Danks & McCabe
[2022] FedCFamC1F 960
Federal Circuit and Family Court of Australia
(DIVISION 1)
Danks & McCabe [2022] FedCFamC1F 960
File number(s): MLC 4677 of 2012 Judgment of: HARTNETT J Date of judgment: 6 December 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Harman Undertaking – Where the parties are engaged in proceedings in the Supreme Court of Victoria relating to a caveat lodged by the respondent – Where the release of documents is sought – Where the implied undertaking applies to the documents – Where special circumstances exist which would justify release from the implied undertaking – Order made. Legislation: Family Law Act 1975 (Cth) ss 90SM, 90SN
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.04
Transfer of Land Act 1958 (Vic) ss 90(3), 118
Cases cited: Dunn & Dunn (No 2) [2022] FedCFamC1F 76
Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613
Esso Australia Resources Ltd v Plowman (Minister for Energy & Minerals) (1995) 183 CLR 10
Harman v Secretary of State for Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125
Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283
Piroshenko v Grojsman (2010) 27 VR 489
Riddick v Thames Board Mills Ltd [1977] QB 881
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
Division: Division 1 First Instance Number of paragraphs: 37 Date of hearing: 9 November 2022 Place: Melbourne (via videolink) Counsel for the Applicant: Mr Fuller Solicitor for the Applicant: Lampe Family Lawyers The Respondent: Litigant in person ORDERS
MLC 4677 of 2012 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MCCABE
Applicant
AND: MR DANKS
Respondent
order made by:
HARTNETT J
DATE OF ORDER:
6 DECEMBER 2022
THE COURT ORDERS THAT:
1.The applicant and her legal advisers, and the respondent, be relieved of the implied undertaking provided by each of them to this Court with respect to the use of the following documents (“the Documents”) produced under compulsion in this proceeding and its related appellate proceedings (being MLC 4677 of 2012, SOA 89 of 2012, SOA 71 of 2013, SOA 89 of 2014 and SOA 89 of 2016) (“the Proceedings”):
(a)The respondent’s documents:
(i)all Applications including Amended Applications (including Initiating Applications, Applications in an Appeal, Enforcement Applications, Contravention Applications and Applications in a Case filed in the Proceedings);
(ii)Notices of Appeal including Amended Notices of Appeal filed in the Proceedings;
(iii)any affidavit sworn or affirmed and filed in the Proceedings;
(iv)his affidavit filed in the Proceedings on 2 November 2022;
(v)any written submissions and summaries of argument filed in the Proceedings.
(b)The applicant’s documents:
(i)Application in a Case filed 19 August 2014 in the Proceedings;
(ii)her affidavits sworn 18 August 2014 filed 19 August 2014, sworn 31 August 2016 filed 1 September 2016, and sworn 27 September 2022 filed 30 September 2022; and
(iii)affidavit of Mr B filed on behalf of the applicant on 31 October 2012.
(c)Other documents:
(i)Any orders and Reasons for Judgment;
With the documents, save as to those documents as sought by the respondent, being as set out in Orders (a)(iv), (b)(ii) save as to (b)(ii) affidavits filed 1 September 2016, and 30 September 2022, being those that are enumerated in the Schedule attached to these orders.
2.The relief from the implied undertaking referred to in Order 1 herein be limited to the use of the Documents in the Supreme Court of Victoria proceeding.
3.The applicant’s Amended Application in a Proceeding filed 14 October 2022 and the respondent’s Response filed 2 November 2022 be otherwise dismissed.
Schedule
PART 1
Matter MLC 4677 of 2012
1.The respondent's Initiating Application filed on 25 May 2012 seeking orders, amongst others, dividing the applicant's and the respondent's property;
2.The respondent's affidavit sworn on 25 May 2012 and filed in support of the Initiating Application filed on 25 May 2012.
