE WIFE: In person

Orders

1. That the applicant, Ms Q, is hereby granted permission to search the Court record consisting of the Court file in proceedings SYC 2939 of 2007, inspect it and copy any document in it for the purpose of defending herself from the complaint made by the wife to the Legal Services Commissioner and dated 15 May 2009 and as it may be amended and any proceedings pursuant to the Legal Profession Act, 2004 (NSW) taken against the said applicant arising from the said complaint and solely for that purpose provided that she first undertakes to the Court in the usual written form not to use any information or copy of a document obtained from such search and/or inspection for any purpose other than to defend herself from the said complaint without further leave of the Court.

2. Costs are reserved.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2939 of 2006

MS Q

Applicant

And

MR CREST

Husband

And

MS OATES

Wife

REASONS FOR JUDGMENT

1. The proceedings before me arise because the applicant who is a solicitor, …, sought access to the file in the proceedings between the husband and wife.  She did not do so in any capacity as a solicitor acting for a party in the proceedings although her purpose was related to the fact that she is a solicitor.  She is acting in a personal capacity in this application.  She has been in, and is apparently still in, a romantic relationship with the husband.

2. The proceedings between the husband and wife were for orders pursuant to s 79. The applicant gave evidence by way of affidavit or affidavits in the proceedings, including in interlocutory aspects.  Later the police applied for an Apprehended Domestic Violence Order (ADVO), ostensibly to protect her from violence by the wife, ....  In making that application, the police relied on a statement or statements which have the effect and implications of an affidavit by the applicant.

3. On 15 May 2009 the wife made a complaint to the Legal Services Commission alleging the applicant had engaged in corrupt conduct in knowingly falsely swearing an affidavit or affidavits and making false statements in the property proceedings and/or the ADVO proceedings, in conspiring with the husband to pervert the course of justice and in making knowingly false accusations that the wife had committed criminal offences.

4. On 28 April 2009 Moore J had delivered judgment in the property proceedings.  I understand that there is a pending appeal from that judgment. The complaint to the Legal Services Commissioner is dated 15 May 2009.  The essence of the complaint is of corrupt conduct.  The particulars are contained in the complaint under the heading of “The Complaint”.  However, under headings of “Background”, “The Conduct”, “Motive” and “Outcome”, the wife has included in the document which contains the complaint and particulars of it about five folios of closely typed information which, during the hearing before me, she said was the background information which would allow the Commission to fully understand her complaint or is the matrix in which the matters complained of occurred so those matters can be seen to be what she alleges in the complaint.  They are, therefore, a statement of facts she relies on in proof of the complaint.  In compiling this she has freely used her access to and knowledge of the documents filed in the property proceedings.

5. The situation with complaints to the Legal Services Commissioner has been statutorily prescribed.  Complaints must be investigated by the Office of the Legal Services Commissioner (OLSC).  Serious complaints about solicitors can be referred by the Legal Services Commissioner (LSC) to the Law Society of New South Wales for further investigation if the OLSC regards it as reasonably likely that the solicitor will be found guilty of professional misconduct by the Administrative Decisions Tribunal which has the power to suspend or cancel a solicitor’s practising certificate.

6. Here any allegation by the wife that the applicant has conspired to pervert the course of justice, has knowingly falsely sworn or has knowingly made false allegations of criminal conduct against the wife is surely, if established, professional misconduct and therefore potentially has the most serious consequences for the applicant’s career.

7. On 23 July 2009 the applicant was formally informed of the complaint made by the wife by the Legal Services Commissioner.  The allegations are specified as follows:

   1.You made false statements in a affidavit sworn by you on 5 January 2007 (copy enclosed);

   2.You made false statements to the police in making an Application for an Apprehended Domestic Violence Order dated 29 August 2007 (copy enclosed);

   3.You made further false statements in a Supplementary Statement dated 10 October 2007 (copy enclosed); and,

   4.In making such false statements you have attempted to pervert the course of justice.

