Bergman and Porter

[2007] FamCA 161

FAMILY COURT OF AUSTRALIA

BERGMAN & PORTER [2007] FamCA 161

FAMILY LAW - PRACTICE AND PROCEDURE – Subpoenas – Application by party to proceedings to use documents produced to Family Court on subpoena in proceedings in other courts - Principles for grant of relief under relevant rule

Family Law Rules 2004 r 15.26 and 15.27

Springfield Nominees Pty Ltd and others v Bridgelands Securities Ltd and others (1992) 110 ALR 685;

Hatton v Attorney General of the Commonwealth of Australia and others (2000) FLC 93-038

APPLICANT: MR BERGMAN

RESPONDENT: MR PORTER

FILE NUMBER: MLF 5245 of 2003

DATE DELIVERED: 9 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: JUSTICE WATT

HEARING DATE: 22 August, 15 September 2006

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr St John SC

SOLICITOR FOR THE APPLICANT: Caroline Counsel Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Nicholson

SOLICITOR FOR THE RESPONDENT: Mills Oakley Lawyers Pty Ltd

Orders

1. That paragraph 8 of the orders made 23 December 2005 be discharged and Caroline Counsel Family Lawyers (by themselves, their servants or agents) be at liberty to provide or use copies of any or all documents delivered up to the Court by the representatives of the respondent pursuant to subpoena filed 4 April 2005 for the purposes of pursuit of litigation in any Court within/or outside Australia wherein the husband (or any company of which he is a director or shareholder) is a party and W Corporation and/or the respondent and/or the wife’s brother and/or any company or entity with which any or all are associated is a party.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 5245  of 2003

MR BERGMAN

Applicant

And

MR PORTER

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is (through his litigation guardian) a party to property settlement proceedings presently pending in this Court between him and his wife. He seeks leave to use documents produced to this Court on subpoena for the purposes of litigation in other courts. The relief he seeks is:

That paragraph 8 of the said orders be discharged and Caroline Counsel Family Lawyers (by themselves, their servants or agents) be at liberty to provide or use copies of any or all documents delivered up to the Court by the representatives of [the respondent] pursuant to subpoena filed 4 April , 2005 for the purposes of pursuit of litigation in any Court within/or outside Australia wherein the husband (or any company of which he is a director or shareholder) is a party and [W] Corporation and/or [the respondent] and/or [the wife’s brother] and/or any company or entity with which any or all are associated is a party.

1. The reference to “paragraph 8 of the said orders” is a reference to an order made by Young J on 23 December 2005. I will return to that order, and the events (relevant to the application before me) that preceded it, in due course. I am not hearing or case managing any other aspect of the proceedings between husband and wife, but from the material that was before me, it appears that those proceedings involve issues of some complexity, including property in Sweden and a property development in Fiji. I have little knowledge of the proceedings other than the outline provided to me when the application was argued and certain documents filed in the proceedings. I am aware that the proceedings between husband and wife have not yet come to trial, and there are ongoing interim disputes. Young J is managing this case.

1. The husband’s application was opposed by the respondent Mr Porter. He is the owner of the documents that the husband seeks to use in other proceedings. The documents in question were produced to the Court out of the possession of his solicitor pursuant to a subpoena issued with the leave of another judge of this Court on an occasion when the respondent failed to respond to a subpoena to produce the documents himself. The subpoena to the respondent was issued by the husband on 4 April 2005 and when he failed to comply with it, an application to enforce it was issued and came before Guest J on 16 December 2005. The respondent was represented on that day but did not produce the documents. His Honour then gave leave to the husband’s solicitor to issue a subpoena addressed to Mr L, a solicitor acting for the respondent, requiring him to produce the documents before Guest J at 2.15pm that day. The documents were produced, and the respondent was ordered to pay the husband’s costs of $1,840. It was common ground that at the time of production of the documents to the Court, there was no application made by the respondent to set aside the subpoena, nor did he object to the production of the documents. It is clear from r 15.26 of the Family Law Rules 2004 that this was the time for the making of any such application or objection.