3.The respondent's Application in a Case filed on 22 June 2012;
4.The respondent's affidavit sworn 21 June 2012 and filed in support of the Application in a Case filed on 22 June 2012;
5.The respondent's Application in a Case filed on 22 October 2012;
6.The respondent's affidavit sworn 19 October 2012 and filed in support of the Application in a Case filed on 22 October 2012;
PART 2
Matter SOA89 of 2012
7.The respondent’s Notice of Appeal filed on 11 December 2012
8.The respondent’s Amended Notice of Appeal filed on 8 February 2013;
9.The respondent’s Summary of Argument filed on 7 February 2013;
PART 3
Matter MLC 4677 of 2012
10.The respondent's Contravention Application filed on 28 December 2012;
11.The respondent's affidavit sworn 28 December 2012 and filed in support of the Contravention Application filed on 28 December 2012;
12.The respondents Contravention Application filed on 3 February 2014 ;
13.The respondent's affidavit sworn 3 February 2014 and filed in support of the Contravention Application filed on 3 February 2014;
14.The respondent’s Amended Contravention Application filed on 12 February 2014;
15.The respondent's Further Amended Contravention Application filed on 10 June 2014;
16.The respondent’s affidavit sworn 10 June 2014 and filed in support of the Contravention Application filed on 10 June 2014;
17.The respondent’s Application in a Case filed on 7 April 2014 seeking to Join Lampe Family Lawyers as a party;
18.The respondent's affidavit sworn 7 April 2014 and filed in support of the Contravention Application filed on 7 April 2014;
19.The respondent's affidavit sworn and filed on 7 July 2014;
Matter SOA59 of 2014
20.The respondent’s Notice of Appeal filed 8 September 2014;
21.The respondent’s Summary of Argument filed 12 January 2015;
Matter MLC 4677 of 2012
22.The respondent's affidavit sworn and filed on 2 August 2016;
Matter SOA89 of 2016
23.The respondent's Notice of Appeal filed on 6 October 2016;
24.The respondents Application in an Appeal filed on 9 January 2017;
25.The respondent’s affidavit sworn and filed on 9 January 2017;
26.The respondent's Summary of Argument filed on 9 January 2017;
27.The respondent's Written Submissions filed on 27 February 2017;
PART 4
Matter MLC 4677 of 2012
28.The respondent’s Application in a Case filed on 27 September 2013;
29.The respondent's affidavit sworn on 26 September 2013 and filed in support of the Application in a Case filed 27 September 2013;
Matter SOA71 of 2013
30.The respondent's Notice of Appeal filed on 4 November 2013;
31.The respondent’s Written Submissions filed on 17 March 2014;
Matter MLC 4677 of 2012
32.The applicant's Application in a Case filed on 19 August 2014
33.The applicant's affidavit sworn 18 August 2014
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Danks & McCabe has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
Preliminary
The applicant de facto wife (“the applicant”) by her Amended Application in a Proceeding filed on 14 October 2022, seeks orders granting her relief from the obligation/s contained in the implied undertaking, also known as the “Harman undertaking”,[1] in respect of documents filed or produced in Family Law Act 1975 (Cth) (“the Act”) proceedings between the parties in this Court, including related appellate proceedings. The applicant seeks permission to use these documents in litigation between the parties in the Supreme Court of Victoria, where such litigation concerns a caveat lodged by the respondent over real property of which the applicant is the sole registered proprietor.
[1] Harman v Secretary of State for Home Department [1983] 1 AC 280.
The respondent de facto husband (“the respondent”) by his Response to an Application in a Proceeding filed 2 November 2022, does not oppose Orders 1 and 2 (proposed Order 3 was not pressed by the applicant) as sought by the applicant in her Amended Application in a Proceeding filed 14 October 2022. The respondent seeks that he likewise be relieved of the Harman undertaking to the Court with respect to the same documents as sought by the applicant in her Amended Application in a Proceeding. Further, the respondent seeks that such relief be limited to the Supreme Court of Victoria proceedings as identified by the applicant. The respondent seeks further orders however, namely that he be relieved of the Harman undertaking for the purposes of the Supreme Court of Victoria proceedings (as identified by the applicant) in respect of the following additional documents:[2]
(1)affidavit of Mr B dated 31 October 2012;
(2)affidavit of the applicant dated 31 August 2016;
(3)transcript of the hearing at Suburb D Magistrates’ Court;
(4)affidavit of the applicant dated 27 September 2022;
(5)affidavit of the respondent dated 2 November 2022; and
(6)transcript of the hearing at the Federal Circuit and Family Court of Australia (Division 1) on 9 November 2022.
[2] Response to an Application in a Proceeding filed 2 November 2022, p.2.
The applicant opposes Order 2 as sought by the respondent in his response, namely that the additional documents as set out in [2] above be the subject of a release from the Harman Undertaking. The applicant seeks dismissal of that part of the respondent’s application.