8. The details upon which these allegations are based are set out in the wife’s complaint from dates 15 May 2009 a copy is enclosed. The wife has also provided a copy of the husband’s disclosure of costs in the proceedings Crest & Oates SYF2939 of 2006 dated 8 December 2008 and a further letter dated 12 June 2009.

9. The copy of the affidavit of 5 January 2007 and of the husband’s disclosure of costs were provided to the OLSC by the wife.  The affidavit was sworn in the property proceedings between the husband and the wife.

10. The formal notification also extracts s 509 of the Legal Profession Act, 2004 which provides that a solicitor against whom a complaint is made can make submissions to the Commissioner of the Law Society, who must consider these submissions before deciding what action to take.

11. Very significantly, the letter of notification contains one other extract from the Legal Profession Act, 2004. It is s 723, which obviously is regarded as important when submissions in defence of complaints are made. This section creates an offence of disclosing information obtained in the administration of the Act unless it is made with the consent of the person to whom the information relates or unless the disclosure is made in connection with administration of the Act or is made with other lawful excuse.

12. Presumably the applicant could not be regarded as committing an offence under this section by disclosing matters she knows about the property proceedings or ADVO proceedings to the OLSC.  It seems to me that the husband, who knows about and should have copies or have access to copies of all documents on the file in the property proceedings, could give those documents to the applicant so the applicant could use them in connection with the administration of the Legal Profession Act, 2004 complaint without being guilty of an offence under s 723. In fact the applicant says she has seen some of these documents but cannot recall all their contents but, in any event, is partly motivated to make the application now before the Court to ensure no allegation of impropriety by the husband is made.

13. On 27 July 2009 the applicant wrote to a deputy registrar of this Court requesting photocopy access to the file in the property proceedings between the husband and wife.  This was the proper course, as she is not a party to those proceedings and did not need to become a party by filing an Application in a Case.  She briefly but adequately explained her reason for wanting access; that is, that she wished to obtain copies of affidavits filed by the husband and wife, orders of a deputy registrar and of a judge, as well as judgments of Moore J of 28 April 2009 and Watts J of 31 May 2007 “to deal with the matter before the Legal Services Commissioner”, the inference being manifest, so she can better defend herself.  After all, if the judgments are on issues such as allegations of criminal conduct by the wife or indicate a preference for the applicant’s evidence over that of the wife, these might well influence the LSC in the applicant’s favour.  It is noteworthy that the wife’s complaints to the LSC is structured in a manner which makes it clear that the wife has set out to do more than simply make a complaint.  She has argued it in a forceful manner.

14. The Deputy Registrar sought the consent of the wife to the granting of the applicant’s request. It was not forthcoming. Nevertheless, she granted the request on 18 August 2009. Her ground is that the applicant has “a proper interest” in inspecting the file. Curiously, and I think inadvertently, she did not grant photocopy access. I think she probably intended to. The Deputy Registrar notified the wife of the grant on the same day. In granting the applicant’s request the Deputy Registrar acted in accordance with r 24.13(c)(ii) of the Family Law Rules, 2004.

15. On 20 August 2009 the wife filed an Application in a Case for review of the Deputy Registrar’s decision pursuant to r 18.08.  It is this Application which I am dealing with. The wife opposes it. The husband supports it, but provided no argument in addition to that of the applicant.

16. There is no doubt that the Deputy Registrar, is for the purpose of the Rules of Court a deputy registrar who had the power to make the order she made. Section 37A of the Family Law Act 1975 (Cth) (“the Act”), with r 18.06(2) and Item 37 of Table 18.5, gave it to her. Although she signed her letter “Registrar”, she is actually a deputy registrar.