1. There is no doubt that the respondent is the owner of the documents in question, that is to say, they are his copies of documents that all pertain to the affairs of W Corporation, a company incorporated in the Virgin Islands (‘[W]’).  The terms of the subpoena are set out in par 33 of this judgment. I will refer to the documents produced as “the [W] documents”.

1. Young J has been dealing with interim issues in the case and there was a hearing before him on 23 December 2005, a week after the W documents were produced to Guest J. At the hearing before Young J on 23 December 2005 the husband made application to his Honour to use the W documents in proceedings that were then foreshadowed by the husband to be commenced in the Supreme Court of Victoria. The respondent was not on notice of this application and so his Honour did not proceed to determine the issue raised by the husband, but ordered:

All documents produced to this court under subpoena are to remain with the subpoena clerk and not to be released or copied by legal practitioners, save for the purposes of and to be determined in this jurisdiction.

1. His Honour reserved liberty to the parties to apply in respect of the use of the W documents, and it was pursuant to that liberty that the husband sought the relief set out in par 6 of the husband’s application in a case filed 20 July 2006 (set out in par 1 above) that was referred to me for hearing.

1. That application came before me on 22 August 2006. Mr St John SC appeared for the husband and Mr Nicholson of counsel appeared for the respondent. On that occasion, the husband objected to the respondent’s appearance, arguing that he lacked standing to oppose the application, primarily for the reason that the documents that the husband sought leave to use for other purposes were in fact the documents of W. In the circumstance that the respondent was the owner of the documents that the husband sought to use for other purposes, I granted the respondent leave to oppose the relief sought by the husband. In my view he has a sufficient interest in the outcome of the application. It is after all, an application to use his documents, produced on subpoena to this Court, for purposes other than the purposes of the case in which the documents were subpoenaed.

1. At the hearing on 22 August it was not established to my satisfaction that W was on notice of the application, and it appeared to me that W would also have a sufficient interest to enable it to oppose the application. The solicitors who were acting for the respondent were not W’s solicitors. That said, however, it was asserted by the husband (but not proved to my satisfaction) that the respondent was a director of W. If he was at the time he was served, Mr St John SC submitted that service on the respondent would amount to service on the company by reason of s 109X(1)(b) of the Corporations Act 2001, which provides:

(1)  For the purposes of any law, a document may be served on a company by:

(a)   …; or

(b)  delivering a copy of the document personally to a director of the company who resides in Australia or in an external Territory; …

1. On 22 August 2006 I made orders that had the effect of requiring the husband to demonstrate that W was on notice of the husband’s application and his supporting material. W was given the opportunity, through my order, to appear independently of the respondent if it saw fit. I otherwise adjourned the matter to 15 September 2006.

1. W did not appear on the adjourned date.  I was satisfied that W was on notice of the application: a further affidavit of the husband’s solicitor had been filed, (sworn 7 September 2006) and annexed to it, inter alia, were the minutes of a meeting of the shareholders of W held on 31 March 2006. The respondent and the wife’s brother are shown as being in attendance, together with Mr G, solicitor, on behalf of the husband. On the second page of the minutes, item 58 “APPOINTMENT OF NEW DIRECTORS” records that it was resolved by all present that the husband, the wife’s brother, and the respondent be appointed as directors. No evidence or submission was advanced before me by the respondent to suggest that the minutes were not a true record of the meeting or that the appointments recorded in those minutes were no longer current. I was therefore satisfied that at the time of service on the respondent of the application before me, and its supporting material, the respondent was a director of W, and that W had notice of the application. I should mention that in the solicitor’s affidavit of 7 September 2006 she also deposes that the husband’s application and supporting documents were sent to W’s registered office by post, and to the wife’s brother also. The wife’s brother did not appear.

1. The hearing proceeded by way of oral submissions, with the husband and the respondent being the only parties, represented by the same counsel who had appeared for them at the earlier hearing.

Background to hearing

1. In order to put the application in context, I will identify the main participants in the litigation from which it arises:

Mr Bergman is the respondent husband in the family law property proceedings and his case guardian is Ms Bergman, an adult daughter of the husband by an earlier marriage.

Mrs Bergman is the applicant wife in the property settlement proceedings pending in this Court. She did not participate in the hearing before me, although a solicitor representing her sat in on the first hearing on 22 August 2006.

