Jess & Jess (No 15)

Case [2024] FedCFamC1F 772


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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AGLC
Jess & Jess (No 15) [2024] FedCFamC1F 772
Case
[2024] FedCFamC1F 772
Decision Date

CaseChat Overview and Summary

This case involved an application by Ms. Jess, the applicant, seeking to compel the release of certain documents from the legal representatives of Mr. Jess Snr, the deceased, and other respondents. The case was heard in the Federal Circuit and Family Court of Australia. The primary issue before the court was whether the applicants, including litigation funders, were entitled to receive certain documents that had been filed or produced during the proceedings. The respondents had argued for the imposition of conditions on the release of these documents, including a confidential undertaking from the recipients to restrict the use of the documents to the specific proceedings.

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

MR J

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Ratio Decidendi

Legal Principle Established

Established by: MR J

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