Hillston v Bar-Mordecai - [2002] NSWSC 973

CITATION: HILLSTON v. BAR-MORDECAI [2002] NSWSC 973

CURRENT JURISDICTION: EQUITY

FILE NUMBER(S): SC 3240/98; 1707/99; 3039/02

HEARING DATE(S): 16/10/02

JUDGMENT DATE: 16 October 2002

PARTIES :

Allan David James Hillston - Plaintiff
Michael Jacob Bar-Mordecai - Defendant

JUDGMENT OF: Bryson J at 1

COUNSEL : J. Whittle SC & B.J. Burke - Plaintiff
M. Bar-Mordecai - Defendant in Person

SOLICITORS: Shaw McDonald for plaintiff
Defendant in Person

CATCHWORDS: PRACTICE and PROCEDURE - SUBPOENA - Inspection of documents - legitimate forensic purpose - Family Court file was produced to the Court by Family Court Registrar in response to Letter of Request issued by Supreme Court Registrar on application of party - production was act of judicial comity as Family Court is not subject to Supreme Court's subpoena power - in deciding whether to grant leave to inspect the Court should observe the substance of SCR Pt.37 r.10 and Family Law Rules O.5 r.6 although they do not literally apply - high value placed on confidentiality - leave to inspect limited parts of file which contained information relevant to issues in Supreme Court.

LEGISLATION CITED: Family Law Act 1975
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)
Supreme Court Rules Pt 37 rule 10
Family Law Rules Order 5 rule 6

CASES CITED: National Employees Mutual General Association v. Waind & Hill [1978] 1 NSWLR 372
Maronis Holdings Limited v. Nippon Credit Australia Limited [2000] NSWSC 138

DECISION: Restricted leave to inspect Family Court file granted on terms.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

WEDNESDAY 16 OCTOBER 2002

3240/98 - ALLAN DAVID JAMES HILLSTON V MICHAEL JACOB BAR-MORDECAI & ANOR

1707/99 - MICHAEL JACOB BAR-MORDECAI V ALLAN DAVID JAMES HILLSTON

3039/02 - MICHAEL JACOB BAR-MORDECAI V ALLAN DAVID JAMES HILLSTON

JUDGMENT

- On application to inspect Family Court file; see p1408. Revised.

1 HIS HONOUR: In proceedings 3240/98 the plaintiff's solicitors obtained from a Registrar a letter of request directed to the Registrar of the Family Court of Australia at Sydney, to which that Registrar responded by producing to the court yesterday files of that court relating to proceedings S3463 of 1980 In the Marriage of Bar-Mordecai and Bar-Mordecai. The plaintiff's counsel applied orally yesterday (see transcript 1345 and following) for leave to inspect the documents so produced. Mr Bar-Mordecai, for reasons which he there stated, objected to leave.

2 Where documents are produced to this court under a subpoena issued by this court the practice of the court about inspection of documents by parties is established by observations of Moffitt P in National Employers Mutual General Association v Waind & Hill [1978] 1 NSWLR 372 at 382-386. I examined this practice and related case law and showed how I apply it in my decision in Maronis Holdings Limited v Nippon

3 Credit Australia Limited [2000] NSWSC 138. As I there sought to explain, the test described by Moffitt P at page 385, which I set out at paragraph 19, is well epitomised as a "legitimate…

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

Case: [2002] NSWSC 973
Decision Date: 16 October 2002

CaseChat Overview and Summary

The matter of Hillston v Bar-Mordecai involved a dispute between the two parties, with the legal issue of whether a subpoena could be issued by the Supreme Court for documents held by the Family Court. The case was heard in the Supreme Court of New South Wales. The plaintiff sought to inspect certain documents held by the Family Court, which were relevant to the proceedings in the Supreme Court. The Family Court, however, was reluctant to hand over the documents, arguing that it was not subject to the subpoena power of the Supreme Court.

The court had to determine whether a subpoena could be issued by the Supreme Court for documents held by the Family Court. The court also needed to decide whether the Family Court was obligated to produce the documents in response to the subpoena, and whether the plaintiff was entitled to inspect the documents. Furthermore, the court had to consider the principles of confidentiality that applied to Family Court files, and whether those principles should limit the scope of inspection granted to the plaintiff.

The court found that the Family Court was not subject to the subpoena power of the Supreme Court, and that the production of the Family Court file was an act of judicial comity. However, in deciding whether to grant leave to inspect the file, the court should observe the substance of the relevant rules of court, even though they did not literally apply. The court held that the principles of confidentiality that applied to Family Court files were of high value, and that the scope of inspection should be limited to the parts of the file that contained information relevant to the issues in the Supreme Court. The court ultimately granted leave to inspect limited parts of the Family Court file.

The court ordered that the plaintiff be granted leave to inspect limited parts of the Family Court file, and that the Family Court file be produced to the Supreme Court by the Family Court Registrar in response to a Letter of Request issued by the Supreme Court Registrar. The court also ordered that the inspection be conducted in the presence of a representative of the Family Court, to ensure that the principles of confidentiality were not breached.

Orders