Whilst both parties agree as to the terms of Orders 1 and 2, there cannot be a consent order to that effect as the implied undertaking has been given to the Court. Relief from the undertaking can only be given by the Court upon application made to it.
Materials relied upon
The applicant relied on the following material:
(1)Amended Application in a Proceeding filed 14 October 2022;
(2)her affidavit filed 30 September 2022; and
(3)her outline of case document (interim hearing) filed 2 November 2022.
The respondent relied on the following material:
(1)Response to an Application in a Proceeding filed 2 November 2022; and
(2)his affidavits filed 2 November 2022 and 6 November 2022.
Background
The relevant background was helpfully set out in the outline of case document filed by the applicant on 2 November 2022. I set out that background in the following paragraphs.
The parties were in a de facto relationship from in or around 1998 until their separation in or around April 2010.
During cohabitation in or about early 2003, the applicant purchased real property situated at E Street, Suburb F in the State of Victoria (“the Suburb F Property”) in her sole name. Such purchase was assisted by a bank loan as taken out solely by the applicant.
On 18 May 2012, being approximately two years post the parties separation, the respondent lodged a caveat on the Suburb F Property. The interest claimed in the caveat alleged that the applicant held the Suburb F Property on constructive trust for the respondent.
On 25 May 2012, the respondent issued proceedings for final property orders in the then Federal Magistrates Court of Australia (now the Federal Circuit and Family Court of Australia (Division 2)). Final property orders were made by consent on 15 August 2012.
On 22 October 2012, the respondent filed an Application in a Case to enforce the orders made 15 August 2012. That application was dismissed by Federal Magistrate Turner on 16 November 2012. The respondent subsequently appealed the dismissal of his enforcement application to the Full Court of the Family Court of Australia (“the Full Court”) on 11 December 2012. On 20 January 2014, the Full Court dismissed the appeal with costs. On 29 September 2015, the respondent sought special leave to appeal that decision to the High Court of Australia (“the High Court”). On 17 December 2015, the respondent’s special leave application was dismissed.
On 28 December 2012, the respondent filed a Contravention Application in the then Federal Magistrates Court of Australia (now the Federal Circuit and Family Court of Australia (Division 2), alleging a contravention by the applicant of the final orders made 15 August 2012. He subsequently withdrew that application.
On 27 September 2013, the respondent filed an Application in a Case in the then Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia (Division 2)) seeking injunctive relief. On 7 October 2013, Connolly J made orders for the collection of the respondent’s personal property as located on the Suburb F Property, and otherwise dismissed the application. On 4 November 2013, the respondent appealed Connolly J’s orders to the Full Court. The appeal was partially successful and on 9 May 2014, the Full Court made orders setting aside some of the primary judge’s orders, and otherwise re-exercised the discretionary power. The respondent was ordered to pay the applicant’s costs.
On 3 February 2014, the respondent filed another Contravention Application in the then Federal Circuit Court of Australia (now Federal Circuit and Family Court of Australia (Division 2)) alleging a contravention of the final orders. On 7 April 2014, by Application in a Case, the respondent sought to join the applicant’s lawyers to the proceeding. On 13 June 2014, Turner J dismissed the respondent’s joinder application with costs. On 1 September 2014, Turner J dismissed the Contravention Application with costs. The respondent subsequently appealed the Contravention Application dismissal to the Full Court on 8 September 2014. The appeal was partially successful, and on 15 September 2014, the Full Court set aside one of the orders made by Turner J, which was in relation to one count of contravention as alleged. On 25 September 2014, the Full Court remitted that single count to the then Federal Circuit Court of Australia (now Federal Circuit and Family Court of Australia (Division 2)) for re-hearing by a judge other than Turner J. The respondent sought, on 12 October 2015, special leave to appeal the decision of the Full Court to the High Court. In mid-2016, the High Court dismissed the special leave application with costs.
On 19 August 2014, the applicant filed an Application in a Case in the then Federal Circuit Court of Australia (now Federal Circuit and Family Court of Australia (Division 2)), seeking orders regarding the respondent’s failure to collect his personal property pursuant to the orders of the Full Court made on 9 May 2014. On 3 September 2014, orders were made by consent for collection of the personal property and for the respondent to pay the applicant’s costs.
On 9 September 2016, I heard, in the then Federal Circuit Court of Australia (now Federal Circuit and Family Court of Australia (Division 2)) that part of the Contravention Application which was remitted. I dismissed the remaining count with costs on 9 September 2016. On 9 January 2017, the respondent appealed the dismissal to the Full Court. On 2 March 2017, the Full Court dismissed the appeal. It ordered the respondent pay the applicant’s costs on a party/party basis, and counsel’s costs on an indemnity basis.
