MIDDENDORP -v- LYGINA [2021] WASC 409 (23 November 2021)

Supreme Court of WA|2021-11-23|Before: Strk J

1 On Friday, 5 November 2021, I heard the defendant's application made pursuant to the Rules of the Supreme Court 1971 (WA) (RSC) O 12 r 6. The hearing was adjourned part heard for the parties to file additional submissions by 10.00 am on Monday, 8 November 2021. The application required urgent consideration and a decision on the defendant's application was delivered on Tuesday, 9 November 2021. The parties were informed that upon hearing counsel and upon reading the additional submissions filed, I had concluded that it was appropriate to dismiss the defendant's application with costs. I provided brief extempore reasons for decision and indicated that I would publish the same. My reasons are as follows.

Background and procedural history Overview of the plaintiff's claim in this proceeding

3 The defendant's application was made in a proceeding commenced by the plaintiff by a writ of summons filed on 6 October 2021 with an indorsement of claim. A statement of claim was filed on 6 October 2021, as was a chamber summons seeking injunctive relief.

4 In summary, by this proceeding, the plaintiff seeks to invoke the equitable jurisdiction of the court to restrain the publication of what he says is confidential information improperly or surreptitiously obtained by the defendant. I understood that the plaintiff intends to refer to and rely upon the principles set out in Lord Ashburton v Pape [1913] UKLawRpCh 80; [1913] 2 Ch 469, 475, cited and approved in Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia [2019] HCA 26; (2019) 265 CLR 646 [6].

5 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 material protected by that privilege. Injunctions are sought to permanently restrain disclosure of allegedly confidential information in the possession of the defendant, and to restrain the defendant from divulging or propagating it. 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.

6 For the purposes of the defendant's application, it is sufficient to note that at paras 9 to 15 of the plaintiff's statement of claim filed on 6 October 2021, the plaintiff identifies and describes the documents the subject of his claim and pleads the circumstances in which they came into existence. The paragraphs are reproduced below.[1]

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.

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.

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 21 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. The plaintiff generally kept the Spirax notebook in the study at Salvado Road until 28 July 2021.

12. 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.

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.

The plaintiff printed the minute, and until 28 July 2021 generally kept it in the study at Salvado Road.

13. On 21 July 2021, during a meeting with Ms O'Neil, the plaintiff wrote notes in the Spirax notebook about matters that he and Ms O'Neil had discussed.

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.

7 The reference to 'Salvado Road' at pars 9(b), 11 and 12(b) are to be understood by reference to pars 5(a) and (b) of the statement of claim, in which the plaintiff pleads that between 7 May 2021 and 28 July 2021, the parties were both living at a property located in and described as 'Salvado Road', which featured a room predominantly used by the plaintiff as a study/home office.

8 At par 6 of the statement of claim, the plaintiff pleads that by no later than 1 July 2021, the plaintiff had retained Leach Legal to act for him in relation to family law matters with the defendant. From par 16, the plaintiff pleads the circumstances in which the defendant came to access 'the Documents' (as that term is defined at par 14 of the statement of claim).

9 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 violence restraining order was made by the Magistrates Court which binds the plaintiff and names the defendant as the 'protected person'. 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.

10 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.

11 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.

12 A conditional appearance to the Supreme Court proceeding was filed on behalf of the defendant on 26 October 2021.

13 The RSC O 12 r 6(1) relevantly provides that a defendant in any cause may enter a conditional appearance denying the jurisdiction of the court and shall not thereby be deemed to have submitted to such jurisdiction, except as to the costs occasioned by the appearance or by any application under r 6.

14 Relevantly, the RSC O 12 r 6(2) also provides that the defendant shall forthwith apply to the court to have the question raised by the defendant's conditional appearance decided, and if such an application is not made within 14 days from the entry of the conditional appearance, or if the application be dismissed, the conditional appearance shall, unless the court otherwise orders, become and operate as an unconditional appearance.

15 The defendant's application was made by a chamber summons filed on Wednesday, 3 November 2021 (that is, within the prescribed 14 days), and by the application, the defendant sought orders in the following terms. First, that the writ of summons be set aside. Secondly, that all previous orders made in the Supreme Court proceeding be vacated. Thirdly, that the plaintiff do pay the defendant's costs of the application and of the action (including all reserved costs) to be assessed if not agreed.

16 The chamber summons was supported by a memorandum of conferral filed pursuant to the RSC O 59 r 9, and an affidavit sworn by the defendant on 3 November 2021.

17 The Supreme Court proceeding was listed for directions only on Tuesday, 2 November 2021. The defendant's (then only foreshadowed) application was programmed on an urgent, expedited basis, to hearing on Friday, 5 November 2021. The urgency was that the defendant's application for a Family Violence Restraining Order as against the plaintiff in the Magistrates Court proceeding had been listed for final hearing in early December 2021.

18 It was and remains the plaintiff's position that it is necessary for the Supreme Court proceeding for restraint of confidential information to be substantively heard and determined before the final hearing of the defendant's application for a Family Violence Restraining Order in the Magistrates Court proceeding. By this proceeding the plaintiff seeks to restrain the defendant from seeking to adduce the Documents, or evidence of them or their content, in any proceeding including in the Magistrates Court proceeding.

19 At the hearing of the defendant's application on 5 November 2021, counsel for the defendant referred to and relied upon the written outline of submissions filed on 3 November 2021. I understood that counsel also read and relied upon the defendant's affidavit sworn on 3 November 2021.

20 The defendant's application was opposed by the plaintiff. At the hearing of the application, counsel for the plaintiff referred to and relied upon the written outline of submissions filed on 4 November 2021.