MS SARAH VORWERG of the firm Caroline Counsel Family Lawyers is the husband’s solicitor in the family law proceedings.

B2B lawyers are the husband’s solicitors in commercial matters.

The wife’s brother …, the respondent and the husband have jointly been involved through W in the development of a resort in Fiji. As between the husband, on the one hand, and the respondent and the wife’s brother on the other, there appears to have been a complete breakdown of their business relationship and there is litigation arising out of that breakdown. It is in the context of the litigation arising out of the breakdown of that commercial relationship that the husband seeks leave to use the W documents that were produced to this Court in other courts.

1. In the litigation between husband and wife in this Court, an interim order for spousal maintenance was made by Young J on 23 December 2005 requiring the husband to pay maintenance to the wife in the sum of $1,600 per week: par 1 of his Honour’s order made 23 December 2005 is the relevant paragraph. In the husband’s application in a case filed 20 July 2006, the first paragraph that sets out the relief sought is:

That paragraph 1 of the Orders made on 23 December 2005 (“the said Orders”) be discharged, inclusive of arrears.

1. In her response filed 15 August 2006 the wife seeks the dismissal of the husband’s application in a case. She also seeks certain further orders, including, in par 9, an order for the appointment of single expert witnesses to value “the assets which comprise the matrimonial pool including but not limited to …(b) (iii)   The joint venture development project at [W], Fiji;”

1. At the hearing before me, Mr St John stated that the husband’s interest in the project being conducted by W was one of the assets to be considered in the property proceedings and the extract from the wife’s response that I have set out above wherein she seeks a valuation of this asset certainly appears to confirm this.

The relevant Rule

1. DIVISION 15.3.2 of the Family Law Rules 2004 provides:

   15.27(1) This Division applies to a subpoena for production.

   15.27(2) A person who inspects or copies a document under these Rules or an order must:

   (a) use the document for the purpose of the case only; and 

   (b) not disclose the contents of the document or give a copy of it to any other person without the court's permission. (emphasis added)

2. This rule codifies in the rules of this Court a long standing restriction on the use of documents produced to or in a court for any other purpose. In relation to documents produced on subpoena, that restriction is described in one text to which Mr St John SC referred in these terms:

Any inspection of documents produced under subpoena carries with it an implied undertaking not to use the documents or information contained therein for purposes not directly connected with the conduct of the litigation, and to protect the confidentiality of the documents: Halsbury’s Laws of Australia, Volume 20 par 325-7605, p 595,892-3 footnotes omitted.

1. The Rules contain no guidance as to the circumstances in which it will be appropriate to grant the permission that may be sought under r 15.27(2)(b) or the matters to be taken into account by the court when considering such an application. Mr St John SC submitted that there was nothing in the High Court Rules that might assist and that recourse must therefore be had to the general law. Mr Nicholson did not submit to the contrary.

Evidence relied on by the husband

1. In support of his application, the husband relied on certain paragraphs of an affidavit sworn by his case guardian on 19 July 2006 (“[The husband’s daughter’s] affidavit”). The paragraphs relied on were identified in the written submission filed on behalf of the husband, and I will not recite the list of paragraphs here. The paragraphs relied upon provide most of the facts that I have set out in this background, and references to paragraphs by number that appear in this judgment are references to paragraphs of the daughter’s affidavit sworn 19 July 2006. The husband also relied on an affidavit sworn by Ms Vorwerg on 15 August 2006.

1. Paragraphs 21 and 22 of the daughter’s affidavit sworn 19 July 2006 are relied on. Paragraph 21 contains the following assertion:

Additionally, [the respondent] has issued proceedings against my father in the County Court of Victoria, which my father is defending, in respect of fees allegedly incurred by [W] Corporation in retaining Messrs Mills Oakley, Solicitors, to defend the proceedings in Fiji ….

