DOQ17 v Australian Financial Security Authority (No 3)
[2019] FCA 1488
•10 September 2019
FEDERAL COURT OF AUSTRALIA
DOQ17 v Australian Financial Security Authority (No 3) [2019] FCA 1488
File number: NSD 1319 of 2017 Judge: PERRY J Date of judgment: 10 September 2019 Catchwords: FAMILY LAW AND CHILD WELFARE – where orders made by Family Court on application by the trustee in bankruptcy setting aside earlier consent orders transferring former husband’s interest in the matrimonial home to the applicant and vesting the property in trustees for sale – where applicant sought to undertake collateral attack on Family Court decision – where notation on Family Court orders that judgment is published under a pseudonym approved under s 121, Family Law Act 1975 (Cth) – where unredacted orders uploaded onto Register pursuant to s 86, Real Property Act 1900 (NSW) and attached to contract for sale of the property – where names of parties to Family Court proceedings disclosed in professional papers published by solicitor – where adverse findings against applicant in the Family Court proceedings (the judgment information) potentially discoverable by members of the public searching internet as a result of disclosure of applicant’s name – where s 121 qualifies the principle of open justice – where s 121 facilitates the administration of justice in the public interest – whether s 121 creates a statutory cause of action sounding in damages – consideration of relevant principles for determining whether an action lies for breach of statutory duty – where cause of action for damages for breach of s 121, Family Law Act devoid of merit
HUMAN RIGHTS – Privacy – whether Part 8 Privacy Act 1988 (Cth) creates a right of action for breach of a National Privacy Principle – whether Family Court orders constitute “personal information” about the applicant within s 6, Privacy Act –where respondents not subject to National Privacy Principles – where no private cause of action for breach of a National Privacy Principle – where inappropriate vehicle to consider any possible development of a tort of privacy
TORTS – where applicant alleged breach of equitable obligation of confidence owed by trustees in bankruptcy and for sale, the solicitor acting for the trustees in the sale of the property, and the real estate agent – discussion of the requirements for an action in breach of confidence – whether the applicant’s name and judgment information lacked the necessary quality of privacy or confidentiality – whether information communicated in circumstances importing an obligation of confidence – whether information “used” in any relevant sense – claim for damages for breach of confidence dismissed
NEGLIGENCE – where applicant alleged breach of duty of care by each respondent – where Civil Liability Act 2002 (NSW) is applied as federal law by operation of s 79, Judiciary Act 1903 (Cth) – whether applicant established that a person of “normal fortitude” might suffer a recognised psychiatric illness within the meaning of s 32, Civil Liability Act if reasonable care not taken – where extreme or idiosyncratic response to discovery of disclosure of information – whether implying a duty of care would be inconsistent with fiduciary duties owed by the solicitor to the trustee client – whether duty of care would conflict with the statutory powers and duties imposed on Registrar-General read in the context of the purpose of maintaining the Register and no-fault compensation scheme under the Real Property Act – where exclusion of liability in s 146, Real Property Act – whether any evidence of causation – where action in negligence dismissed
PRACTICE AND PROCEDURE – where applications for adjournment of hearing dismissed
Legislation: Civil Liability Act 2002 (NSW) ss 5D, 31, 32
Family Law Act 1975 (Cth) s 121
Federal Court Act 1976 (Cth) ss 37M, 37N
Judiciary Act 1903 (Cth) s 79
Privacy Act 1988 (Cth) s 93
Real Property Act 1900 (NSW) s 146
Federal Court Rules 2011 (Cth)
Cases cited: AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395; [2011] Aust Torts Reports 82-077
Austen v Civil Aviation Authority (1994) 50 FCR 272
Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63; (2001) 208 CLR 199
Beach Petroleum NL v Kennedy [1999] NSWCA 408; (1999) 48 NSWLR 1
CFB18 v Reader Lawyers and Mediators [2018] FCA 611
Challenger Managed Investments Ltd v Direct Money Corp Pty Ltd [2003] NSWSC 1072; (2003) 59 NSWLR 452
Coco v A N Clark (Engineers) Ltd [1969] RPC 41
Commonwealth v Introvigne (1982) 150 CLR 258
Commonwealth v John Fairfax & Sons Limited (1980) 147 CLR 39
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1
D v Australian Financial Security Authority [2017] NSWCA 50
Day v Lynn [2003] FCA 879
Debrossard & Carey [2015] FCCA 2739
Debrossard & Carey [2014] FCCA 2915
Debrossard & Official Trustee in Bankruptcy [2011] FamCA 648
Debrossard & Official Trustee in Bankruptcy [2016] FamCAFC 217
Dennis v Brownlee (1963) 80 WN NSW 1239
DOQ17 v Australian Financial Security Authority (No 2) [2018] FCA 1270
DOQ17 v Australian Financial Security Authority [2018] FCA 561
Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International NV (No 2) [2007] FCAFC 121
Gibb & Gibb (1978) FLC 90-405
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Hamod v New South Wales [2011] NSWCA 375
Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 at 807; [1995] 4 All ER 473
Le Lievre v Gould [1893] 1 QB 491
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75
Luck v University of Southern Queensland [2008] FCA 1582
Marshall v Prescott [2015] NSWCA 110
Maynes v Casey [2011] NSWCA 156
Minister for Immigration and Border Protection v Egan [2018] FCA 1320
Northern Territory v Mengel (1995) 185 CLR 307
O’Connor v S P Bray Ltd (1937) 56 CLR 464
Okwume v Commonwealth [2016] FCA 1252
Optus Administration Pty Limited v Glenn Wright [2017] NSWCA 21; (2017) 94 NSWLR 229
Pyrenees Shire Council v Day (1998) 192 CLR 330
Re W: Publication Application (1997) 137 FLR 205
Rizeq v Western Australia [2017] HCA 23; (2017) 262 CLR 1
Sitwell v Sitwell [2014] FamCAFC 5
Smith Kline & French Laboratories (Aust) Limited v Secretary, Department of Community Services and Health (1990) 22 FCR 73
Sovar v Henry Lane Pty Limited (1957) 116 CLR 397
SRD v Australian Securities Commission (1994) 52 FCR 187
Streetscape Projects (Australia) Pty Ltd v City of Sydney [2013] NSWCA 2; (2013) 85 NSWLR 196
Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182
Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562
SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445
Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA 45; (2007) 233 CLR 528
Wicks v State Rail Authority of New South Wales [2010] HCA 22; (2010) 241 CLR 60
Date of hearing: 13-14 September 2018 Date of last submissions: 22 November 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 229 Counsel for the Applicant: The Applicant appeared in person Counsel for the First, Second, Third and Seventh Respondents: Ms C Amato Solicitor for the First, Second, Third and Seventh Respondents: HWL Ebsworth Lawyers Counsel for the Fourth Respondent: Mr G P Craddock SC Solicitor for the Fourth Respondent: Mullane & Lindsay Counsel for the Fifth Respondent: Mr H Altan Solicitor for the Fifth Respondent: Office of the Registrar General of New South Wales ORDERS
NSD 1319 of 2017 BETWEEN: DOQ17
Applicant
AND: AUSTRALIAN FINANCIAL SECURITY AUTHORITY
First Respondent
PHILLIP MADDEN
Second Respondent
TARA CZINNER (and others named in the Schedule)
Third Respondent
JUDGE:
PERRY J
DATE OF ORDER:
10 SEPTEMBER 2019
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the first, second, third, fifth and seventh respondents’ costs as agreed or assessed.
3.The fourth respondent is to advise the Associate to Justice Perry and, by email, the Applicant as to whether the fourth respondent intends to press an application for indemnity costs on or before 4pm on Friday, 13 September 2019.
4.In the event that the fourth respondent does not press the application referred to in order 3 above, the applicant is to pay the fourth respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRY J:
1 INTRODUCTION
[1]
2 THE APPLICATIONS FOR AN ADJOURNMENT
[7]
2.1 Background to the applications
[7]
2.2 The bases upon which an adjournment was sought
[15]
2.3 The applicant’s submissions at the hearing
[19]
2.4 The reasons why the applications for an adjournment were dismissed
[30]
3 EVIDENCE
[34]
3.1 The applicant’s evidence
[34]
3.2 Evidence relied upon by the respondents
[39]
4 BACKGROUND
[40]
4.1 The Family Court proceedings leading to the orders for sale of the matrimonial home
[40]
4.2 The contract for sale
[48]
4.3 Non-litigious avenues of complaint pursued by the applicant
[67]
4.4 Summary dismissal of the claim in the FCC for alleged contraventions of s 121, Family Law Act (Debrossard & Carey [2014] FCCA 2915 and [2015] FCCA 2739)
[75]
4.5 Institution of the present proceedings in the District Court of New South Wales and the application for summary dismissal
[81]
4.6 The application for leave to appeal to the New South Wales Court of Appeal
[85]
5 THE ISSUES
[86]
5.1 A threshold issue: to what extent does the applicant’s Statement of Issues raise issues legitimately within the scope of the litigation
[86]
5.2 Overview of the applicant’s claims
[94]
5.3 Overview of the respondents’ submissions
[99]
6 FINDINGS ON FACTUAL ISSUES IDENTIFIED BY THE PARTIES
[101]
7 THE ALLEGED BREACH OF S 121, FAMILY LAW ACT
[112]
7.1 Relevant principles
[112]
7.2 No cause of action in damages arises from a breach of s 121, Family Law Act
[123]
8 THE ALLEGED BREACH OF THE PRIVACY ACT
[143]
8.1 The issues
[143]
8.2 The claim for damages under the Privacy Act must be dismissed
[144]
8.2.1 The NPPs under the Privacy Act do not apply to the first, second, third and fourth respondents
[144]
8.2.2 There is no private cause of action for breach of the Privacy Act and NPPs in any event
[152]
8.2.3 The applicant’s reliance on ss 89 and 93 of the Privacy Act is misplaced
[155]
9 THE CLAIM FOR DAMAGES FOR BREACH OF CONFIDENCE
[159]
9.1 Relevant principles
[159]
9.2 The claim for breach of confidence must be dismissed
[169]
10 THE ALLEGED BREACHES OF DUTY OF CARE
[179]
10.1 Application of the Civil Liability Act as surrogate federal law by operation of s 79, Judiciary Act 1903 (Cth)
[179]
10.2 Preconditions to the existence of a duty of care imposed by s 32(1), Civil Liability Act
[182]
10.3 Causation provisions of the Civil Liability Act
[192]
10.4 The cause of action in negligence as against the first, second, third, fourth and seventh respondents must fail
[195]
10.4.1 The risk of injury was not reasonably foreseeable
[196]
10.4.2 The imposition of a duty of care upon Ms Nash would be inconsistent with fiduciary duties owed to the trustee in bankruptcy
[197]
10.4.3 In any event, there is no evidence that the respondents’ conduct caused or exacerbated the applicant’s mental disorder
[200]
10.5 The cause of action in negligence against the Registrar-General must be dismissed
[204]
10.5.1 Exclusion of liability in s 146, Real Property Act
[205]
10.5.2 The imposition of a duty of care upon the Registrar-General would be inconsistent with his statutory powers and duties
[208]
10.5.3 The risk of injury from any alleged act or omission by the Registrar-General was not reasonably foreseeable
[217]
10.5.4 Additional reasons why the claim in negligence against the Registrar-General must fail
[218]
11 THE CLAIM FOR BREACH OF PRIVACY
[222]
12 MISCELLANEOUS CLAIMS
[226]
13 CONCLUSION
[227]
1. INTRODUCTION
This matter has a long and complex history. The applicant, DOQ17 (Ms DOQ), seeks relief consequential on the disclosure of her name and identity in April 2012 by the Australian Financial Security Authority (AFSA), Mr Madden, Ms Czinner, and Ms Nash, the first to fourth respondents respectively, in attaching orders made by the Family Court on 19 August 2011 (the Family Court Orders) to a contract for the sale of land in the State of New South Wales (the property). The property was the former matrimonial home of which the applicant was part owner. Additional complaints are made against Ms Nash on the grounds that she published a “blog” on the ARITA website on 23 August 2011 (Exhibit A1 (Ex A1) at 230) and two continuing legal education papers, each of which also disclosed the applicant’s identity. By the Further Amended Statement of Claim (FASOC), Ms DOQ alleges that the disclosure of her identity by these acts contravened a pseudonym direction made under s 121 of the Family Law Act 1975 (Cth) (the Family Law Act) and breached various duties allegedly owed to her. Ms DOQ seeks damages based on various alleged causes of action for mental injury and distress.