21 After hearing counsel for the parties on Friday, 5 November 2021, they were invited to file further submissions by 10.00 am on Monday, 8 November 2021. I also had regard to the additional submissions filed in determining the defendant's application.

22 The defendant pressed for the writ of summons to be set aside. She denied the jurisdiction of the Supreme Court and said that the plaintiff's claim falls within the exclusive jurisdiction of the Family Court of Western Australia.

23 In the alternative, the defendant said that if this court has jurisdiction, then the Supreme Court proceeding ought to be transferred to the Family Court of Western Australia for determination under the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA).[2]

24 While counsel for the defendant sought the transfer of this proceeding to the Family Court in the alternative to setting aside the writ of summons, he did not address the Jurisdiction of Courts (Cross‑vesting) Act in any detail in his submissions, nor did he identify the section of that Act relied upon.

25 It was the plaintiff's position that this court has jurisdiction to determine the plaintiff's claim, whereas the Family Court of Western Australia does not. The plaintiff pressed for the defendant's chamber summons to be dismissed and for this court to proceed to hear the plaintiff's claim as a matter of urgency, having regard to the imminent hearing in the Magistrates Court.

26 As to the alternative relief sought by the defendant, the plaintiff opposed the transfer of this proceeding to the Family Court of Western Australia under the Jurisdiction of Courts (Cross‑vesting) Act. However, it was the plaintiff's position that if this court were to find that it did not have jurisdiction to determine the plaintiff's claim, then rather than set aside the writ of summons, the Supreme Court proceeding ought be transferred to the Family Court of Western Australia for determination under the Jurisdiction of Courts (Cross‑vesting) Act.

Does the plaintiff's claim fall within the exclusive jurisdiction of the Family Court of Western Australia?

27 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.[3]

28 It was also common ground that the non-federal jurisdictions conferred on the Family Court of Western Australia were exclusive of any other court except as provided under s 39 of the Family Court Act (which concerns non-federal jurisdictions of courts of summary jurisdiction), or where an appeal lies to this court.[4]

29 The parties differed in their view as to the scope of that exclusive jurisdiction, and whether the plaintiff's claim (described by the plaintiff as a claim in equity, seeking that equity restrain an apprehended breach of confidential information), was within the jurisdiction of the Family Court of Western Australia when exercising non-federal jurisdiction.

Provisions of the Family Court Act referred to by the parties

30 Part 3 of the Family Court Act concerns 'Jurisdiction of courts and transfer, staying and dismissal of proceedings'.

31 Counsel for the parties referred to s 36 of the Family Court Act, which section concerns the non‑federal jurisdictions of the Family Court of Western Australia, and provides as follows:[5]

36. Non-federal jurisdictions of Court

(1) The Court has throughout the State the non-federal jurisdictions conferred on it by or under this or any other Act.

(2) Without limiting subsection (1), the Court has non-federal jurisdiction throughout the State, subject to the [Family Law Act 1975 (Cth)], the Adoption Act 1994, the Surrogacy Act 2008 and the Children and Community Services Act 2004, to make -

(a) parenting orders in respect of; and

(b) orders in respect of the welfare of; and

(c) orders under section 71 in respect of the appointment and removal of the guardian of; and

(d) orders in relation to child bearing expenses and other expenses specified in this Act incurred with respect to,

any child of a marriage and any child whose parents were not married to each other at the time of the birth of the child or subsequently, whether or not the child is a member of a family.

(3) Subject to this Act, the Court has non-federal jurisdiction under this Act to make -

(a) a parenting order, other than a child maintenance order, in relation to a child; or

(b) an order with respect to the welfare of a child,

if -

(c) the child in respect of whom the order is sought is then present in the State; and

(d) the applicant or the respondent in the proceedings in which the order is sought is resident in the State.

(4) Subject to this Act, the Court in exercising its non-federal jurisdiction under this Act may make -

(a) a child maintenance order; or

(b) any other order that is neither a parenting order in relation to a child nor an order with respect to the welfare of a child,

if -

(c) the person against whom the order is sought; or

(d) the person for whose benefit the order is sought,

is resident in this State.

(4a) Without limiting subsection (1), the Court has jurisdiction under Part 5A to -

(a) make declarations and to revoke declarations that it has made;

(b) hear and decide all other matters under that Part,

and in particular the Court has jurisdiction to hear and decide the following -

(c) applications for orders with respect to property;

(d) applications for orders for the provision of maintenance.

(5) Subject to this section, the Court has non-federal jurisdiction to make an order under this Act whether or not the facts or circumstances, or any of them, the existence or occurrence of which is necessary for the making of the order took place or arose before the coming into operation of this Act or outside the State.

(6) Where a child the subject of proceedings appears to be a child in need of protection within the meaning of the Children and Community Services Act 2004 the Court has, in relation to the child, in addition to the powers conferred by this Act, all the powers of the Children's Court.

[(7) deleted]

(8) Non-federal jurisdiction conferred on the Court is exclusive of any other court except as provided under section 39 or where an appeal lies to the Supreme Court.

32 In addition to s 36, counsel for the defendant referred to a number of sections of the Family Court Act said to support the submission that the plaintiff's claim is one which falls within the exclusive jurisdiction of the Family Court of Western Australia. The sections referred to are summarised and/or reproduced below.

33 First, s 37(2) of the Family Court Act, which provides:

Principles to be applied, and matters to be considered, by Court in its non‑federal jurisdiction - FLA s. 43

(1) The Court must, in the exercise of its non‑federal jurisdiction under this Act, have regard, as is applicable to each case, to -

(a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life; and

(b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children; and

(c) the need to protect the rights of children and to promote their welfare; and

(d) the need to ensure protection from family violence; and

(e) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to the children of the marriage.

