Defries & Kemeny
[2022] FedCFamC1F 13
•19 January 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Defries & Kemeny [2022] FedCFamC1F 13
File number(s): BRC 10850 of 2013 Judgment of: HOGAN J Date of orders: 19 January 2022 Date of reasons: 20 January 2022 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Application to use affidavits filed in these proceedings in civil proceedings in the Supreme Court of Queensland – Whether the affidavits are subject to the Harman undertaking – Where the content of the affidavits was not the consequence of compulsion – Where the affidavits are not the subject of the implied undertaking – Declaration made in those terms. Legislation: Family Law Act 1975 (Cth) s 121 Cases cited: Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Nicholson, In the matter of Endeavour Securities (Australia) Limited (in liq) [2020] FCA 1773
Medway v Doublelock Ltd [1978] 1 WLR 710
Pace & Halkias [2021] FamCAFC 81
R v Silverstein [2020] VSCA 233
Re Addstone Pty Ltd (in liq); Ex parte Macks (1998) 30 ACSR 156; [1998] FCA 1680
Sinnott v Chief of Defence Force [2020] FCA 643
Woods, in the matter of T & F.S. Woods Pty Ltd v Woods [2021] FCA 1220
Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 19 January 2022 Place: Brisbane Counsel for the Applicant: Mr Hackett Solicitor for the Applicant: Evans Brandon Family Lawyers Solicitor for the First Respondent: Pharmacis Canning Lawyers Solicitor for the Second, Third, Fourth, Fifth, Sixth & Seventh Respondents: Wilsons The Family Lawyers ORDERS
BRC 10850 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BINGHAM AS CASE GUARDIAN FOR MS DEFRIES
Applicant
AND: MR KEMENY
First Respondent
H PTY LTD ACN …
Second Respondent
MS KEMENY
Third Respondent
(and others named in the Schedule)
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
19 JANUARY 2021
IT IS DECLARED THAT:
1.The following affidavits filed in the proceedings BRC10850/2013 are not the subject of an obligation owed to this Court not to use them for any purpose other than that for which they were given:
(a)Affidavit of Ms Defries sworn and filed 10 December, 2013; and
(b)Affidavit of Mr Kemeny sworn (and filed on or around) 4 February, 2014; and
(c)Affidavit of Ms E affirmed 12 February, 2014 and filed 28 February 2014; and
(d)Affidavit of Ms Bingham affirmed 13 February 2014 and filed 28 February 2014; and
(e)Affidavit of Ms E filed 31 July, 2014; and
(f)Affidavit of Mr F filed 1 August 2014 (inclusive of the annexed Single Expert report of Dr G dated 29 July 2014); and
(g)Affidavit of Ms Defries sworn 05 November, 2014 and filed 7 November 2014; and
(h)Affidavit of Ms Defries sworn and filed 13 November, 2014; and
(i)Affidavit of Mr Kemeny sworn and filed 24 November, 2016; and
(j)Affidavit of Mr Kemeny sworn 8 May, 2017 and filed 14 May 2017; and
(k)Affidavit of Mr Kemeny sworn 22 May, 2017 and filed 23 May 2017; and
(l)Affidavit of Ms Defries sworn and filed 8 August, 2017; and
(m)Affidavit of Mr Kemeny sworn and filed 2 July, 2020; and
(n)Affidavit of Ms E affirmed and filed 1 October, 2020; and
(o)Affidavit of Ms Defries sworn and filed 9 October, 2020; and
(p)Affidavit of Mr J Kemeny sworn and filed 9 October, 2020; and
(q)Affidavit of Ms Defries sworn and filed 11 June, 2021.
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 Defries & Kemeny has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
On 19 January 2022, I made a declaration that the affidavits the subject of the Application in a Proceeding sealed on 24 December 2021 were not the subject of an obligation owed to this Court not to use them for any purpose other than that for which they were given. I said that I would deliver written Reasons in support of that declaration.
These are those Reasons.
The Applicant and the First Respondent are currently engaged in litigation in the Supreme Court of Queensland. Whilst only the Applicant has filed a formal application in this Court, each seeks to be able to use, in those proceedings, various affidavits filed in these proceedings.