AFSA (formerly known as the Insolvency Trustee Service of Australia (ITSA)) is an executive agency within the meaning of Part 9 of the Public Service Act 1999 (Cth). Its functions include supporting the Official Trustee in Bankruptcy in performing its statutory functions. Mr Madden and Ms Czinner were employees of AFSA at the relevant time. They were appointed as the statutory trustees for the sale of the property pursuant to s 66G of the Conveyancing Act 1919 (NSW) by the Family Court Orders. Ms Nash was at all relevant times a legal practitioner entitled to practice under the Legal Profession Act 2004 (NSW). She was instructed to act on behalf of the Official Trustee in Bankruptcy and, by extension, on behalf of Mr Madden and Ms Czinner in their capacity as the statutory trustees for sale.
The applicant’s claims against the other respondents also relate to the disclosure of the applicant’s identity as part of the contract for sale. The fifth respondent, the Registrar-General of New South Wales, recorded the Family Court Orders vesting the property in the trustees for sale on the Register pursuant to s 86 of the Real Property Act 1900 (NSW) (RPA). The seventh respondent, Savice Pty Ltd trading as LJ Hooker Picton (LJ Hooker Picton), distributed the contract to which the Family Court Orders were attached to prospective buyers. I note that the proceedings were discontinued as against the then sixth defendant, the Australian Restructuring Insolvency and Turnaround Association (ARITA), on 14 February 2017, before the matter was transferred to this Court from the District Court.
For the reasons set out below, none of the claims have merit and the proceeding must be dismissed.
I should also make it clear at the outset that the applicant’s pleadings, affidavit evidence, and submissions were replete with scandalous allegations of serious misconduct and sinister motives against the respondents, their legal representatives, third parties such as the Commonwealth, and judicial officers. These were unfounded, irrelevant and ought not to have been made, as I said in my reasons in DOQ17 v Australian Financial Security Authority [2018] FCA 561 (DOQ (No 1)) at [35] with respect to allegations of a similar nature. As such, I have disregarded them.
Finally, I note that the applicant is referred to by a pseudonym in this proceeding given that her substantive complaint relates to her identification in various documents as a party to the Family Court proceedings.
2. THE APPLICATIONS FOR AN ADJOURNMENT
2.1 Background to the applications
By a letter dated 10 August 2018, the applicant requested that the hearing listed on 13 and 14 September 2018 be adjourned. On the same day, the Court Registry sent an email to the parties confirming receipt of the applicant’s letter and noting that “it would not be proper for her Honour to adjudicate on the substantive matter until a ruling is made on the disqualification application. This means that her Honour is not presently able to address your application that the hearing be adjourned.”
On 11 August 2018, the applicant sent an email again requesting an adjournment. On 13 August 2018, the Registry sent an email to the applicant and copied to the other parties noting that “at this stage no application for an adjournment has been filed. In the event that you wish to press for an adjournment, it will be necessary for you to file an application together with an affidavit or affidavits which explain why the adjournment is sought, and the likely period of any such adjournment.”
On 23 August 2018, I published my reasons for dismissing the applicant’s disqualification application: DOQ17 v Australian Financial Security Authority (No 2) [2018] FCA 1270.
On 3 September 2018, the applicant filed an application for an adjournment as follows:
Adjournment of the matter which is listed for hearing on 13 & 14 September, 2018 as the Federal Court and the Respondents have been served with an Application for Removal filed in the High Court on 23 August, 2018 which is still to be determined by that Court. The Application is made under s 78B Judiciary Act 1903 and 8.2 of the Federal Court Rules.
The Application for Removal filed in the High Court was made under s 40 of the Judiciary Act 1903 so that all matters in controversy between the parties could be dealt with in accordance with s 32 of the Judiciary Act 1903.
The First Respondent is an executive agency of the Commonwealth Attorney-General’s Department and in accordance with s 75V of the Commonwealth of Australia Constitution Act the High Court has original jurisdiction of the matter.
(quoted without alteration)
On 4 September 2018, the Registry emailed the parties as follows:
Her Honour has conditionally accepted the [adjournment] application for filing despite the failure to comply with the rules requiring any such application to be accompanied by an affidavit in support. However, her Honour has made orders requiring an affidavit [to] be filed if the application is sought to be pressed. Any such affidavit is to address the following matters:
Ÿany documents filed by the applicant in the High Court in support of the removal application;
Ÿany correspondence from or orders made by the High Court in relation to the removal application;
Ÿthe applicant’s reasons for seeking to have the matter removed to the High Court;
Ÿthe reasons for the applicant’s delay in seeking to have the matter removed to the High Court; and
Ÿany matters that the applicant wishes to give in evidence in support of the application for an adjournment.
…
As noted in that email, I made orders on 4 September 2018 requiring the applicant to file and serve an affidavit in support of the adjournment application by midday on 6 September 2018, and setting the adjournment application down for hearing on 7 September 2018.
On 6 September 2018, the applicant filed an affidavit sworn on 5 September 2018 in support of the application for an adjournment, to which was attached a letter dated 5 September 2018 from the applicant to the Court and the parties.
The application for an adjournment was heard on 7 September 2018. I refused the application at the hearing and, while I gave a broad indication of my reasons at the time, I stated that I would give my reasons in my decision on the substantive application itself. I set out my detailed reasons below.
2.2 The bases upon which an adjournment was sought
While the applicant did not file separate written submissions in support of her application for an adjournment, I treated her letter dated 10 August 2018 as a submission. The letter set out the following seven reasons for an adjournment (at pp. 1-2):
1. There has been no resolution to my letter of 30 April, 2018 which Judge Perry determined to be an application for disqualification.
2. My letter of 30 April, 2018 was sent in response to Judge Perry’s Judgment on an Interlocutory Application filed on 6 February, 2018 wherein Her Honour showed bias, prejudice and discriminated against me, an unrepresented litigant and claimed that I was a liar.
3. If and when Judge Perry hands down her decision as to whether she will disqualify herself, I will file an Appeal and as an unrepresented litigant, I will not be able to deal with preparing an Appeal as well as for a trial.
4. I endeavoured to have the matter moved on by writing to the Chief Justice … but again he would not interfere because of my right to appeal.
5. The parties also have not complied with the timetabling orders made by Judge Perry on 26 April, 2018 which has made my case preparation more difficult.
6. The solicitors for the First, Second, Third, Fourth and Seventh Respondents have also, though being served in accordance with order 9 of the orders made on 26 April, 2018, informed me that they refuse to call those persons to give evidence despite the fact that Judge Perry on 26 April, 2018 stated “So if you or any of the respondents wish to cross-examine any witness ....” and “or each other, then notice has to be given of that, in advance, by this date”. (p11 transcript)
7. The proposed Ninth Respondents’ solicitors and counsel are rattling the tin for payment of their costs and are probably in the process of preparing a costs assessment.
The applicant’s letter dated 5 September 2018 also set out a number of grounds for the adjournment sought, namely:
(1)the proceedings should be adjourned because on 23 August 2018, the applicant applied for the case to be removed to the High Court under s 40 of the Judiciary Act 1903 (Cth) (at p. 1);
(2)the first to third, fourth and seventh respondents have “refused” to call various witnesses for cross-examination by the applicant; the first to third and seventh respondents wish to cross-examine the applicant; the first to third and seventh respondents failed to file their Notice of Dispute; and the hearing of the application for the adjournment was listed at short notice, which prejudices the applicant as she lives in Victoria (at pp. 2-3);
(3)the matter was left in limbo for four months pending the decision on the applicant’s disqualification application (at p. 2);
(4)the applicant referred to “comments” allegedly made by Mr Craddock, counsel for the fourth respondent, “that the Federal Court does not exercise appellate jurisdiction with respect to the outcome of the process leading to the outcome of proceedings before the Family Court”, as “evidence in support of my application for adjournment” (at p. 3);
(5)the applicant faced difficulties, as an unrepresented litigant with no legal qualifications, in keeping up with the many documents to be prepared (at p. 4); and
(6)the respondents were unable “to agree on most issues”, and their “continued denial of issues” meant the matter could not be resolved in two days of hearing (at p. 3).
The applicant requested a further two months to prepare for trial (at p. 4).
The respondents filed short outlines of submissions in opposition to the application for an adjournment. By an email dated 5.27pm on 6 September 2018, the applicant provided short submissions in response to the fifth respondent’s outline of submissions. In these submissions, the applicant submitted that while the hearing dates were set down with her consent, she was unaware of the volume of work involved in producing the notices to admit facts, reviewing the documents in the tender bundle, and so on, referring again to her status as an unrepresented litigant. The applicant also stated that the application for an adjournment “is based on many other issues as outlined in documents forwarded to the parties and to the Court today”.
2.3 The applicant’s submissions at the hearing
In support of her application for the adjournment the applicant relied upon her affidavit sworn on 5 September 2018 and the bundle of documents attached to the applicant’s affidavit filed in the High Court and sworn on 20 August 2018.
