Hermann and Hermann (No 2) - [2014] FamCA 587

FAMILY COURT OF AUSTRALIA

HERMANN & HERMANN (NO 2)

[2014] FamCA 587

FAMILY LAW – PRACTICE & PROCEDURE – Where the husband seeks leave to provide material from the family law proceedings for use in Supreme Court proceedings – consideration of the implied undertaking – consideration of whether “special circumstances” exist – where commonality of the proceedings is a significant factor – order made releasing the husband from the implied undertaking in relation to a list of documents.

Family Law Act 1975 (Cth)

British American Tobacco Australia Services Ltd v Cowell (as representing the estate of Rolah Ann McCabe, deceased) [2003] VSCA 43
Commissioner of Taxation & Darling and Anor [2014] FamCAFC 59
Hearne v Street (2008) 235 CLR 125
Laen Pty Ltd v At the Heads Pty Ltd & Ors [2011] VSC 315

Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC
Re Springfield Nominees Pty Ltd [1992] FCA 472

APPLICANT:

Mr Hermann

RESPONDENT:

Ms Hermann

FILE NUMBER:

MLC

4873

2012

DATE DELIVERED:

30 July 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATES:

1 & 15 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bartfeld QC with
Ms Vohra

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT:

Mr Dickson QC with
Mr Holmes

SOLICITOR FOR THE RESPONDENT:

Lander & Rogers

ORDERS

IT IS ORDERED THAT

The husband be at liberty to use those documents and information, or parts thereof, contained in the list of documents being Annexure “A” to these orders for the purpose of the proceedings instituted by the husband in the Supreme Court of Victoria at Melbourne (or such other Court if venue is transferred) in suit numbers … and ...
All questions of costs be reserved for determination.
By 4.00 pm on 20 August 2014 the husband and the wife file and serve any written submissions in support of any application for costs arising out of or incidental to the husband’s application in a case filed 3 June 2014.
By 4.00 pm on 3 September 2014 the husband and wife file and serve any written submissions in reply to any application for costs.
The husband’s application in a case filed 3 June 2014 and the wife’s response to an application in a case filed 1 July 2014 be otherwise dismissed save and except for any applications for costs.

IT IS CERTIFIED THAT

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including senior counsel.

“A”

Document	Date	Sections to be provided
Order	26 June 2012	Paragraphs 9 to 11
Order	19 October 2012	Complete document
Order	12 April 2013	Complete document
Order	20 December 2013	Complete document
Order	4 February 2014	Complete document
Order	12 February 2014	Complete document
Initiating application filed by the husband	31 May 2012	Front page
Response to initiating application filed by the wife	15 June 2012	Final orders sought – paragraphs 4 to 8 Interim orders sought – paragraphs 7 to 12
Amended response filed by the wife	22 June 2012	Final orders sought – paragraphs 4 to 8 Interim orders sought – paragraphs 7 to 11, and 13
Reply filed by the husband	25 June 2012	Complete document
Amended reply filed by the husband	21 December 2012	Complete document
Application in a case filed by the husband	20 February 2013	Complete document
Application in a case filed by the wife	5 April 2013	Complete document
Response to an application in a case filed by the husband	12 April 2013	Complete document
Further amended response to amended initiating application filed by the wife	30 August 2013	Final orders sought – paragraphs 4 to 8, 6 and 7 Interim orders sought – paragraphs 7 to 11, and 13
Further amended reply filed by the husband	23 September 2013	Complete document
Application in a case filed by the husband	4 February 2014	Complete document
Affidavit of the husband	30 May 2012	Paragraphs 1 to 7
Affidavit of the husband	25 June 2012	Paragraphs 1, 2, 30 to 37, 51 to 56 Annexures GH1, GH2
Affidavit of the husband	21 December 2012	Complete document
Affidavit of the husband	12 April 2013	Complete document
Affidavit of the husband	22 November 2013	Paragraphs 1 to 12, 48 to 99 Annexures GH5, GH6, GH7, GH8
Affidavit of Mark Thompson	6 December 2013	Complete document
Affidavit of the husband	31 January 2014	Paragraphs 1 to 4, 22 to 67 Annexure GH2
Affidavit of Ms B	4 February 2014	Complete document
Affidavit of the wife	15 June 2012	Paragraphs 60 to 72 Annexures D, E
Affidavit of the wife	5 April 2013	Complete document
Affidavit of Mr C	17 October 2013	Complete document
Affidavit of the wife	13 December 2013	Paragraphs 1 to 10, 20(m) to 20(s), 21 to 82 Annexures CMH3, CMH4, CMH5, CMH6, CMH7, CMH8, CMH9
Affidavit of Mr D	9 December 2013	Complete document
Affidavit of Mr E	13 December 2013	Complete document
Wife’s outline	7 February 2014	Section A, B, C and D (“Financial”, paragraphs 1 to 4)
Husband’s outline of case	6 February 2014	Section A, B, C (paragraphs 1 to 22) and D
Wife’s summary of issues	6 September 2013	“Property Matters”, paragraphs 1 to 5
Wife’s submissions	24 September 2012	Complete document
Wife’s facts and contentions	24 September 2012	Complete document
Husband’s submissions in response to submissions on behalf of the wife	9 October 2012	Complete document
Subpoena issued to I Solicitors	10 February 2014	Complete document
Subpoena issued to Mr F	23 December 2013	Complete document
Subpoena to Ms B	20 December 2013	Complete document
Cohabitation Agreement	May 2006	Complete document
Financial Agreement	19 March 2007	Complete document
Deed of Variation of Financial Agreement	22 May 2009	Complete document
Section 90D Agreement	12 February 2014	Complete document
Binding Child Support Agreement	12 February 2014	Complete document
File provided by G & Co	N/A	Complete file
File provided by H (including document produced under subpoena)	N/A	Complete file

