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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading DOQ17 v Australian Financial Security Authority (No 3)
Sign in free to access the full text
Details
AGLC
DOQ17 v Australian Financial Security Authority (No 3) [2019] FCA 1488
Case
[2019] FCA 1488
Decision Date
CaseChat Overview and Summary
This case involved the applicant, Ms. DOQ17, who sought to challenge various orders made by the Family Court and subsequent actions by the Australian Financial Security Authority (AFSA) and others, including the Registrar-General. The Family Court had previously set aside consent orders transferring her former husband’s interest in their matrimonial home to her and instead vested the property in trustees for sale. The applicant sought to collaterally attack these orders, alleging breaches of statutory duties, privacy rights, confidentiality, and negligence by the respondents.
The primary legal issues revolved around whether the statutory provisions under the Family Law Act 1975 (Cth) and the Privacy Act 1988 (Cth) created actionable causes of tort or statutory breaches. Furthermore, the court examined whether the applicant could establish a breach of the equitable duty of confidence or a duty of care under negligence principles. The court also considered the application for costs.
The court found that the applicant's claims were devoid of merit. The statutory provisions in question did not create a private cause of action for damages, nor did they establish an obligation of confidence or duty of care sufficient to ground the applicant’s claims. The court held that the applicant’s emotional distress did not meet the threshold for a recognised psychiatric illness under the Civil Liability Act 2002 (NSW). The Family Court orders, being public documents, did not constitute personal information under the Privacy Act and therefore did not engage privacy rights. The applicant’s claims against the respondents were dismissed on the grounds of their lack of merit.
Consequently, the court ordered that the applicant’s application be dismissed, and she was to pay the costs of the respondents on a party/party basis, with the option for one respondent to seek indemnity costs pending further submissions. This ruling effectively brought an end to the applicant's attempts to seek redress through the Federal Court.
Orders
Orders of the court
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.
Background
Background to the litigation
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. BACKGROUND4.1 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]).
Evidence
Evidence Before The Court
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. BACKGROUND4.1 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]).
Decision
Reasons for decision
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.