The applicant submitted that the reasons for which the adjournment was sought were outlined in the documents provided by her to the Court, which I have summarised above. Importantly, she explained that she had put the issues in an email dated 6 September 2018, and that these were the “more important ones that I would like you to deal with” (T3.32-33). In that email, the applicant “reiterate[d] some important issues raised in my Application and Affidavit” as follows:
1. As indicated in my letter to the Court dated 5 September 2018, it is not possible for me to be at Court on Friday, whatever time. I will have to appear by telephone, and will be available tomorrow morning …
2. I require the Court's direction as to whether I am able to cross-examine witnesses (which I first raised by letter to the Court on 10 August 2018) and is referred to in my letter of 5 September as well as my Affidavit in support of the Adjournment Application. If I am to cross-examine witnesses, which I requested to do in accordance with Justice Perry’s orders, it should be noted that I have had no time to prepare for such an undertaking, and as an unrepresented litigant with no legal qualifications, this will require some thought.
3. I note a major delay in the proceedings was due to Justice Perry taking nearly four (4) months to make a decision on the disqualification application.
4. Ebsworths for Respondents 1, 2, 3 & 7 have sent me (and I am not sure if the other parties have received a copy) their Notice to Dispute. The document has not been filed in the Court, been stamped and served upon me. As such, I cannot be sure that this document will be the same copy that all the parties hold or that Ebsworths intend to include in the Court Book. I would like Justice Perry to make a determination on this issue.
5. I would also refer to point 5 of my letter of 5 September, where Mr Craddock states “that the Federal Court does not exercise appellate jurisdiction with respect to the outcome of the process leading to the outcome of proceedings before the Family Court”. If what Mr Craddock states is correct, I would like Justice Perry to make a determination so that the matter can be dealt with in the appropriate court.
6. If possible, I would like Justice Perry to finally determine, by asking Counsel for Respondents 1, 2, 3 & 7 whether they are indeed instructed, and have been instructed by the Commonwealth Attorney-General’s Department.
I will deal with these issues in turn save for the first which was merely a note to the Court.
In relation to the second issue, the applicant explained that she had fallen behind in her preparation for the hearing because she did not know whether she could cross-examine the respondents’ witnesses. The applicant referred to an order made at a case management hearing on 26 April 2018 that “[o]n or before 4.00 pm on 28 June 2018, any party who requires the deponent of a filed and served affidavit to attend for cross-examination at hearing, is to notify the party who served the affidavit, in writing, of that requirement.” The applicant explained that while her understanding at the case management hearing was that she would be able to cross-examine the respondents, she had been informed by the respondents’ solicitors that she could not, and sought clarification from the Court.
I explained to the applicant that whether a party can be cross-examined depends upon whether they give evidence. I further explained that if the respondents chose not to rely on the evidence of any witnesses, the applicant might invite the Court more readily to draw adverse inferences from the failure of a person to give evidence. Counsel for each of the respondents did not take issue with this explanation.
Turning to the third issue, the applicant submitted that the matter had been “in limbo” because of delay in the disqualification decision. However, at the hearing of the disqualification application, I had explained that all parties should proceed on the basis that the trial date would remain in place. As it was not appropriate for me to make rulings on case management issues while I decided the issue of disqualification, the Registry had assisted with these issues in the meantime so as not to jeopardise the parties’ preparation. It should have been clear to all parties that even if I had disqualified myself, another Judge might then have been able to hear the matter. Accordingly, the delay alleged by the applicant does not warrant an adjournment.
The fourth issue relates to the failure by the first to third and seventh respondents to file their notice of dispute as a consequence of which the applicant submitted that the first to third and seventh respondents were taken to have admitted all the facts in the notice to admit facts (applicant’s letter dated 5 September 2018). The applicant sought additional time to understand the impact of this on the respondents’ defences, and how these admissions assisted her case. Ms Amato, counsel for the first to third and seventh respondents, however, correctly submitted that r 22.02 of the Federal Court Rules 2011 (Cth) (FCR) requires a notice of dispute to be served only, and not filed. Here, the notice of dispute was served within the 14 day period required by the FCR. It follows that no admissions flowed from the failure by the first to third and seventh respondents to file their notice of dispute, and this is not a reason for granting the adjournment.
In relation to the fifth issue, the applicant submitted that the Family Court file was “where … everything started” and should be able to be used as evidence. The applicant contended that if this Court does not have appellate jurisdiction in proceedings before the Family Court, I should transfer the proceedings to the correct Court. As I later explain, the arguments that this Court has jurisdiction to entertain an appeal from the Family Court or entertain a collateral attack upon the Family Court judgment are misconceived. The submission that this proceeding should be transferred to another court to hear an appeal from the Family Court is equally misconceived not least because this proceeding invokes the original jurisdiction of the Federal Court. As such, these arguments could not provide a basis for an adjournment of the hearing.
Finally with respect to the sixth issue, the applicant submitted that there were issues pertaining to “the first respondent and [who’s] instructing them and whether that conflicts with things that have been happening in the case, and that was my reason for referring it to the High Court” (T3.18-20). The applicant asked me to make inquiries of counsel for the first to third and seventh respondents to determine whether the Commonwealth Attorney-General was instructing her. The applicant appeared to contend that there was an inconsistency between the Commonwealth Attorney-General instructing Ms Amato when the Commonwealth Attorney-General had declined to intervene under s 78A of the Judiciary Act 1903 (Cth). However, as Ms Amato submitted, this issue was irrelevant to the issues arising at the trial.
In addition to issues 2 to 6 identified above, it is convenient also to deal with the removal application to the High Court. As counsel for the first to third and seventh respondents submitted, the fact of a removal application does not, without more, provide a sufficient ground for an adjournment, and the application in any event was brought very late: see Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 (“Luck (FCAFC)”) at [12] (the Court).
At the substantive hearing of the application on 13 September 2018, the applicant made further applications for an adjournment because of the large bundle of authorities filed late by the first to third and seventh respondents. As I explained at the hearing, any prejudice arising from this could be dealt with by allowing the applicant to respond to this material in written submissions after the hearing, and if need be, by a subsequent oral hearing.
2.4 The reasons why the applications for an adjournment were dismissed
As counsel for the first to third and seventh respondents submitted, the power of the Court to grant an adjournment is discretionary, to be exercised having regard to the objectives in s 37M of the Federal Court Act 1976 (Cth): Luck (FCAFC) at [42] (the Court). In Luck (FCAFC), the Court noted:
44. In Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, the plurality of the High Court recognised four matters which should, in the circumstances of that particular case, have been taken into account by the Court when exercising its discretion whether to grant an adjournment so as to allow substantial amendments to be made to the statement of claim. Those factors were: the explanation for the adjournment sought (at [108]), the parties’ choices to date in the litigation (and the consequences of those choices) (at [112]), the detriment to other parties, and the detriment to other litigants in the Court (at [114]).
The respondents submitted that, applying these principles, the Court should refuse the application for an adjournment. I agree. First, for the reasons set out above, the applicant has not identified a sufficient reason to warrant the grant of an adjournment. Secondly, the applicant has had more than a sufficient opportunity to formulate and finalise her application and to prepare for the hearing. While, as an aspect of the court’s duty to ensure that a trial is fair, the court must ensure that unrepresented litigants do not suffer disadvantage from exercising the recognised right to be self-represented, “the court’s duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties”: Hamod v New South Wales [2011] NSWCA 375 at [310] (emphasis added) (cited with approval in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37] (Robertson J, with whose reasons Allsop CJ and Mortimer J agreed)). As Tracey J observed in Luck v University of Southern Queensland [2008] FCA 1582 at [9]:
Although the Court will, normally, be sympathetic to the predicament of an unrepresented litigant faced with the need to prepare legal submissions, the Court is also bound to have regard to the interests of respondents when determining whether or not to accede to further requests for time for preparation.
Thirdly, under s 37M of the Federal Court of Australia Act 1976 (Cth), the FCR must be applied in a way that best promotes the overarching purpose of facilitating the just resolution of disputes, relevantly, “as quickly, inexpensively and efficiently as possible”. Obligations are also imposed directly upon the parties to a civil proceeding to conduct the proceeding in a way that is consistent with this overarching purpose by s 37N. To accede to a further adjournment in all of the circumstances set out above would not, in my view, promote the overarching purpose.
Accordingly, I refused the applicant’s applications for an adjournment.
3. EVIDENCE
3.1 The applicant’s evidence
The applicant relied first upon her affidavit sworn on 26 February 2018. This was read subject to relevance, save for paragraphs [91], [4], [66] and [71]. However, the applicant’s affidavit dealt almost exclusively with her concerns as to the conduct of her matrimonial property proceedings and proceedings before the Federal Circuit Court (the FCC), neither of which were the subject of an appeal and this Court has no jurisdiction to revisit those proceedings or judgments. As such, the affidavit was not to this extent relevant. I also explained at the hearing with respect to the applicant’s summaries of documents at paragraphs [56], [60], [62] and [66] of this affidavit that ultimately I would read the documents themselves and not simply rely upon the summaries. The applicant was briefly cross-examined (as I later explain).
The applicant also relied upon the eight volume tender bundle (TB), which was received in evidence as Exhibit A1 on the basis that the parties would take the Court to the material within those volumes which they contended was relevant and explain its relevance (T69.22-71.2). The receipt of Exhibit A1 was subject to a ruling excluding the document reproduced at pp. 1695-1696 on the ground that the document was subject to legal professional privilege being internal advice within the Australian Government Solicitor (as was apparent from the letter to the Registrar objecting to the document being inspected: Ex A1 at 1723) (T66.7-10). I note that it would appear that this document was inadvertently disclosed to the applicant and that there was nothing to indicate any intention to waive privilege over the document.
The applicant also sought orders that the Court receive the whole of the Family Court file into evidence. This was in effect an application under r 30.25 of the FCR. It was apparent from the applicant’s submissions that she sought to put the file into evidence in order to enable this Court to undertake an inquiry into the conduct of those proceedings. However, as I had already ruled in the course of the trial that no such inquiry could be undertaken in the context of these proceedings, I refused the tender (T77.33).
Furthermore, the applicant complained that while the first, second and third respondents had relied upon an affidavit of their solicitor, Mr Olson, in support of their application for summary dismissal in the District Court, they had advised that they did not intend to rely upon the affidavit at trial and that Mr Olson was therefore not a witness at trial who the applicant could require for cross-examination (see e.g. Applicant’s final submissions in response to the respondents’ final submissions at p. 3). However, it is a matter for the respondents to determine how they wish to run their case and whether or not they wish to call evidence from Mr Olson or any other witness.