(2) Subject to this Act, in exercising its non‑federal jurisdictions with respect to a child the Court may -

(a) make such order as it thinks proper; or

(b) make an order until further order; or

(c) discharge or vary an order or suspend any part of an order and may revive the operation of any part of an order so suspended.

34 Secondly, s 66A of the Family Court Act, which provides:

66A. Child's best interests paramount consideration in making parenting order - FLA s. 60CA

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

35 Section 66A is a provision within pt 5, div 1, sub-div 2 of the Family Court Act. Part 5 is a part headed 'Children'; div 1 is headed 'Introduction'; and sub-div 2 is headed 'Best interests of the child: court proceedings'.

36 Thirdly, s 184 of the Family Court Act, which provides:

184. Certain proceedings to be instituted only under this Act - FLA s. 69B

(1) Proceedings that may be instituted under this Act must not be instituted otherwise than under this Act.

(2) Subsection (1) does not apply in relation to the institution of proceedings under the Child Support (Assessment) Act.

37 Section 184 is a provision within pt 5, div 11 of the Family Court Act. As noted above, pt 5 is headed 'Children'. Division 11 is headed 'Proceedings, parentage presumptions and evidence and jurisdiction as to child welfare laws'.

38 Fourthly, s 202B is a provision within pt 5, div 11A, sub-div 2 of the Family Court Act. Division 11A and sub-div 2 are headed 'Principles for conducting child-related proceedings', and s 202B prescribes the principles to which the Family Court must give effect in conducting child-related proceedings.

39 Fifthly, s 202C of the Family Court Act, which section is also within pt 5, div 11A, sub-div 2, provides:

202C. This Division also applies to proceedings in Chambers - FLA s. 69ZO

A judge, registrar or magistrate, who is hearing child‑related proceedings in Chambers, has all of the duties and powers that a court has under this Division.

40 Sixthly, s 202F of the Family Court Act, which provides:

202F. Power to make determinations, findings and orders at any stage of proceedings - FLA s. 69ZR

(1) If, at any time after the commencement of child related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following -

(a) make a finding of fact in relation to the proceedings;

(b) determine a matter arising out of the proceedings;

(c) make an order in relation to an issue arising out of the proceedings.

(2) Subsection (1) does not prevent the court doing something mentioned in subsection (1)(a), (b) or (c) at the same time as making final orders.

(3) To avoid doubt, a judge, registrar or magistrate who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.

41 Section 202F is a provision within pt 5, div 11A, sub-div 3 of the Family Court Act. Sub-divison 3 is headed 'Duties and powers related to giving effect to the principles'.

42 Seventhly, s 202H of the Family Court Act, which provides:

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.

43 Section 202H is a provision within pt 5, div 11A, sub-div 4. Sub‑divison 4 is headed 'Matters relating to evidence'.

44 Eighthly, s 205V of the Family Court Act, which provides:

205V. Right to certain civil proceedings limited

A de facto partner who is, or was, eligible to apply for an order with respect to property under Division 2 may not apply to the Supreme Court in its equitable jurisdiction for relief in respect of that property.

45 Section 205V is a provision within pt 5A, div 1 of the Family Court Act. Part 5A is a part headed 'De facto relationships'. Division 1 is an introductory part, and div 2 (referred to in s 205V) is headed 'Property adjustment orders and maintenance orders'.

46 Ninthly, s 205ZA of the Family Court Act, which provides:

205ZA. Declaration of interests in property - FLA s78

(1) In a proceeding between de facto partners with respect to existing title or rights in respect of property, a court may declare the title or rights, if any, that a partner has in respect of the property.

(2) Where a court makes a declaration under subsection (1), it may make consequential orders to give effect to the declaration, including orders as to sale or partition and interim or permanent orders as to possession.

(3) A declaration or order under this section is binding on the de facto partners but not on anyone else.

47 Section 205ZA is a provision within pt 5A, div 2, sub-div 1 of the Family Court Act. As noted above, div 2 is headed 'Property adjustment orders and maintenance orders'. Sub-division 1 is headed 'Introductory'.

48 Counsel for the defendant also referred to s 205ZG, which is a provision within pt 5A, div 2, sub-div 2 of the Family Court Act. Sub‑division 2 is headed 'Alternation of property interests, and maintenance'. In summary, the section empowers the Family Court of Western Australia to make orders altering the interests of the parties in property '[in] proceedings with respect to the property of de facto partners, or either of them'.

49 Finally, counsel for the defendant referred to s 235 and s 235A of the Family Court Act. These sections are provisions within pt 11 of the Family Court Act, which concerns 'Injunctions'. The sections are reproduced below:

(1) A person may institute proceedings in a court for an injunction in relation to a child and the court hearing the proceedings may make an order or grant an injunction as it considers proper for the welfare of the child, including -

(a) an injunction for the personal protection of the child; or

(b) an injunction for the personal protection of -

(ii) a person with whom the child is to live under a parenting order; or

(iii) a person with whom the child is to spend time under a parenting order; or

(iv) a person with whom the child is to communicate under a parenting order; or

(v) a person who has parental responsibility for the child;

or

(c) an injunction restraining a person from entering or remaining in -

(i) a place of residence, employment or education of the child; or

(ii) a specified area that contains a place of a kind referred to in subparagraph (i);

or

(d) an injunction restraining a person from entering or remaining in -

(i) a place of residence, employment or education of a person referred to in paragraph (b); or

(ii) a specified area that contains a place of a kind referred to in subparagraph (i).

(2) In any proceedings under this Act (other than proceedings to which subsection (1) applies) the court hearing the proceedings may grant an injunction with respect to a matter to which the proceedings relate, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

(3) An injunction or order under this section may be granted unconditionally or on such terms and conditions as a court considers appropriate.