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hermann & Hermann (No 2) 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 MELBOURNE

FILE NUMBER: MLC 4873 of 2012

Mr Hermann

Applicant

And

Ms Hermann

Respondent

REASONS FOR JUDGMENT

The husband’s application in a case filed 3 June 2014 was listed for hearing in the Judicial Duty List on 1 July 2014. The matter was thereafter listed for mention before me on 15 July 2014.
Although the husband’s application in a case was not formally amended at the mention of the matter on 15 July 2014 the husband sought orders in accordance with a minute of proposed orders annexing a list of specific documents or parts thereof for which he sought the release from any express or implied obligation concerning the use of those documents. The orders contained in that minute are as follows:
1.Subject to the provisions of orders 3 – 5 hereof, the Respondent Husband be at liberty to disclose any information, document filed in, discovered, produced or subpoenaed for the purpose of, or in relation to, the proceedings between the Applicant Wife and the Respondent Husband in the Family Court of Australia at Melbourne in suit number MLC 4873 of 2012 (“Family Court Proceeding Documents”) pertaining to the Applicant Wife’s application that the Financial Agreement entered into by the parties on or about 19 March 2007 be set aside or declared not binding by the Family Court of Australia, on the basis that any matter extraneous thereto be redacted prior to disclosure of the Family Court Proceeding Documents, for the purpose of any proceeding involving the Respondent Husband in the Supreme Court of Victoria at Melbourne (or such other Court if venue is transferred) arising out of, or relevant to, the said Financial Agreement (“Supreme Court Proceedings”).
2.The Respondent Husband be, and is hereby, released from any express or implied obligation, restriction or undertaking pursuant to the Family Law Act 1975 or otherwise concerning the use and disclosure of the Family Court Proceeding Documents to the extent necessary to give effect to the provisions of order 1 hereof.
3.Within seven (7) days of these orders, the Respondent Husband provide the Applicant Wife with a list of the Family Court Proceeding Documents he intends to rely upon in the Supreme Court Proceedings.
4.At the request of the Applicant Wife, the Respondent Husband provide written certification from counsel retained by him in the Supreme Court Proceedings as to the need to disclose the Family Court Proceeding Documents to the Supreme Court of Victoria (or such other Court if venue is transferred), other parties, their lawyers, insurers, all witnesses and advisors for the purposes of, or in connection with the Supreme Court Proceedings.
5.In the absence of an application being brought on behalf of the Applicant Wife in the Family Court proceeding to restrain production of the Family Court Proceeding Documents within seven (7) days of provision of counsel’s certification, the Respondent Husband be permitted to produce the Family Court Proceeding Documents in, or in connection with the Supreme Court proceeding.

