Halkias & Pace

[2021] FCCA 1062

FEDERAL CIRCUIT COURT OF AUSTRALIA

Halkias & Pace [2021] FCCA 1062

File number(s):

MLC 2969 of 2017

Judgment of:

JUDGE BECKHOUSE

Date of judgment:

14 May 2021

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Harman undertaking – orders sought for the father to be released from the Harman undertaking – where the parties have defamation proceedings before the State Court– parties released from the Harman undertaking in respect of an affidavit sworn by the mother  

Legislation:

Family Law Act 1975 (Cth) ss 121(9)(a), 121(9)(g)

Cases cited:

Hearne & Street  (2008) 235 CLR 125

R v Howe [2016] SASCFC 56

Springfield Nominees v Bridgeland Securities Ltd[1992] FCA 472

Number of paragraphs:

20

Date of hearing:

13 May 2021

Place:

Sydney

Counsel for the Applicant:

Ms Collaris

Solicitor for the Respondent:

Mr Goldsmith

ORDERS

MLC 2969 of 2017

BETWEEN:

MS HALKIAS

Applicant

AND:

MS PACE

Respondent

ORDER MADE BY:	JUDGE BECKHOUSE
DATE OF ORDER:	14 MAY 2021

THE COURT ORDERS THAT:

1.The parties are released from the implied Harman undertaking in respect of the affidavit of Ms Pace sworn 27 April 2017  (‘the affidavit) and filed in this proceeding,  and have leave to use the affidavit in the defamation proceedings currently before the State Court.

2.Annexures to any affidavits which contain documents from the State Court proceedings are to be placed in a sealed envelope and are not to be distributed without an order of the Court.

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 under the pseudonym Halkias & Pace is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE BECKHOUSE

1. These are settled reasons for judgment that were delivered ex tempore on 14 May 2021. Grammatical and literal errors have been corrected from the transcript for comprehension and legal references included.

2. This matter came before me on an urgent basis. 

3. The Applicant, Mr Halkias is the plaintiff in proceedings before the State Court for defamation.  He is also the Applicant Father in proceedings before the Federal Circuit Court (FCC). 

4. In the Application in a Case brought before me urgently, the Applicant seeks to be relieved from the implied undertaking, commonly referred to as the Harman undertaking, in respect of the affidavit of Ms Pace that was sworn on 27 April 2017 (‘the Ms Pace’s affidavit) and filed in the FCC proceedings, for his sole use in the defamation proceedings. 

5. It is argued by the legal representative for the Applicant Father, John Snodgrass that “[t]he Ms Pace affidavit, (its publication, the truth of its contents and the circumstances surrounding its publication) is central to the determination of the defamation proceedings.” This is not contentious. 

6. He also seeks during defamation proceedings, if it becomes necessary, to make reference to an account of the FCC proceedings by way of context. 

7. The Respondent in both proceedings is Ms Pace.  She resists the Court making the orders sought on the basis that the time for service for the application should not be abridged and if it is, the Applicant should not be released from the implied undertaking because it would be contrary to public policy for such an order to be made.

8. The issue regarding time for service being abridged is probably a moot point now.  The application is pressing as the defamation proceedings have been set down for eight days of hearing commencing on Monday next week, being 17 May 2021, before a judge of the State Court.  While the Respondent resists the application on the basis of its late filing, the matter came before Judge Boyle for mention yesterday morning.  As she was involved in another hearing, the matter was listed for hearing before me at 4.30 pm and I heard submissions from the parties.  I reserved my decision until this morning. 

9. The scope of the implied undertaking was described by the High Court of Australia in the case of Hearne & Street (2008) 235 CLR 125 at [96] in the following terms:

   96. 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. 

10. Accordingly, the undertaking applies to documents that:

    ·the Applicant was compelled to provide; and

    ·the Ms Pace affidavit which has not yet been received into evidence. 

11. Counsel for the Respondent argues that the Applicant should not be released from the implied undertaking because it would be contrary to public policy.  He asserts that the affidavit is untested and essentially the public would lose confidence in the family law system if defamation proceedings could arise from matters contained in affidavit material. 

12. He is also concerned that the defamation proceedings will hear and determine evidence on matters before the FCC thereby usurping the role and the authority of this Court.

13. I cannot accept these arguments.  It is not uncommon for evidence to be heard in two courts on contentious matters.  Indeed, in matters concerning domestic and family violence it is not uncommon to have criminal proceedings taking place concurrently with family law proceedings.  The material will be subject to different legal tests depending on the law to be applied to it. 

14. I was directed to the case of Springfield Nominees v Bridgeland Securities Ltd [1992] FCA 472 as authority for the approach to decision making. In determining whether or not the Applicant should be released from the implied undertaking, I must outweigh and consider:

    ·any injustice caused to the Respondent; and

    ·whether there exists a special circumstance or an unusual special feature about the case that justifies the undertaking being modified.

15. Section 112(9) of the Family Law Act 1975 (‘the Act’) exists to ensure the parties are afforded privacy and to prevent information and documents that were disclosed for the purposes of particular litigation being wrongly used in other litigation or for other purposes. It is appropriate for this application to be brought so that this Court can ensure the appropriate use of the material arising out of proceedings from this Court. 

16. Given the commonality in the subject matter and the interrelationship between the parties, I cannot see how there is any injustice that would be caused to the Respondent.  It is her affidavit.  Indeed, it was argued that she equally will seek to rely on its contents in the defamation proceedings.  Indeed, it seems to me to be entirely contrary to public policy to resist the release in the circumstances before me.  It would ultimately lead to a denial of access to justice to the Applicant if I were to not do so.

17. I also observe that this is a matter where there is already material in the public domain which has attracted media attention.  I am told by the parties that a judge of the State Court has considered a range of issues regarding confidentiality.  That said, and notwithstanding I will relieve the Applicant from the implied undertaking, the release is a limited one and allows the Applicant to use the documents for the purpose of the proceedings.

18. The Applicant also seeks an order under section 112(9)(g) of the Act that the publication of an account of the FCC proceedings in the defamation proceedings is approved. The application arises because it is argued that during the defamation proceedings it may be necessary to make reference to various accounts for the purposes of providing context to the proceedings. The types of documents he refers to are set out in paragraph 25 of the submissions.

19. In my view, section 121(9)(a) of the Act allows the communication of information by a person in connection with the proceedings in another court. In R v Howe [2016] SASCFC 56 the Full Court of the Supreme Court of South Australia considered the expression “any court” to be entirely general and so wide enough to include any criminal court and any civil court in Australia and apt to include judge, counsel, reporters and members of the public present in court. Therefore if in the course of proceedings either party or their legal representative discloses something that arises in the context of the defamation proceedings, they would be protected by section 121(9)(a), as it does not amount to a publication or dissemination of material.

20. In my view, it is in the interests of justice that each party be at liberty to use the Ms Pace affidavit in the defamation proceedings and accordingly I will make that order.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse.

Associate:

Dated:       18 May 2021