FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jess & Jess (No 15) [2024] FedCFamC1F 772
File number MLF 3444 of 2006 Judgment of WILSON J Date of judgment 22 November 2024 Catchwords FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – PRACTICE AND PROCEDURE – discovery – documents sought by litigation funders –respondents seeking the imposition of conditions to the release of documents sought – implied undertaking – adequacy of confidential undertaking. Legislation Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited Alphapharm Pty Ltd v Lundback Australia Pty Ltd [2006] FCA 1358.
Alterskye v Scott [1948] 1 All ER 469
Astrazeneca AB v Medis Pharma Pty Ltd [2014] FCA 549.
Betfair Pty Ltd v Racing New South Wales (No 5) [2007] FCA 1011.
Cadbury Pty Ltd v Amcor Ltd (No 2) [2009] FCA 663
Cadence Asset Management Pty Ltd v Concept Sports Ltd [2006] FCA 711
Coco v AN Clark (Engineers) Ltd [1969] RPC 41
Conor Medsystems Inc v Re University of British Columbia (No 4) [2007] FCA 324
Conrock Ltd v CSR Ltd (1990) 96 ALR 690
Harman v Secretary of State, Home Department [1983] 1 AC 280
Hawksford v Hawksford [2007] NSWSC 661
Hearne v Street (2008) 235 CLR 125
Hill v Zuda Pty Ltd (2022) 275 CLR 24.
ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2007] FCA 467
Interpharma Pty Ltd v Commissioner of Patents [2008] FCA 1422
Jess & Jess (No 10) [2023] FedCFamC1F 1013
Kimberley Mineral Holdings Ltd (in liq) v McEwan [1980] 1 NSWLR 210
Kirby v Centro Properties Ltd [2009] FCA 695
Mobil Oil Australia Lt v Guina Developments Pty Ltd [1996] 2 VR 34
QPSX Ltd v Ericsson Australia Ltd (No 5) [2007] FCA 244.
Riddick v Thames Board Mills Ltd [1977] QB 881, 896
Shearpond Pty Ltd v Atune Financial Solutions Pty Ltd (No 3) [2014] FCA 1448
Warner-Lambert Co v Glaxo Laboratories Ltd [1975] RPC 354 , 356
Division Division 1 First Instance Number of paragraphs 39 Date of last submission 8 November 2024 Date of hearing 8 November 2024 Place Melbourne Counsel for the applicant Mr CR Solicitor for the applicant Kenna Teasdale Lawyers Counsel for the represented third parties Mr Michael Kearney SC with Mr Springthorpe Solicitor for the represented third parties Taussig Cherrie Fildes Counsel for the interveners Mr Hamish Austin KC with Ms Papaleo Solicitor for the interveners 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 REPRESENTATIVE FOR MR JESS SNR (DECEASED)
First Respondent
MR JESS JNR & ORS (THE REPRESENTED THIRD PARTIES)
Second to 29th Respondents
MR K & MR L AS TRUSTEES OF THE BANKRUPT ESTATE OF MR JESS SNR
Interveners
ORDER MADE BY
WILSON J
DATE OF ORDER
22 NOVEMBER 2024
THE…
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- [2024] FedCFamC1F 772
- Decision Date
CaseChat Overview and Summary
The court examined the statutory provisions and case law to determine the adequacy of the confidential undertaking provided by the applicants. The court found that the undertaking was sufficient to ensure that the documents would be used solely for the purposes of the litigation. The court noted that the applicants had demonstrated a commitment to maintaining confidentiality and had taken steps to ensure that the documents would not be misused. The court also considered the implications of the Family Law Act, which restricts the publication of information identifying persons involved in family law proceedings. The court concluded that the confidential undertaking provided by the applicants was adequate to satisfy the requirements of the Act and to protect the privacy of the parties involved.
The court ordered that the documents sought by the applicants could be released to them, subject to the conditions outlined in the order. The court also dismissed the respondents' application for costs and reserved the question of costs for later determination. The court's decision provides guidance on the appropriate conditions that may be imposed on the release of documents in complex financial proceedings, and highlights the importance of confidentiality in family law matters.
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 REPRESENTATIVE FOR MR JESS SNR (DECEASED)
First Respondent
MR JESS JNR & ORS (THE REPRESENTED THIRD PARTIES)
Second to 29th Respondents
MR K & MR L AS TRUSTEES OF THE BANKRUPT ESTATE OF MR JESS SNR
Interveners
ORDER MADE BY
WILSON J
DATE OF ORDER
22 NOVEMBER 2024
THE COURT ORDERS THAT –
1. Pursuant to ss 30 and 69(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), ss 114Q(2)(b) and/or 114S(1) of the Family Law Act 1975 (Cth) and r 6.04(1)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), each of the persons named in Annexure B to these orders who have given a signed undertaking in the form contained in Annexure A to these orders may receive from the applicant (or her legal representatives) the following -
(a) all documents filed or otherwise provided to the court by the parties to this proceeding and any appeals (Proceeding);
(b) all documents produced by the parties by way of discovery in the proceeding;
(c) all judgments, orders and other documents authored or provided by the court to the parties in the proceeding;
(d) all correspondence in relation to the proceeding, including correspondence between the parties;
(e) all documents produced pursuant to subpoena issued in the Federal Circuit and Family Court of Australia and
(f) transcripts of the proceeding,
(collectively, the Proceeding Documents).
2. For the avoidance of doubt, to the extent necessary to allow provision of the proceeding documents within the terms of order 1, the applicant (and their legal representatives) are excused from compliance with any non-publication or suppression order which otherwise applies to the proceeding documents and from the implied obligation described in Hearne v Street (2008) 235 CLR 125.
3. The response dated 30 October 2024 is dismissed.
4. All questions of costs of and incidental to the trustee’s application dated 28 October 2024 are reserved.
5. Any application for costs of and incidental to this application by the applicant must be filed and served by noon on 20 December 2024;
6. If the applicant applies for costs in accordance with paragraph 5, it must be supported by all relevant affidavits and submissions.
7. Any opposition to costs must be supported by affidavit material and submissions to be filed and served by noon on 20 January 2024.
8. Costs will thereafter be decided on the papers.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: MR J
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