1. Paragraph 22 is in these terms:

   On 19^th June 2006 my father instituted proceedings no. C1.06.02162 out of the County Court of Victoria against [W] Corporation seeking its compliance with a Shareholders Agreement between my father, [the respondent] and [the wife’s brother] and the Corporation which inter alia requires the production of documents relating to the financial affairs of the Corporation and its dealings with [the respondent] and [the wife’s brother].  The only directors and shareholders of the Corporation are [the respondent] and [the wife’s brother] any my father.  These arise because of the refusal of [the respondent] and [the wife’s brother] to provide relevant documents. B2B Lawyers represents my father in those proceedings.

2. Paragraph 33 confirms this in the following terms:

   As deposed in paragraph 22 of this my affidavit, my father issued County Court proceedings in an attempt to obtain all documents relevant to the Corporation and its dealings with [the respondent] and [the wife’s brother].

3. Paragraph 28 of the daughter’s affidavit recites the difficulties that the husband has had in accessing information relating to W in the wake of the breakdown of his commercial relationship with the respondent and the wife’s brother and contains allegations of serious irregularities in W’s bank security documents.

1. Ms Vorwerg deposes, in par 6 of her affidavit sworn 15 August 2006, that the documents produced by the solicitor were copied by her firm, and there was no complaint of irregularity before me concerning the copying of the documents. It was common ground that there was no application to set aside or limit the scope of the subpoena that resulted in the production of the documents to the court. It was, however, submitted by Mr Nicholson that the subpoena was an abuse of process, and that whilst no application to set it aside had been made at the time of production of the documents, I should refuse the husband’s application to use the documents for other purposes on this ground, amongst others. I will return to the respondent’s submissions in due course.

1. That brings me then to the husband’s application in a case filed on 20 July 2006, par 6 of which is set out in par 1 of this judgment. That application sought other heads of relief also and when it first came before Young J on 17 August 2006, his Honour referred par 6 to me for hearing in the interim defended list on 22 August 2006, with directions for the filing of documents by the respondent and the filing of written submissions on behalf of the husband and the respondent. As appears earlier in this judgment, at the hearing on 22 August 2006, Mr St John SC made objection, on behalf of the husband, to the respondent’s standing to oppose the application. The order that I made that day gave the respondent leave to oppose the husband’s application, and required further steps to be taken to ensure that W was on notice of the application.

1. The respondent did not file any formal response to the application, nor did he swear an affidavit responding to the affidavit material relied on by the husband. A written submission prepared by his counsel opposing the application was filed in accordance with Young J’s order.

1. The application before me was put on the basis that the husband was seeking the court’s permission to use the W documents for purposes other than the pending proceedings in this Court. The daughter’s affidavit makes this clear, as does Ms Vorwerg’s. After referring, in par 34 to the delay and expense incurred in obtaining the respondent documents in the first place, and to the fact that the respondent is often in Fiji, the daughter continues:

It will more rapidly progress the County Court proceedings, and save significant expense, if my father’s commercial solicitors are permitted access the subpoenaed documents. I seek …[permission]…  to make available copies of the subpoena’d documents for use in any proceeding involving my father (or any entity of which he is a director) against [W] Corporation and/or [the respondent] and/or [the wife’s brother].

1. The terms of the application itself make it clear that the permission sought to use the documents is not confined to the County Court proceedings in Victoria, and would enable the husband to use them in any other proceedings in any other court in Victoria, and in the courts of any other State or country.

The husband’s arguments

1. The husband’s written submission recites the history of the process by which the documents came to be produced to this Court, and the fact that the husband, the respondent and the wife’s brother are the only directors of W. The “only directors” assertion was later modified to “are three” directors. The respondent’s submission confirms that the husband, the respondent and the wife’s brother are shareholders in W, but is silent on the subject of directorships. It appears clear that the husband, the respondent and the wife’s brother  are the only shareholders in W.

1. The written submission of the husband recites the County Court proceedings described in the daughter’s affidavit (see pars 20-22 of this judgment) and states that the proceedings instituted by the husband in the County Court of Victoria seek W’s -

   compliance with the shareholders agreement between itself, the husband, [the respondent] and [the wife’s brother] which inter alia requires the production of documents relating to the financial affairs of the corporation and its dealings with [the respondent] and [the wife’s brother].

