Breach of Privilege Backfires: Court Bars Wife’s Legal Team After Improper Access in Property Dispute

🧑‍⚖️ INTRODUCTORY PARAGRAPH:

In the matter of Glos & Glos (No 4) [2025] FedCFamC1F 318, the Federal Circuit and Family Court of Australia delivered a significant ruling on legal ethics, professional responsibility, and the integrity of judicial proceedings. Justice Howard ordered the disqualification of the wife’s legal representatives after she improperly accessed the husband's privileged documents during ongoing financial proceedings. This judgment underscores the principle that legal strategy cannot be built on unlawfully obtained information, even where fairness in family law might otherwise emphasise transparency.

📋 FACTS AND ISSUES:

Facts:

• The husband (Mr Glos) and wife (Ms Glos) are engaged in property proceedings following the breakdown of their relationship.
• On 29 September 2024, the wife unlawfully entered the husband's residence at Town C (NSW) without his written consent, contrary to court orders.
• While in the house, she accessed, photographed, and read documents belonging to the husband, including two that were later confirmed as subject to legal professional privilege.
• The wife disclosed information derived from these documents to her lawyers (Hopgood Ganim), who subsequently acted upon this information in correspondence dated 2 October 2024.
• The conduct came to light months later, triggering the husband's application to restrain the wife’s legal team.

Issues:

1. Should the wife's legal representatives be restrained from acting due to their receipt and use of privileged information?
2. Did the wife's conduct, and her lawyers’ subsequent actions, compromise the integrity of the judicial process?
3. Does the public interest in a party retaining their preferred legal representation outweigh the necessity of preserving legal ethics and fair process?

⚖️ APPLICATION OF LAW:

Justice Howard applied the test from Venter & Venter (No 6) (2024) 69 Fam LR 345 and endorsed by Carew J, namely:

“Whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a lawyer be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice”.

The Court highlighted the exceptional nature of restraining a party’s legal representation but stressed that the misuse of privileged information, regardless of intent, necessitated such a measure to uphold fairness and impartiality in the litigation process.

🧠 ANALYSIS OF THE JUDGMENT:

Justice Howard's reasoning was grounded in both the objective appearance of justice and the actual risk of prejudice to the husband. Several key findings influenced the decision:

• Inconsistencies in the wife’s affidavit and her lawyers' explanations raised doubts about the scope of documents accessed.
• The wife utilised information gleaned from the documents to instruct her lawyers, which directly led to forensic action in the case (e.g., the 2 October 2024 disclosure request).
• While the wife claimed she did not send the photographs to her lawyers, the sequence of events indicated that the information was communicated and acted upon, rendering the formal transfer of documents irrelevant.
• The Court cited precedent (Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357) to support the position that even unintentional retention of confidential information could influence legal conduct subconsciously.
• The fact that the trial might be delayed and the wife prejudiced by having to change counsel was acknowledged but outweighed by the need to maintain the integrity of the judicial process.

Ultimately, the Court restrained the wife from instructing Hopgood Ganim, Mr M of Counsel, and any barristers briefed since 29 September 2024.

📚 PRECEDENTS & STATUTORY AUTHORITY:

• Venter & Venter (No 6) (2024) 69 Fam LR 345 – Test for restraining legal representation.
• Crittenden & Collins [2017] FamCA 716 – Importance of limiting the spread of privileged knowledge.
• Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357 – Risk of subconscious bias from improper information.
• Evidence Act 1995 (Cth) – Legal professional privilege and its limits (esp. s 125 – waiver of privilege).

💡 TAKE-HOME LESSON:

This case stands as a cautionary tale on the serious consequences of breaching legal professional privilege. Even in emotionally charged family law matters, ethical boundaries are non-negotiable. Unauthorised access to a party’s privileged documents—even if not shared directly with legal counsel—can irreparably taint proceedings and undermine public confidence in the justice system. Litigants and their lawyers must act with utmost integrity to preserve both procedural fairness and the appearance of justice.