Eastley & Eastley
[2023] FedCFamC1F 876
•18 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Eastley & Eastley [2023] FedCFamC1F 876
File number(s): CAC 1421 of 2023 Judgment of: GILL J Date of judgment: 18 October 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Prohibition on the use of documents – where the applicant seeks the release of material from finally resolved family law proceedings for use in Territory civil proceedings against a witness in the family law proceedings – the interaction of Territory legislation with Commonwealth Courts – s 79 of the Judiciary Act 1903 – interaction of s 69ZW of the Family Law Act 1975 with State and Territory legislation – distinction between investigation and notification for the purposes of s 69ZW of the Family Law Act 1975 – where the material includes protected information pursuant to s 844 of the Children and Young People Act 2008 – who is an information holder pursuant to s 843 of the Children and Young People Act 2008 – Harman and Hearne v Street obligations – the effect of material being read into evidence – s 121 of the Family Law Act 1975 Legislation: Family Law Act 1975 (Cth) - ss s 69ZW and 121
Judiciary Act1903 – s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 – rr 6.04 and 6.36
Children and Young People Act 2008 (ACT) – ss 843, 844, 845, 846, 864, 865 and 866
Cases cited: Department of Family and Community Services & Jordan & Ors (2012) 47 Fam LR 666; [2012] FamCAFC 147
GPAO (1999) 196 CLR 553
Harman v Secretary of State for Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125
Springfield Nominees Pty Ltd and Ors v Bridgelands
Securities Ltd and Ors (1992) 38 FCR 217
Division: Division 1 First Instance Number of paragraphs: 77 Date of hearing: 25 September and 12 October 2023 Place: Canberra Solicitor for the Applicant: Mr Markham, Adero Law Counsel for the Respondent: Dr Smith Solicitor for the Respondent: Dobinson Davey Clifford Simpson Solicitor for the Independent Children's Lawyer: Ms Cruise, amicus curiae, Legal Aid ORDERS
CAC 1421 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR EASTLEY
Applicant
AND: MS EASTLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
18 OCTOBER 2023
THE COURT ORDERS THAT:
1.The applicant’s application filed 14 August 2023 seeking the release of the report of Dr U, dated August 2020, to be provided to the ACT Government Solicitor is refused.
2.The applicant is granted leave to provide affidavits of the respondent, as filed in proceedings CAC1729/2020, dated 4 September 2020 and 16 November 2020, to the ACT Government Solicitor for the purposes of pre litigations steps.
3.All copies of the affidavits of the respondent dated 4 September 2020 and 16 November 2020 are to remain within the control of the legal representatives of the parties and the ACT Government Solicitor, with such copies to be destroyed or returned to the court within 12 months of the date of these orders.
4.The applicant is to identify to the ACT Government Solicitor the ongoing applicability of the restrictions on publication provisions contained in s 121 of the Family Law Act 1975.
5.The applicant is to provide to the ACT Government Solicitor these orders and Reasons for Judgment.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Eastley v Eastley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
This application is in relation to finally resolved proceedings and concerns the release of material from those proceedings. The applicant seeks the release of two affidavits produced by the respondent and read into evidence in the interlocutory phase of the proceedings, and a report prepared by a Dr U, and produced to the Court by the Director General, Child and Youth Protection Services, Community Services Directorate, (the “Director General” and the “Agency” respectively) that was tendered into evidence during the final hearing.
The applicant’s purpose in seeking the release of this material is in aid of pre-litigation steps for action that he is taking in respect of Dr U. Although initially he sought orders that would permit a broader use in proceedings against Dr U, at this stage he limits his application to the release of the documents to Dr U’s lawyers, the ACT Government Solicitor.
The scope of the proposed claim against Dr U, as identified by the applicant, appeared to claim duties of care owed by Dr U to the applicant and to X, one of the children the subject of the finally resolved proceedings. The duties were said to attach to the provision of medical opinions by Dr U, and were said to have been transgressed by the provision of opinions for which Dr U was lacking in qualification, and lacking in proper basis to proffer.
