Samaras & Allen (No 3)
[2023] FedCFamC1F 787
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Samaras & Allen (No 3) [2023] FedCFamC1F 787
File number: SYC 5524 of 2017 Judgment of: BRASCH J Date of judgment: 13 September 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – LEGAL PRACTITIONER – Where subpoena issued for the production of documents – Where solicitor received documents answering subpoena directly from the subpoenaed body’s solicitor – Where the other parties had not been included in that communication – Where the Court had granted view only access to documents produced pursuant to the subpoena – Where the firm had given an undertaking to not release documents to the client – Where the solicitor sent the documents to the client – Where solicitor waited a week to advise the Court contrary to the terms of the undertaking given for immediate notification – Where the email notifying the Court was inadequate in its explanation – Where neither the ICL or the father’s representatives were included in that communication to the Court, contrary to the protocol for doing so – Where papers referred to the Legal Services Commission. Division: Division 1 First Instance Number of paragraphs: 46 Date of hearing: 13 September 2023 Place: Sydney The Applicant: Excused from attendance Counsel for the Respondent: Ms Q Solicitor for the Respondent: R Lawyers The Independent Children's Lawyer: Excused from attendance ORDERS
SYC 5524 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SAMARAS
Applicant
AND: MS ALLEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
13 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.By 4.00 pm on 20 September 2023, a Registrar of this Court is requested to provide the following material to the Office of the NSW Legal Services Commissioner for their consideration:
(a)The order of 31 August 2023 relating to the email written by Ms N, and the documents attached to it, sent on 30 August 2023 at 9.28 am to …@...;
(b)A sealed copy of the order of 4 September 2023;
(c)Exhibit 1 from the hearing on 4 September 2023;
(d)The four (4) affidavits filed on 4 September 2023 sworn/affirmed by Ms O, Ms P, Ms N and Ms Allen;
(e)The two (2) affidavits filed on 11 September 2023 sworn by Ms N;
(f)A sealed copy of the order of 13 September 2023;
(g)Exhibit 2 and 3 from the hearing on 13 September 2023; and
(h)A copy of the reasons dated 13 September 2023 upon which this order is based.
2.When received, a Registrar of this Court is requested to provide a copy of the transcript from the hearings on 4 September 2023 and 13 September 2023 to the Office of the NSW Legal Services Commissioner for their consideration.
3.The name of the legal practitioner who is the subject of the referral, along with the name of the firm in which the solicitor works, are to be redacted from the ex tempore reasons for judgment dated 13 September 2023, prior to any public dissemination.
4.By 4.00 pm on 20 September 2023, a Registrar of this Court is requested to forthwith provide a copy of these redacted ex tempore reasons dated 13 September 2023 to the relevant officer of the Australian Federal Police (AFP), through their lawyers, the Australian Government Solicitor, drawing their attention to paragraphs 7, 10, 11, 14 and 15, relating to the AGS sending documents produced pursuant to a subpoena directly to the mother’s solicitors, in addition to the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
These are my ex tempore reasons on the question of whether I ought, or ought not, refer the papers relevant to this matter to the Legal Services Commission to consider whether any or all of the conduct below amounts to unsatisfactory professional conduct.
I brought the matter before me last Monday being 4 September 2023 after receiving an email from the solicitor alerting a Registrar to a breach of an undertaking given by a different solicitor from the firm, in which the subject solicitor is employed. The solicitor and the other solicitor are both working on this file. I determined at that hearing last week to give the solicitor an opportunity to put on more material and to make submissions at a show cause hearing as to whether or not I should refer the papers as mentioned at the start of these reasons. That hearing occurred this afternoon, being Wednesday 13 September 2023.
It was said in submissions last week that everybody makes mistakes. I accept that. However, as will be outlined, this matter involved a series of serious errors of judgement, which has, in my view, moved the solicitor’s conduct beyond just a single mistake. Similarly, in affidavits before me, the solicitor was at pains to call the breach “inadvertent”. But again, the solicitor engaged in, as I will set out, some eight different errors over the period of a week, which elevates the matter, in my view, beyond a single inadvertent breach.
This is all in circumstances where the solicitor is not an inexperienced legal practitioner. She is an Accredited Family Law Specialist and holds the position of Special Counsel in the firm. She was admitted in 2012.
The background is this. On 17 July 2023 a subpoena was filed by the firm, on behalf of the mother, to the Australian Federal Police (“the AFP”). On 1 August 2023 a different solicitor with the firm (not the one who is the subject of this decision) caused a Notice of Request to Inspect to be filed to inspect the material produced by the AFP. Sometime thereafter the Commonwealth Courts Portal revealed that leave was granted to the parties to view the material produced by the AFP.