235A. Injunctions relating to de facto relationships - FLA s. 114

(1) A person may institute proceedings in a court for an injunction in relation to a matter arising out of a de facto relationship and the court hearing the proceedings may make an order or grant an injunction as it considers proper with respect to the proceedings, including -

(a) an injunction for the personal protection of a de facto partner; or

(b) an injunction restraining a de facto partner from entering or remaining in -

(i) the home previously shared by the de facto partners; or

(ii) a de facto partner's principal place of residence; or

(iii) a place of residence or work of a de facto partner; or

(iv) a specified area that contains a place of a kind referred to in this paragraph;

or

(c) an injunction in relation to the property of a de facto partner; or

(d) an injunction relating to the use or occupancy of the home previously shared by the de facto partner.

(3) An injunction or order under this section may be granted unconditionally or on such terms and conditions as a court considers appropriate.

Does the plaintiff's claim arise out of the Family Court proceeding?

50 Counsel for the defendant noted that the parties had been in a de facto relationship, and were now parties to the Family Court proceeding, which proceeding concerns the alteration of property interests and the child of their union.

51 Counsel submitted that in these circumstances, the non-federal jurisdictions of the Family Court of Western Australia had been enlivened and therefore, by operation of s 36(8) of the Family Court Act, the Family Court of Western Australia '... now has exclusive jurisdiction to entertain and deal with all matters as between the parties arising out of those proceedings.'[6] Counsel further submitted that by operation of s 184, proceedings that may be instituted under the Family Court Act must not be instituted otherwise.

52 I understood counsel for the defendant to submit that therefore, the plaintiff's claim had been commenced in the wrong court and the writ of summons should be set aside.

53 As to how the plaintiff's claim was said to arise out of the Family Court proceeding, counsel submitted as follows:[7]

So perhaps if I can describe it this way: it's a method of working backwards. Once the jurisdiction of the Family Court of Western Australia in its non-federal jurisdiction has been enlivened, then subsection (8) of 36 comes in to play, to say, well, it now has exclusive jurisdiction to entertain and to deal with all matters as between the parties arising out of those proceedings. And I will go to section 235 and 235A of that Act as well.

So that the Family Court is empowered to make - obviously it's not in controversy - orders for property, alteration of property interests and in relation to the children of the union or children generally. So how does this matter, then, fall within it? Because it is a matter arising or emanating from the de facto relationship. And I know that's in controversy from my learned friend's submissions and I'm going to press it this way.

"Arising out of" was considered in [Teo v Guan (2015) 296 FLR 172] in obiter in the sense of - as your Honour might know, that the decision of Teo was an anti-suit injunction, proceedings collaterally in Singapore, as well as the Western Australian Family Court, where the wife in this states ought injunctive relief as against the husband, precluding him from pursuing his action in the Singaporean High Court.

And her Honour at first instance ordered the injunctions and based that on the exercise of equitable principles, from which the husband appealed, and the court considering that appeal, quite rightly, with respect, said the court doesn't have equitable jurisdiction, but that doesn't matter, because it has the power to grant injunctions and that's the section 235 and 235A.

...

... the plaintiff's position is that it's seeking equitable relief from this court based on equitable principles in, if you like, an equitable cause of action - breach of confidence. And we say that up until 2002 when section 235 and 235A was introduced to the Family Court Act, and proclaimed, I think, at the end of 2002, it didn't have the injunctive power that we now speak of, and so this was the court to come to for the equitable relief of injunctive orders, but the Family Court does have jurisdiction and has had since 2002 to grant injunctions. So the relief sought by the plaintiff is an equitable relief to which the Family Court has power to grant.

54 I further understood counsel to submit that the plaintiff's claim is a matter that 'arises out of the de facto relationship', as the interpretation of 'arising out of' must be given its widest possible meaning and effect.[8] Counsel expanded upon this submission as follows:[9]

And that is, anything that comes as a result of the relationship which is described as, in the Federal Jurisdiction, "Arising from the marriage or by reasons of a marriage, or the relationship is connected by a marriage. And in a de facto case by reason of the de facto union". So that the Family Court can do what it's supposed to do any deal with all matters between married people or common law marriage. And the court did that in Teo. So the equivalent section of 114 in the Federal jurisdiction - it injuncted one of the parties from pursuing its action in the foreign court and it concerned a deed between them. Whether that deed was made before they were married, during they were married, or afterwards, is immaterial. It was something between two parties to a marriage. It's something that arises.

55 Counsel submitted that the Family Court of Western Australia has jurisdiction to determine a matter arising out of the Family Court proceedings and to make an order in relation to an issue arising out of the Family Court proceedings pursuant to s 202F of the Family Court Act.

56 It was submitted that the powers of the Family Court of Western Australia included injunctive powers pursuant to s 235A(2) (which include the power to grant the injunctive relief sought by the plaintiff in the Supreme Court proceeding); and the discretion in child related proceeding to determine as the Family Court sees fit whether to admit or refuse to admit into evidence any matter, howsoever such evidence might have been obtained, in its determination of what is in the best interests of the child as the paramount consideration.[10]

57 As to the discretion to admit evidence referred to above, counsel submitted that in exercising its non-federal jurisdictions with respect to a child, the Family Court of Western Australia may make such order as it thinks proper pursuant to s 37(2) of the Family Court Act.[11]

58 It was submitted that the question of whether the defendant ought to be restrained in her use of the allegedly confidential information should be a matter left for the Family Court of Western Australia, as it may be appropriate for that court to have regard to the same, regardless of how it was obtained when determining what is in the best interests of the child.