As a result, the applicant asserts harm occasioned to him, described as deterioration of relationship, loss of custody and the incurring of an unnecessary costs impost in relation to the report prepared by Dr U.
The applicant alleges that Dr U provided the relevant opinion to the respondent prior to the commencement of the proceedings, in the context of Dr U’s work at the G Health Service (“GHS”) at the F Hospital, following the child’s referral to that service. He asserts that the significance ascribed to that opinion by the respondent is disclosed in the affidavits of hers that he seeks to use, and that the opinion was repeated in the written report authored by Dr U, that he also seeks to use.
The respondent opposed the release of the material.
The parties then identified a number of legal issues that they submitted bore upon the issue of release, spanning implied undertakings, the operation of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (the “Rules”), and the effect of the Children and Young People Act 2008 (ACT) (the “CYP” Act), being the Act that governs child protection law, and which governs the release of information by the Director-General, in the Australian Capital Territory. It became apparent that consideration must also be given to s 69ZW of the Family Law Act 1975, being the Federal scheme that deals with the obtaining of information from the Director-General.
It is convenient to deal with the report prepared by Dr U first, given that unlike the two affidavits, it raises issues concerned with the CYP Act and s 69ZW.
THE REPORT
A report by Dr U was tendered in the trial of the parenting dispute. It was obtained in answer to a subpoena issued to the Agency on 24 August 2020 at the request of the applicant. The subpoena contained the following schedule:
Copies of all correspondence, statements, records of interview, file notes, memoranda, diary entries, ongoing case plan reviews, child protection case management forms, child protection case closure forms, police reports, investigation/assessment summaries, assessment reports, interim assessments, interview summaries and all other documents and writings in your possession, custody or control arising out of any complaints made in relation to: a. [Mr Eastley] born […]1977; b. [Ms Eastley] born […] 1985; c. [X] born […] 2017; and d. [Y] born […] 2019.
A redacted version of the report of Dr U was provided as part of the bundle produced by the Agency pursuant to the subpoena on 2 September 2020.
Ultimately Dr U’s report was provided in unredacted form by the Agency following orders, in relation to which the Agency was on notice, of 10 December 2020 made in the following terms:
5. Pursuant to s 866 of the Children and Young People Act 2008, Child and Youth Protection Services, Community Services Directorate (“the Agency”) shall provide to the Canberra Registry of the Family Court of Australia within 7 days the unredacted version of the Child Concern Report Form dated 27 July 2020, NOTING THAT a redacted version of the same document was provided to the Registry on 2 September 2020 (starting on page 11 of the 63 page bundle).
a. It is requested that the agency leaves references to any notifier redacted in the production of this material.
6. In complying with Order 5, it is not necessary that material identifying the person who made the notification be disclosed and to that end it is sufficient for any words that may identify such a person to remain blacked out.
7. The legal representatives for the parties and the Independent Children’s Lawyer may inspect and photocopy any unredacted material produced by the Agency pursuant to Order 5.
8. The legal representatives for the parties, any self-represented party and the Independent Children’s Lawyer or any report writer appointed pursuant to s 62G or Chapter 15 of the Family Law Rules 2004 are authorised to inspect such material subject to the following:
a. The material may only be photocopied on the basis that all copies are to remain within the control of the legal representatives of the parties, the Independent Children’s Lawyer and any report writer with such copies to be destroyed or returned to the Court at the conclusion of the matter.
b. Any use or disclosure of the information contained within the documents produced, other than use in the conduct of the case before this Court, is not permitted.
IT IS NOTED THAT the Agency has been provided notice of these Orders as sought but does not seek to be heard.
It may be considered that Dr U’s report, prepared at the GHS of the F Hospital and later referred to as a Child Concern Report, was “information about a person that is disclosed to, or obtained by the Director General as an information holder” and, pursuant to s 844 of the CYP Act, was “protected information”.
If, as described in the orders, the report was a “child concern report” then pursuant to s 845 of the CYP Act, as well as being protected information, it was also “sensitive information.”