17. The review provided for by s 37A and the Rules of Court is by way of a rehearing or, in the words of r 18.10, “as an original hearing”. Thus, the reasons of the deputy registrar are irrelevant to the review and the actual orders she made are only relevant to costs, to the procedural history and to whether I should make orders upholding, dismissing or varying her orders. I do not have to concern myself with whether she made any factual error or error of principle. The proceedings are interlocutory, so cross-examination was not appropriate. As they are by way of rehearing, the applicant rather than the wife was required to begin.

18. It is necessary to know something of the facts to determine whether as r 24.13(1)(c)(ii) required for the granting of photocopy access, the applicant has “a proper interest … in information obtainable from the Court record in the case”.  Further, r 24.13.(3) provides that the Court must consider certain matters in exercising the discretion it obviously has at common law to decide, even if a person has a proper interest, to grant permission to inspect and which purports to be given by r 24.13(1) and (2). 

19. I am by no means satisfied that r 24.13(3) is valid and can create or impose on the Court principles of law as it purports to do.  As the matters it intends to require the Court to consider in the exercise of its discretion are matters I would consider in any event with other matters I regard as relevant to the exercise of my discretion, I simply note that the matters the rules purport to require are:

    ·the purpose of seeking access;

    ·whether the access sought is reasonable for that purpose and any conditions which should be imposed; and,

    ·whether the safety of witnesses or persons involved in the case or Court personal would be compromised by inspection.

20. Despite the wife’s submission to the contrary, I should consider the merits of the complaint.  After all, if on its face, assuming all the facts relied on are true, the complaint cannot succeed, there is no need for inspection or at least it is not reasonably necessary to allow the applicant to defend herself fully.  If the facts are so clear and uncontroversial that nothing in the complaint could warrant the conclusion that there is a reasonable likelihood, given the facts, of finding professional misconduct there is also no basis for permitting inspection.

21. To consider the matters relevant and necessary for the exercise of discretion, the facts need to be known.

22. In the property proceedings the wife issued a number of subpoenas to the applicant. Their purpose was to allow the wife to prove the assets and resources of the applicant. She alleged the applicant was living in a de facto relationship with the husband and, in that event, her financial circumstances would be relevant to the determination of the husband’s resources and needs in the s 79 proceedings pursuant to s 75(2) of the Act. The applicant resisted production on some of the subpoenas on the ground that her financial circumstances were irrelevant because she was not in a de facto relationship with the husband.

23. The essence of one element of the complaint against the applicant is that although the applicant maintained in affidavits in the proceedings that there was no de facto relationship, in the proceedings which were taken by the police for the ADVO orders the applicant must have signed statements before a Justice of the Peace for the purpose of the police using them in determining whether to take such proceedings against the wife. Such statements amount to statements on oath. The wife contends in her complaint that these statements must have stated falsely that she was in a de facto relationship with the husband at the time she said in her affidavits she was not. Thus, the wife asserts there has been a false swearing in either these statements or the affidavits before this Court which asserts there was no de facto relationship at the relevant time.  In a later addition to the complaint, the wife alleges that the applicant and the husband falsely swore in the s 79 proceedings that they kept their financial dealings independently of one another.

24. The wife takes the step of arguing her case in the complaint that the applicant must have specifically said in such a statement that she was in a de facto relationship with the husband at a relevant time because the police in their ADVO complaint alleged the applicant was in a de facto relationship rather than a domestic relationship despite providing no copy of the applicant’s original statement to the police with the complaint.

25. In addition to the facts and matters which she related in great detail as part of the complaint, the wife annexed:

    ·a copy of an affidavit the applicant sworn on 5 January 2007 in the property proceedings in opposition to the wife’s subpoena to her to produce documents;

    ·the grounds of the police application for the ADVO to protect the applicant;

    ·a supplementary statement dated 10 October 2007 the applicant made to the police for the ADVO proceedings; and,

    ·a costs disclosure statement by the husband’s solicitor in the property proceedings, together with a letter from the wife of 12 June 2009 and an email of 1 June 2009 from the wife, both to the OLSC.

    The last mentioned group of these documents purport to be in support of the complaint that the applicant and the husband were not financially independent although they swore they were.