Finally the applicant sought to rely upon medical evidence. The tender of the reports of Ms Angela Parasher and Dr Margaret Uebergang was refused on the ground that they were plainly inadmissible for reasons given at the hearing (T89.1-25, T92.25-33 respectively). The reports of Dr Brian Crickitt dated 7 November 2009 and 20 May 2013 were, however, received in evidence (Court Book (CB) tabs 27 and 33). The reports of Dr Ben Teoh dated 7 February 2010, 15 March 2010, 20 February 2011, 19 February 2013, 5 March 2013, 12 March 2014 and 19 March 2018 were also received in evidence (CB tabs 28-32, 34 and 38 respectively) subject to a limitation under s 136 of the Evidence Act 1995 (Cth) that any passages in those reports set out under the heading “History” are not to be taken as evidence of their truth (T94.18-24, 95.17-19).
3.2 Evidence relied upon by the respondents
None of the respondents ultimately relied upon the evidence of any witnesses. In this regard, I note that, while initially included in the Court Book, the Registrar-General did not seek to read the affidavits of Mr Stephen Prent dated 13 and 19 April 2018 respectively (T102.19). As such, I have had no regard to these affidavits.
4. BACKGROUND
4.1 The Family Court proceedings leading to the orders for sale of the matrimonial home
The applicant relied among other things on the documentary record in Exhibit A1 which was arranged in chronological order. As Ms Nash points out in her closing submissions dated 28 September 2018 (R4CS), that record commences with the applicant’s letter to the then ITSA in which she accuses ITSA of harassing her with the caveat lodged over the former matrimonial home having pushed her “to [her] limits” (Ex A1 at 3). It is clear from the strong language used in the letter that the applicant was extremely upset and angry with ITSA, an accountant, the Australian Taxation Office, the Law Society of NSW, and a solicitor. It is also fair to say that more than 10 years later the applicant remains very emotional about events arising out of her divorce and her former husband’s bankruptcy and the disclosure of her identity in relation to the Family Court Orders. This has unfortunately translated into a determination by her to pursue multiple avenues of possible redress which were, at least insofar as these proceedings are concerned, misconceived from the outset for the reasons I develop below.
As earlier explained, this proceeding is intimately connected with the Family Court proceedings, the background to which is summarised in the reasons of Johnston J in that proceeding: Debrossard & Official Trustee in Bankruptcy [2011] FamCA 648 on 19 August 2011 (Debrossard (FamCA) [2011]).
On 12 July 2007 the applicant, Ms DOQ, filed an application for final orders in the Family Court seeking in effect that she become the sole owner of the former matrimonial home as she said was agreed between her and her husband at the time of divorce (Debrossard (FamCA) [2011] at [47]). Consent orders were made in December 2007 by the Family Court as between the applicant and her former husband (the husband) in relation to the parties’ property. The effect of those orders was that the husband was to transfer his interest in the former matrimonial home to the applicant (Debrossard (FamCA) [2011] at [49]).
However, on 12 April 2007 the husband had been declared bankrupt and a sequestration order was made against him by the (then) Federal Magistrates Court (Debrossard (FamCA) [2011] at [44] and [66]). As such, as at 26 September 2006, being the date of the first act of bankruptcy by the husband, all of the husband’s property had vested in the Official Trustee in Bankruptcy (the Official Trustee) by operation of ss 58(1) and 116 of the Bankruptcy Act1966 (Cth) (Debrossard (FamCA) [2011] at [6] and [44]). The substantial unsecured creditor in the bankruptcy was the Deputy Commissioner of Taxation (Debrossard (FamCA) [2011] at [67]). Furthermore, the applicant had been notified of her husband’s bankruptcy by the then ITSA on 21 June 2007 (Debrossard (FamCA) [2011] at [46]).
On 1 March 2010, the Official Trustee filed an application in the Family Court seeking to have the consent orders set aside and lodged a caveat in respect of the property on 11 March 2010 (Debrossard (FamCA) [2011] at [58]-[59]). Ms DOQ filed a response to that application on 26 March 2010 (Debrossard (FamCA) [2011] at [60]). The Official Trustee claimed that it had not been given notice of the application which Ms DOQ and the husband had made which had culminated in the consent orders. This was denied by the applicant. She claimed that on 26 June 2007 she notified the Official Trustee in writing that the matrimonial home had been “given to [her]” in the divorce settlement and sought orders that the consent orders be reinstated (as explained in Debrossard & Official Trustee in Bankruptcy [2016] FamCAFC 217 (Debrossard (FamCAFC) [2016]) at [6]-[8]).
On 10 May 2010, Johnston J ordered that the consent orders be set aside on the basis that when they were made, the husband’s property had vested in the Official Trustee and no notice of the proceedings had been given to the Official Trustee (Debrossard (FamCA) [2011] at [61]). Subsequently, on 19 August 2011 his Honour made the Family Court Orders appointing Ms Czinner and Mr Madden, employees of the then ITSA, as trustees for sale of the property, and vesting the property in them as trustees for that purpose. The Family Court Orders further provided that Ms DOQ would receive 60 per cent of the proceeds of sale and that the balance would be paid to the Official Trustee of the husband’s bankrupt estate. Johnston J also dismissed a claim by the wife against the Official Trustee for compensation on the ground that there was no basis in law for any such order (Debrossard (FamCA) [2011] at [109]).
When Johnston J published the written reasons for judgment, the names of the parties were removed and a pseudonym assigned in their place. In this regard, at the end of the Family Court Orders was stated:
IT IS NOTED that publication of this judgment under the pseudonym Debrossard & Official Trustee in Bankruptcy is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
(the Pseudonym Notation).
An application for an extension of time within which to appeal the Family Court Orders filed on 9 September 2016 was dismissed by the Family Court in Debrossard (FamCAFC) [2016]. In so holding, Ainslie-Wallace J found that the applicant’s reasons for the delay in bringing the appeal were “wholly inadequate”: Debrossard (FamCAFC) [2016] at [14]. Her Honour also found that the appeal would have been futile in any event because the property had been sold on 31 July 2012, the proceeds disbursed with 40% of the net proceeds being paid to the Official Trustee, and the husband’s estate was without funds with the moneys received having been paid in satisfaction of the husband’s creditors: Debrossard (FamCAFC) [2016] at [13]-[14].
4.2 The contract for sale
In exercising the power to sell the property conferred on the trustees by the Family Court Orders, the trustees prepared a contract of sale for the property and, on 25 September 2011, lodged request no. AG546219V (the Request) with the Registrar-General, Land and Property Information (Ex A1 at 231). The text of the Request read:
THE APPOINTMENT OF TRUSTEES FOR SALE PURSUANT TO FAMILY COURT ORDERS MADE 19 AUGUST 2011, AN ORIGINAL OF WHICH IS ATTACHED HERETO.
On or about 17 October 2011, the Request, including a copy of the un-redacted Family Court Orders, was uploaded onto the public register of the NSW Registrar-General’s Department and was available to the public upon payment of a fee (notice to admit upon the fifth respondent at [1]; admitted in the fifth respondent’s notice of dispute at [1]). Significantly for reasons which are later apparent, the copy of the Family Court Orders attached to the Request did not include the Pseudonym Notation (Ex A1 at 235).
In or around October 2011, Ms Czinner and Mr Madden instructed the ITSA’s solicitor, Ms Nash, to prepare a contract for the sale of the property. On 25 October 2011, Ms Nash wrote to the applicant enclosing a copy of the draft contract (Ex A1, 238-250). The Family Court Orders were not attached to the draft contract.
As the applicant contends, it is not in dispute that Ms Nash attached, or caused to be attached, the Family Court Orders to the contract for sale given to prospective purchasers between 3-26 May 2012 and ultimately that the contract for sale executed by the trustees for sale and provided to the purchasers also attached the un-redacted Family Court Orders. However, AFSA, Ms Czinner and Mr Madden deny giving specific instructions to Ms Nash to attach a copy of the Family Court Orders to the contract of sale contrary to the applicant’s case (cf FASOC at [1]). The correspondence which I summarise below is consistent with the position taken by AFSA, Ms Czinner, and Mr Madden but only prior to 3 May 2011 and I accept that they did not give those instructions before that date: see further at [57] and [107] below.
On 5 January 2012, Ms Czinner signed an Agency Agreement with LJ Hooker Picton for the sale of the property. LJ Hooker Picton received a copy of the contract for sale from Ms Nash which was to be distributed to interested purchasers by it.
In a letter dated 2 May 2012 from the applicant to LJ Hooker Picton, the applicant wrote complaining that:
On Saturday, 28 April, 2012 I mentioned to you that I believed the Contract for Sale prepared for the sale of my home was a breach of my privacy. I have sought legal advice and it would appear that the Contract breaches S121 of the Family Law Act.
I have been advised to write to you and request that you recall each and every contract for sale that you have handed out in regard to the sale and/or proposed auction of my property.
Please contact me if you are unable to comply with my request.
(Ex A1 at 310)
I infer from this correspondence that at some time between January and 28 April 2012, it had come to the applicant’s attention that the Family Court Orders were attached to the contract for sale. No contracts for sale however had been issued at this stage with the Family Court Orders attached (Ex A1 at 309).
On 30 April 2012, LJ Hooker Picton raised the issue with Ms Nash who advised that the Family Court Orders were required to be attached to the contract for sale (Ex A1 at 309). Acting upon that advice, LJ Hooker Picton issued four contracts. On 2 May 2012, LJ Hooker Picton wrote to AFSA notifying them of the applicant’s complaint, the advice received from Ms Nash, its actions based upon that advice, and seeking written instructions (Ex A1 at 309; CB vol 2 at 508).
In response to a request for advice by AFSA on 2 May 2012, Ms Nash advised by letter dated 3 May 2012 that it remained her view that there was a statutory obligation upon the trustees for sale to disclose the Family Court Orders which was imposed by Part 4 of the Conveyancing (Sale of Land) Regulation 2010 (NSW). In so advising, Ms Nash explained:
Our view [is] that the Trustees for Sale must disclose the legal basis upon which they are conveying title and make full disclosure to a prospective purchaser. A prospective purchaser is entitled to check the order to ensure that the sale process complies with the order and more importantly that the vendor has power to convey good title. The disclosure goes to the title to the land and it remains our view that the legislation requires the disclosure as it is a positive statutory obligation to comply and cannot be ignored.
There is often tension between bankruptcy and family law but this is neither. It is a conveyance ordered by the Family Court to be under Part IV of the Conveyancing Act, 1919 (NSW). Order 2 of the Family Court orders make this clear. Whilst the Family Law Act deals with non-publication, this is not a publication but a compliance with Conveyancing Act Regulations and disclosure requirements under s52A of the Conveyancing Act which requires the Trustee for Sale to make full disclosure. …
The orders only deal with the sale of the property and distribution of the proceeds of sale.