Protected information and sensitive information are subject to significant restrictions imposed by the CYP Act, in respect of who may hold them and when they may be communicated.
Section 846 of the CYP Act creates an offence where an “information holder” discloses protected information without legislative authorisation. “Information holder” is defined by s 843 of the CYP Act in the following manner:
information holder means a person who—
(a) is or has been—
(i) the director-general; or
(ii) the public advocate; or
(iii) the Aboriginal and Torres Strait Islander children and young people commissioner; or
(iv) an official visitor; or
(v) a researcher for an approved research project; or
(vi) someone else exercising a function, or purporting to exercise a function, under this Act (other than a judge or magistrate); or
(vii) someone else engaged in the administration of this Act; or
(b) has been given information under this Act by a person mentioned in paragraph (a).
Accordingly, if the Territory provisions apply, the Director-General who provided the material to the court is, as an information holder, and subject to significant restrictions on the provision of Dr U’s report.
The issue that then arises is as to what restrictions govern the court in dealing with the protected and sensitive information. If the court is an information holder then the CYP Act would seek to place the same restrictions upon the court.
While it may be seen from s 846(b) of the CYP Act that the status of information holder, and the obligations attached to that status may travel with the information, it would seem that the court is not an information holder under the CYP Act. Two reasons support this conclusion, the first being that the reference is to “a person” being a description that does not naturally include a court. The second is that at s 843(a)(vi) there is explicit exclusion of judges and magistrates.
The effect of this is that not only is the court not caught as an information holder, but also whoever may be given protected information by the court also does not become an information holder by virtue of being provided with the information.
However, the issue as to the restrictions upon the court in dealing with the information remains, as there is a further specific legislative provision dealing with courts.
Part 25.4 of the CYP Act deals with the provision of protected information to courts and investigative entities. Section 865 enables the information holder, (here the Director-General) to provide protected information to a court (including a Commonwealth Court) if authorised to do so under the CYP Act or another Territory law. Sections 864 and 865 are in the following terms:
864 Definitions—pt 25.4
In this part:
court includes a tribunal.
produce includes allow access to.
Note Investigative entity—see the dictionary.
865 Giving protected information to court or investigative entity
(1) An information holder must give protected information to a court or investigative entity if required to do so for this Act or another territory law.
(2) An information holder must produce a document containing protected information to a court or investigative entity if required to do so for this Act or another territory law.
(3) An information holder may give protected information to a court or investigative entity if authorised to do so by this Act or another territory law.
(4) An information holder may produce a document containing protected information to a court or investigative entity if authorised to do so by this Act or another territory law.
(5) In this section:
court includes a court of the Commonwealth, a State or another Territory.
Example
the Family Court of Australia
Section 866 of the CYP Act is such an authorising Territory law, as it authorises a court in any proceedings to order the information holder to give sensitive information to the court. It then imposes restrictions upon the manner in which the court may deal with the sensitive information:
866 Court may order sensitive information to be given or produced
(1) A court may, in any proceeding, order an information holder to—
(a) give sensitive information to the court; or
(b) produce a document containing sensitive information to the court.
(2) However, the court must not allow information given or produced to it under subsection (1) to be given to the parties to the proceeding unless satisfied that—
(a) the information is materially relevant to the proceeding; and
(b) if the information is about a child or young person—the best interests of the child or young person are protected.
(3) In making a decision under subsection (2), the court must consider the desirability of protecting the identity of a person who made a child concern report, confidential report or interstate care and protection report.
(4) To enable the court to make a decision under subsection (2), the court must allow the information holder to be heard in relation to its disclosure to the parties.
(5) In making a decision under subsection (2), the court must deal with the information given or produced under subsection (3) in a way that ensures the information is not divulged or produced to anyone else.
(6) In particular, the court must ensure that no copies of the information can be made without leave of the court.
(7) If the court decides not to allow a document produced to it under subsection (1) (b) to be given to the parties, the court must return the document to the information holder.