26. There is nothing in the material the wife has relied on in the complaint other than her own attempts at innuendo and statements of fact which are based on inference, which amounts to any admission of the applicant, either in the property proceedings or the ADVO proceedings that the applicant and husband have ever been in a de facto marriage.  The wife, very conveniently for her … seems to overlook the fact that to obtain an ADVO there need not be a de facto relationship. A “domestic relationship”, which is defined in the Crimes (Domestic & Personal Violence) Act 2007 NSW, is enough.  A “de facto relationship” will bring the violence within the definition of “domestic violence” but it is not necessary.  An “intimate personal relationship” such as that which the applicants says she has had with the husband at all relevant times is enough, as is “living or [having] lived in the same household”, as the applicant may also have admitted depending on whether staying as a guest comes within the meaning of “living” or “lived”. 

27. The wife’s knowledge of ADVO and Apprehended Personal Violence Orders (APVO) matters ought to be of the highest order.  Yet she seems to argue that an application by the police for an ADVO must necessarily rely on a claim on the equivalent of an oath by the person who claims to be in need of protection that, at least, the relationship is that of a de facto marriage.  It is difficult to believe that she could have such a defective understanding of the legislation.  It is equally difficult to believe that she could really think, as she submits in her complaint, that the fact that the police described the applicant as the husband’s “partner” and also that the applicant and the husband are “involved in an intimate live in relationship” must mean the applicant said there was a de facto relationship in a statement which was in effect a sworn statement. 

28. It is quite clear from the documents of the applicant on which the wife relies, that the applicant has said the husband only stayed with her for a short time immediately after the wife excluded him from her home and that, although the relationship was sexual and romantic, there was no commitment nor the mutual involvement which would amount to a de facto relationship.  If the material which might be admissible against the applicant is the best that the wife can provide in support of her complaint, the prospects of its success are not high. It is very revealing that, although in the ADVO proceedings the wife usually would have been given copies of all statements the applicant had made to the police for the purposes of those proceedings, no statement to the police by the applicant which is claimed must have asserted a de facto relationship accompanied the compliant. The wife relies on the inference that such a claim was made in a statement despite the fact that she has probably been provided with all statements in which the claims could have been made. Of course, it is possible that she was not given such statements although I would be surprised if that had been the case because she would know to demand it and because she was given the supplementary statement dated 6 October 2007.  It is most likely that the wife has been carefully selective in the material she has provided as part of her complaint.

29. Nevertheless, one must not overlook the situation the applicant is in. She is not at this stage defending herself in adversary proceedings where the law of evidence should apply. She is defending herself by attempting to convince an administrative body which is investigating the complaint against her by inquisitorial means that it should not take action on the complaint. One only need examine the complaint, including all the accompanying documents and later additions, for it to become obvious that the wife is not merely relying on admissible evidence which has been put before the OLSC and inferences from it in pressing her complaint. In fact, the complaint itself largely consists of argument designed to move the LSC to find that the principal allegations against the applicant are sufficiently established to warrant acting against her. To a very significant degree, the material supporting these is a rhetorical appeal to emotion disguised as legal argument based on fact. I do not know if this approach will work. I know the findings which the Act and general law would require the LSC to reach before deciding to take action against the applicant, but I do not know the standards which will be applied in reaching those findings.

1. Different minds and different views of the wife’s materials and arguments to the OLSC might combine in different individuals to reach different conclusions on whether the material provided by the wife is sufficient to raise a reasonable likelihood that the applicant will be found guilty of professional misconduct.  There is little doubt that if the complaints of false swearing or conspiracy to pervert the course of justice or of making knowingly false allegations of criminal conduct are established, the applicant would be unfit to remain on the roll of legal practitioners.