The Family Court having made the order for sale would expect that the Trustees for Sale comply with the Conveyancing Act and Regulations. Order 2 of the orders clearly contemplate a sale as if it is a sale under Part IV of the Conveyancing Act, 1919 (NSW). Clearly the Family Court contemplated the sale be governed by the Conveyancing Act, 1919 (NSW) by order 2.
It remains our view that the orders are necessary to be disclosed. The Conveyancing Regulations cannot be contracted out of and must be complied with by the Trustees for Sale.
(Ex A1 at 315; CB vol 2 at 511-12)
On the same day, Ms Czinner emailed Ms Nash stating that “Given that the orders were attached to the Request and therefore publicly available, we rely on your advice to attach the Court Orders to the contract” (Ex A1 at 311).
On 16 May 2012, Ms Nash wrote to LJ Hooker Picton enclosing the contract for sale to which the Family Court Orders were attached, for the auction on 26 May 2012 (Ex A1 at 325, 326 and 377).
On 17 May 2012, Mr Freedman of Milne, Berry, Berger, Freedman Solicitors (MBBF Solicitors) on behalf of the applicant wrote to Ms Nash advising of his client’s concerns that the attachment of the Family Court Orders to the contract for sale is a breach of s 121 of the Family Law Act and seeking an opportunity to discuss the matter (Ex A1 at 425; CB vol 2 at 497). On 24 May 2012, Ms Nash replied to MBBF Solicitors advising that it remained the view of her firm that the orders are necessary to be disclosed by virtue of the Conveyancing Regulations and apologising if the applicant had been unnecessarily upset by the procedure (Ex A1 at 427; CB vol 2 at 499). (I note that Ms Nash accepted that there was an error in line 8 on page 2 of the letter in that the word “Regulation” should have been “Schedule” (Final Submissions for the Fourth Respondent (Nash) dated 28 September 2018 at [18])). MBBF Solicitors replied on 24 May 2012 advising that, having received advice from counsel, they were satisfied that the attachment of the Family Court Orders to the Contract for Sale is a breach of s 121 of the Family Law Act and that the applicant “is extremely distressed at her privacy being violated by the Orders forming part of the Contract for Sale and no doubt having been provided to various potential purchasers” (Ex A1 at 430; CB vol 2 at 503). The letter referred to an earlier conversation between Ms Nash and MBBF Solicitors, sought written confirmation that instructions had been provided to the agent conducting the sale to remove immediately all copies of the Family Court Orders, and advised that in the absence of such confirmation, the applicant would consider making an urgent application for injunctive relief.
On 25 May 2012, Ms Nash wrote to LJ Hooker Picton referring to an earlier conversation on the same day and stating that:
We have sought advice from a Senior Family Law practitioner and Counsel with respect to the inclusion of the Family Court orders attached to the auction Contracts. We have been advised that the Family Law orders attached to the Contract are not a publication in the sense to which publication is referred to in s121 of the Family Law Act. The sale of this property by the Trustees for Sale is being carried out in performance of a Court order and any prospective purchaser is entitled to view these orders as in our view goes to title which must be disclosed.
Accordingly you are instructed to leave the auction Contracts as sent to you under cover of our letter dated 16 May 2012. …
(Ex A1 at 432; CB vol 2 at 506)
A copy of the letter sent to the applicant’s solicitor on 24 May 2012 was enclosed.
Subsequently, on 28 May 2012, Ms Nash wrote again to MBBF Solicitors by letter in which she stated that:
We refer to your letter of 24 May 2012 which came to my attention after completion of conferences. We have also sought advice from Counsel and an experienced Senior Family Law practitioner as we obviously have concerns about the assertions made. The advice has necessarily been given orally. All advice is that this is not “publication” as intended under s121 of the Family Law Act. It is a necessary carrying into effect of the orders made by the Family Court.
(Ex A1 at 435)
Ms Nash also requested a mediation between the applicant and her solicitors under the Civil Dispute Resolution Act 2011 (Cth) and suggested that it might be best by way of side-stepping any potential conflict, for another solicitor to assume carriage of the matter in her stead (CB vol 2 at 516).
On 29 May 2012, Ms Czinner in her capacity as joint trustee for sale gave written instructions to Ms Nash to remove the Family Court Orders from the contracts for sale, while also not admitting any breach of s 121 of the Family Law Act (Ex A1 at 446; CB vol 2 at 529). The Trustees did not however agree to a change of solicitors because the matter had become a conveyancing matter and “such change will lead to an increase in legal fees yet serve no purpose” (ibid).
On 29 May 2012, Ms Nash wrote to MBBF Solicitors advising that “[i]n an effort to reach mutual agreement we propose to forward the enclosed redacted orders to the real estate agent to be included in the Contract for Sale of Land” (CB vol 2 at 531; issue 18, applicant’s Statement of Issues (applicant’s SOI)). The letter also sought advice from the applicant as to whether she agreed to an offer made on the property which was below the reserve price, and other matters. There is no evidence of any response to that letter.
The contract for sale with the purchasers was signed on 19 June 2012 (Ex A2), with the property being transferred to them by the trustees for sale on 31 July 2012. Despite the instructions from Ms Czinner, the un-redacted Family Court Orders were attached to the final contract signed by the purchasers and the Trustees for sale (Ex A2; issue 22, applicant’s SOI). In this regard, Ms Nash’s solicitors admitted that:
It now seems that some error may have occurred at the fourth respondent’s office because the vendor counterpart, signed by the second and third respondents, and which has been stamped for duty, does attach unredacted orders. That contract would have been received by the purchasers. Thus, if that is how events unfolded, the purchasers obtained copies of the unredacted Orders.
(Final Submissions for the Fourth Respondent (Nash) dated 28 September 2018 at [24])
4.3 Non-litigious avenues of complaint pursued by the applicant
Among other avenues pursued by the applicant, the applicant made a complaint against Sally Nash and Co Solicitors under the Privacy Act 1988 (Cth) (the Privacy Act). By a letter dated 18 July 2012, the delegate of the Australian Information Commissioner referred to s 41(1)(a) of the Privacy Act which gives the Information Commissioner the discretion not to investigate a complaint if satisfied that the act or practice complained about is not an interference with privacy as defined in the Privacy Act (Ex A1 at 513). The delegate further advised that she did not consider that there had been an interference with the applicant’s privacy on the ground that it appeared that the disclosure was required by law and permitted under National Privacy Principle 2.1(g), and invited the applicant to comment before a final decision was made. The evidence does not suggest that any comment was made in response by the applicant.
A complaint by the applicant made on 5 October 2012 of unsatisfactory professional conduct or professional misconduct against Ms Nash was also dismissed on 18 October 2012 by the NSW Legal Services Commissioner. In his letter advising that the complaint had been dismissed and explaining his reasons, the Commissioner referred among other things to the “obvious, careful reasoning” applied by Ms Nash before deciding to attach the Family Court Orders to the contract for sale (Ex A1 at 599; see also at 633). I note in this regard that while Ms Nash said in correspondence with the Legal Services Commissioner on 3 August 2012 that the exchanged contract had redacted orders (CB vol 2 at 540), she accepted that that was in error: see above at [66]. Further in a letter to the Legal Services Commissioner on 17 September 2012, Ms Nash identified an article that had apparently been the subject of a complaint by the applicant as having been written for the purposes of a continuing legal education seminar given to senior insolvency practitioners earlier that year (CB vol 2 at 543; see also the paper at CB vol 2, 561 at 563 and 564). A further paper entitled “Continuing Legal Education – Update on Bankruptcy” which identifies the Family Court proceedings using the applicant’s name appears in the Court Book at 567-8 and is plainly directed to a professional audience, as is the so-called “blog” published on the ARITA website about which the applicant also complained (CB vol 2 at 551).
One of the papers referring to the applicant by name in connection with her family law matter had been published on Ms Nash’s business website. That was removed on 30 January 2013 upon the matter being followed up by Ms Cathy Rainsford, Acting Assistant Secretary, Family Law Branch, Attorney-General’s Department, in a telephone call with Ms Nash in connection with a complaint by the applicant (see the file note of the conversation between Ms Rainsford and Ms Nash at Ex A1 at 660; see also the earlier correspondence in relation to the complaint relevantly at Ex A1 at 651 and 656). The file note was on its face a contemporaneous business record of the telephone call and I have no reason to doubt the accuracy of the matters which it records. Ms Rainsford also explained in the course of the telephone call that she had no concerns about the Family Court Orders having been attached to the contracts of sale in relation to s 121 of the Family Law Act. The file note further records that Ms Nash was surprised to hear that there was a still a reference to the applicant’s case without a pseudonym in a paper on her website as she thought that she had removed them all in the previous year.
The applicant also wrote to the Commonwealth Director of Public Prosecutions (the CDPP) on 17 December 2012, requesting the CDPP to investigate alleged breaches of her privacy contrary to s 121 of the Family Law Act comprising the attachment of the Family Court Orders to the contract for sale of the matrimonial home and the publication by Ms Nash on the internet of a document disclosing the applicant’s name as a party to Family Court proceedings (Ex A1 at 642). This followed a letter of complaint among others to the Family Court, to which the Deputy Chief Justice had explained in response that the Family Court lacks criminal jurisdiction and that any criminal proceedings would require the written consent of the CDPP under s 121(8) of the Family Law Act (Ex A1 at 642-644). On 7 January 2013, the CDPP replied to the applicant advising that any alleged breach of s 121 may be referred to the Australian Federal Police (AFP) for investigation and a decision would be made by the CDPP only upon the completion of any investigation of the matter by the AFP (Ex A1 at 648). The AFP, however, had earlier advised by email on 26 September 2012 that it was unable to investigate the complaint due to “competing operational resourcing responsibilities” (Ex A1 at 595). Nor is there any evidence to suggest that a complaint made by the applicant to the NSW Police was investigated by them (Ex A1 at 679).
By a letter dated 21 April 2015, the CDPP declined a further request by the applicant on 4 January 2015 for the CDPP to investigate the alleged breaches of s 121(1) of the Family Law Act (Ex A1 at 970). In the body of the letter the CDPP reiterated its earlier advice that it was not an investigative agency and would only prosecute or consent to a prosecution on receipt of a brief of evidence and upon being satisfied that a prosecution would accord with the Prosecution Policy of the Commonwealth. It also advised that the documents provided by the applicant did not constitute a brief of evidence and did not contain admissible evidence, the material was not sufficient to enable the CDPP to assess if there was sufficient evidence to warrant a prosecution, and in any event, it would not appear to be in the public interest to prosecute.
