FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jess & Jess (No 10) [2023] FedCFamC1F 1013
File number MLF 3444 of 2006 Judgment of WILSON J Date of judgment 29 November 2023 Catchwords FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – application to restrict production of protected matter from a named person – held, application refused. Legislation Family Law Act 1975 (Cth) Cases cited Jess & Jess [2021] FedCFamC1F 24 Division Division 1 First Instance Number of paragraphs 35 Date of last submissions 15 November 2023 Date of hearing 15 November 2023 Place Melbourne Counsel for the applicant Mr G Dickson KC Solicitors for the applicant Kenna Teasdale Lawyers Counsel for the second respondent Mr J Mereine and Mr Lum Solicitors for the second respondent HWL Ebsworth Lawyers Counsel for the first intervener Ms N Papaleo Solicitors for the first intervener Lander & Rogers Solicitors for the second intervener Baker McKenzie Counsel for the second intervener Mr P Liondas SC with Mr C Tsang ORDERS
MLF 3444 of 2006 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MS JESS
Applicant
AND MR J AS LEGAL PERSONAL REPRESENTATIVE FOR MR JESS SNR (DECEASED)
First Respondent
MR JESS JNR & ORS (SECOND TO TWENTY-NINTH RESPONDENTS - THE REPRESENTED THIRD PARTIES)
Second to Twenty-Ninth respondents
MR K AND MR L AS TRUSTEES OF THE BANKRUPT ESTATE OF MR JESS SNR
First Intervener
AO PTY LTD
Second Intervener
ORDER MADE BY
WILSON J
DATE OF ORDER
29 NOVEMBER 2023
THE COURT ORDERS THAT
1.Paragraph 2 of the represented third parties’ application in a proceeding filed 18 October 2023 is dismissed.
2.No orders are made as to costs.
3.Any application for costs supported by affidavit material and submissions must be filed and served by midday on 8 December 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under a pseudonym of Jess & Jess has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
By application in a proceeding filed 18 October 2023, the represented third parties applied for a variation of paragraph 2 of the consent orders made on 18 September 2023.
The specific variation was for the inclusion of a new paragraph 2A in the following terms –
2A.Until further order, paragraph 2 above does not apply to [Mr…
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CaseChat Overview and Summary
The legal issues before the court were whether the represented third parties' application should be granted and if Mr AN's confidentiality undertaking complied with the requirements set out in the court’s orders. The court had to examine the chain of correspondence between the parties to understand the context and reasons for the application. The key points included Mr AN’s role in the proceedings, the necessity of the protected matter, and the adequacy of the confidentiality undertaking provided by Mr AN.
The court found that the represented third parties' application to restrict the production of protected matter was not justified. It concluded that the undertaking provided by Mr AN, although not in the exact form prescribed, sufficiently ensured the confidentiality of the protected matter. The court emphasised that the primary concern was the protection of the information and that Mr AN’s undertaking was sufficient to meet this requirement. Consequently, the court dismissed the application and did not make any orders regarding costs, leaving the matter open for any party to apply for costs within the specified timeframe.
The court's decision underscores the importance of adherence to court orders regarding the disclosure of protected matter while also allowing some flexibility in the form of confidentiality undertakings provided they meet the essential objectives of protecting the information.
Orders
Orders of the court
MLF 3444 of 2006
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN
MS JESS
Applicant
AND
MR J AS LEGAL PERSONAL REPRESENTATIVE FOR MR JESS SNR (DECEASED)
First Respondent
MR JESS JNR & ORS (SECOND TO TWENTY-NINTH RESPONDENTS - THE REPRESENTED THIRD PARTIES)