Intriguingly, while at s 865 the definition of court is explicitly extended to Commonwealth Courts for the operation of that section, it is not explicitly extended at s 866.
An issue arises as to the effect of the Territory provisions on this court as a Commonwealth Court.
The High Court dealt with a very similar issue, involving the relationship between Northern Territory law and the Family Court of Australia in the case of GPAO (1999) 196 CLR 553. That case involved the interaction of a subpoena of this court upon an authorized person under the Community Welfare Act of the Northern Territory, where that Act prohibited the authorised person from producing the documents.
While there the contest was in relation to production of the document to the court, and so the application of the prohibiting provisions, here the issue is in relation to the applicability of s 866 of the CYP Act to permit this court to compel production, and s 866 in its restrictions imposed on the use of the information.
In GPAO Gleeson CJ and Gummow J concluded that the prohibiting provision under Northern Territory law was binding upon the Family Court.
The basis upon which the law was binding was reliant upon the following characteristics:
(a)The law was in force as a law of the Northern Territory;
(b)The law was not inconsistent with the Family Law Act 1975 and so did not fail for inconsistency with the federal law;
(c)The law was thereby available as an object of s 79 of the Judiciary Act;
(d)Section 79 of the Judiciary Act thereby picked up the prohibiting provision as binding upon the Family Court.
The relevant part of s 79 of the Judiciary Act1903 is in the following terms:
79 State or Territory laws to govern where applicable
(1)The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
(1A)For the purposes of subsection (1), a Court exercising federal jurisdiction in a proceeding is taken to be exercising federal jurisdiction in:
(a)if the laws of a State or Territory apply to a part of the proceeding because of subsection 68C(5)–that State or Territory; or
(b) if paragraph (a) does not apply:
(i)if the proceeding is transferred or remitted--the State or Territory to which the proceeding is transferred or remitted; and
(ii)otherwise--the State or Territory in which the proceeding is commenced;
except as otherwise provided by the Constitution or the laws of the Commonwealth.
Following the same reasoning process, this means that, absent a Commonwealth provision that relevantly otherwise provides, sections 865 and 866 are picked up by s 79 and apply to give this court the power to compel production, but subject the court to the restrictions contained within s 866.
It is necessary to consider whether there is a Commonwealth provision that provides otherwise. Some time after the decision of the High Court in GPAO in 1999, s 69ZW was added into the Family Law Act 1975 in 2006. Section 69ZW is directed to the power of the court to compel State and Territory agencies, such as the Agency in these proceedings, to provide specified information to the court. It is in the following terms:
69ZW Evidence relating to child abuse of family violence
(1)The court may make an order in child-related proceedings requiring a prescribed State or Territory agency to provide the court with the documents or information specified in the order.
(2)The documents or information specified in the order must be documents recording, or information about, one or more of these:
(a)any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;
(b)any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;
(c)any reports commissioned by the agency in the course of investigating a notification.
(3)Nothing in the order is to be taken to require the agency to provide the court with:
(a)documents or information not in the possession or control of the agency; or
(b)documents or information that include the identity of the person who made a notification.
(4)A law of a State or Territory has no effect to the extent that it would, apart from this subsection, hinder or prevent an agency complying with the order.
(5)The court must admit into evidence any documents or information, provided in response to the order, on which the court intends to rely.
(6)Despite subsection (5), the court must not disclose the identity of the person who made a notification, or information that could identify that person, unless:
(a)the person consents to the disclosure; or
(b)the court is satisfied that the identity or information is critically important to the proceedings and that failure to make the disclosure would prejudice the proper administration of justice.
(7)Before making a disclosure for the reasons in paragraph (6)(b), the court must ensure that the agency that provided the identity or information:
(a) is notified about the intended disclosure; and
(b) is given an opportunity to respond.
Specifically, the provision overrides State and Territory legislation that provides contrary to its terms.
As was observed by the Full Court in Department of Family and Community Services & Jordan & Ors 47 Fam LR 666, where an order is within the limitations imposed by s 69ZW the State (here Territory) Act will have no effect in resisting the production of the document.