On 2 December 2014, the applicant also made a complaint to ARITA of which Ms Nash was a member, that an article by her published on its website disclosed the applicant’s name and not the pseudonym given to the matter by the Family Court (Ex A1 at 890). As a result ARITA amended the article entitled “Family Law Divide – 40% to the Creditors” on its website “in accordance with [the] requirements of the court order” (Ex A1 at 899). However, by an email on 6 January 2015, ARITA advised that it was not appropriate for it to consider matters that have been dealt with by the courts, and sought confirmation from the applicant that the matter detailed in her email had previously been raised in, and dismissed by, the FCC (Ex A1 at 927). Following further correspondence from the applicant, ARITA advised by email on 8 January 2015 that no further action would be taken (Ex A1 at 939).
The applicant also lodged a request with the Registrar-General that the Family Court Orders be removed from the Register on 24 February 2016. That request was acceded to on 13 March 2016.
Finally, I agree with the submission by Ms Nash’s counsel that the contemporaneous documents which I have summarised above do not suggest anything otherwise than a diligent attempt by Ms Nash to ensure that the applicant’s concerns were dealt with efficiently and I would add fairly, professionally, in good faith, and on the basis of her understanding of the applicable legal requirements relating to the proper disclosure of matters relevant to establishing good title to sell the property (R4CS at [22]). In this regard, I would also emphasise that there is no evidence that Ms Nash gained any personal, professional, or financial benefit from attaching the un-redacted Family Court Orders to the contract for sale or from referring to the applicant and the husband by name when citing the Family Court judgment in the continuing legal education papers and “blog”, and there is no basis at all in the evidence for drawing any inference to that effect: cf applicant’s SOI at [54]-[56]; and e.g. Applicant’s final (ie, closing) submissions in response to final submissions of the fourth respondent (Nash) (ACS (in response to R4CS) at [11]). Equally there is no basis on which to infer that Ms Nash’s intention “all along was to attach the Applicant’s Family Court Orders to the Contract for Sale …”: cf ACS (in response to R4CS) at [21].
4.4 Summary dismissal of the claim in the FCC for alleged contraventions of s 121, Family Law Act (Debrossard & Carey [2014] FCCA 2915 and [2015] FCCA 2739)
On 8 September 2014, the applicant filed an “Application - Contravention” in the FCC alleging that Ms Czinner and Mr Madden, as trustees for the sale of the former matrimonial home, and “Ms Norman” (which is plainly a reference to Ms Nash), the solicitor acting for the Official Trustee, contravened what was described by the applicant as “Publication Order S 121(9)(g) FLA” (Debrossard & Carey [2014] FCCA 2915 (Debrossard (FCC) [2014])). Specifically, the FCC explained with respect to the application that:
12. The first count relates to all three of the Respondents and claims that on an unspecified date in April 2012:
The respondents attached a copy of the Family Court Orders to a Contract for Sale disclosing parties and file number of Family Court proceedings.
13. The second count relates only to Ms Norman and claims that on 23 March 2012 at [omitted], Sydney:
Ms Norman, Solicitor, prepared a paper for a conference at [omitted] Annual Conference and subsequently published this paper online – available at http;// which is accessible to the public.
(quoted without alteration)
The FCC held that the application must be summarily dismissed under s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (the FCCA Act) for the reasons that:
(1)the wording attached to the judgment assigning a pseudonym to the judgment was clearly not an order of the Family Court and could not be enforced by way of contravention proceedings (at [17]-[20]); and
(2)while it is an offence to contravene s 121 of the Family Law Act, s 121(8) provides that a prosecution can be commenced only with the written consent of the Director of Public Prosecutions, of which there was no evidence (at [21]-[23]).
Further and in any event, Judge Scarlett held that:
24. In any event, I note that in Prentice & Bellas [[2012] FamCA 108; (2012) 47 Fam LR 262], Murphy J observed at [44] that the Family Court did not have the power to give consideration to the prosecution of individuals alleged by an applicant to have breached s.121 of the Act, saying:
This court has itself no prosecutorial power in the sense spoken of.
25. The same comment could be made of this Court.
The FCC therefore concluded that “… it is abundantly clear that the Applicant has no reasonable prospect of successfully prosecuting her contravention application against the Respondents. The Application is incompetent and will be summarily dismissed” (at [26]).
An application for indemnity costs in the FCC referred to above was successful on the ground that the case brought by the applicant was “clearly a hopeless case as the Court had no jurisdiction to make the orders sought” and that the applicant had persisted with “such a meritless case” until its “inevitable” summary dismissal: Debrossard & Carey [2015] FCCA 2739 at [20]-[22] (Judge Scarlett).
There was no application for leave to appeal either decision of the FCC.
4.5 Institution of the present proceedings in the District Court of New South Wales and the application for summary dismissal
The present proceedings were commenced in April 2015 in the District Court of New South Wales. The proceedings as originally pleaded are conveniently summarised by Ward JA and Sackville AJA on an application for leave to appeal by the applicant in D v Australian Financial Security Authority [2017] NSWCA 50 (D v AFS (NSWCA)) as follows:
6. The District Court proceedings arise out of the circumstances in which, following the applicant’s divorce and the bankruptcy of her former husband, the applicant’s former matrimonial home was sold pursuant to a statutory trust for sale.
7. The applicant’s complaint is that a copy of Family Court orders (made on 19 August 2011), setting aside earlier consent orders by which her former husband’s interest in the matrimonial home had been transferred in its entirety to her and vesting the property in the second and third respondents on a statutory trust for sale, was attached to the contract for sale of the property and distributed to prospective purchasers without the redaction of her name and other identifying information (including the file number of the Family Court proceedings).
8. The applicant initially brought proceedings only against AFSA (the first respondent in the current proceedings) the two trustees employed by it (the second and third respondents) and the solicitor who acted for AFSA on the sale (the fourth respondent).
9. The causes of action raised against those parties were identified by Taylor SC DCJ, when ruling in May 2016 on a summary dismissal application brought by them (see [14] below), as being for: breach of publication order; breach of s 121 of the Family Law Act1975 (Cth); breach of the Privacy Act1988 (Cth) (the Privacy Act); negligence; breach of confidence; breach of privacy; defamation; and breach of statutory duty arising from a breach of s 121 of the Family Law Act (see [11] of his Honour’s reasons).
Ward JA and Sackville AJA in D v AFS (NSWCA) summarised the outcome of the summary dismissal application before Taylor SC DCJ as follows:
Summary dismissal judgment – 16 May 2016
14. Before the applicant’s subpoena application was heard, Taylor SC DCJ heard and dismissed a summary dismissal application brought by the then defendants to the proceedings (the first four respondents).
15. In so doing, his Honour nevertheless struck out [4] of the amended statement of claim (which contained an allegation of “breach of the Publication Order under Section 121 of the Family Law Act, which are criminal acts and offences against Commonwealth legislation”), pursuant to r 14.28(1) of the UCPR. His Honour treated other references to breach of a publication order as being “in the context of notification by the plaintiff of facts alleged to be relevant to a cause of action other than breach of a publication order” and did not strike out those references.
16. As to the second cause of action identified by his Honour (for breach of s 121 of the Family Law Act), his Honour noted that the applicant did not, in her submissions, adopt this cause of action (see [33]). His Honour stated that no statutory cause of action for damages arising from a breach of s 121 was created under the Family Law Act ([34]). He then said:
In circumstances where it is not at all clear that the statement of claim plead a statutory cause of action and where the plaintiff does not rely on it, I do not propose to make orders for judgment on, or the striking out of, such a cause of action.
17. For similar reasons, his Honour did not make any order for judgment, nor did he strike out, any claim based on a statutory cause of action under the Privacy Act ([40]).
18. As to the defamation claim, his Honour was not prepared to allow any such claim to proceed – on the basis that no imputations had been pleaded, as required by r 14.30(2) of the UCPR. His Honour noted that the only reference to defamation in the pleading was on the first page of the amended statement of claim under the heading “TYPE OF CLAIM”. His Honour made clear that the striking out of that reference from the amended statement of claim was not intended to preclude the applicant from seeking to leave to amend her claim, if she could identify any defamatory imputations alleged to have been published by the defendants (at [58]).
(quoted without alteration)
No application for leave to appeal from the summary dismissal judgment was made by any of the parties. In this regard, contrary to the applicant’s submissions, the dismissal in part of the application for summary dismissal did not prevent the respondents from making submissions at trial on those issues which remained live: Applicant’s final submissions to the respondents’ final submissions at p. 64 [1]. Taylor DCJ’s decision was interlocutory only. It was limited to deciding what, if any, of the alleged causes of action raised by the applicant had sufficient prospects of success to warrant them proceeding to trial and did not decide that “there was a contravention of s 121 for the purpose of a civil cause of action”: cf Applicant’s written outline of submissions dated 10 September 2018 at [16]. As such, it was open to the respondents to make the same or additional submissions at the trial in support of their respective defences to the applicant’s claims.
On 12 August 2016, Sidis ADCJ dismissed an application to amend the applicant’s claims to include, among other things, an action in defamation. Ward JA and Sackville AJA summarised that application in the District Court as follows:
The Second Impugned Decision
27. After the dismissal of the applicant’s application for leave to issue the subpoena, the applicant prepared an amended statement of claim, naming three further parties as defendants – The New South Wales Government, Land & Property Information (more accurately, the Registrar-General) (as fifth defendant); Australian Restructuring Insolvency & Turnaround Association (as sixth defendant); and Savice Pty Limited trading as LJ Hooker, Picton (as seventh defendant) – and amending the defamation claim.
…
33. In essence, the AFSA’s objection to the re-pleaded defamation claim ([17]) was twofold: first, as to the defamatory capacity of the publication of Family Court orders (the material particularised at A-F of the proposed further amended statement of claim) and, second, on the basis of a limitation issue, in that the affidavit particularised at [17](f) was an affidavit sworn on 18 November 2014 by the fourth respondent and filed in the Federal Circuit Court for a hearing on 1 December 2014, well outside the limitation period of one year for defamation actions, and that it was protected by absolute privilege on the basis that it was prepared for the purpose of Court proceedings.
34. The Registrar-General made submissions to the effect that, to the extent that the claim for damages extended to a cause of action in defamation based on an alleged breach of s 121 of the Family Law Act, leave should be refused (on the basis outlined by Taylor SC DCJ in his Honour’s May 2016 decision – namely that: the notation on the orders was not an order (at [30]); a cause of action for damages for breach of a Family Court order could not be maintained in the District Court (at [31]); and under the Family Law Act there was no entitlement to damages arising from a breach of s 121 (at [34]). It was submitted that s 121 of that Act did not apply to the Registrar General on the facts of the case; that no imputations had been pleaded as required under r 14.30(2) of the UCPR in respect of the defamation claims and that the claim for breach of the Privacy Act could not be maintained in the District Court (referring to Taylor SC DCJ’s reasons at [36]).