2. The wife’s allegations against the applicant need not be strong to regard it as just, if it is otherwise proper, for the applicant to be able to have photocopy access to the property file for the purpose of using its contents, some of which the wife has chosen to rely on while having also chosen not to rely on other parts despite probably having or having seen copies of all the documents in the file, to defend herself by using any argument she sees fit in an attempt to convince the LSC to take no action against her and, effectively, dismiss the complaint.

3. One of the wife’s submissions on why I should not make the order the applicant seeks that the applicant is merely fishing and should not be permitted to do so.

4. I regard this argument as quite misconceived.  The matter I am dealing with is not an issue over whether a notice to produce or subpoena should be enforced in accordance with its terms in the course of adversary litigation.  There are some critical distinctions between the use of subpoenas and notices to produce and the inspection of documents sought by the applicant.

5. Firstly, the person seeking to enforce a subpoena or notice to produce must be a party to the proceedings. A person seeking to inspect under the part of the rule specifically relied on by the applicant must be a non-party with a proper interest to succeed. A non-party is specifically disqualified from issuing or enforcing a subpoena or notice to produce. Further, in a most authoritative case, Waind v Hill & National Employers’ Mutual General Association Limited [1978] INSWLR 372 at 383, it was said that it would be an abuse of process if a party inspects or uses documents in the proceedings in which he is a party for a purpose other than the conduct of the proceedings; that is, for an independent private purpose. Such a purpose is the very basis for permitting inspection under r 24.13 in circumstances where the applicant is far less likely to know what she might find than if she had been a party.  To permit fishing is really part of the reason for the existence of r 24.13.  After all, a stranger to litigation should not ordinarily know, without being the beneficiary of an order under r 24.13, the contents of a file and in most instances would merely be hoping to find what it is he or she is seeking. Thus, provided there is “sufficient interest”, fishing is not a disqualifying factor, rather it is really justified by the rule.

6. The wife made written and oral submissions.  Her written submissions were firstly directed at her assertion that the “Act and rules make it clear that a registrar’s powers and functions are limited in terms and scope”.  That this is so is not open to doubt and the same is true of the powers of a deputy registrar.  This is her justification for a very restrictive interpretation of the applicability of the relevant rules.

7. The wife has submitted that I must apply administrative law principles to the appeal. This submission is really to the effect that I should not overturn the decision of the Deputy Registrar unless I conclude she has exceeded her powers or, in making her decision, has exceeded her authority or made some fundamental error which has resulted in a denial of justice to one of the parties. This submission assumes the Deputy Registrar was acting in an administrative capacity. This assumption is quite erroneous. Section 37A of the Act permits delegation of the powers of the Court. The power delegated by r 18.06(2) is a power vested in the Court which is only capable of vesting in a deputy registrar because the judges retain effective control and supervision by way of the appellate process of rehearing. It is, therefore, more like a judicial power which has been delegated than a delegated administrative power. It is a power to make judicial decisions which the Court has and can still re-exercise despite the exercise of the same power in relation to the same issue in the one proceedings by a deputy registrar despite there being no discernable error made by the Deputy Registrar. It is enough to reverse a decision of a deputy registrar if a judge decides that a different result is more appropriate (see generally, Harris v Caladine (1991) 172 CLR 84). The rehearing is not even limited to the same circumstances. Fresh evidence can be introduced without leave on the rehearing, as can previous evidence be discarded.

8. As the one who seems to believe, because she filed the review application, that she must overturn the decision of the Deputy Registrar rather than simply exercise her right to have the matter reheard by a judge, the wife’s submission is to the effect that the deputy registrar exceeded her power and therefore her decision should be set aside.  Much more to the point is that, whether she did or not, the matter is now before the Court consisting of a judge who has power to make whatever decision is appropriate.  If the deputy registrar had no power to do what she did, because I shall reach my own decision on the rehearing, it does not matter that she had no power.  I am free to reach the same or a different conclusion.  If she did have the power, I shall still reach my own decision on the rehearing, so it does not matter that she had power.  I am still free to reach the same or a different conclusion. Of course, if she did not have power, a judge would ultimately have the power to determine the application by rehearing.

