FLETCHER & JONES - [2015] FamCA 193

FAMILY COURT OF AUSTRALIA

FLETCHER & JONES

[2015] FamCA 193

FAMILY LAW – PRACTICE AND PROCEDURE – Application seeking order to release husband from implied undertaking not to publish certain documents – Where purpose of release is so documents can be used in recently commenced Supreme Court proceedings concerning a company of which the husband is sole director – Where Court not satisfied that section 121(9)(a) of the Family Law Act 1975 (Cth) absolves parties from, or otherwise destroys any implied undertaking that would attach to documents caught within its scope – Where Court affirmed that parties cannot be released from an implied undertaking by the other party’s consent – Where Court noted an undertaking being a matter of substantive law and an undertaking to the court means that it cannot be released, modified or altered by the other party’s consent unless ordered by the court – Where Court satisfied the documents in question are subject to implied undertaking – Where Court considered whether the publication of the documents to the Supreme Court is permitted by the undertaking – Where Court considered whether the purpose for which the documents were produced in the second set of proceedings is for the same or related purpose of the first set of proceedings – Where Court of the view that the two sets of proceedings do not wholly, or at all overlap – Where Court not persuaded that he use of the documents in the Supreme Court proceedings is within the scope of the undertaking and as such would need to be produced pursuant to subpoena or alternatively released from the undertaking – Where Court considered whether documents should be released from the undertaking – Where Court considered there are special circumstances in this case – Where order made releasing the parties from the implied undertaking in relation to certain documents.

Family Law Act 1975 (Cth) 121

Hearne v Street (2008) 235 CLR 125
Hermann v Hermann (No. 2) (2014) FamCA 587
Laen v At the Heads Pty Ltd [2011] VSC 315

APPLICANT:

Mr Cook on behalf of Ms Fletcher

RESPONDENT:

Mr Jones

FILE NUMBER:

BRC

3721

2011

DATE DELIVERED:

13 March 2015

PLACE DELIVERED:

Townsville

PLACE HEARD:

Townsville

JUDGMENT OF:

Tree J

HEARING DATE:

13 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Williams

SOLICITORS FOR THE APPLICANT:

Hirst & Co

COUNSEL FOR THE RESPONDENT:

Mr Hackett

SOLICITORS FOR THE RESPONDENT:

Barry Nilsson Lawyers

Orders

The parties be at liberty to use the following documents, or parts thereof for the purpose of extant Supreme Court of Queensland proceedings between the applicant and P Pty Ltd, namely:
(a)Affidavit of Ms Fletcher filed 28 November 2011;
(b)Affidavit of Ms Fletcher filed 15 May 2012;
(c)Affidavit of Ms Fletcher filed 6 August 2012;
(d)Affidavit of Ms Fletcher filed 12 September 2013;
(e)Affidavit of Ms Fletcher filed 23 July 2014;
(f)Affidavit of Ms Fletcher 15 August 2014;
(g)Affidavit of Mr Jones filed 17 February 2012;
(h)Affidavit of Mr Jones filed 14 August 2014;
(i)Financial…

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.

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Details

AGLC: FLETCHER & JONES [2015] FamCA 193
Case: [2015] FamCA 193
Decision Date: 13 March 2015

CaseChat Overview and Summary

This matter concerned an application by the parties, Fletcher and Jones, for liberty to use certain documents in extant Supreme Court of Queensland proceedings between the applicant and P Pty Ltd. The court was required to determine whether to grant this liberty.

The court considered the nature of the documents, which included various affidavits, financial statements, a further amended response to an initiating application, an expert report, financial statements for a trust, reasons for judgment, and notices to admit and dispute facts. The central legal issue was whether the use of these documents in separate proceedings was permissible and appropriate.

Tree J granted the parties liberty to use the specified documents, or parts thereof, for the purpose of the extant Supreme Court of Queensland proceedings. The court's reasoning and the specific legal principles applied are not detailed in the provided text, beyond the granting of the order. The outcome was that the parties were permitted to utilise the listed documents in the ongoing litigation.

Orders

Orders of the court

The parties be at liberty to use the following documents, or parts thereof for the purpose of extant Supreme Court of Queensland proceedings between the applicant and P Pty Ltd, namely:

(a) Affidavit of Ms Fletcher filed 28 November 2011;

(b) Affidavit of Ms Fletcher filed 15 May 2012;

(d) Affidavit of Ms Fletcher filed 12 September 2013;

(e) Affidavit of Ms Fletcher filed 23 July 2014;

(f) Affidavit of Ms Fletcher 15 August 2014;

(g) Affidavit of Mr Jones filed 17 February 2012;

(h) Affidavit of Mr Jones filed 14 August 2014;

(i) Financial Statement of Mr Jones filed 17 June 2011;

(j) Financial Statement of Ms Fletcher filed 13 September 2013;

(k) Further Amended Response to Initiating Application by Mr Jones filed 22 December 2014;

(l) Expert Report of Q Forensics dated 16 February 2015;

(m) Financial Statements for the Ms Fletcher Trust for the financial years ending 2011, 2012, 2013 and

(p) Reasons for Judgment of the Honourable Justice Bell dated 29 November 2012;

(q) Notice to Admit Facts filed by the Applicant on 10 December 2014;

(r) Notice Disputing Facts filed by the Respondent on 23 December 2014.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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