35. Sidis ADCJ gave brief reasons in the course of the hearing as to the basis on which she proposed to make the orders that were made. Her Honour noted that the applicant was not pressing [12] of the proposed further amended statement of claim. Her Honour expressed the view that [17] of the proposed pleading was not sustainable. Her Honour ordered, relevantly, that:
1. I grant leave [to] the plaintiff to file [a] further amended statement of claim on the following basis:
(a) paragraph 17 of the proposed amendment is not allowed for the reason that the majority of the claims made are statute barred and the remainder are not reasonably sustainable
(b) paragraph 12 is not pressed by the plaintiff;
(c) the claims made against the 4th and 5th defendants will be limited to claims in negligence only.
36. The reference in order 1(c) to the fourth and fifth defendants appears to be in error. The transcript makes clear that her Honour was limiting the leave granted for the joinder to the proceedings of the Registrar General (the fifth defendant) and the Australian Restructuring Insolvency & Turnaround Association (the sixth defendant) “on the basis that the matters pleaded are read only in the context of claims in negligence against them and not in breach of the statutes referred to in those pleadings”. Her Honour also ordered that costs of the motion be costs in the cause.
4.6 The application for leave to appeal to the New South Wales Court of Appeal
The Court of Appeal refused leave to appeal from the decision of Sidis ADCJ given on 12 August 2016 on the following grounds:
69. Leave to appeal from the second impugned decision should also be refused. Again, no issue of principle or public importance is raised. The pleading, especially in relation to the defamation claims sought to be made against the respective respondents, suffers from the defects to which the respondents have pointed in that the defamatory imputations are not properly identified. That alone is sufficient to dispose of the complaint as to the refusal to allow the proposed [17] of the further amended statement of claim.
70. As to the restriction of the claims against the Registrar-General other than in relation to negligence, again there has been no error shown in the exercise of her Honour’s discretion, as a matter of case management, to confine the amendment to claims that were at least arguable on their face and within jurisdiction of the District Court (as opposed to the claims in respect of which the Registrar-General asserted there was no jurisdiction or could not – for reasons earlier identified by Taylor SC DCJ – be maintained).
71. In the circumstances, it is difficult to avoid the conclusion that the applicant would be well-advised to seek legal advice in the formulation of the claims that she seeks to advance against the respective respondents. In the meantime, no basis has been shown to warrant appellate intervention in what has become a pleading stoush.
5. THE ISSUES
5.1 A threshold issue: to what extent does the applicant’s Statement of Issues raise issues legitimately within the scope of the litigation
The respondents filed a Statement of Issues which were agreed between them (respondents’ SOI) (CB vol 2 at 733). While the applicant sought to raise a significant number of additional issues in her SOI, she did not disagree with the proposition that the issues raised in the respondents’ SOI properly fell to be determined in the proceeding. This is subject to the caveat that the findings made on some issues may (and in fact did) render certain other issues moot.
Nor is there any evidence that the respondents’ conduct exacerbated her condition. The subsequent expert opinions of Dr Teoh do not link any psychiatric injury to the disclosure of the alleged confidential information. Thus, in his reports dated 19 February 2013 and 5 March 2013 Dr Teoh confirmed the prior diagnosis and its cause, and expressed the view that the applicant had suffered a permanent psychiatric impairment (Ex A1 at 663 and 671; CB tab 31 at 412 and tab 32 at 414). His report dated 12 March 2014 was to the same effect (CB tab 34 at 419). Dr Teoh’s evidence goes no higher than his report dated 19 March 2018 confirming his earlier diagnosis and advising that she presented with a complex history of psychosocial stressors over the years, referring to “unresolved issues in relation to the legal matters [earlier identified as the Family Court matter and in relation to breach of confidentiality and defamation], which is causing her significant emotional distress” (Ex A1 at 1901; CB tab 38 at 603).
Nor does Dr Crickitt’s expert evidence lend any support to the applicant’s case. In his report dated 7 November 2009, Dr Crickitt diagnosed the applicant as suffering from “Generalised Anxiety Disorder with Panic Disorder” and found that “[t]he Symptoms and diagnosis are entirely consistent with the history of work place difficulties and stresses. In her WorkCover Medical Certificate I certified that I believed her employment was a substantial contributing factor to her injury” (CB tab 27 at 397). Subsequently, in his report dated 20 May 2013, Dr Crickitt again diagnosed the applicant as suffering from “Anxiety Disorder with panic attacks and probable Posttraumatic Stress Disorder” and advised that in his opinion “[t]he diagnosis is consistent with her story of abuse while teaching at the school” (Ex A1 at 678; CB tab 33 at 418).
In this regard, contrary to the assumption underlying the applicant’s submissions, it was not for the respondents to lead medical evidence “to dispute Dr Teoh’s evidence, or any of the other medical evidence or the Applicant’s evidence” (Applicant’s final submissions in response to the respondents’ final submissions at p. 28 [111]-[112]). The onus lay upon the applicant to establish the elements of her cause of action in negligence. Furthermore, the first to third and seventh respondents did not dispute the evidence of Dr Teoh or Dr Crickitt. To the contrary, they relied upon their expert evidence as demonstrating that the applicant’s psychological condition pre-dated, and was neither caused nor exacerbated by, the respondents’ conduct (Closing submissions of the first, second, third and seventh respondents at [111]-[112]).
10.5 The cause of action in negligence against the Registrar-General must be dismissed
Equally, no duty of care could arise as against the Registrar-General.
10.5.1Exclusion of liability in s 146, Real Property Act
The first difficulty with the applicant’s claim in negligence against the Registrar-General is the exclusion of liability against the Registrar-General in s 146 of the RPA. That section provides that:
An act or omission by the Registrar-General, or by any person acting under the direction, or with the authority, of the Registrar-General, does not subject the Registrar-General or any person so acting personally to any action, liability, claim or demand if the act or omission was done or omitted to be done in good faith in the administration or execution of this Act.
There is no evidence whatsoever that the Registrar-General or his staff acted otherwise than in good faith. To the contrary, for reasons I later explain, it was entirely proper and necessary for the Registrar to include the Family Court Orders on the Register in the discharge of his functions under the RPA. Moreover, upon being requested by the applicant to do so, the Registrar-General removed the Family Court Orders disclosing the applicant’s name from the Register within a reasonably short period of time: see above at [73].
In this regard, the applicant stated that she “has always accepted that an unredacted copy of the Family Court Orders had to be filed with the Request for processing by the Fifth Respondent” and further that she “accepts that the Family Court Orders were removed from the public register in response to the Applicant’s complaint on 24 February 2016”: Applicant’s final submissions in response to the respondents’ final submissions at p. 56 [5] and [6] respectively.
10.5.2The imposition of a duty of care upon the Registrar-General would be inconsistent with his statutory powers and duties
Secondly and in any event, any duty of care would conflict with powers vested in, and duties imposed on, the Registrar-General with respect to the maintenance of the Register. As the Registrar-General submitted in closing:
19. … any duty to take reasonable care to avoid psychiatric illness being suffered to persons from the act of registering orders is incompatible with the Registrar-General’s statutory obligation to maintain the Register and otherwise administer the RPA and the clear mandate of the RPA that he/she be able to do so in the manner that he/she sees fit, as well as the statutory mandate which enables him/her to do so efficiently and without undue regard to claims that may be made against him/her as a result of the administration or execution of the RPA …
(quoted without alteration)
In particular:
(1)Under s 31B of the RPA the Registrar-General is required to cause a Register to be maintained for the purposes of the RPA comprised of, among other things, folios and dealings registered under the RPA or any other Act. Further, by virtue of s 31B(3) and (4), the Registrar-General is empowered to maintain the Register in any medium or combination of media, and to vary the manner or form in which the Register is maintained.
(2)Section 32(1) provides that the Registrar-General creates a folio of the Register for land by making a record of, among other things:
(c) such particulars, as the Registrar-General thinks fit, of:
(i) other estates or interests, if any, affecting the land, and
(ii) other information, if any, that relates to the land or any estate or interest therein and is included in that record pursuant to this or any other Act (including an Act of the Parliament of the Commonwealth) or an instrument made under any such Act,
and by allocating a distinctive reference to the record so made.
(3)Section 32(6) provides that the Registrar-General has the power to cancel any recording in the Register that she or he is satisfied does not affect the land to which the recording purports to relate, and under subs (7) is required to “maintain a record of all dealings recorded in, or action taken in respect of, a computer folio and such other information, if any, relating to the folio as the Registrar-General thinks fit.”
(4)Furthermore, s 86 requires the Registrar-General to record Court orders vesting land in the Register in the following terms:
(1) Where an order is made by a court of competent jurisdiction vesting land under the provisions of this Act in any person, the Registrar-General on being served with an office copy of the order shall make such recording in the Register as in accordance with the provisions of this Act may be necessary to give effect to the order.
(2) Unless and until a recording referred to in subsection (1) is made, an order so referred to shall have no effect or operation in transferring or otherwise vesting the land the subject of the order, but when the recording is made the person in whom the order purports to vest the land shall become the registered proprietor of the land.
(5)Moreover, the Registrar-General may refuse to register a dealing executed pursuant to a court order directing, appointing or empowering a person other than the registered proprietor to dispose of land unless the attestation of the dealing is accompanied by the court order (s 86(3), RPA).
As to the purpose of these duties, functions and powers, the High Court explained in Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA 45; (2007) 233 CLR 528 after referring to s 31B of the RPA, that:
5. Together with the information appearing on the relevant folio, the registration of dealings manifests the scheme of the Torrens system to provide third parties with the information necessary to comprehend the extent or state of the registered title to the land in question.
As the Registrar-General therefore submitted:
23. … it was within his very broad power and discretion in making recordings on the Register of any information relating to land, especially absent any notice of the Notification, to record the Orders on the Register. Indeed, the recording of those Orders gave third parties the necessary information to comprehend the “state” of the registered title (i.e. the registered proprietors were appointed trustees for sale), which the High Court identified in Westfield as being part of the scheme of the Torrens System of registration.
Furthermore, as the Registrar-General also submitted, the importance of ensuring that necessary information is available to third parties on the Register is illustrated by the present case. This was because any search in the Register would have revealed an apparent anomaly in that:
(1)the title search dated 18 October 2011 (Ex A1 at 485) disclosed that the property was subject to two mortgages, AA326000 to Perpetual Trustees Victoria Ltd and AC403757 to Trust Co Fiduciary Services Ltd and that the joint tenants were Ms Czinner and Mr Madden suggesting that they must be the mortgagors; whereas
(2)the mortgagors were in fact the applicant and her former husband (see Ex A1 at 529).