None of the Respondents oppose the relief sought by the Applicant in the current application. Such relief was that the Applicant and the First Respondent be permitted to disclose and use copies of the particularised affidavits for the purposes of the conduct of the ongoing civil proceedings in the Supreme Court of Queensland.
None of the material the subject of this application was produced to this Court in answer to subpoena directed to non-parties; none was an answer to an interrogatory. All are affidavits. It is accepted that none of the affidavits the subject of this application were filed in compliance with any specific order for the same to be filed; rather, each was filed as part of the relevant party’s case at various times or in compliance with the applicable Rules of the Court which, for example, required an affidavit to be filed in support of an Application in a Case.
Given this, it seemed to me that the first question to be answered was whether the affidavits are the subject of what has been described as “the implied undertaking” (commonly referred to as the “Harman undertaking”[1]), albeit that it has clearly been established that the same is a substantive obligation from which a party can only be released by the relevant Court.[2]
[1] Harman v Secretary of State for the Home Department [1983] 1 AC 280.
[2] Hearne v Street (2008) 235 CLR 125 at [3]; [105] – [107].
In Hearne v Street,[3] Hayne, Heydon and Crennan JJ[4] said, at [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…
(Footnotes omitted)
[3] (2008) 235 CLR 125.
[4]With whom Kirby J agreed (at [57]) in the circumstances his Honour explained in the reasons he delivered.
The reference to “affidavits” was accompanied by the citation of the following cases: Medway v Doublelock Ltd[5] and Re Addstone Pty Ltd (in liq); Ex parte Macks[6].
[5] [1978] 1 WLR 710.
[6] (1998) 30 ACSR 156.
Despite the clear reference to “affidavits” in the above, more recent authority about the scope of the implied undertaking in its application to affidavits filed in proceedings appears to have diverged about whether, and to what extent, a compulsory requirement to file an affidavit (and, as I interpret the authorities, more importantly, in relation to the contents of the same) is necessary before the operation of the implied undertaking is attracted.
The divergence of view has, helpfully, been the subject of consideration by Derrington J in Woods, in the matter of T & F.S. Woods Pty Ltd v Woods[7] (“Woods”) in which his Honour, again helpfully, referred specifically to Sinnott v Chief of Defence Force[8] (per Logan J) and R v Silverstein[9] (a decision of the Victorian Court of Appeal).
[7][2021] FCA 1220; see also: Nicholson, In the matter of Endeavour Securities (Australia) Limited (in liq) [2020] FCA 1773.
[8] [2020] FCA 643.
[9] [2020] VSCA 233.
As Derrington J noted in Woods (at [19]), the Victorian Court of Appeal in Silverstein noted (at [74]–[76]) that the cases cited by the High Court in Hearne in referring specifically to “affidavits” involved an affidavit in the nature of disclosure and an affidavit which had been ordered to be confidential.
In the present case, the affidavits the subject of the current application are not affidavits in the nature of disclosure; no order has previously been made for any of them to be kept confidential; the content of the same was a matter for each of the Applicant and the First Respondent.
Having regard to Silverstein and the comments of Derrington J in Woods,[10] and noting that Pace & Halkias[11] appears to have been argued on the basis of an acceptance by the parties that the implied undertaking applied to the affidavit, I consider that the affidavits the subject of the current application are not the subject of the implied undertaking because the contents of the same are not the consequence of the compulsion which is the fundamental rationale for the imposition of the implied undertaking.
[10] In particular at [18] – [23].
[11] [2021] FamCAFC 81.
To the extent that it is necessary that I do so, I record my view that s 121(9)(a) of the Family Law Act (1975) (“the Act”) – which provides that the preceding provisions of s 121 of the Act do not apply to or in relation to the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings – applies in the present case.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 20 January 2022
SCHEDULE OF PARTIES
BRC 10850 of 2013 Respondents
Fourth Respondent:
MR C KEMENY
Fifth Respondent:
MR D KEMENY
Sixth Respondent:
MS B KEMENY
Seventh Respondent:
L PTY LTD ACN …
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