The issue then is s 69ZW’s application to the report of Dr U, as, if s 69ZW catches the report then it governs how it is to be dealt with, rather than s 866 of the CYP Act.
Hence in this case the relevant aspect of s 69ZW to consider is s 69ZW(2), as if the report of Dr U falls within the descriptions listed there, then the order to compel its production, even though by subpoena, falls within the reach of s 69ZW.
There is limited information available to enable a determination to be made as to the description or character of the report. The applicant referred to the substantive judgment in its dealing with the report at [152,153]. Paragraphs 152 to 154 were in the following terms:
152. [Dr U’s] observations from the medical examination of [X] [in] July 2020 are recorded in an AFP case note written on that date. It records that [Dr U] “identified several small lacerations around his anus diagnosed as a penetrative friction injury”.71 However, it also recorded that [Dr U] said that “it could not be concluded whether the injuries were caused by an object or by hardened faeces”.
153. This ambivalent opinion expressed to the police appeared to have hardened by the time of her written report [in] August 2020 which detailed her findings in relation to the examination of [X] [in] July 2020. She concluded that the “[g]enital examination ([in] July 2020) revealed the presence of a swollen anal orifice, significant erythema and multiple abrasions as described above. These are extremely significant and abnormal findings. These are indicative of significant friction and pressure (blunt force trauma)”.
154. [Dr U’s] report indicated that it was “extremely important to ensure [X’s] safety in the household” and concluded with a recommendation that “CYPS and SACAT assist the family in ensuring that this child is safe from any further possible sexual assault”.
(Citations omitted)
On the present state of the material before the court, Dr U’s report appears to be a report from an organisation external to the Agency, being the GHS of the F Hospital, that was provided to the Agency.
To bring the report within s 69ZW it was asserted for the applicant that the report was not a notification, but was rather a part of the assessment undertaken by the Agency of investigations into a notification.
The respondent submitted that guesses as to the character of the report, even when derived from the judgment, should not be made.
Before examining the applicant’s argument, it is important to consider what is implicit to the descriptions at s 69ZW(2). Those descriptions reveal a number of significant distinctions being drawn between a notification, an investigation, and a report. Section 69ZW(2)(b) further delineates between an assessment by the Agency and the investigations into a notification. That is, the assessment is distinct from the investigation which in turn is distinct from the notification.
Something of this distinction was considered in Jordan at [59]:
This outcome causes no harm to individual children or the Court’s ability to protect the interests of children. If investigation of information provided by a notifier is unproductive, in an evidentiary context knowing or not knowing the identity of the notifier changes nothing. At that point there is no more utility in knowing the identity of the notifier than there is in knowing that a notification has been made. If the notification results in an investigation which establishes evidence of risk that evidence can be admitted in an orthodox way. Otherwise a decision must be made about whether the information provided by the notifier is of such importance that the notifier should be asked by the child welfare agency to give evidence or alternatively an order made under the State Act which would facilitate this outcome. Applied in this manner these provisions promote the interests of children as a class as well as the individual child.
What is implicit in this (perhaps optimistic) observation on the part of the Full Court is that the investigation is distinct from the notification.
Here Dr U is involved in the investigation that was provided to the Agency, and provided a report directed to the Agency. It is not however a report in any way identified as falling within s 69ZW(2)(c) as one commissioned by the Agency. Rather it appears to be the result of a referral by the Australian Federal Police (the “AFP”) as a part of the investigation. Accordingly, it cannot be considered that it is either a relevant “notification” as described by s 69ZW(2)(a), nor a report “commissioned by the Agency” as described by s 69ZW(2)(c).
This means that in order to be caught by s 69ZW, the report must, as submitted by the applicant, fall within s 69ZW(2)(b). While it might be thought to be the sort of document that would be the subject of assessment of the investigation into a notification, its actual status as part of the assessment is at best speculative.