The Supreme Court ought not make orders restricting the Family Court of Western Australia and the Magistrates Court from exercising their functions

59 I also understood the defendant to submit as follows.

60 It was not for the Supreme Court to determine whether the confidential information ought not be admitted into evidence in any hearing of the Family Court of Western Australia, or the Magistrates Court at a final hearing concerning a Family Violence Restraining Order. If the Supreme Court were to make orders in the terms sought by the plaintiff, each of the Family Court and the Magistrates Court would be restricted in the exercise of their respective functions, the jurisdiction for which was enlivened by Acts of Parliament.[12]

61 In the determination of the defendant's application, counsel submitted that regard ought to be had to the fact that the Family Court proceeding was commenced by the defendant before the plaintiff commenced the Supreme Court proceeding.[13]

Is the confidential information 'property' for the purposes of the Family Court Act?

62 Counsel also submitted that the Family Court of Western Australia has exclusive jurisdiction to hear and decide applications for orders with respect to property to which the plaintiff and the defendant may be entitled, whether in possession or reversion. In this regard, I understood counsel to rely upon s 36(4a)(c), s 205T, s 205ZA, s 205ZG and s 205V of the Family Court Act.

63 By the supplementary written submission filed on 8 November 2021, counsel for the defendant expanded upon his submission that the Documents are property; the Family Court of Western Australia has exclusive jurisdiction to hear and decide applications for orders with respect to property to which the plaintiff and the defendant may be entitled, whether in possession or reversion; and therefore the writ of summons in the Supreme Court proceeding ought be set aside.

64 Counsel for the defendant noted that the term 'property' as defined in s 205T, has a broad meaning, being property that a party to the relationship is entitled to, whether in possession or reversion.

65 Counsel submitted that giving the term 'property' broad meaning was supported by the authorities.[14] It was submitted that 'property' could be either real or personal, and if personal, can be either a chose in action, equitable or legal.[15] Further, it was submitted that property need not have pecuniary value to constitute property for the purposes of the Family Court Act.[16]

66 Counsel for the defendant submitted that in the Supreme Court proceeding, the plaintiff claims a right to possession of material described in the plaintiff's pleadings (that is, the Documents). The defendant submitted that whether it be the physical material (in rem) or a right to possession of it (in personam) to the exclusion of the defendant (a chose in action), or both, it is property.

67 Counsel for the defendant also referenced a number of sections in the Family Court Act which were said to support the defendant's contention, particularly s 205ZA, S 205ZG and s 205V.

68 As noted above, s 205ZA empowers the Family Court of Western Australia to make declarations and orders '[in] a proceeding between de facto partners with respect to existing title or rights in respect of property'. Section 205ZG empowers the Family Court of Western Australia to make orders altering the interests of the parties in property '[in] proceedings with respect to the property of de facto partners, or either of them'. Finally, s 205V provides that a de facto who is, or was, eligible to apply for an order with respect to property under div 2 of the Family Court Act may not apply to the Supreme Court in its equitable jurisdiction for relief in respect of that property.

69 I understood counsel for the defendant to contend that by operation of s 205V, proceedings that may be instituted under the Family Court Act in respect of the property of de facto partners must not be instituted otherwise; the plaintiff's claim (being one in respect of the property of de facto partners) must not be instituted otherwise; and therefore the writ of summons in the Supreme Court proceeding ought be set aside.

70 As noted above, it was common ground as between the parties that the Family Court of Western Australia exercises federal jurisdiction in relation to marriage, and non-federal jurisdiction in relation to de facto relationships. Where the parties differed was that the plaintiff submitted that the Supreme Court proceeding is not a proceeding about property or children in the context of the de facto relationship. Rather, it is about equity enforcing and protecting an equitable duty.

71 Counsel for the plaintiff submitted that s 36(8) and s 184 of the Family Court Act do not assist the defendant. It was submitted that these sections operate such that where the Family Court of Western Australia has jurisdiction, it is exclusive and the jurisdiction of the Supreme Court is divested.

72 It was submitted that there is nothing in s 36, nor any other section of the Family Court Act, nor any other law, that would give the Family Court of Western Australia jurisdiction to hear and determine the plaintiff's claim as sought to be pursued by the Supreme Court proceeding. The plaintiff submits that the divesture of this court's jurisdiction has not occurred.

Does the plaintiff's claim in the Supreme Court proceedings concern a child?

73 The plaintiff submitted that his claim, sought to be agitated in the Supreme Court, is not one 'with respect to a child', nor in respect of 'a parenting order', nor a 'child related proceeding', and accordingly none of s 37(2), s 66A or s 202B of the Family Court Act assist the defendant.

Is the confidential information 'property' for the purposes of the Family Court Act?

74 Counsel for the plaintiff submitted that the confidential information the subject of the Supreme Court proceeding is not 'property' for the purposes of the Family Court Act. The submission was expanded upon in the written submission filed on 8 November 2021.

75 I understood counsel for the plaintiff to have submitted that the subject matter of the Supreme Court proceeding (that is, the information claimed by the plaintiff to be confidential), should not be regarded as 'property' for the purpose of the Family Court Act for two reasons.

76 First, properly construed, the Family Law Act is not concerned with the subject matter of the Supreme Court proceeding. The following matters were raised by counsel for the plaintiff in support of this proposition.

77 It was submitted that the word 'property' used in s 36(4a)(c) of the Family Court Act presumably picks up the definition of property in s 205T. That definition refers to property that a party to the relationship is entitled to, whether in possession or reversion. It was submitted that the statutory definition is not of great assistance.

78 Counsel submitted that the words '... and in particular the Court has jurisdiction to hear and decide ... applications for orders with respect to property' in s 36(4a) must be read in the context of s 36(4a) as a whole.