Background

It was the wife’s case in the proceedings in this Court that there were defects in the drafting of the Section 90B Financial Agreement (“the Financial Agreement”) that she and the husband entered into in or about March 2007 and that she had not received independent legal advice from her lawyer in relation to that agreement. It was her application that the agreement should be set aside.
Pursuant to paragraph 6 of his amended reply filed 21 December 2012 the husband sought leave to join the wife’s former solicitors G & Co as a party to the proceedings as the second respondent “to enable the husband to commence and maintain a claim for damages against the second respondent arising from the signing of a certificate of legal advice in relation to the [Financial Agreement]”. On 20 February 2013 the husband filed an application in a case seeking an order in the same terms.
Following the decision of the Full Court in Noll & Noll and Anor (2013) FLC 93-529 (“Noll”) delivered 28 February 2013, the husband filed another application in a case on 3 April 2013 where, at paragraph 18, he sought an order dismissing his application in a case filed 20 February 2013 seeking to join G & Co as a party to the proceedings and with no order as to costs.
On 21 December 2012 the husband commenced proceedings in the Supreme Court of Victoria against his former solicitors H Lawyers. He commenced proceedings in the Supreme Court against the wife’s former solicitors G & Co on 18 March 2013.
On 12 April 2013 I made orders granting leave to the husband to withdraw paragraph 6 of his amended reply, dismissed the husband’s application in a case filed 20 February 2013, and ordered that each party bear their own costs.
On 12 February 2014 this Court made orders by consent finalising the financial aspects of the proceedings between the husband and the wife. The husband and the wife simultaneously entered into a Binding Child Support Agreement and Financial Agreement pursuant to Section 90D of the Family Law Act 1975 (Cth) (“the Act”). As a consequence of the settlement of the matter the wife’s allegations with respect to the Financial Agreement were not tested and were not the subject of any findings.
Although the husband sought orders in general terms, there are two parts to his application.
Firstly, the husband seeks the release from any express or implied obligation with respect to documents or parts thereof identified in the list of documents annexed to the minute of proposed orders.
The second part of the husband’s case relates to documents that he says he may in future require to conduct his case or may be requested to produce as the matter in the Supreme Court progresses, which he says should be released upon him providing written certification from counsel retained by him in the Supreme Court proceedings as to the necessity to disclose any further documents from the proceedings in this Court and in the absence of any application by the wife to restrain production of those documents.

Legal Principles

Although counsel for the husband, Mr Bartfeld QC, referred me to s 121 of the Act, the issue in this case is whether or not the husband should be released from his implied obligation not to use documents the subject of these proceedings for purposes not related to those proceedings. The High Court said in Hearne v Street (2008) 235 CLR 125 at [96] with respect to that implied obligation as follows:
Where one party to the litigation is compelled, either by reason of a rule of court, or by reason of a specific order 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.
As the Full Court reiterated in Commissioner of Taxation & Darling and Anor [2014] FamCAFC 59 at [5], ‘the obligation is one of substantive law arising from the circumstances in which the material was generated.’
The purpose of the obligation was explained by the Victorian Court of Appeal in British American Tobacco Australia Services Ltd v Cowell (as representing the estate of Rolah Ann McCabe, deceased) [2003] VSCA 43 (28 April 2003) at [20] as being to preserve the subject party’s privacy thereby encouraging their full and frank disclosure.
A party may be released from that implied obligation if there are special circumstances for doing so. Wilcox J in Re Springfield 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.’
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 3 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.
Although Wilcox J in Springfield Nominees indicated that it 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 obligation, 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.
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.

Should the husband be released from his implied obligation and on what terms if any?