The consequence of this is that it cannot be determined as a matter of fact to be material falling within s 69ZW.
This renders it necessary to consider the consequences of the material falling outside of s 69ZW.
What if the provision of the material falls outside s 69ZW?
If the material is not caught by s 69ZW, then its production and use is governed by ss 865 and 866 of the CYP Act as provisions picked up by the Judiciary Act.
Consistent with such a result is that the orders made to produce and deal with the material were, as indicated, made pursuant to sections 865 and 866. Those orders permitted the release of the sensitive information to the parties on limited terms. Consistent with the requirement at s 866(5) the orders required that any copies of the material be destroyed or returned to the court at the end of the proceedings and use or disclosure of the material was otherwise prohibited.
Consistent with s 866(4) opportunity was given to the information holder, being the Director-General, to be heard prior to making the order under s 866(2) releasing the protected information to the parties on the terms specified.
Section 866 then sets at least two barriers in the way of the applicant. The first is procedural, in that the Director-General should have the opportunity to be heard prior to the release order, given the terms of s 866(4). More definitively, s 866(5) directs the court to ensure that the information “is not divulged or produced to anyone else.”
This constitutes a hard barrier to the applicant in respect of the report. Section 866 prohibits the making of the order that is sought by the applicant, as the nature of the order is for the provision of the information to someone else, being the ACT Government Solicitor.
The other legal issues concerning use of the other material, being release from the implied undertaking, and the obligations imposed by the Rules, are more straightforward.
THE AFFIDAVITS
The implied undertaking issues
In reference to cases such as Harman v Secretary of State for Home Department [1983] 1 AC 280 and Hearne v Street (2008) 235 CLR 125 the primary focus of the parties was on release from obligations related to the material being provided either in response to subpoena or otherwise as a result of the proceedings. Given the above conclusion in respect of Dr U’s report, it is not necessary to consider the application of the principles to that report.
In Harman obligations were identified as resting upon parties gaining access to material produced under subpoena to the court. Often referred to as an implied undertaking, the obligations relevantly require a party to seek the permission of the court before using material produced under subpoena other than in the proceedings in which it was produced. It is an obligation that ends where the document produced under subpoena is tendered into evidence.
In Hearne v Street the court observed at [96] that the obligations extend as follows:
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.
(Citations omitted)
For each of those categories of documents, relevantly here and affidavits, the restrictions abate on the tender of the material into evidence in the proceedings.
In this case it was common that the affidavits of the mother the subject of the application were read into evidence in the interlocutory phase of the proceedings.
Accordingly, insofar as the Harman or Hearne v Street obligations are concerned, they no longer act as a bar upon the applicant using the documents in the manner that he proposes.
The Rules
Secondly the respondent relied upon a number of Rules of the court in relation to such documents. Those Rules were identified as:
6.04 Use of documents
(1)A person who inspects or copies a document, in relation to a proceeding, under these Rules or an order:
(a) must use the document for the purpose of the proceeding only; and
(b)must not otherwise disclose the contents of the document, or give a copy of it, to any other person without the court’s permission.
(2)However:
(a)a solicitor may disclose the contents of the document or give a copy of the document to the solicitor’s client or counsel; and
(b)a client may disclose the contents of the document or give a copy of the document to the client’s solicitor or counsel; and
(c)this rule does not affect the right of a party to use a document or to disclose its contents if that party has a common interest in the document with the party who has possession or control of the document.
6.36 Use of documents produced in compliance with subpoena for production
(1)This Division:
(a) applies to a subpoena for production; and
(b) does not apply to a subpoena for production and to give evidence.
(2)A person who inspects or copies a document under these Rules or an order:
(a) must use the document only for the purpose of the proceedings; and
(b)must not otherwise disclose the contents of the document, or give a copy of it, to any other person without the court’s permission.
(3)However:
(a)a solicitor may disclose the contents or give a copy of the document to the solicitor’s client or counsel; and
(b)a client may disclose the contents or give a copy of the document to the client’s solicitor or counsel; and
(c)nothing in this rule prevents a client or a client’s solicitor from providing a document to an expert for the purpose of the proceeding as permitted by Chapter 7.