Second to Twenty-Ninth respondents
MR K AND MR L AS TRUSTEES OF THE BANKRUPT ESTATE OF MR JESS SNR
First Intervener
AO PTY LTD
Second Intervener
ORDER MADE BY
WILSON J
DATE OF ORDER
29 NOVEMBER 2023
THE COURT ORDERS THAT
1. Paragraph 2 of the represented third parties’ application in a proceeding filed 18 October 2023 is dismissed.
2. No orders are made as to costs.
3. Any application for costs supported by affidavit material and submissions must be filed and served by midday on 8 December 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: MR J
Both Mr AP and Mr AR, the solicitor for the represented third parties, exhibited to the affidavits of each various correspondence in the period 11 September 2023 to 17 October 2023. The following is an encapsulation of the more important matters that emerged from that chain of correspondence –(a)on 11 September 2023 the solicitors for AO Pty Ltd disclosed to the represented third parties’ solicitors that Mr AN would be a recipient of the protected matter;(b)on 15 September 2023 the represented third parties’ solicitors wrote to the solicitors for Haast stating that in order for them (the solicitors for the represented third parties) to consider their clients’ position in relation to the proposed disclosure, they needed details of the capacity in which Mr AN would receive the protected matter and why Mr AN will give instructions on behalf of AO Pty Ltd when another director of AO Pty Ltd could do so;(c)on 25 September 2023, AO Pty Ltd’s solicitors wrote to the represented third parties’ solicitors stating that Mr AN will be assisting AO Pty Ltd to give instructions in the disclaimer proceeding, that more than one instructor is common in legal proceedings and that there was no reasonable basis to refuse to consent to Mr AN receiving the protected matter having regard to Mr AN’s willingness to execute the confidentiality agreement;(d)on 27 September the solicitors for the represented third parties wrote to the solicitors for AO Pty Ltd pointing out that it had not been stated how Mr AN could give instructions in the disclaimer proceeding where he was the general manager of AQ Pty Ltd nor had Mr AN’s connection with AO Pty Ltd been identified;(e)on 5 October 2023 the solicitors for AO Pty Ltd wrote to the represented third parties’ solicitors stating that Mr AN was to give instructions to AO Pty Ltd and that Mr AN was contemplated as being a witness;(f)on 6 October 2023 the solicitors for the represented their parties wrote to the solicitors for AO Pty Ltd stating that the information given concerning Mr AN was “evasive” (their word), that for the first time a different basis was being relied on for Mr AN to receive the protected information and that “in the absence of a straightforward and satisfactory response” (their words) the represented third parties did not consent to the protected matter being supplied to Mr AN;(g)on 12 October 2023 the solicitors for AO Pty Ltd sent an email to the represented third parties’ solicitors attaching an executed confidentiality agreement pursuant to which Mr AN (as the giver of the undertaking) stated that is was contemplated that he may be called as a witness in the disclaimer proceeding;(h)on the same day (12 October 2023) Mr AP sent an email to Mr AR stating that Mr AN had executed the relevant confidentiality undertaking and that AO Pty Ltd would be proceeding to provide Mr AN with the protected matter;(i)later still on 12 October 2023, the represented third parties’ solicitors sent an email to Mr AP pointing out that the protected matter must only be provided by the trustees (not by AO Pty Ltd) and that the protected matter must not be provided unless and until a period of five days had expired after the filing and service of the confidentiality undertaking and that AO Pty Ltd was not permitted to provide the protected matter to Mr AN because only the trustees could do that;(j)on 13 October 2023 the solicitors for the represented third parties did not object to, (relevantly), Mr AN receiving the protected matter so long as his undertaking was filed with the court and not less than five days elapsed from the filing of the undertaking and the provision of the protected matter;(k)later on 13 October 2023 the solicitors for AO Pty Ltd wrote to the solicitors for the represented third parties pointing out the consent of the represented third parties was not required;(l)it was asserted that Mr AN’s undertaking was not in the form provided for in annexure C to the 18 September 2023 orders because Mr AN did not state his occupation nor did he state with what organisation he worked; and(m)on 17 October 2023 the solicitors for the represented third parties wrote to the solicitors for AO Pty Ltd stating that the undertaking given by Mr AN did not comply with the form of undertaking recorded in the 18 September 2023 consent orders in that AO Pty Ltd was being evasive about Mr AN, that Mr AN failed to provide an undertaking in complete conformity with the form of annexure C, that Mr AN’s allegedly inexplicable assertion that his address was an accountant’s offices, that the statement that AO Pty Ltd would provide Mr AN with the protected matter and an asserted “fundamental misapprehension of the reasons for the safeguards” (those were the words of the 17 October 2023 letter).CONSIDERATION