It was submitted on behalf of the husband that there are special circumstances in this case which support the Court exercising its discretion to release the husband from his implied obligation not to use the information and documents which were the subject of the proceedings in this Court for other purposes, in this case, for the purposes of the proceedings he has instituted in the Supreme Court.
The submissions made by Counsel for the husband in support of his client’s application were, in summary, as follows:
·That the husband is not seeking to use the material in question other than for the purposes of the proceedings in the Supreme Court of Victoria;
·That the proceedings in the Supreme Court are not only connected with but emanate from the proceedings in this Court and, if not for the case of Noll, the proceedings now before the Supreme Court would have been dealt with simultaneously with the proceedings in this Court;
·That insofar as the documents the husband seeks to use in the proceedings in the Supreme Court relate to both parenting and property, those parts that relate to the parenting issues will be redacted;
·That the Supreme Court can be expected to appropriately manage the conduct of its proceedings, including, but not limited to, making decisions as to the admissibility of documents. Documents discovered by a party are not part of the court file and documents not relevant to the proceedings in the Supreme Court will not be admissible and will not in those circumstances form part of the Supreme Court file; and
·That the use of the information and documents in the Supreme Court causes no inconvenience to the wife and, insofar as she may have concerns in relation to her privacy, any documents produced in the Supreme Court proceedings are the subject of the same implied obligation in that court as those the subject of proceedings in this Court.
Mr Bartfeld QC for the husband referred me to the decision of Davies J in Laen Pty Ltd v At the Heads Pty Ltd & Ors [2011] VSC 315 (“Laen”). Her Honour was hearing a case in which a litigant sought the court’s leave to the extent necessary to use documents furnished in earlier proceedings in which the litigant had been a party. Her Honour, having reviewed some of the authorities, said at [6] as follows:
Nonetheless some guidance can be found in other cases where the Court has been asked to exercise its discretion. The authorities indicate that an important consideration in weighing the various factors which may enliven the discretion is the purpose for the release from the obligation. Where, as here, that purpose is for use in another proceeding, commonality between the proceedings may be a sufficient factor to warrant the exercise of the dispensing power.
Her Honour said further at [10] as follows:
First, the purpose of the implied undertaking is to protect against the misuse of material produced under coercion of the Court’s processes, not to prevent a party’s access to justice. If the proposed use is for the purposes of other proceedings, the Court’s power in relation to its own proceedings will provide the necessary protection against misuse. The existence of the implied undertaking cannot fetter or restrict the Court’s power in relation to its own processes in proceedings instituted before it. Nor can it operate as an estoppel against the use of the processes of the Court in that other proceeding. The mere fact of commonality of subject matter may be sufficient to establish that the party has a legitimate forensic purpose for the use of the material in the second proceeding, but the test is not commonality of subject matter. 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. There is no suggestion in this case that [the litigant] had any improper motive in obtaining the disclosure to it in the first proceeding of the documents in question.