79 The words '... the Court has jurisdiction under pt 5A to ...' must be understood as limiting the jurisdiction to the exercise the powers found in pt 5A. The Family Court of Western Australia is not given jurisdiction to hear and decide any and all applications for orders with respect to property, regardless of context. The reference to property in the sub-section must be understood accordingly.

80 It was also noted that the caselaw did not advance the defendant's position, nor assist in the construction of s 36(4a).[17]

81 Counsel for the plaintiff further noted that s36(4a) was introduced to by s 32 of the Family Court Amendment Act 2002 (WA) (No. 25 of 2002); and that amending Act inserted pt 5A into the Family Court Act. Further, the introduction of pt 5A had the effect of moving property disputes between separated de facto couples from the Supreme Court and into the Family Court of Western Australia to be determined in accordance with the Family Court Act.

82 The Explanatory Memorandum to the Family Court Amendment Bill 2001, said of proposed sub-section (4a) at page 10:

This clause will expand the jurisdictional limits of the Court to make declarations and revoke declarations that it has made and hear and decide all other matters under the proposed Part 5A of the Bill. In particular, the Court has jurisdiction to hear and decide on applications for orders with respect to interests in property and the provision of maintenance. (emphasis added by counsel for the plaintiff)

83 Counsel submitted that the word 'property' in the sub-section (4a)(c) should be understood as being concerned with property with which Part 5A is concerned.

84 Counsel said that further support for that proposition is found in the structure of the sub-section. After sub-section (4a)(b) and before sub-section (4a)(c) are the words 'and in particular...'. Counsel submitted that it is clear from both the structure and context that sub‑sections (4a)(c) and (4a)(d) are particulars of the wider sub-sections (4a)(a) and (4a)(b). Counsel submitted that sub-section (4a)(c) ought not be read in isolation.

85 Part 5A is concerned with the alteration of property interests of former de facto partners and maintenance orders. It is not concerned with children (other than incidentally in the context of property), and it is not concerned with marriage (the federal jurisdiction). In this regard, counsel for the plaintiff noted that in his second reading speech the Honourable Attorney said:[18]

The Bill provides a mechanism for the resolution of property disputes between de facto couples. It gives the Family Court of Western Australia the power to make orders to adjust the property interests of the de facto couple. However, the court may make a property order in only three situations. First, when the parties have been in a de facto relationship for at least two years. ... (emphasis added by counsel for the plaintiff)

86 Counsel for the plaintiff submitted that in the Supreme Court proceeding, the relief sought by the plaintiff is purely equitable, and not relief that could be sought under pt 5A. It was submitted that therefore, it was not a claim that could be determined in the jurisdiction of the Family Court of Western Australia. The subject matter of the plaintiff's action is not property of the type contemplated in s 36(4a)(c).

87 Secondly, counsel submitted that on no view could the information the subject of the Supreme Court proceeding be properly described as 'property' with which the family law regime is concerned. The following matters were raised by counsel for the plaintiff in support of this proposition.

88 Counsel submitted that the prayer for relief makes plain that what is sought by the plaintiff is protection of the information claimed to be confidential to the plaintiff. The primary relief is not related to the Documents or the format or media in which such information has been recorded or stored by the defendant. It was submitted that an order for recovery of the Documents is purely consequential to the primary relief sought.

89 Counsel submitted that the High Court in Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia identified the fact that the confidential nature of the information is what gives right to the entitlement to seek its protection, and that legal professional privilege claimed over documents in themselves does not give rise to the claim.[19] Counsel observed that the proper basis for the plaintiff's claim is the right to protect the confidence (which is only enforceable in equity, and which is claimed in the Supreme Court proceeding) as opposed to any proprietary claim for an intangible thing.

90 It was submitted that therefore, the claim made in the Supreme Court proceeding could not properly be described as a claim in relation to 'property' in the Family Court Act sense.

91 Counsel further noted that it is not to the point that intangible intellectual property (such as patent or copyright) may be 'property' for the purposes of s 36(4a). It was submitted that the subject matter of the Supreme Court proceeding is not appropriately classified as such. Sections 36(4a), and for that matter s 205V of the Family Court Act (which is within pt 5A), are not concerned with confidential information of the type sought to be protected by the plaintiff, that is, confidential information that is not capable of adjustment between the parties.

Is the Family Court of Western Australia a court of equity?

92 It was submitted that not only does the plaintiff's claim as pursued in the Supreme Court proceeding not fall within the jurisdiction of the Family Court of Western Australia, but unlike the Family Court of Australia, the Family Court of Western Australia is not a court of equity.

93 Counsel for the plaintiff referred to s 21(2A) of the Family Law Act 1975 (Cth), which provides that:

The [Family Court of Australia] Court is, and is taken always to have been, a court of law and equity.

94 Counsel for the plaintiff noted that there is no equivalent provision in the Family Court Act.

95 Counsel for the plaintiff and for the defendant both referred to the decision of the Full Court of the Family Court of Australia in Teo v Guan (2015) 296 FLR 172. At [103], the Full Court of the Family Court of Australia accepted that the Family Court of Western Australia is a statutory court and therefore cannot grant equitable relief unless authorised by statute, noting:

... As an equitable jurisdiction has not been conferred by statute, it has long been accepted that the FCWA cannot exercise the powers of a court of equity: J, In Marriage of (1979) 5 Fam LR 547 at 78,869. (We put to one side the powers available to the court when exercising accrued jurisdiction.)

96 The Full Court went on the conclude that the Family Court of Western Australia has an implied power to make orders to prevent its processes being abused and to protect the integrity of its processes once in motion. The power does not depend on the court having equitable jurisdiction.[20]

97 While implied power was not addressed by counsel for the plaintiff, I understood counsel to acknowledge that the Family Court of Western Australia has certain implied powers, and the express power to restrain conferred by statute in pt 11 of the Family Court Act.