I highlight that leave was for viewing only.
For reasons that are not clear to me, on 23 August 2023 the firm received four documents relevant to the subpoena directly from the AFP via their lawyers, the Australian Government Solicitors (“AGS”). That direct communication, on the face of it, does not seem to be the doing of the solicitor or the firm. Nevertheless, that direct communication ought have been a red flag to the solicitor that all was not in order, but instead, it was a communication the solicitor acted upon.
Another red flag, to use the phrasing of Counsel in submissions last week, was that the correspondence attaching the documents was not copied to the father’s solicitors or the ICL. The solicitor ought have turned her mind to that irregularity too. But it seems she did not. Or, if she did, it is apparent then that she cast that anomaly aside.
The documents relevant to the subpoena came to the attention of the solicitor mid-morning on 24 August 2023.
At this point, the solicitor or another solicitor involved in the matter should have sent the documents back to the AGS, deleted all copies, and advised AGS to send the material to the subpoena section of the Court.
But no one within the firm did so. Instead, the solicitor sent the documents to the client on 24 August 2023. It turns out that the AGS had sent the four documents to the Court, but again, I do not understand why they also sent them directly to one party.
The father’s lawyer and the ICL were oblivious to these less than transparent actions. I pause again to note that the parties had view access only to any documents produced by the AFP in answer to the subpoena.
I recently had an interim hearing in this matter, when much was made of the AFP raising a public interest objection to the production of some documents. Everyone in the court – the parties and their legal representatives – could have been under no doubt that there was possibly sensitive material in what the mother sought from the AFP.
That said, I acknowledge that the four documents that were directly sent to the mother’s legal representatives indicated that the AFP (through the AGS) were content for those four documents to be provided to the parties, but that does not subvert the Court process for view only access. The AFP’s position about those four documents comes from Exhibit 1 in the hearing before me last week.
As said, it is a mystery why the AGS sent the documents directly to a party. I will request a Registrar of this Court to send these reasons to the AGS drawing their attention to the irregularity of such a practice. The documents subject to the subpoena ought have been produced to the Court, and the Court alone.
The AGS’ actions do not however absolve the solicitor from her actions thereafter.
At this point the solicitor ignored or otherwise did not turn her mind to the following:
(1)the documents were not accessed via the court, but had come from the AGS directly;
(2)the other parties had not been included in that communication from the AGS;
(3)the court had granted view only access;
(4)whether the firm had given an undertaking in relation to the release of the AFP documents.
On that last point, the firm had indeed given an undertaking dated 25 July 2023. That is only a month prior to the solicitor receiving the documents and sending them on to the client. The undertaking was given on firm letterhead.
That undertaking, albeit given by a different solicitor, but on behalf of the firm in which the relevant solicitor works, was in the following terms:
1. I will not provide, disseminate or otherwise distribute electronic copies of the subpoenaed documents produced in proceedings number SYC5524/2017 by the Australian Federal Police (either electronically, in printed format, or otherwise) to my client or any other person, save for my agent or such other person directed by me to complete the inspection on my behalf;
2. Upon inspecting the subpoena documents, I will ensure that they are destroyed and permanently deleted from any storage or retrieval system (whether held by email, cloud storage or otherwise) at the conclusion of the final hearing in this matter; and
3. In the event I fail to comply (or reasonably suspect that I have failed to comply) with this undertaking (even as a result of circumstances entirely beyond my control), I will immediately notify the Registrar of the Court in writing.
I acknowledge that this undertaking has the same effect as an order of the Court. I acknowledge that if I breach this undertaking I may be guilty of contempt of court and punished by a fine or imprisonment.
Date: 25 July 2023
The last clause of this undertaking reminds that the giving of an undertaking imposes solemn obligations. Notwithstanding, the undertaking was plainly breached. The documents were provided to the client. That was not in dispute. So that adds:
(5)the solicitor sent the documents to the client despite the undertaking;
I trust the firm will put processes in place, or review current procedures, to ensure that when an undertaking is given on the part of the firm, it is complied with. I acknowledge Exhibit 2 which is Ms O’s email to all family law staff. On the face of the affidavits that have been provided to me, it seems that the subject solicitor only became alert to the undertaking after she sent the documents to the client and was then advised of the undertaking by the solicitor who had given it. That does not speak to a sound and systemic process in place to avoid such non-compliance in the first place.