Mr Bartfeld QC submitted that the commonality between the Supreme Court proceedings and the proceedings in this Court is sufficient to lead this Court to conclude that there are the necessary “special circumstances” for releasing the husband from his implied obligation. He further submitted that it was neither necessary nor appropriate for this Court to have to dissect every document to determine its relevance.
On the first day of hearing of the matter in the Judicial Duty List, Mr Dickson QC submitted on behalf of the wife that the husband’s application should be dismissed. His submissions did not initially distinguish between what I have described as the two parts to the husband’s application. The wife objected to the release of the husband from his implied obligation on a number of grounds.
Firstly, the wife complained about the way in which the husband went about seeking that release. The wife deposed that, following service of the husband’s application upon her solicitors on 6 June 2014, her solicitors wrote to the husband’s solicitors on 13 June 2014 requesting the following:
Before our client considers her position, she requires:
1.An itemised list of the specific Family Court documents that your client seeks to provide to the Supreme Court;
2.Provision of the redacted version of those Family Court documents which your client seeks to disclose;
3.A copy of the correspondence from the defendants in which they seek discovery of the material filed in the Family Court proceedings;
4.A copy of the pleading and defence (if any) filed in the Supreme Court proceedings.
The wife further deposed that having not received any reply to that correspondence, her solicitors again wrote to the husband’s solicitors on 20 June 2014 seeking a response to their earlier correspondence.
On 25 June 2014 the husband’s solicitors responded to the wife’s solicitors to the effect that they would be in a position to provide the wife “with a substantive response by close of business tomorrow, 26 June 2014.” The husband’s solicitors did reply to the wife’s solicitors on 26 June 2014, advising as follows:
As requested, we enclose index of the Family Court documents that our client intends to produce in the Supreme Court proceedings, together with redacted copies of those documents. Please note that we have only included copies of the documents that have been redacted. Where our client intends to produce complete copies of documents, we have not included these on the basis that they are already in your possession. Similarly, we do not propose to provide you with copies of annexures already in your possession.
There is no requirement on our client to provide your client with documents filed in the Supreme Court proceedings, or correspondence related to those proceedings.
Please advise whether your client is willing to consent to the orders sought by our client.
The final letter in this chain of correspondence annexed to the wife’s affidavit was a letter from her solicitors to the husband’s solicitor’s dated 27 June 2014, requesting time to consider the relevance of the documents in the three page list provided by the husband’s solicitor and seeking an adjournment of not less than two weeks. That request for an adjournment was refused by the husband’s solicitors and the matter proceeded before me on 1 July 2014.
It is in my view not necessary for the purposes of determining whether the husband should or should not be released from his implied obligation to make findings as to whether or not the husband might have replied in a more timely manner to the letter from the wife’s solicitors, provided the information requested by the wife, or consented to the requested adjournment. Counsel for the wife did not, in any event, seek an adjournment, and the matter was adjourned at my instigation to enable the wife’s solicitors and counsel to obtain instructions from the wife in relation to a proposal made on behalf of the husband during the course of his counsel’s submissions.
Counsel for the wife referred me to the following passages of the husband’s affidavit filed 3 June 2014:
I am unable to conduct the Supreme Court proceedings without reference to, and discovery of, documents filed in the Family Court proceedings and documents produced for the purpose of the Family Court proceedings …
I am advised by my solicitors and verily believe they have received a request for various documents filed in the Family Court proceedings from solicitors acting in the Supreme Court proceedings. As the Supreme Court matter progresses, they are bound to receive further requests. It would be an expensive and inefficient process for my solicitors to approach this Honourable Court seeking orders permitting disclosure of particular documents in response to each request for documents that they receive. My disclosure obligations go beyond merely providing documents that have been requested.
Counsel for the wife submitted that, notwithstanding that the husband had deposed that he could not conduct the Supreme Court proceedings without reference to the documents filed in these proceedings, it is clear from the pleadings that he has already done so. Whilst that may be the case, it does not lead to the conclusion that the documents filed in the proceedings in this Court are not necessary for the purposes of the proceedings in the Supreme Court. And, although the Court might take into account the fact that there has been a request or an order for discovery, neither is necessary to meet the test of “special circumstances”.
The pleadings, which were tendered by the husband, disclose that he is claiming damages and costs against both his former solicitors and the solicitors who represented the wife at the time they entered into the Financial Agreement – which was the subject of the proceedings in this Court – on the basis of their having made false and/or misleading and/or deceptive representations and/or acted in a negligent manner.
Counsel for the wife questioned the relevance of the documents the husband says he requires for the purposes of those Supreme Court proceedings. Whilst the relevance of the documents is a factor the Court may consider in general terms in determining whether there are “special circumstances”, and in weighing up the competing claims of privacy and what may be required to do justice between the parties, it is in my view not for this Court, nor is it in a position, to determine the relevance of particular documents to the proceedings in another court or what may be required by a party to conduct the proceedings in that other court.
It was further submitted by counsel for the wife that notwithstanding that the husband said he had redacted those parts of the documents which related to the parenting proceedings, the documents in relation to which he sought to be released from his implied obligation included matters in relation to the parenting proceedings and matters that were clearly not relevant to the proceedings in the Supreme Court. Inherent in that submission was that it should not be left to the husband or his legal representatives to determine which parts of the documents should be redacted.
The submissions made by counsel for both the husband and the wife in the course of the hearing on 1 July 2014 were ultimately overtaken by the fact that in the time between that hearing and the mention on 15 July 2014 the parties reached agreement in relation to at least some of the documents. I was provided with a list prepared by counsel for the husband identifying those documents that the wife agrees can be used by him for the purposes of the Supreme Court proceedings and those that she objects to, either in whole or in part.
The provision of a list, like the list in this case, suggests that it may necessary for the Court to have to consider each of the disputed documents on that list. Whilst it may be necessary to do so in some cases, it is in my view neither necessary nor possible for this Court to determine on an item by item basis the relevance of particular documents or parts thereof to the proceedings in the Supreme Court. I am satisfied having perused the documents that are the subject of dispute that, for the most part, they relate to the Financial Agreement and the property and spousal maintenance proceedings generally. The question of the relevance and admissibility of the specific documents sought by the husband for the purposes of the Supreme Court proceedings is in my view ultimately a matter for the determination of that court.
In any event, in this case, neither party addressed me in any detail with respect to particular documents on the list in relation to which they either sought the release or objected to that release or gave reasons for their respective positions in relation to those documents.
Insofar as there is an issue in relation to the sensitivity of particular documents I have taken into account that the purpose for the release of the documents is limited to their use in the proceedings in the Supreme Court, a court which, as Davies J said in Laen, ‘will provide the necessary protection against misuse.’ The parties in those proceedings will be similarly bound by the implied obligation not to use information and documents produced for the purposes of those proceedings for other purposes.