1. The originating Motion in the County Court proceedings issued by the husband against W on 19 June 2006 was put into evidence as exhibit H1 before me on 15 September 2006. In it the plaintiff seeks, as orders 1 (1) (2) and (3) that :

1.   The defendant comply with clause 14.1 of the Shareholders Agreement dated 1 October 2002 and made between [the wife’s brother], [the respondent] and the plaintiff on the one part and the defendant on the other part (copy of which is annexed) by:

(1)  providing full particulars of any agreement, arrangement or understanding to which the winding up proceedings commenced by [the wife’s brother] against the Company in the High Court of Fiji was discontinued, and copies of all documents recording or evidencing the terms upon which the proceeding was discontinued.

(2)  Providing copied of the financial statements of the Company for the financial year ended 30 June 2005 showing the Company’s debtors, creditors and cash flow.

(3)  Provide copies of the books and records of the Company comprising all books of account, journals, ledgers, invoices, receipts, payments, bank statements and credit card statements since 1 January 2004.

1. Ms Vorwerg confirms, in par 6 of her affidavit, that some of the documents sought in the last mentioned County Court proceeding are the same as documents being sought by the husband in these proceedings before me.

1. I will now set out the terms of the subpoena that was issued by the husband that led to the production of the W documents to this Court:

All correspondence, documents, Memoranda, files and records relating to the [W] Corporation including but not limited to, all:

(a)Shareholders Agreements;

(b)Resolutions;

(c)Minutes of Meetings;

(d)Progress reports;

(e)Cash Calls;

(f)Bank Account Statements;

(g)Taxation Returns;

(h)Balance Sheets;

(i)Profit and Loss Statements;

(j)Final Accounts;

(k)Audited accounts;

(l)Journals and internal records detailing account transactions, accruals, receipted funds including shareholders’ contributions, amortisation, depreciation schedules and write offs;

(m)Correspondence between you and solicitors representing the [W] Corporation;

(n)Communication between you and shareholders.

1. Clearly the documents produced to this Court include some of the documents sought in the County Court proceedings, and others could well be relevant to the prosecution of those proceedings by the husband, and also in the defence of the proceedings issued by the respondent in relation to costs incurred by W in defending proceedings in Fiji: see par 20 of this judgment.

1. Mr St John SC submitted, on behalf of the husband, that whilst there are many cases which establish that there is an implied undertaking to use documents supplied pursuant to court process, including subpoenae, only for the proper purposes of that proceeding, there are few cases that discuss the relevant considerations where release of the implied undertaking is sought.

1. I was referred to a number of cases touching on the issue and, in particular, Mr St John SC placed reliance on the decision of Wilcox J sitting in the General Division of the Federal Court of Australia in Springfield Nominees Pty Ltd and others v Bridgelands Securities Ltd and others (1992) 110 ALR 685.

1. I am satisfied that the headnote accurately summarises the issues and his Honour’s findings and rulings in relation to them. It is in these terms:

Practice and procedure – Witness statements – Application to use witness statement in other proceedings – Whether leave of court necessary – Whether “special circumstances” required for leave to be granted – What amounts to special circumstances.

Words and phrases – “special circumstances”

P made a written statement in these proceedings pursuant to court directions. The proceedings settled, and P’s statement was never read in open court. The applicant, a defendant in proceedings in the Supreme Court of New South Wales, filed a notice of motion seeking the court’s leave to use P’s statement in the Supreme Court proceedings. The notice of motion was served on P and the plaintiff in the Supreme Court proceedings. Neither of the parties to the Supreme Court proceedings were parties to these proceedings. P had refused to consent to the use of the statement by the applicant in the Supreme Court proceedings. P did not appear at the hearing of the motion, but the plaintiff in the Supreme Court appeared and opposed the motion on the basis that the court could only grant leave to use a statement if the applicant demonstrated there were special circumstances allowing the court to override the implied undertaking attaching to a statement of evidence that it will not be used for any collateral purpose.

Held, granting leave:

(i)    Witness statements and affidavits filed or given in litigation were, like discovered documents and answers to interrogatories, brought into existence for the purpose of the instant litigation and may contain confidential or personal information and may or may not be read in open court. They were therefore subject to an implied undertaking that they would not be used for any collateral purpose, that is, otherwise than for the purpose of the litigation in which they are given, unless the consent or leave of the court is obtained.

Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509, approved.

Home Office v Harman [1983] 1 AC 280; Crest Homes PLC v Marks [1987] AC 829; Ainsworth v Hanrahan (1991) 25 NSWLR 155, followed.

(ii)The court would not release or modify the implied undertaking save in special circumstances and where the release or modification will not occasion injustice. For special circumstances to exist it was enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking. It is then a matter for the discretion of the court.

Crest Homes PLC v Marks [1987] AC 829; Holpitt Pty v Varimu Pty Ltd (1991) 29 FCR 576; 103 ALR 684; Sweetman v Australian Thoroughbred Finance Pty Ltd ((1992) unreported), followed.

(iii)The degree of commonality between the proceedings in the Supreme Court and these proceedings was sufficient to constitute special circumstances. Both concerned overlapping time periods and the relationship of P with certain companies.

(iv)  The court would grant leave in its discretion because the statement did not contain personal data or commercially sensitive material, it did not exist prior to the litigation in which it was given. P did not resist the application and the statement contained material relevant to the issues in the Supreme Court proceedings.

Observations on circumstances to which the court may have regard when considering if special circumstances exist.

1. In concluding his written submissions on behalf of the husband, Mr St John SC asserted that:

24.Release of the documents here proposed is not for any improper purpose but expressly for the purposes of conducting litigation. No privacy of [the respondent] is impinged upon. The Corporation, [the respondent] and [the wife’s brother] are relevant parties to all the litigation and/or proposed litigation. There is a mutuality of facts relevant not only to the proceedings in the Family Court but also in both the present and other possible jurisdictions.

Submissions on behalf of the respondent

1. As stated earlier, the respondent’s primary submission was that the subpoena was an abuse of process.

1. After reciting the history of and background to the application before me, the written submission filed on behalf of the respondent asserts that the subpoena itself is an abuse of process in that “on its face it has no relevance to the proceedings between the husband and the wife, and is simply a fishing exercise engaged in by the husband to assist him in proceedings other than the proceedings in this court.”

1. Even if not an abuse of process at the time of issue, it was argued, the husband’s subsequent applications to use the documents for other purposes have made it an abuse of process.

1. The submissions made on behalf of the respondent continue on the basis that the wife has not made any submission on the issue before me, and that the admissibility of the subpoenaed documents remains a live issue in the proceedings before this Court.

1. Certain authorities are relied upon by the respondent, notably the decision of the Full Court of this Court in Hatton v Attorney General of the Commonwealth of Australia & Others (2000) FLC 93-038, which cited with approval the decision of National Employers General Insurance Association Ltd v Waind [1978] 1 NSWLR 372 (at pp 381-2):

… The issue of a subpoena may involve an abuse of the power in other ways and … objection to production to the court may be on other grounds.  Thus, it would be an improper use of the subpoena if it were not sought for the purpose of the litigation, but for some spurious purpose, such as to inspect the documents in connection with other proceedings, or for some private purpose, (emphasis added) or in collusive proceedings to give them publicity. A witness might argue the documents must be sought for some undefined spurious reason, as they have no conceivable relation to the proceedings. The court would jealously consider any of such submissions having regard to the invasion of the private rights of the stranger occasioned by the operation of the subpoenaed: see page 5 of [the respondent’s] submissions – emphasis as per written submissions.

1. Reliance is also placed by the respondent on s 121 of the Family Law Act 1975 which prohibits publication of details of proceedings under the Act unless for certain specified purposes.

1. The respondent’s submission then identifies the passages in the affidavits of the daughter and Ms Verwerg that refer to the County Court proceedings instituted by the husband to obtain documents from W, and to the assertion put forward on behalf of the husband that the release of the documents will more rapidly progress proceedings in another court and save the husband considerable expense.

1. The respondent’s submission continues that the convenience of the husband is not a matter which should be considered by this Court in reaching a determination upon the issue raised in the husband’s application, “as convenience is no defence to an abuse of process”

1. On behalf of the respondent, Mr Nicholson submitted, in oral argument, that a person producing documents on subpoena to a court is entitled to expect that they will go no further than the court to which they have been produced. He submitted that to make the order sought would create new law, and might produce a flood of applications to use documents for other purposes. It might also create uncertainty in the minds of those served with a subpoena to produce documents to this Court as to whether permission to use the documents for other purposes might be granted. He also submitted that the time to make this application was when the proceedings between husband and wife were concluded, and a view could then be formed about whether the W documents had been relevant to the proceedings.