9. The wife relies on s 121 of the Act to argue that access to and publication or dissemination of the details of matters before the Court is “tightly” restricted. She submits that this means that the Court should be diligent to uphold this principle and should limit access under r 24.13 to a very small body of persons and that s 121 does not include the applicant in the class to which s 121(9) allow to publish, disseminate or communicate such details. Thus, to give her photocopy access would only be for the purpose of facilitating the commission of an offence by her because her sole purpose in gaining access is to disseminate restricted material to the OLSC.

10. She argues that subsection (9)(a) of s.121 which exempts “person concerned in proceedings in any court” from the prohibition on communication of material from proceedings under the Family Law Act does not include the applicant in the exemptions because she is not concerned in court proceedings. I agree with this submission.  Even though, by her application for review, she has become involved in the proceedings to some extent, I am satisfied that “concerned in” means concerned in court proceedings other than the proceedings in the Family Court of Australia. She seeks to be able to disseminate material which is otherwise restricted to the OLSC in an administrative investigation not involving court proceedings.

11. The wife’s argument goes on to assert that subsection (9)(b) of s.121 does not create an exception in favour of the application because it should be understood as only permitting dissemination to the OLSC for use in disciplinary proceedings or in investigating complaints against solicitors acting in the family law proceedings or having a more direct involvement in them than the applicant has.

12. I cannot understand why the involvement of a solicitor in proceedings in which she gave sworn evidence should not be regarded as sufficient where it is claimed in a complaint that the evidence is false, that it included knowingly false allegations that a party to the proceedings had committed criminal offences and that this evidence was given as part of a conspiracy with the other party to the proceedings to pervert the course of justice. I have little doubt that s 121(9)(b) is sufficiently clearly expressed to regard the words used in it as having their ordinary meanings and, therefore, to be wide enough to except communications of material otherwise prohibited by s 121 to the OLSC for the purpose of defending or investigating a complaint of the type made against a solicitor in relation to the Commissioner’s disciplinary powers. I should add that I am by no means satisfied that s 121(1) actually prohibits what the wife has done or the applicant is seeking to do. It only prohibits publication to the public or a section of the public. The OLSC and the LSC himself, I find, do not come within the description “the public” or “a section of the public” in the circumstances.

13. I conclude that if s 121 would otherwise prohibit the use the applicant wishes to put documents and information in the file to that use comes within the exception created by subsection (9)(b), but that s 121 itself does not prohibit or create an offence to put it to the use the applicant intends.

14. Ultimately these proceedings, as heard by me, turn on whether, as is required by r 24.13(1)(c), the applicant has a proper interest in information obtainable from the court record in the case.  I should say that this part of the rule must apply to any applicant other than the Attorney General who is not a party, a lawyer for a party, or the independent children’s lawyer in the case.  The rule is intended to allow people other than these to inspect the Court record if they have a sufficient reason to do so.  The rule is obviously intended to maintain the privacy of litigants unless justice, fairness and the public good demands otherwise.  The purpose of the applicant must be considered because of the terms of r 24.13(3) as must whether the access sought is reasonable for the purpose.

15. Here the applicant has the prime purpose of using material on the record for her defence against the complaint.  She says, and it is clearly true, that the wife has had access to the whole record and has used it selectively to support the complaint; a complaint which she seems to be pursuing vigorously.  She submits that she should, in fairness and justice, be able to search the record and use such of it that the wife has chosen not to rely on as she feels will help her to convince the LSC that he should take no action against her.  After all, the wife has argued by case relying, in addition to documents which come from the record, on conclusions she would seek the LSC to reach and asserted them as fact, from material in the record without actually disclosing the record. She has used highly emotive language and, by not providing the record which is said to support these conclusions, she has made it more difficult for the Commissioner to reject them or at least to find a path in reliance only on the objective facts which would clearly permit the rejection of the wife’s conclusions.