Conclusion

I am satisfied that the purpose identified by the husband for which he seeks to use the documents from these proceedings is a legitimate purpose. There is no evidence before me that would suggest otherwise. Whilst the commonality of the proceedings is not the only consideration or determinative of the matter, it is a significant feature of this case. I am also satisfied that given the degree of commonality of the proceedings in this case that the husband’s inability to use the documents from the proceedings in this Court in the proceedings in the Supreme Court has the potential to impede his ability to conduct those proceedings, thereby prejudicing his ability to obtain justice in the second proceeding.
In all of the circumstances, I am satisfied that there are special circumstances on the basis of which I should exercise my discretion to release the husband from his implied obligation not to use the information or documents in the list provided for any other purpose.
Accordingly, I propose to make orders giving the husband liberty to use the documents and information contained in the list of documents. I am not, however, satisfied that I should make the orders sought by the husband with respect to any as yet unidentified documents that might be required during the course of the proceedings in the Supreme Court.
Although I am mindful of the need to avoid further proceedings between the parties in this case, I am not satisfied however that it would be appropriate to do so by placing the onus upon the wife to issue proceedings in the event that she wishes to dispute the release of the husband from his implied obligation in relation to as yet unidentified documents. In my view, the orders sought by the husband in this respect are contrary to the purpose of the implied obligation. Without knowing what documents might be required it is impossible to say with any certainty whether or not they are likely to fall within a similar class of documents as those contained in the list which forms the basis of this current application or whether the wife is likely to have a legitimate objection to the husband being released from his implied obligation in relation to those documents.
The husband’s proposal that he be released from his implied obligation upon counsel appearing on his behalf in the Supreme Court proceedings certifying that the further documents he requires are necessary is in my view akin to delegating this Court’s discretion to the husband’s counsel. Whilst counsels’ opinion that documents might be necessary for the conduct of the second proceedings may be a relevant consideration, it is also not the only consideration.
The premise upon which this part of the husband’s application is based appears to be that the wife may unreasonably withhold her consent thereby requiring the necessity for further proceedings. Whilst the wife’s consent to any further application for release might limit the ambit of any further proceedings, it would not relieve the husband from his obligation to seek the release by this Court from his implied obligation. If the wife were to attempt to cause any unnecessary delay then that is a matter that can be addressed by an order for costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered 30 July 2014.

Associate:

Date: 29 July 2014