FLETCHER & JONES
[2015] FamCA 193
•13 March 2015
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 | of | 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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fletcher & Jones has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT TOWNSVILLE |
FILE NUMBER: BRC3721/2011
| Mr Cook on behalf of Ms Fletcher |
Applicant
And
| Mr Jones |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
By Application in a Case filed 11 March 2015, the husband seeks orders releasing him from an implied undertaking not to publish certain documents. The purpose of that release is so he can use those documents in Supreme Court proceedings which he has recently commenced, in which he seeks to have set aside a number of statutory demands which have been served upon a company of which he is the sole director. The Application in a Case also sought orders in relation to leave to publish the documents under section 121 of the Family Law Act, however that was not pressed by the husband.
The issues which the application gives rise to are, firstly, whether the documents are in fact subject to any such implied undertaking. If they are, then the second matter is whether the publication to the Supreme Court would be permitted by the undertaking. If it is not, then the third question is whether the parties should be released from that undertaking. (It was the respondent’s position that if the undertaking applied, he too sought release).
Are the documents subject to an implied undertaking?
I turn firstly to the question of whether or not the documents are subject to the implied undertaking. The respondent to the application argues, firstly, that the undertaking does not apply because of section 121(9)(a) of the Family Law Act. That provides that the prohibition on publication and dissemination of any account of Family Law Act proceedings contained within section 121(1) does not apply in relation to communication to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with these proceedings.
Mr Hackett, who appears as counsel for the respondent to the application, argues that s 121(9)(a) effectively absolves the parties to whom it applies from the implied undertaking that would otherwise attach to those documents. That argument is not accepted by the applicant. Interestingly, the case which was referred to me by Mr Hackett in support of another aspect of his argument, namely Hermann & Hermann(No 2) (2014) FamCA 587, dealt with a situation where a party was seeking to use documents had been produced in the course of family law proceedings in proceedings against solicitors for professional negligence. That publication necessarily would have been potentially captured by section 121(9)(a), however that argument was not raised or, indeed, considered by Macmillan J in those proceedings, as absolving her Honour from the task of determining whether or not the undertaking existed in relation to the documents in question, or whether the parties should be released from it. Mr Hackett was not able to produce any authority in support of his argument in relation to s 121(9)(a), and I am not persuaded that that provision absolves parties from, or otherwise destroys, any implied undertaking that would attach to documents caught within its scope.
The second matter relied upon by Mr Hackett in opposing the application – or, more precisely, identifying why the application did not need to be brought – was that his client consented to the proposed use of the documents by the applicant. Counsel for the applicant argued that parties cannot be released from the implied undertaking by the other party’s consent. That latter argument is correct, and particularly I note that the High Court in Hearne v Street (2008) 235 CLR 125, at [97] and [102] said that although the undertaking can be described as an implied undertaking, the use of the word undertaking is misleading, since the obligation is one of substantive law arising from the circumstances in which the material was generated.
In my view, the 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 the court so orders. I am therefore satisfied that the documents in question, save for some exceptions which I will detail in a moment, are subject to the implied undertaking.
Is publication to the Supreme Court permitted by the undertaking?
The next matter which was relied upon by Mr Hackett was, in substance, that there was no necessity for order, because the use of the documents in the Supreme Court proceedings was within the scope of the implied undertaking.
The precise content of the undertaking was identified by the High Court in Hearne v Street (supra) in the following terms:
Where one party to the litigation is compelled, either by reason of a rule of court, or by reason of a specific order 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.
Mr Hackett’s argument was that because the Supreme Court proceedings related to the property of these parties, or at least property of entities related to them, therefore the subject matter of the proceedings is related, if not wholly the same, such that the publication of those documents in the Supreme Court proceedings is legitimately within the scope of the undertaking.