Supreme Court proceeding
The final property orders made by consent of the parties on 15 August 2012, wherein the applicant is referred to as the respondent, and the respondent, the applicant, are as follows:
1.That the Applicant pay to the Respondent the sum of $110,000 (“the payment”) on or before the 15th day of November 2012 (”the date”).
2.That contemporaneously with the payment:-
2.1The Respondent do all such acts and things and sign all such documents as may be required to transfer to the Applicant at the expense of the Applicant all of her right, title and interest in the real property situate at and known as [E Street, Suburb F] and being the whole of the land more particularly described in Certificate of Title Volume […] Folio […] (“the real property”);
2.2The Applicant indemnify the Respondent against all payments and liability pursuant to the mortgage registered No. […] to [C Bank] (“the mortgage”) and all rates, taxes, and outgoings of or with respect to the real property of whatsoever nature and kind;
2.3The Applicant discharge the mortgage registered No. […] to [C Bank] (“the mortgage”).
3.That in the event that the Applicant fails to make the payment and discharge the mortgage by the date then:-
3.1The Respondent shall have the right to elect, within 7 days of the date, to retain the real property;
3.2If the Respondent so elects, the Respondent shall pay to the Applicant the sum of $50,000 within 45 days of the date and contemporaneously with receipt of that sum the Applicant shall do all things and sign all documents required to withdraw, at his expense, any Caveat lodged on his behalf against title to the real property.
4.That in the event that the Applicant does not make the payment and discharge the mortgage required of him by the date provided for in order 1 and the Respondent does not elect or elects and does not make the payment required of her by the dates provided for in orders in 3.1 and 3.2 respectively as the case maybe ;
4.1The real property be forthwith sold altogether out of Court (“the sale”);
4.2 Upon completion of the sale, the proceeds of the sale be applied:-
4.2.1 Firstly to pay all costs, commissions and expenses of the sale;
4.2.2Secondly to discharge the mortgage and any other encumbrance affecting the real property;
4.2.3Thirdly the balance then remaining be divided in the proportions of:-
4.2.3.11/3 thereof to the Applicant;
4.2.3.2 2/3 thereof to the Respondent.
5.That pending the payment and discharge of the mortgage required of Applicant by the date provided for in order 1, the election required of the Respondent by the date provided for in order 3.1 or the payment required of Respondent by the date provided for in order 3.2 or completion of the sale, as the case maybe:-
5.1Subject to order 3 or the orders of the Court dated 4 July 2012, the Respondent have the sole right to occupy the real property and that during such right of occupation the respondent pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;
5.2The parties hold their respective interests in the real property upon trust pursuant to these Orders;
5.3Neither party encumber the real property without the consent in writing of the other party.
6.That liberty be reserved to either party to apply with respect to the terms and conditions of and execution of the sale.
7.That unless specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:-
7.1Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders (the furniture, personal possessions, and like chattels in the house on the real property being deemed to be in the possession of the Respondent and in the shed being deemed to be in possession of the Applicant.
7.2Monies standing to the credit of the parties in any joint bank account are to become the property of the Respondent;
7.3Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
7.4Insurance policies remain the sole property of the beneficiary named therein;
7.5Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
7.6Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
8.That the application of the Applicant filed on the 25th day of May 2012 and the application in a case filed on the 4th day of July 2012 be otherwise dismissed.
IT IS DIRECTED
9.That the Minutes of Consent Orders remain on the Court file.
10.That the lawyer for the Applicant file 3 clean copies of these Orders within 7 days.
11.That all property/maintenance issues be removed from the list of cases awaiting allocation to a judicial docket.
12.That any further hearing/conference date be vacated.
13.That pursuant to Chapter 19 of the Family Law Rules this matter reasonably required to attendance of Counsel.
THE COURT NOTES
That pursuant to Section 81 of the Family Law Act 1975 the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
Following the making of the above orders, and in the circumstances as provided for in the orders, the applicant retained her sole proprietorship of the Suburb F Property, subject to its mortgage encumbrance. Multiple requests have been made of the respondent by the applicant and/or her solicitors for the respondent to remove his caveat lodged against the Suburb F Property. The respondent has not done so.