The mother argues that rr 6.04 and 6.36 continue the restriction beyond what was imposed in Harman or Hearne v Street, imposing blanket prohibitions absent the permission of the court.
Despite their terms, I doubt the application of rr 6.04 and 6.36 to circumstances where the documents form a part of the evidence given in open court. To the extent that inspection or copying prior to that point was restricted by the Rules, once they became a part of the evidence of the proceedings the documents were no longer available for inspection or copying by virtue of the Rules that authorise such, but rather by virtue of their status as tendered or read in the proceedings.
If this is wrong, and if permission is required under the Rules, the question arises as to what principles might govern the giving of the permission.
One important factor might be thought to be the fact that all of the material has entered into evidence in proceedings that were open to the public and hence, subject to the restrictions of s 121 of the Act, would be available to the public.
A second important factor would be the use to which the documents were proposed to be put. In considering this factor I was directed to the decision of Wilcox J in Springfield Nominees Pty Ltd and Ors v Bridgelands Securities Ltd and Ors (1992) 38 FCR 217, where his Honour dealt with circumstances justifying release from a Harman obligation, such being contended to be significant to a release of the restrictions imposed by the Rules. He identified the need for special circumstances, being “a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present.”
The applicant asserted commonality between the proceedings in this court and the proposed proceedings against Dr U, suggesting findings in this court go directly to the question of establishing Dr U’s negligence. It is thereby suggested that the three documents would likely contribute to achieving justice in the negligence proceedings, noting that at this stage that use would be restricted to provision of such to Dr U’s lawyers, the ACT Government Solicitor, for pre litigation processes to be undertaken.
The applicant asserted that a number of circumstances were special, relating to the basis and timing of the mother’s initial concerns as to possible sexual abuse by the applicant of X, their reliance upon Dr U, that another expert was preferred by the court at the trial, and that the other expert questioned the qualification of Dr U.
Some of the special circumstances and commonality issues are difficult to follow. For example, there can be no suggestion that findings in these proceedings are somehow binding in relation to Dr U in negligence proceedings.
Against the release, the respondent opposes the release, and submits that continuing litigation is not in the best interests of a child who was the subject of the original proceedings. The respondent submits that she has already been impacted adversely by the original proceedings, and that the release of the material has the potential to cause prejudice to both herself and the child. This is particularly so given the sensitive and personal nature of the material canvassed in the various documents.
It may however be observed that the release sought at this stage by the applicant is restricted in its scope to release to the lawyers for Dr U, and further to the pre litigation aspect of the proposed proceedings.
Criticism is also made of the merits, or lack thereof of the applicant’s proposed litigation, both as to the substance of the claim and the impact of witness immunity issues. That criticism may be well placed.
What appears clear is that the applicant’s case in respect of Dr U is reliant both upon Dr U’s expression of opinion and the impact of such upon the mother.
Where the documents have each entered into evidence, the centrality of the documents to the applicant’s proposed claim are sufficient to warrant permission despite restrictions in the Rules, if such is required.
Whether the documents assist to make out the applicant’s claim, and whether the applicant’s claim is good, are matters to be determined in the proposed proceedings. It may be that the respondent’s criticisms of the applicant’s case identify fatal flaws in that case. That however will ultimately be a matter to be determined on its merits in those other proceedings.
The interests of justice require the release of the documents for use on the pretrial phase of the proposed proceedings in order to ensure that the claim is able to be determined on its merits and, if a legitimate claim, is not stifled by the refusal of permission.
CONCLUSION
The application in respect of Dr U’s report is refused.
Orders will be made permitting the release of the affidavit material to the ACT Government Solicitor for the purposes of pre litigations steps.
It will be incumbent upon the applicant to identify to the ACT Government Solicitor the ongoing applicability of the restrictions on publication provisions contained in s 121 of the Family Law Act 1975.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 18 October 2023
0
3
4