Some support for that argument can be found in the decision of Laen v At the Heads Pty Ltd [2011] VSC 315, a decision of Davies J, when her Honour was a member of the Victorian Supreme Court. At [10] her Honour said this:
Generally, use in a subsequent proceeding would not be an improper use of material previously obtained subject to an implied undertaking, unless that material was obtained in the first proceeding for an ulterior purpose.
In that case, her Honour was dealing with an application to be released from the implied undertaking in relation to documents generated in one set of proceedings, which were sought to be used in other proceedings which impeached the transfer of a property which was said to have been a voluntary conveyance to defraud creditors. The property in question had been the subject matter of the primary proceedings. Indeed, in that case, although the transferees were parties to the second proceedings, the transferor was a party to them as well.
However, although I do have regard to that obiter comment by her Honour, in my view, the appropriate task of the court is to determine the purpose for which the documents were produced in the first set of proceedings, and to see whether their production in the second set of proceedings is for the same or a related purpose. The purpose of the production of these documents in these proceedings was to enable the ascertainment of the parties assets and liabilities, and to enable the court to make an appropriate, just and equitable division of those assets. The purpose of the proceedings in the Supreme Court are to set aside statutory demands which have been served upon a company of which the husband is the sole director.
In my view, the purpose of the two sets of proceedings do not wholly, or indeed, necessarily at all, overlap. Therefore the purpose for which the documents were produced in these proceedings is different to that for which they are sought to be used in the Supreme Court proceedings. I am therefore not persuaded that their use in the Supreme Court proceedings is within the scope of the undertaking which presently attaches to them in these proceedings and that in order to use them in the Supreme Court, either they would need to be produced pursuant to subpoena, or alternatively, there would need to be a release from the undertaking.
Should the parties be released from the undertaking?
Against that background, I then turn to consider whether or not the parties should be released from their implied undertaking. Helpfully, the relevant principles were set out by Macmillan J in Hermann & Hermann (supra) at paragraphs [15] to [18] as follows:
[15] A party may be released from that implied obligation if there are special circumstances for doing so. Wilcox J in Re Springfiled Nominees Pty Ltd [1992] FCA 472 (“Springfield Nominees”) said at [26] that “[f]or “special circumstances” to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present.”
[16] Whilst it is necessary that there be special circumstances, as the Full Court of the Federal Court said in Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC at [31]:
…The notion of “special circumstances” does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined.
[17] although Wilcox J in Springfield Nominees indicated that is was neither possible nor desirable to prescribe an exhaustive list of factors that might lead the court to conclude that a party should be released from their implied obligations, his Honour did find that those factors would include the following matters:
…the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the documents came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.
[18] It is necessary to consider all of the circumstances in each case in order to determine whether there are special circumstances for releasing a party from the implied obligation.
Against that background, I turn to consider whether or not there are special circumstances in this case. In my view, there are. Firstly, both parties are agreed that the documents should be able to be used in the Supreme Court proceedings. Secondly, although both parties appeared to agree that the parties in the litigation were the same, in fact they are not. The parties to this proceeding are the husband and the executor of the wife’s estate. In the Supreme Court proceedings, the parties are the husband’s company, P Pty Ltd, and the executor. Nonetheless, there is a sufficient overlap between those parties to justify the conclusion that the relevant personalities are identical in both proceedings.
Thirdly, there is a clear link between the subject matter in the two proceedings. Fourthly, the documents would be protected by the implied undertaking attaching to them in the Supreme Court in any event. Fifthly, there is public interest in ensuring that all relevant material germane to the proceedings in the Supreme Court is able to be before that court.
For those reasons, I am satisfied that there should be an order releasing the parties from the implied undertaking which attaches to the documents.
However, it is not all of the documents referred to in the Application of 11 March 2015 to which the implied undertaking attaches. Particularly, those identified at subparagraphs 2(n), (o), (p) and (s) are not, in my view, subject to the implied undertaking as discussed, and hence no order releasing the parties from any implied undertaking is necessary.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 13 March 2015.
Associate:
Date: 13 March 2015
1
3
1