Abuse of process?

1. I will start with the proposition that the subpoena is an abuse of process, or that it has become an abuse of process because of the application now made by the husband to use the documents in other proceedings.

1. For a third party such as the husband to demonstrate that the subpoena was (or has become) an abuse of process in the circumstances of this case, I find that he would have to demonstrate that its purpose was of the kind alluded to in the judgment in Waind, set out above, namely, that it was not issued for the purposes of the litigation in this Court, but for some spurious purpose such as to inspect the documents in connection with other proceedings.  As was said in that case:

A witness might argue the documents must be sought for some undefined spurious reason, as they have no conceivable relation to the proceedings.

1. Indeed the husband has so argued, but can he succeed in that argument? I think not. In pars 13 and 14 of this judgment I have made reference to the interim maintenance order made on 23 December 2005, the husband’s application to discharge that order and the wife’s response opposing that course by seeking dismissal of the husband’s application. I also made reference to that part of the wife’s response that seeks the appointment of a single expert valuer to value the husband’s interest in the W development.

1. It is abundantly clear from the daughter’s (first) affidavit that the purpose of much of the evidence that is given by her about the W development is to demonstrate that that project is not a source of income from which the husband can pay the maintenance, and indeed the conflict and uncertainty in which that project is embroiled are clearly being advanced in support of the husband’s application for the discharge of the maintenance order.

1. It is also clear from the wife’s response that the asset represented by the husband’s interest in that project forms part of the property of the parties to be considered in the property settlement proceedings, and this was confirmed by Mr St John SC on behalf of the husband.

1. In those circumstances, whilst the admissibility of the documents produced under subpoena has not been ruled on in either interim (maintenance) proceedings, or in the final property hearing, it cannot be said that the documents have no conceivable relation to the proceedings, or that they must have been sought for some spurious reason.

1. The documents are potentially very relevant to both the interim maintenance and property settlement proceedings, and I am therefore unable to accept the submission that the subpoena was, or has become, one that can be characterised as an abuse of process.

Are there special circumstances?

1. In Springfield Nominees, Wilcox J identified the need to establish some special circumstance to justify relieving a party from the restraint on disclosure of documents that, in this case, is imposed by the Family Law Rules.  The court must also be satisfied that the release would not occasion injustice.

1. The first step in property proceedings in this Court is to identify and value the property of the parties. That has been recognised for many years now and was recently restated by the Full Court of this Court in Hickey and Hickey and Attorney-General for the Commonwealth Of Australia (Intervener) (2003) FLC 93-143 in par 39:

39. The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter- related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. …

1. The wife clearly recognises this approach in her application seeking the appointment of a valuer for assets, including the W development.

1. A dispute between co-proprietors of an asset such as exists in this case between the husband and the other shareholders of W is something that may impact on the value of the husband’s interest, or may impede the capacity of a valuer to value the asset. It seems to me that the speedy determination of such disputes may produce more expeditious preparation of this case for trial and reduce the possibility of delay because of pending proceedings that have to be completed before the extent of the assets available for distribution can be determined: see Prince v Prince (1984) FLC 91-501.

1. I find that there is thus a degree of commonality between the proceedings in this court and proceedings in other courts in which the husband is now involved or may be instituted in accordance with the relief he seeks, and that amounts to special circumstances in this case.

Will release occasion injustice?

1. It was not argued on behalf of the respondent that he would suffer injustice if the documents were released. He did not submit that they contain information that is personal to him, or that is commercially sensitive. There can be no injustice in these circumstances.

1. Apart from the submission that the subpoena was an abuse of process, the respondent asserted that the husband’s convenience was not a sufficient basis on which to exercise the discretion in his favour.  Whist mere convenience may not be a sufficient basis on which to exercise the discretion, it will in fact advance the interests of both husband and wife if disputes in relation to W (or between its shareholders) can be dealt with expeditiously and possibly determined before trial.

