Jess & Jess (No 12)
[2024] FedCFamC1F 58
•19 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jess & Jess (No 12) [2024] FedCFamC1F 58
File number(s) MLF 3444 of 2006 Judgment of WILSON J Date of judgment 19 February 2024 Catchwords FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – interlocutory stay application – application dismissed. Cases cited Coco v A.N Clark (Engineers) [1969] RPC 41
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd WASCA 88
Jess & Jess (No 4) [2023] FedCFamC1A 189
Jess & Jess (No 8) [2023] FedCFamC1F 395
Jess & Jess (No 9) [2023] FedCFamC1F 713
Nikolaidis v Legal Services Commissioner [2005] NSWCA 91
Medlow & Medlow (2016) 54 FamLR 389
Division Division 1 First Instance Number of paragraphs 11 Date of hearing 5 February 2024 Place Melbourne Counsel for the applicant Mr G Dickson KC Solicitors for the applicant Kenna Teasdale Lawyers Counsel for the represented third parties Mr P Collinson KC with Mr J Mereine and Mr C Lum Solicitors for the represented third parties HWL Ebsworth Lawyers Counsel for the intervener Ms N Papaleo Solicitors for the intervener Lander & Rogers 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 29TH RESPONDENTS - THE REPRESENTED THIRD PARTIES)
Second to 29th Respondents
MR K AND MR L AS TRUSTEES OF THE BANKRUPT ESTATE OF MR JESS SNR)
Intervener
ORDER MADE BY
WILSON J
DATE OF ORDER
19 FEBRUARY 2024
THE COURT ORDERS THAT The represented third parties’ application for a stay of the discovery orders made by me on 8 December 2023 is dismissed.
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 Jess & Jess has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
By application in a proceeding dated 29 January 2024 the represented third parties have applied to stay the discovery orders made by me on 8 December 2023 in Jess & Jess (No 11).[1]
[1] [2023] FedCFamC1F 1027.
Being an application to stay interlocutory orders, as opposed to orders made after trial, the observations made by the Court of Appeal of the Supreme Court of New South Wales in Nikolaidis v Legal Services Commissioner[2] apply, as I held in Jess & Jess(No 8).[3]
[2] [2005] NSWCA 91.
[3] [2023] FedCFamC1F 395.
The relevant notice of appeal on which the represented third parties rely was exhibited to the affidavit of their solicitor made 29 January 2024.
In this court the relevant test for the grant of leave is appeal against an interlocutory order was set out in Medlow v Medlow[4]. It is –
(a)whether in all the circumstances the decision appealed against is attended by sufficient doubt to warrant it being reconsidered by a Full Court; and
(b)whether substantial injustice would result if leave were refused, supposing the decision is wrong.
[4] (2016) 54 FamLR 389.
A party in whose favour an order is made does not obtain a stay of the orders appealed against merely by the filing of a notice of appeal. For that matter, the party in whose favour an order is made is entitled to the benefit of that order unless set aside by a court higher in the relevant hierarchy of courts.
Some investigation must be undertaken to assess the strengths of the grounds of appeal. New senior counsel for the represented third parties, Mr P.W Collinson KC argued that –
(a)his clients had undertaken the task of formulating a list of discoverable documents;
(b)all of the documents on that list are confidential in the sense that they are not in the public domain, although he did not assert that the documents were confidential within the meaning applied by Megarry J in Coco v A.N Clark(Engineers);[5]
(c)if the documents discovered on the list are provided to parties prior to the determination of the appeal for which the stay is sought, any confidentiality associated with them is lost; and
(d)I should do as Vaughan JA did in Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd[6] by taking disclosure orders already made to the point of electronically transferring the documents to a USB stick or some similar device but not handing that to the other parties until the Full Court has determined the application for leave to appeal against my orders.
[5] [1969] RPC 41.
[6] [2023] WASCA 88.
No date has yet been fixed for the hearing of the represented third parties’ application for leave to appeal against my orders. Precisely when a decision will be handed down following the hearing of the application for leave to appeal is unknown.
Counsel for the wife submitted that the grounds of appeal that the represented third parties wish to agitate are without merit. He contended that this litigation has been on foot for such an extended duration that no delays should be countenanced. Mr Dickson KC conceded, rightly, that the application for leave to appeal against my decision in Jess & Jess(No 11)[7] is not dependent on the fate of the application pending before the High Court for special leave to appeal against the decision on jurisdiction in Jess & Jess (No 4).[8]
[7] [2023] FedCFamC1F 1027.
[8] [2022] FedCFamC1A 189.
Applying Nikolaidis v Legal Services Commissioner,[9] the following is highly pertinent –
The power to order a stay is discretionary and such an intervention should not take place lightly. The outcome which is likely if there is no stay must be so adverse and severe that the attainment of justice requires interlocutory intervention. It must be shown that it is likely that there will be some adverse consequence of allowing the proceedings under challenge to continue and that the outcome will be so difficult to remedy or otherwise so adversely severe in its impact that intervention by the Court of Appeal should take place notwithstanding that there has not yet been an opportunity for full consideration.
[9] [2005] NSWCA 91.
It cannot be gainsaid that discovery is invasive. But over centuries, orders have been routinely made despite the invasive nature of discovery. It is a weak argument for the represented third parties to contend that their confidential information will fall into hands unfavourable to them. Almost all discovery meets that characterisation. Medlow v Medlow[10] remains the operative test. I am not persuaded that my decision is attended with sufficient doubt as to warrant appellate intervention by the grant of leave to appeal. Equally, in my view the grounds of appeal are not with merit. Further, the test set out in Nikolaidis has not been satisfied.
[10] (2016) 54 FamLR 389.
I refuse the stay application.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 19 February 2024
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