16. The circumstances in which the wife has made the complaint and sought to rely on selected parts of the record are relevant. There was a strong flavour of vindictiveness, obsession, bullying, lack of candour and reliance on half truths in the wife’s presentation before me when she argued her case in person, I would regard it as appropriate for the applicant to have access to the whole record if she wishes to use it to argue, as she should be able to, that the wife’s motives are not based on any quest for professional integrity and that they are driven by malice and, therefore, her claims are to be very carefully and sceptically examined.  

17. The applicant says that she has had access to some of the documents on the record because of the relationship she has with the husband but does not have copies of some of these documents, cannot recall the precise contents of other and has not seen others so does not know whether they would be helpful or not. She also says that, for the documents which she has had or could otherwise gain access to, she has made this application out of abundant caution in view of the general tone in the Act and Rules of Court about maintenance of privacy and out of respect for the Court considering that she is, as a lawyer, an officer of the Court or analogous to one.

18. The conclusion I reach is that the purpose of seeking access to the whole record so she can selectively use such of it as she sees fit to defend herself in any proper way she sees fit is a compelling one in her favour.  I cannot think of a better reason one might have for seeking photocopy access and for being granted it.  It is reasonable to have photocopy access to the whole record in the circumstances.  I have no doubt that the applicant’s interest in the record is quite proper.  She should not be obstructed in her ability to defend herself of this complaint alleging very serious professional misconduct. It is significant too that the wife has relied on her bare right to oppose access but has not relied on any need for her personal privacy or the privacy of others.  In saying this, it is not intended to understate, detract from or question the wife’s right to oppose the application.  It is to emphasise the fact that the wife’s reasons for exercising this right are relevant.  She has contented herself with reliance on arguments involving general principle, where r 24.13 supports the principle that a stranger with a proper purpose may inspect and photocopy the record, so has relied on no personal effect on her which might weigh against exercising my discretion in favour of the applicant. 

19. It cannot be accepted that she is attempting to protect her privacy.  In the circumstances, the husband would know about her relevant private affairs and could be expected to share knowledge of those which the applicant would not otherwise know with the applicant.  As the complainant who has resorted to the record, the wife could not claim to be entitled to keep her relevant affairs from the OLSC or LSC

20. A consideration, irrespective of subrule (3) of r 24.13, which the Court must engage in before deciding whether or not and how to exercise the discretion to permit the inspection sought, is the need to maintain the security of the parties’ children, witnesses and Court personnel. In my assessment, there would be no lowering of this by permitting unrestricted photocopy access.  The contrary has not been suggested.

21. The only consideration which has not already been dealt with is of the limits which should be placed on access to or use of the Court record.  The applicant should not use any copies of documents she might obtain from the record for other than the purpose for which they have been sought and I shall, if I permit access, limit it to that purpose.

22. Section 128 of the Evidence Act 1995 (Cth) may impose a limit on the use of a certain type of document which may be in the file. Section 128 of the Evidence Act 1995 (Cth) as amended, provides for protection from self-incrimination if a certificate under that section is granted in respect of evidence given in court. There is no definition of “court” in the Commonwealth Evidence Act. The Family Court of Australia is, nonetheless, certainly one of the courts to which s.128 applies. Section 128(7) provides that, in an “Australian court”, evidence given which is the subject of a s.128 certificate and information obtained as a consequence of that evidence cannot be used against the person protected by the certificate. It is relevant to the use of the term “Australian court” in s.128(7) that it includes, by paragraph (e), a “person or body authorised by Australian law…to hear, receive and examine evidence” and, by paragraph (f), “a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence”.