On 18 March 2022, the applicant issued proceedings in the Supreme Court of Victoria (“the Supreme Court Proceedings”) seeking relief pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) for removal of the caveat as lodged by the respondent. The respondent is named as the first defendant, and the Registrar of Titles, to whom the applicant looks to forthwith remove the caveat from the Certificate of Title by order, is the second named defendant.
As correctly submitted by counsel for the applicant, a s 90(3) of the Transfer of Land Act 1958 (Vic) application is in the nature of a summary procedure. The applicable principles were dealt with by Warren CJ in Piroshenko v Grosjman (2010) 27 VR 489 at paragraphs [7]-[11]. The respondent, as caveator, is required to demonstrate that he has a prima facie case as to an interest in the Suburb F Property and also that the balance of convenience favours maintenance of the caveat. The applicant contends that the respondent will not make out either of those requirements, particularly having regard to the final orders made on 15 August 2012. Further, the applicant gave notice that she intends to amend her application in the Supreme Court Proceedings to include the seeking of damages against the respondent arising from a wrongfully lodged caveat, pursuant to s 118 of the Transfer of Land Act 1958 (Vic).
The applicant submits that relief from the Harman undertaking, in order to adduce evidence from proceedings in this Court, in the Supreme Court Proceedings, is sought for the following reasons:
(a)To demonstrate that the respondent’s right, under s 90SM of the Act, to seek an order altering the interests of the respondent and/or the applicant in all their property, including any interest of the nature pleaded by the respondent in the Grounds of Claim set out in his caveat that the applicant held the Suburb F Property on constructive trust for the respondent, to which either or both of them were entitled, was determined and extinguished on the making of the final orders.
(b)To argue that allowing the respondent to claim that he holds any interest in the Suburb F Property, including any interest of the nature pleaded by the respondent in the Grounds of Claim as set out in his caveat (that the applicant held the Suburb F Property on constructive trust for the respondent), when that claim was determined by the orders of 15 August 2012, gives rise to an estoppel and constitutes an abuse of process.
(c)To demonstrate that the respondent has known since 16 November 2012, that the final orders made 15 August 2012, could only be varied or set aside under s 90SN of the Act yet has not made an application under s 90SN of the Act. Such an application however, as asserted by the applicant, would be doomed to fail.
(d)To demonstrate that the respondent has failed or refused to comply with court orders, including an order to remove the caveat and multiple orders to pay the applicant’s costs.
(e)To demonstrate that the respondent has pursued numerous legal proceedings in respect of the meaning of the final Orders, which lacked reasonable grounds, and were baseless and hopeless.
(f)To demonstrate that the applicant is entitled to compensation pursuant to s 118 of the Transfer of Land Act 1958 (Vic).
Relevant legal principles
The nature of the “implied undertaking”, arising out of the Harman decision, was the subject of comment by the High Court in Hearne v Street (2008) 235 CLR 125 at 154:
96.Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.
The rationale of the principle is the public interest in protecting the privacy of the person compelled to produce documents via a court’s coercive powers. Parties are ‘privileged’ to be in a possession of another litigant’s documents.[3]
[3] Harman v Secretary of State for Home Department [1983] 1 AC 280, 320.
The impact of breaching the implied undertaking can be serious. A party who attempts to use material to which the undertaking attaches without first obtaining the leave of a court will be guilty of contempt. A proceeding commenced on the basis of information obtained in breach of the undertaking is liable to be struck out.[4] An injunction may also be issued to restrain the use of documents in breach of the implied undertaking.[5]
[4] Riddick v Thames Board Mills Ltd [1977] QB 881.
[5] Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613.
There are exceptions to the ‘rule’ including where the documents evidence a fraud or a crime and where it is in the public interest.[6] Another exception is where the document is read in open court or formally entered into evidence.[7] This is consistent with the principle of open courts. Some courts have express rules governing the undertaking. For the Court, the rule is partially codified in r 6.04 of the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (Cth). That rule is as follows:
[6] Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613.
[7] Esso Australia Resources Ltd v Plowman (Minister for Energy and Minerals) (1995) 183 CLR 10 at [32].
(1)A person who inspects or copies a document, in relation to a proceeding, under these Rules or an order:
(a) must use the document for the purpose of the proceeding only; and
(b)must not otherwise disclose the contents of the document, or give a copy of it, to any other person without the court's permission.