98 I also understood the plaintiff to contend that as a court created by statute, the jurisdiction and powers of the Family Court of Western Australia are those conferred expressly or by implication by statute, and such other powers as are incidental and necessary to the exercise of the jurisdiction and powers so conferred.[21]

99 The plaintiff submitted that although s 235A of the Family Court Act empowers the Family Court of Western Australia to grant injunctions 'in relation to a matter arising out of a de facto relationship', it is to be observed that the injunctions sought in the statement of claim do not relate to a matter arising out of the de facto relationship of the parties. The de facto relationship is simply the historical factual context that explains why the plaintiff sought legal advice and why the privileged documents came into being.

100 Further, it was submitted that the injunction sought by the plaintiff is not of a type enumerated in the list in subsection (1).

101 Counsel for the plaintiff accepted that s 235A(1)(c) provides for an injunction in relation to the property of a de facto partner. However, counsel submitted that the defendant is alleged to have viewed and possibly copied the plaintiff's privileged information. It is her use of the information that is primarily sought to be restrained. Counsel for the plaintiff submitted that it is a strain on language to describe it as an injunction in relation to the property of a de facto partner.

102 Finally, on behalf of the plaintiff it was said that the submissions made on behalf of the defendant inappropriately conflate and confuse admissibility issues in the Family Court proceeding and the Magistrates Court proceeding with the overriding concept of legal professional privilege and the equitable relief sought by the plaintiff in the Supreme Court proceeding. I understood this submission to have been made in response to the defendant's submission summarised at [60] above.

103 The Family Court of Western Australia is a statutory court. It may exercise the non-federal jurisdictions conferred on it by or under the Family Court Act, or any other Act.[22]

104 In their respective submissions concerning the non-federal jurisdictions of the Family Court of Western Australia, counsel for the parties did not refer me to any other Act for the purposes of s 36(1). All submissions were directed to the non-federal jurisdictions conferred on to the Family Court of Western Australia by or under the Family Court Act. It was therefore necessary to carefully consider the Family Court Act.

105 In determining the application, I had regard to and applied the general principles of statutory construction as summarised by the Court of Appeal in Scaffidi v Chief Executive Officer, Department of Local Government and Communities,[23] as follows:

The construction of a statute is 'reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy'. Those rules require primary attention to be directed to the text of the relevant provisions. There must be regard to the language of the statutory instrument viewed as a whole, considered in its context. An important part of that context will be the purpose of the legislation, ascertained from what the legislation says (rather than any assumption about the desired or desirable reach or operation of the relevant provisions). Once the purpose of the legislation is established, a construction that would promote that purpose shall be preferred to a construction that would not promote the relevant purpose. (Citations omitted.)

106 For these reasons, I did not accept the defendant's submission that the plaintiff's claim is within the jurisdiction of the Family Court of Australia. The provisions of the Family Court Act properly construed do not support such a finding.

Equitable jurisdiction of the Family Court of Western Australia

107 The Family Court of Western Australia is a statutory court. It is therefore appropriate to start with s 36 of the Family Court Act, which defines the non-federal jurisdictions of the Family Court of Western Australia.

108 The Family Court of Western Australia may exercise the non-federal jurisdictions conferred on it by or under the Family Court Act, or any other Act.[24] Among other things, it has jurisdiction to make certain orders and perform certain functions with respect to children, and under pt 5A with respect to de facto relationships.

109 The plaintiff's claim is in equity. He seeks that equity restrain an apprehended breach of confidential information. Equitable jurisdiction has not been conferred upon the Family Court of Western Australia by statute.[25] There is no provision equivalent to s 21(2A) of the Family Law Act in the Family Court Act (in s 36 or otherwise).

110 The Family Court of Western Australia has an implied power to make orders to prevent its processes being abused and to protect the integrity of its processes once set in motion. Such power does not depend upon the Family Court of Western Australia having equitable jurisdiction.[26] However, the existence of such an implied power cannot ground a finding that the plaintiff's claim falls within the jurisdiction of the Family Court of Western Australia.

111 The plaintiff seeks that equity restrain the defendant from divulging or propagating what he says is confidential information improperly or surreptitiously obtained. While the plaintiff asks that the defendant be restrained from seeking to adduce confidential information in the Family Court proceeding, the relief he seeks is broader than that. The plaintiff asks that the defendant be permanently restrained from divulging the information in all contexts, including in the Magistrates Court proceeding. The implied power of the Family Court of Western Australia to make orders to prevent its processes being abused and to protect the integrity of its processes once set in motion cannot be invoked by the plaintiff in the Family Court proceeding to grant him the relief he now seeks in the Supreme Court proceeding.

112 By pt 11 of the Family Court Act, Parliament has conferred upon the Family Court of Western Australia the express power to make an order or grant an injunction in prescribed circumstances. This does not mean that broad equitable jurisdiction has been conferred upon the Family Court of Western Australia by the introduction of pt 11, as if a provision equivalent to s 21(2A) of the Family Law Act had been introduced to the Family Court Act. The Family Court of Western Australia, exercising power under pt 11, cannot make orders as sought by the plaintiff in the Supreme Court proceeding. The suggested approach of 'working backwards' does not assist the defendant in making her case. [27]

113 The plaintiff and the defendant were in a de facto relationship, the Family Court proceeding is on foot, and the Family Court proceeding does concern a child.

114 Section 235, and its equivalent s 68B in the Family Law Act, deal with proceedings for injunctions in relation to a child.