Undertakings with respect to subpoenaed documents have been in place at least since Covid forced the electronic communication of subpoenaed documents. The form of the undertaking given to the court is hardly anything new or novel. Indeed, the solicitor deposed to this in one of her affidavit’s dated yesterday and said she was the one who “typically” entered into the undertaking where she had the day to day carriage of a matter.
In the present matter, it is clear from the solicitor’s affidavits that she took no steps to inform herself whether an undertaking had been given. It also must be that she took no steps to inform herself that the court had given view only access to the AFP documents. There can be no doubt that the documents sent by AGS to the firm related to the subpoena. For example, the heading and the first two paragraphs says this:
SYC5524/2017 – [Mr Samaras] v [Ms Allen] – AFP Subpoena
1.We act for the Australian Federal Police (AFP) in relation to the subpoena issued to the AFP in the above matter at the request of your client, dated 19 July 2023 (Subpoena).
Production of responsive material
2.Our client has closely reviewed the documents it has identified as responsive to the Subpoena and has refined its position in relation to four of those documents. Accordingly, we are instructed to produce the following four documents to the Court today:
…
The letter then goes on to list objections they have to the production of 30 other documents (public interest immunity and/or statutory immunity) and proposes that the firm’s client not press for the production of the balance of the documents responsive to the subpoena.
Accordingly, I do not accept the solicitor saying she thought she was on-forwarding correspondence received by the firm from the AGS to the client.
Of further concern, it took the solicitor a week to advise the court of the breach of undertaking. The undertaking given by the firm required immediate notification but that did not occur. It should have. I accept it may have been “only three business days” for the notification to be given, but that still does not explain why the Registrar was not immediately notified. The solicitor was able to email her client about the documents during the course of 24 August 2023. Specifically, the solicitor emailed the documents to the client at 10.56 am. At 11.13 am she recalled the earlier email and immediately sent a further email to the client requesting she delete the email without reading it. There is no doubt that she has access to the firm’s email system at this point in time.
I have read the solicitor’s affidavit of 4 September 2023 where she explains why she delayed sending the court notification. She said she works part-time and did not work on 25 and 29 August 2023. She also said it took some time to consider which email address the correspondence should have been sent to, and, she had a heavy workload coupled with caring responsibilities. Whilst all that may be so, none of that prevented the solicitor from immediately notifying the court on the same day being 24 August 2023; she had the balance of the day to compose an email to the court and ascertain the email address, but did not. At the very least, the solicitor also had the letter from the AGS (Exhibit 1) sending subpoena documents to …@…. That would have been a good start.
The firm in which the solicitor works is a big firm. The solicitor is not the only person working on that file. That means:
(6)it was an error for the solicitor to wait a week, or call it three business days, to advise the court contrary to the terms of the undertaking given for immediate notification.
In submissions it was said that the solicitor understands the gravity of what she has done and is contrite for what occurred. However, the email of 30 August 2023 is, in my assessment, glib and does not address the gravity of what had happened. Indeed, the email to the court has a sense to my mind of trying to “fly under the radar”, or “nothing to see here”. This is inadequate and left more questions than answers. It was certainly cold as was submitted but does not include any apology or acknowledgement of contrition; so that is:
(7)the email notifying the court was inadequate in its explanation
The inadequacy of the email was further compounded by:
(8)neither the ICL or the father’s representatives were included in that communication to the court, contrary to the protocol for doing so.
Not including the other parties adds to my view that the communication to the court was an attempt to make little of the issue. I also do not accept the solicitor’s explanation that she did not think her communication to the Registrar’s chambers was a communication to chambers covered by the Federal Circuit and Family Court of Australia “Communicating with Chambers Guidelines”. That proposition just has to be stated to reveal its inadequacy. The Guidelines states:
…
3.Any necessary communication with the Court should be done with the consent of all the parties, and in writing.
4.Before contacting chambers, the parties and/or their legal representatives should agree that it is appropriate to contact chambers and/or the issue cannot be resolved without a Judge or Senior Judicial Registrar. For this purpose, you should always contact the other parties in your case, and any legal practitioners involved, if any, before contacting the Court, explaining the reasons for the communication.
5.In urgent circumstances or where the other party’s consent is not able to be achieved within a reasonable period of time, any email to the Associate should include all other parties, or their legal practitioner (if represented). Chambers staff will not respond to your email unless all parties are copied into the correspondence.