(2) However:
(a)a solicitor may disclose the contents of the document or give a copy of the document to the solicitor's client or counsel; and
(b)a client may disclose the contents of the document or give a copy of the document to the client's solicitor or counsel; and
(c)this rule does not affect the right of a party to use a document or to disclose its contents if that party has a common interest in the document with the party who has possession or control of the document.
The relevant test for leave is the establishment of ‘special circumstances’. The leading authority on the subject is Springfield Nominees Pty Ltd v Bridgelands Securities (1992) 38 FCR 217 at 225 in which Wilcox J held:
For "special circumstances" to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court’s discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.
The discretion is a broad one and all the circumstances of the case must be examined.[8]
[8] Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at [31].
Leave from the implied undertaking
The Federal Circuit and Family Court proceedings, as described in the preceding paragraphs, and the Supreme Court Proceedings currently on foot, have a common element in that they each relate to the respondent’s asserted interest, or lack thereof, in the Suburb F Property. The Federal Circuit and Family Court proceedings required the Court to consider each of the applicant’s and respondent’s legal and equitable proprietary rights and interests in the Suburb F Property in the exercise of the Court’s jurisdiction under s 90SM of the Act. The central issue in the Supreme Court Proceedings similarly involves the respondent’s (asserted) interest in the Suburb F Property and whether the Registrar of Titles should act, or not, to remove his lodged caveat. The main parties to each of the proceedings were and are the applicant and the respondent. The documents they each seek relief in respect of, are documents personal to them created for the purposes of the litigation. They include documents in respect of which orders were made in the proceedings by way of directions and trial management for the preparation of affidavits of evidence and for the filing of various notices and applications. There was an element of compulsion in respect of those documents, in my view, and I am content for the application for leave to be applicable to those documents – a matter not opposed by the respondent or applicant.
I find there is no issue of privacy or confidentiality or commercial sensitivity in respect of the documents for which the parties now seek leave from the implied undertaking. Indeed, none was argued.
Whilst I note the Registrar of Titles is added as a party in the Supreme Court Proceedings, given the nature of the application, I consider there is no real risk of the subject documents coming into the possession of third parties, other than the Registrar, and that there is no injustice caused to the party providing the document.
I conclude, as essentially conceded by the respondent in the respondent’s lack of opposition to the application of the applicant, that special circumstances exist which would justify a release from the implied undertaking in respect of the totality of the applicant’s documents. I shall make orders accordingly.
The respondent’s documents
The matters canvassed in [29] to [31] inclusive above, apply equally to the applicable documents as sought by the respondent save I note it is not for the Court to grant leave in respect of proceedings in another Court, and accordingly, there will be no leave given by the Court in respect of any proceeding in the Suburb D Magistrates’ Court. I note also that the respondent is at liberty to obtain his own transcript of the hearing before the Court, and seek to use it in what manner he chooses and/or is permitted in another forum. The transcript is not a document subject to the Harman undertaking.
The release from the implied undertaking, of the balance of the documents as sought by the respondent, is opposed by the applicant. The applicant submits such documents have no relevance to what the respondent may intend to argue in the Supreme Court Proceedings. Further, the applicant submits that use by the respondent of such documents would be contrary to the interests of justice. Two of those documents are affidavits of the applicant. The applicant did not however claim any prejudice in respect of the use of same.
The question as to whether there are special circumstances that warrant the release from the implied undertaking is answered by reference to all of the above and the question of whether the documents as sought by the respondent are likely to make a contribution to achieving justice in the Supreme Court Proceedings. The commonality of the relevant facts in both proceedings makes it likely, in my view, that there shall be such contribution, with a determination of the matter on its merit.
Further, it “is not a matter for the Court to determine the manner in which the respondent seeks to utilise the matters contained in the documents sought.”[9] In my view, it is a matter for the Supreme Court of Victoria whether the documents the respondent seeks to be able to use are relevant and/or admissible.
[9] Dunn & Dunn. (No 2) [2022] FedCFamC1F 76 at [20].
Finally, I reiterate that the release is sought for a proceeding, and only that proceeding, in respect of a caveat lodged by the respondent which existed at the time of the making of the final orders on 15 August 2012, and which exists to this day. In each set of proceedings its removal has been/is a pivotal issue. Whilst a limited release, of certain paragraphs of the documents sought to be included in the release from the implied undertaking by the respondent, was open as an argument to be asserted by the applicant, the applicant did not adopt that course.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 6 December 2022
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