115 Under s 235(1), a person might institute proceedings in a court for an injunction in relation to a child, and the court hearing the proceedings may make an order or grant an injunction as it considers proper for the welfare of the child. The power of the Family Court of Western Australia under s 235(1) to grant an injunction does not extend to granting orders as now sought by the plaintiff in the Supreme Court proceeding, as the relief sought by the plaintiff in the Supreme Court proceeding is not in relation to a child, and the orders sought could not be considered 'proper for the welfare of the child'.

116 Under s 235(2), in any proceedings under the Family Court Act (other than proceedings to which subsection (1) applies) the court hearing the proceedings may grant an injunction with respect to a matter to which the proceedings relate, by interlocutory order or otherwise, in any case in which it appears to the court to be just and convenient to do so. The plaintiff's claim as pressed in the Supreme Court proceeding is not a matter to which the Family Court proceeding (as it concerns the child) relates. It would require an unnatural construction of s 235(2), and an unnatural characterisation of the Family Court proceeding and the Supreme Court proceeding, to conclude otherwise.

117 I note that counsel for the defendant referred me to s 37(2), s 66A, s 184, s 202B, s 202C, s 202F, and s 202H. I had regard to these provisions, and to the language of the statutory instrument viewed as a whole. These provisions did not assist the defendant, or cause doubt that the conclusions expressed at [115] and [116] above were correct.

118 Section 235A, and its equivalent s 114 in the Family Law Act, deal with proceedings for injunctions sought in relation to a matter arising out of a de facto relationship and in circumstances arising out of a marital relationship, respectively.

119 Section 235A empowers the Family Court of Western Australia to order or grant an injunction as an adjunct power that may be used in the exercise of the court's powers and jurisdiction under pt 5A.

120 Under s 235A(1), a person may institute proceedings in a court for an injunction in relation to a matter arising out of a de facto relationship and the court hearing the proceedings may make an order or grant an injunction as it considers proper with respect to the proceeding.

121 As noted above, pt 5A of the Family Court Act is headed 'De facto relationships'. In general terms, it provides for the alteration of property interests and for maintenance with respect to partners in a de facto relationship.[28] Part 5A effected an important reform of the law and is to be accorded a beneficial construction as remedial legislation.[29] As observed by the Court of Appeal in Laufer v Gear,[30] it is to be inferred from its subject matter and terms that it was designed (among other things) to overcome the difficulty, complexity and cost of civil proceedings in the Supreme Court in dealing with property disputes between de facto partners.

122 Having regard to the purpose of the legislation and the language of s 235A(1), it would be an unnatural construction to conclude that the plaintiff's claim in equity could be characterised as a claim for relief 'in relation to a matter arising out of a de facto relationship'. Instead, I concluded that the de facto relationship was merely the historical context in which the plaintiff sought legal advice. I also considered that the fact that the defendant might wish to adduce the confidential information in the Family Court proceeding does not make the plaintiff's claim one 'in relation to a matter arising out of a de facto relationship'.

123 Section 235A(1) (a) to (d) are examples of injunctions that might be granted under s 235A. The defendant sought to rely particularly on s 235(1)(c), being 'an injunction in relation to the property of a de facto partner'.

124 Again, it would be an unnatural construction to conclude that the relief sought by the plaintiff in the Supreme Court proceeding is 'in relation to the property of a de facto partner'. Having regard to the text of s 235A(1), considered in its context, I am persuaded by the plaintiff's submissions. For the reasons expressed on behalf of the plaintiff summarised at [74] to [91] above, I accepted that the subject matter of the Supreme Court proceeding is not property of the type contemplated in s 36(4a)(c).

125 In determining the defendant's application, I also had regard to the fact that while the plaintiff asks that the defendant be restrained from seeking to adduce confidential information in the Family Court proceeding, the plaintiff also asks that the defendant be permanently restrained from divulging the information in all contexts, including in the Magistrates Court proceeding. I concluded that the power of the Family Court of Western Australia under s 235A(1) to grant an injunction does not extend to granting orders as now sought by the plaintiff in the Supreme Court proceeding, as the orders could not be considered 'proper with respect to the proceeding' (which must be understood as the Family Court proceeding under pt 5A).

126 Again, it would require an unnatural construction of s235A(1), and an unnatural characterisation of the Family Court proceeding and the Supreme Court proceeding, to conclude otherwise.

127 Section 235A(2) is in identical terms to s 235(2), and provides that in any proceedings under the Family Court Act (other than proceedings to which subsection (1) applies) the court hearing the proceedings may grant an injunction with respect to a matter to which the proceedings relate, by interlocutory order or otherwise, in any case in which it appears to the court to be just and convenient to do so.

128 The plaintiff's claim as pressed in the Supreme Court proceeding is not a matter to which the Family Court proceeding (as it concerns de facto relationships) relates. It would require an unnatural construction of s 235A(2), and an unnatural characterisation of the Family Court proceeding and the Supreme Court proceeding, to conclude otherwise

129 I note that counsel for the defendant also referred me to s 36(4a)(c), s 205T, s 205V, s 205ZA, s 205ZG. I had regard to these provisions, and to the language of the statutory instrument viewed as a whole. For completeness I again note that these provisions did not assist the defendant, or cause doubt that the conclusions expressed at [122] to [128] above were correct.

At a glance

Court

Decision date

Before

Source

Judgment (282 paragraphs)

Does the plaintiff's claim arise out of the Family Court proceeding?

The Supreme Court ought not make orders restricting the Family Court of Western Australia and the Magistrates Court from exercising their functions

Is the confidential information 'property' for the purposes of the Family Court Act?

Does the plaintiff's claim in the Supreme Court proceedings concern a child?

Is the confidential information 'property' for the purposes of the Family Court Act?

Is the Family Court of Western Australia a court of equity?

Legislation Cited (8)

Cases Cited (14)