23. The reference to the giving of evidence in court and to obtaining a certificate from that court is a reference to the procedures by which a person gains protection. The reference in s.128(7) to “Australian court” is a reference to the circumstances in which the protected evidence cannot be used. I am confident that in s.128(7), due to paragraph (e) and/or (f) of the definition of “Australian court” in the dictionary, that term includes the OLSC and the LSC. Each is authorised to hear, receive and examine evidence and each is also required to apply the laws of evidence. I am satisfied that the OLSC and LSC are authorised to receive and examine evidence in support of the complaint and in answer to it on dealing with the complaint and that to receive and examine evidence includes to hear evidence. I am satisfied that they are required to apply the laws of evidence because, without doing so, they could not determine whether or not there is a reasonable prospect that the tribunal in which disciplinary proceedings might be taken will find the legal practitioner guilty of professional misconduct.

24. If there is protected evidence in the file and the husband or wife gave it, the OLSC and LSC could not use it against the person who gave it. If they received it from the applicant they would have to consider this as well as consider its admissibility before a professional misconduct tribunal in order to determine whether it can be part of the material which should be considered. Thus, one must determine whether a s.128 certificate provides protection to a person who gave evidence in the Family Court in this instance. I do not think it does. S.128(7) says that the evidence given by a person which is covered by a certificate under s.128 “cannot be used against the person”. The purpose of the certificate is to provide protection against self-incrimination. I think “used against” ought to be understood to refer to use in a manner which makes the evidence incriminatory. To be incriminatory, evidence must tend to leave a person open to criminal or civil sanctions. Nevertheless, there is some authority that “used against” can include the use in cross-examination of the protected person when the person is a mere witness and will not be subject to criminal or civil sanctions. If, for example, professional disqualification proceedings or the like were to be taken against the wife, nothing in any protected material or learnt from it could be used against her. In the considerations by the OLSC and LSC as well as by any tribunal which is to decide if the applicant has been guilty of professional misconduct, the wife will not be rendered liable to any sanctions. In the inquisitional process undertaken by the OLSC and LSC, the wife will be at no risk of either civil or criminal sanctions, nor will the husband. They will not be liable to be cross-examined. In any proceedings before the disciplinary tribunal, each could be cross-examined. Probably neither could be cross-examined on the protected material. If cross-examination were to be permitted on it, by that cross-examination being on protected evidence, neither could be subjected to any sanction because the protected evidence, if relied on in cross-examination, makes the information obtained in the cross-examination or any information gained from that information unusable against the protected person in further proceedings [s 128(7)(b)].

25. I conclude, on balance, that s. 128 does not prevent any evidence given by the husband or wife in the Family Court in the property proceedings which has been protected by a certificate from being considered by the OLSC, LSC and disciplinary tribunal. I can see no purpose in placing any limit on the applicant as a result of any evidence she might otherwise gain access to, copy and use in her defence which is subject to a s.128 certificate in favour of the wife.

26. I can think of no other matters which should be considered in deciding this application.  I conclude that this is an extremely strong case for granting the applicant photocopy access to the whole Court file provided that she is not permitted to use documents copied or information obtained from it for any purpose other than for use in defending herself from the complaint made by the wife or in proceedings undertaken against her as a result of it.  To ensure breach of such a limit is actionable, I shall make inspection and copying conditional on the applicant making an undertaking to the Court in the usual formal written way that she will not use the documents or information except to defend herself against the complaint or any amendment of it without seeking leave of the Court.

1. I should make orders accordingly.  The orders I shall make are:

   1.That the applicant, Ms Q, is hereby granted permission to search the Court record consisting of the Court file in proceedings SYC 2939 of 2007, inspect it and copy any document in it for the purpose of defending herself from the complaint made by the wife to the Legal Services Commissioner and dated 15 May 2009 as amended and as it may be amended and in  any proceedings pursuant to the Legal Profession Act, 2004 (NSW) taken against the said applicant arising from the said complaint and solely for that purpose provided that she first undertakes to the Court in the usual written form not to use any information or copy of a document obtained from such search and/or inspection for any purpose other than to defend herself from the said complaint without further leave of the Court.

   2.Costs are reserved.

I certify that the preceding fifty six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen.

Associate: 

Date:  2 October 2009