Upon the solicitor’s email of 30 August 2023 coming to my attention the following day, I issued an order that the solicitor disclose the 30 August 2023 email to the father and the ICL no later than noon the next day being Friday, 1 September 2023. I also listed the matter for hearing on Monday, 4 September 2023 for the following purposes:
(i)Hear from the parties as to what consequences, if any, arise from the contents set out in the email; and
(ii)Whether the Australian Federal Police ought be notified what has happened, and if so, how.
At that hearing last week, I was furnished with four affidavits including the solicitor who sent the material to the client contrary to the undertaking, the client (who deposed she had not read the material), an equity partner of the firm (and National Practice Group Leader), and the solicitor who signed the undertaking to which I have already referred. Appropriately, each of the solicitors apologised to the Court for the breach of the undertaking.
Notwithstanding, questions still remained unanswered. Accordingly, I required the solicitor to file a further affidavit addressing the following issues:
(a) When on 23 August 2023 the documents came to her attention;
(b)What steps [the solicitor] took to inform herself prior to sending them to the client, that the firm had provided an undertaking not to provide, disseminate or otherwise distribute electronic copies of the subpoenaed documents produced in proceedings number SYC5524/2017 by the Australian Federal Police (either electronically, in printed format, or otherwise) to their client, the mother;
(c)Why the court was not advised of the likely failure to comply with the undertaking until 30 August 2023 including what steps [the solicitor] took to have others in the firm advise the Court earlier than she did; and
(d)Why neither the father’s solicitor nor the ICL were included in that email contrary to the ‘Communicating with chambers guidelines’.
The solicitor’s affidavits filed yesterday address these issues.
In that same order I also requested a Registrar to advise the AFP, through AGS, of the breach of the undertaking and to provide AGS with Exhibit 1, the four affidavits just mentioned, and when filed, the additional affidavits of the solicitor addressing the questions about her conduct listed above. I also ordered the mother and the firm to take all steps necessary to delete the email and documents from their email systems, computer hard drives, and the cloud. I also ordered that the steps taken to comply with the deletion orders be disclosed to the father and the Independent Children’s Lawyer.
I have evidence that came before me that that was done (Exhibit 3).
As I said at the start, I accept that everybody makes mistakes. However as enumerated above, this was not just one error, but a series of serious errors of judgement.
Judicial officers must be able to trust the words and actions of all officers of the court. Judicial officers must be able to rely upon undertakings being complied with. Equally, officers of the court must also be able to trust the words and actions of other officers of the court and their compliance with undertakings proffered.
I acknowledge the father’s Senior Counsel last week made a submission that no further action should be taken. I have taken that into account.
It was wisely, and appropriately accepted by Counsel last week and this, that the actions of the solicitor were serious. Senior Counsel for the father echoed those submissions. The solicitor too acknowledged that in her affidavits, as did the deponents of affidavits from the firm. I agree with all – the solicitor’s conduct is a serious cause for concern.
I accept the apologies to the court from the three solicitors on behalf of the firm. I accept that the National Practice Group Leader had deposed that she would communicate to all staff reminding them that:
…
(i) requirement to return any material produced by subpoenaed organisation to that organisation (should they incorrectly transmit it to an employee of the firm rather than the Court), delete the material from the system and confirm to the subpoenaed organisation the requirement to transmit documents produced in accordance with a subpoena only to the Court;
(ii)“Communicating with chambers guidelines” published by this Honourable Court
(b) Confirming the implementation of a policy with immediate effect, that no documents produced in response to Subpoena are to be disseminated by email or otherwise without the approval of the lawyer who entered into the Undertaking to the Court.
(Affidavit of [Ms O] filed 4 September 2023, paragraph 13)
That has now occurred. Exhibit 2 is the advice sent to all family law staff at the firm.
I accept the solicitor is relatively newly returned to work from parental leave. I accept the solicitor is juggling a work/life balance and the needs of a young child. I accept that with hindsight, the solicitor now considers she was exhausted and lacked focus when she breached the undertaking. But as said, in my view this was not a one-off breach which was immediately rectified. The eight concerns I have identified occurred over a week or call it three business days. Ethical obligations are ethical obligations. Undertakings are solemn promises to courts.
It is not for me to determine whether the solicitor’s conduct amounts to unsatisfactory professional conduct. This state has a statutory body to consider what has happened in this matter and whether such a conclusion is warranted.
I will therefore refer the papers to the Legal Services Commission. That is the proper body to determine whether the solicitor’s conduct amounts to unsatisfactory professional conduct.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 14 September 2023
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