1. It is also significant, in my view, that the wife advanced no arguments in opposition to the application, and W did not participate in the proceedings at all.

1. I consider that there is no merit in the submission advanced on behalf of the respondent based on s 121 of the Family Law Act 1975. The prohibition imposed by the section is subject to an exception in relation to: 

the communication, to persons concerned in proceedings in any court, of any pleading transcript or other document for use in connection with those proceedings: s 121 (9) (a),

and in my view, that exception would apply to the uses to which the husband proposes to put the W documents, but even if I am wrong in that view, the respondent still has the protection afforded by that section, to the extent that if the husband committed an offence under that section, my order would not absolve him of culpability if the exception was held not to apply.

The ‘floodgates’ argument

1. It is true that counsel were unable to refer me to any decisions of this Court, reported or unreported, where an application under r 15.27 has been determined in circumstances where the use to which the documents were to be put was, as here, in proceedings not in this Court. There may therefore be an element of new law about this decision, certainly for this Court.

1. I find, however, that Wilcox J’s decision in Springfield Nominees provides appropriate and persuasive guidance as to the matters to be considered in applications under the rule, which appears to be, as I have held, a codification of the general law principles applied in other courts for many years. As long as applications such as this are heard only when all interested parties have had an opportunity to be heard, where special circumstances are found, and where no identifiable injustice will flow from the making of the order, I can see no basis for concern that any relevant floodgate will be opened by the making of an order of the kind sought here.

1. True it is that the order sought is wide in its application, in that it enables the documents to be used in other courts and in courts in other countries, and includes proceedings not yet on foot, and perhaps not yet in contemplation.

1. The common factor that must be present, however, is that certain parties (or their associated entities) must be part of the litigation. As appears earlier, some of these parties have already been involved in litigation in Fiji, and that litigation (or its discontinuance) gave rise to one of the actions now pending in the County Court of Victoria. The other pending action in that court is between the husband and W over alleged breach of an agreement with shareholders. I am satisfied that the range of litigation already commenced establishes that there is scope for other actions to be brought involving the same parties. It was submitted on behalf of the respondent that the appropriate place to seek production of the relevant documents was in the court where the other actions are or might be instituted. I was not addressed on the power of a court in Fiji to order production of documents from Australia, but if such a course is available, it may be a slow and difficult process to put it into effect. Here, the husband already has copies of the documents. He has knowledge of their contents, and it seems to me that it could be putting him to inordinate expense and difficulty if he is not given the permission that he seeks to pursue the aftermath of the breakdown of commercial relationships with the other shareholders in W armed with the documents that he now holds, but properly seeks permission to use in other proceedings before doing so.

Conclusion

1. I consider that in the circumstances established by the evidence before me, and in the context of the ongoing proceedings between husband and wife, it is appropriate to grant the husband leave under r 15.27 to use the documents for other purposes. The subpoena cannot be said to be an abuse of process where the documents in question may well have a bearing on matters before the court in the interim and final proceedings now on foot between husband and wife, nor can the subpoena be said to have been issued for some spurious purpose. There is no assertion of injustice to the owner of the documents, and the Corporation whose activities and records they relate to does not object, nor does the wife advance any argument in opposition. In addition, the release of the documents may advance the progress of the litigation in this Court by facilitating the identification and valuation of assets available for distribution.

1. I will therefore make the order sought by the husband.

Order

1.That paragraph 8 of the orders made 23 December 2005 be discharged and Caroline Counsel Family Lawyers (by themselves, their servants or agents) be at liberty to provide or use copies of any or all documents delivered up to the Court by the representatives of [the respondent] pursuant to subpoena filed 4 April 2005 for the purposes of pursuit of litigation in any Court within/or outside Australia wherein the husband (or any company of which he is a director or shareholder) is a party and [W] Corporation and/or [the respondent] and/or [the wife’s brother] and/or any company or entity with which any or all are associated is a party.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Watt delivered this day will for all publication and reporting purposes be referred to as Bergman v Porter.

I certify that the preceding 69 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watt

Associate: 

Date:  9 March 2007