As such, as the Registrar-General submitted, any person searching the Register in relation to the property would not have understood the state of the registered title in circumstances where the mortgagor was not the registered proprietor, absent the Family Court Orders disclosing that the registered proprietors were appointed as trustees for sale of the property. It follows that it was entirely proper and necessary for the Registrar-General in the exercise of his powers and discretions under the RPA to include the Family Court Orders on the Register. I therefore agree with the Registrar-General’s submissions that it would interfere with the proper and effective discharge by the Registrar-General of his statutory powers and duties to impose a duty of care upon him to take care not to include information on the Register which would disclose this information insofar as it related to the applicant. As such, in line with the principles enunciated by the High Court in decisions such as Sullivan and Tame, I do not consider that any such duty of care existed.
I am further reinforced in my conclusions in this regard by the limited circumstances in which the RPA envisages and provides for compensation as a result of an act or omission by the Registrar-General. Thus s 129(1) of the RPA provides for the award of compensation from the Torrens Assurance Fund relevantly in the following terms:
Any person who suffers loss or damage as a result of the operation of this Act in respect of any land, where the loss or damage arises from:
(a) any act or omission of the Registrar-General in the execution or performance of his or her functions or duties under this Act in relation to the land (including any such act or omission of the authorised operator) …
(emphasis added. I note that subss (1(b)-(g) have no possible relevance here)
Importantly, provision is made for payment of compensation limited to loss or damage “in relation to the land” and no provision is made for any other type of loss or damage such as psychiatric injury. Furthermore there is no requirement that fault or failure to comply with a duty be established for the entitlement to compensation to arise, as Bryson J held in Challenger Managed Investments Ltd v Direct Money Corp Pty Ltd [2003] NSWSC 1072; (2003) 59 NSWLR 452 (Challenger) at [82]. Bryson J then explained the purpose to which the compensation provisions were directed as follows:
83. On every business day the Registrar General registers many mortgages, perhaps hundreds, and at intervals of months or perhaps years one of them turns out to have been forged. Similarly the Registrar General grants many applications for new certificates of title, and a very small proportion of them turn out to have been fraudulent applications. Every mortgage and every application is susceptible of detailed investigation, inquiries of persons potentially adversely interested, and summoning and examining persons who might give information about them. Embarking on less than all conceivable investigations involves risks, with which Pt.14 deals.
84. I see s.129 and Pts.13 and 14 as machinery which among other effects, give assurance to the Registrar General that he is to go ahead and administer the Real Property Act in a confident and effective manner, without paying undue attention to the readily discernible possibility that in any particular transaction the Registrar General may have been deceived and may be acting on a wrong basis. If there is something suspicious the Registrar General can investigate it, but if not he can decide to act on what is put before him. The Registrar General is enabled to act on the confident basis that if he has made a decision which is later shown to be wrong, there is an assurance fund out of which any loss or damage can be paid for. The meticulous, expensive and perilous examinations and re-examinations in each transaction of titles, powers and the basis on which action was taking place which characterised the general law or old system of title are replaced by an effective system in which title consist of entries in the Register and the plainly discernible possibility that this will cause loss or damage either through mistakes which inevitably arise in public administration or without any mistake having been made, will be reliably paid for if it matures into fact. Recognising loss or damage and paying compensation become normal parts of the workings of Torrens System, and are not enormities requiring the intervention of the law of tort. The Torrens System pursues efficiency and promptitude in establishing land titles, and deals with the risks which pursuit of these advantages brings with it.
In essence, therefore, the RPA contemplates that loss may arise as a result of an act or omission of the Registrar-General in exercising her or his function of maintaining the Register and has specifically provided for compensation to be provided where such acts or omissions occur on a no-fault basis uncomplicated by the elements required to be established in tortious claims. That the legislature has not seen fit to include psychiatric and other injuries as a compensable loss for the Registrar-General’s acts or omissions is a compelling reason to deny the existence of any duty of care of the kind alleged here. This is particularly so where to impose such duties would undermine the legislative intention of enabling the Registrar-General to act, as Bryson J explained, in a “confident and effective manner, without paying undue attention” to the possibility that she or he may be acting on a wrong basis. As such, no such duty of care could exist.
10.5.3The risk of injury from any alleged act or omission by the Registrar-General was not reasonably foreseeable
Thirdly and in any event, it was manifestly not reasonably foreseeable that the Registrar-General, in the context of carrying out his statutory duty and function of maintaining the Register under the RPA in giving effect to the Family Court Orders, might cause a significant and recognised psychiatric illness to the applicant merely by registering the Family Court Orders thereby disclosing the applicant’s real name on the Register, in circumstances where he had no notice of the notation from those orders. The alleged injury can again be described as extreme or idiosyncratic: see above at [196].
10.5.4Additional reasons why the claim in negligence against the Registrar-General must fail
Without endeavouring to be exhaustive, there are a number of additional reasons why the claim in negligence against the Registrar-General must fail in any event.
First, it is necessary for a plaintiff/applicant to identify “with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk. As Isaacs A-CJ observed in 1924, ‘[n]o conclusion of negligence can be arrived at until, first, the mind conceives affirmatively what should have been done.’”: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at [192] (Gummow and Hayne JJ) (emphasis added). However, the applicant has failed to do that in this case. As the Registrar-General asked rhetorically in written submissions:
29. What is the standard that should be applied to the Registrar-General, who has an important public function to maintain a register of all property in New South Wales? Without any articulation of the duty of care, it is not possible to identity [sic] what the standard of care for a defendant in the position of the Registrar-General might be, and therefore it is not possible for the Registrar-General to know what precisely was required of him to discharge it.
Secondly, and for the same reasons earlier given at [200]-[203] above, there is equally no medical evidence establishing that the Registrar-General’s conduct caused or exacerbated the applicant’s generalised anxiety disorder. As such, the claim in negligence against the Registrar-General must also fail for this reason.
In short, it is apparent that the claim in negligence against the Registrar-General is wholly lacking in merit.
11. THE CLAIM FOR BREACH OF PRIVACY
The applicant also seeks damages for “breach of privacy” apparently in addition to the Privacy Act claims. The door has not been closed to the possibility that a tort of privacy might develop in Australia following the decision in Lenah Meats, even though it has been cautioned that “the statements of the majority in Lenah do not support the suggestion that the High Court in Lenah held out any invitation to intermediate courts in Australia to develop the tort of privacy as an actionable wrong”: Sands v South Australia [2013] SASC 44 at [614] (Kelly J).
In Maynes v Casey [2011] NSWCA 156 (Maynes), Basten JA (with whose reasons Allsop P agreed) observed that:
34. The absence from the common law of an established tort for unjustified invasion of privacy has been noted on more than one occasion. The judgments in the High Court in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45; 58 CLR 479 were once thought to stand in the way of the development of such a tort. That view has been held to be wrong: see Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, 208 CLR 199 at [108], Gummow and Hayne JJ, Gaudron J agreeing. The applicants relied on these remarks and on Giller v Procopets [2008] VSCA 236; 24 VR 1 (Maxwell P, Ashley and Neave JJA). Giller was a case in which the Victorian Court of Appeal considered a claim for damages for breach of confidence, arising out of the release of a videotape of sexual activities between a couple, since estranged. In particular, the Court considered whether damages could be awarded for emotional distress, falling short of psychiatric injury, caused by the breach of confidence.
35. These cases may well lay the basis for development of liability for unjustified intrusion on personal privacy, whether or not involving breach of confidence: cf John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; 70 NSWLR 484 at [124] …
However, Basten JA held that it was unnecessary to determine that question as the applicant had failed to demonstrate any plausible basis upon which to challenge the primary judge’s finding that the defendant’s conduct was not “an undue or serious invasion of any right to privacy possessed by the plaintiffs or to be highly offensive to a reasonable person of ordinary sensibility” (Maynes at [36]; see also Lenah Meats at [42] (Gleeson CJ)). As such, Basten JA held that “[t]he case therefore provides an inappropriate vehicle to consider any possible developments of the law with respect to intentional invasion of privacy” (ibid).
This is equally an inappropriate vehicle to consider any possible development of the law in this respect. Among other difficulties with her claim, Ms DOQ has failed to articulate what she alleges are the elements of the tort. Furthermore, again as in Maynes, none of the conduct of which the applicant complains can be characterised as “an undue or serious invasion” of any right to privacy; nor as “highly offensive to a reasonable person of ordinary sensibility”. Finally, as I have previously held, the applicant has not established that her mental disorder is in any way attributable to any of the respondents’ alleged conduct.
12. MISCELLANEOUS CLAIMS
The applicant also lists various other alleged causes of action in her FASOC, namely: (1) breach of s 52 of the Trade Practices Act 1974 (Cth) (TPA) which was repealed on 1 January 2011; (2) breach of the Bankruptcy Act 1966 (Cth); and (3) breach of the Inspector General’s Practice Direction 14. The allegations are hopeless and must be dismissed. First, none of these allegations rises above bare assertion. Secondly, the first allegation is made against Ms Nash to whom the TPA did not apply for the reason that she is not a corporation. Thirdly, the manner in which the Bankruptcy Act 1966 (Cth) is said to been contravened so as to give rise to a civil cause of action sounding in damages is left completely unexplained, as is the alleged breach of the Practice Direction.
13. CONCLUSION
For the reasons set out above, the application must be dismissed.
With respect to the issue of costs, the respondents have successfully defended all of the claims made in the application and are therefore plainly entitled to their costs on a party/party basis in accordance with the ordinary rule: Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International NV (No 2) [2007] FCAFC 121 at [6] (the Court). I note however, that Ms Nash submitted that costs should be awarded on an indemnity basis (R4CS at [62]). If Ms Nash wishes to press this application, then as a matter of fairness, Ms DOQ should be afforded an opportunity to respond to that application in light of these reasons. It may however, be thought that it is in the interests of justice to bring this unfortunate litigation to an end.
None of the other respondents sought costs on an indemnity basis. An order should therefore be made that the applicant pay the costs of the first, second, third, fifth and seventh respondents as agreed or assessed.
I certify that the preceding two hundred and twenty-nine (229) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. Associate:
Dated: 10 September 2019
SCHEDULE OF PARTIES
NSD 1319 of 2017 Respondents
Fourth Respondent:
SALLY SUSAN NASH
Fifth Respondent:
REGISTRAR GENERAL OF NEW SOUTH WALES
Seventh Respondent:
SAVICE PTY LTD (LJ HOOKER PICTON)
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