Kabir & Kabir (No 2)
[2022] FedCFamC1F 874
Federal Circuit and Family Court of Australia
(DIVISION 1)
Kabir & Kabir (No 2) [2022] FedCFamC1F 874
File number: CAC 2337 of 2019 Judgment of: GILL J Date of judgment: 10 November 2022 Catchwords: FAMILY LAW – CONTEMPT – Where the applicant asserts the respondent’s use of material produced under subpoena and s 69ZW material is a breach of Court orders and in contempt of Court – Where the respondent allegedly used the material as annexures to an affidavit in support of a protection order in the Region O Magistrates Court – Where the respondent admits use of some material produced under subpoena without the permission of the Court – Where not otherwise established that material used in Region O Magistrates Court was sourced in material produced under subpoena or pursuant to s 69ZW – Where respondent’s use of material in breach of a Court order – Where no reliance on Hearne v Street obligations – Where respondent asserted a lack of knowledge of obligations under the order – Relevance of lack of knowledge – Where manner and extent of use of material means that breach should not be regarded as a flagrant challenge to the Court’s authority – Contempt application dismissed Legislation: Evidence Act 1995 (Cth) s 141
Family Law Act 1976 (Cth) ss 69ZW, 112AP, 102NA
Children and Young People Act 2008 (ACT)
Cases cited: Hearne v Street (2008) 235 CLR 125
Medlow & Medlow (2017) FLC 93-796
Ibbotson and Wincen (1994) FLC 92
In the Marriage of Tate (2002) 29 FamLR 195
Division: Division 1 First Instance Number of paragraphs: 93 Date of hearing: 21 October 2022 Place: Canberra Counsel for the Applicant: Mr Howard appeared only for the purpose of cross-examination Solicitor for the Applicant: InPrivate Law appeared only for the purpose of cross-examination Solicitor for the Respondent: Litigant in Person ORDERS
CAC 2337 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KABIR
ApplicantAND: MS KABIR
Respondent
order made by:
GILL J
DATE OF ORDER:
10 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The application that Ms Kabir be dealt with for two counts of contempt filed 8 August 2022 is dismissed and each count therein 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 the pseudonym Kabir & Kabir has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
Introduction
The parties are currently involved in litigation before this Court regarding parenting.
The applicant father filed an Application for Contempt on 8 August 2022 against the respondent mother, thereby seeking that she be dealt with pursuant to s 112AP of the Family Law Act 1975 (Cth) (“the Act”).
The application relates to alleged breaches of orders made by Judge Hughes of the Federal Circuit Court of Australia (as it then was) and Registrar Walker-Munro of the Family Court of Australia (as it then was) regarding the use of material produced to the courts under subpoena or pursuant to s 69ZW orders, the breaches being by the respondent producing such material annexed to an affidavit (“the subject affidavit”) filed by her in the Region O Magistrates Court in Protection Order proceedings in July 2021.
By his application, the applicant asserts that the respondent’s use of the material, in the face of the orders, constitutes a flagrant challenge to the authority of the Court.
It should be noted that the charges were particularised as being in relation to orders made in relation to the documents, rather than in reliance upon the obligations identified in cases such as Hearne v Street.[1]
[1] 235 CLR 125.
Issues relating to the conduct of the trial
A number of issues arose in relation to the manner of the conduct of the trial.
Firstly, English is not the first language of either party, although each appears fluent in the English language. Noting the difficulties inherent in understanding legal proceedings, at the request of the respondent an interpreter was made available for the hearing of the matter, with the respondent making use of the interpreter on limited occasions.
Secondly, the parties were previously made subject to an order pursuant to s 102NA of the Act on 13 September 2022. The effect of the order was that neither party is permitted to personally cross-examine the other.
The applicant appeared, in part, by counsel. Counsel advised that his retainer was limited by the applicant to cross-examination of the respondent only, and that he held no retainer in respect of the balance of the proceedings. It was apparent that the restriction in retainer was the decision of the applicant, rather than some other limitation placed upon counsel by virtue of the s 102NA scheme.
It may be observed that those aspects of the applicant’s case that he chose to run without counsel were marked by confusion and disorganisation.
At the trial, the respondent appeared without a lawyer. She advised the Court that she had been allocated a lawyer, but that there had been difficulties in accessing the lawyer. The Court record indicated that the lawyer had filed a Notice of Ceasing to Act on 14 October 2022.
The respondent was asked what she sought to do, given the seriousness of the contempt proceedings, and noting that contempt proceedings can, but not necessarily will, result in incarceration. It was identified to the respondent that absent a lawyer she would be unable to question the applicant, questioning being the manner in which disputed facts are challenged. In particular, the respondent was asked whether she sought an adjournment, so that it could be considered whether one should be given. The respondent, however, stated that she sought to proceed without a lawyer.
The applicant was then required to particularise the documents that he alleged had been used by the respondent in breach of the orders, and was given access to the file produced by the Region O Magistrates Court to do so. That file had been produced following a request from this Court and contained the subject affidavit. In order to particularise the documents, the applicant was required to place tags onto the subject affidavit identifying the documents, which was then marked for identification for the process of charging the respondent. That particularisation identified six documents annexed to the subject affidavit.
Following the particularisation, the respondent was charged in a manner incorporating the particularisation. The charges referred to the tagged documents, with the subject affidavit initially being marked for the purpose of charging as N1 and then tendered during the trial, with the tags, as Exhibit A1.
The charges
The respondent was firstly charged:
[Ms Kabir], the first charge that you face is one of contempt in that contrary to the Federal Circuit Court orders dated 10 December 2019, you disclosed the contents of confidential documents in your affidavit dated 22 July 2020, being an affidavit in the [Region O] Magistrates Court proceedings, and annexed confidential documents to your affidavit that related to a family law parenting matter. Those documents are identified as tabs 6 and 7 on the bundle in front of you there, relating to documents produced to the court by the Queensland welfare agency and the [Region O] welfare agency. So that is the allegation against you. Do you wish to admit or to deny that allegation?[2]
[2] Transcript 21 October 2022, p.21 lines 24–32.
The respondent denied the allegation.
The respondent was secondly charged:
The second allegation relates to the order of Registrar Walker-Munro in the Family Court of Australia dated 30 June 2020 being order 3. The allegation is that your affidavit dated 22 July 2020 being the affidavit in the [Region O] Magistrates Court was handed up to the Magistrates Court in [City E] [in] July 2020, and the contents of those documents were under the order that the parties and their legal representatives were restrained from providing a copy of the documents or disclosing their contents to any other person without an order of the court.
And the specific documents that you’re accused of providing to the [Region O] Magistrates Court are tags 6 being the CYP [Region O] welfare agency document, tag 7 being the Queensland welfare documents, tag 2 being documents produced by the [J Hospital] on subpoena, tag 3 being documents produced by [L Hospital], tag 4 being documents produced by [L Hospital]. Do you admit or deny that allegation?[3]
[3] Transcript 21 October 2022, p.22 lines 1–14.
The respondent admitted the charge insofar as it related to tag 2 being the records from the J Hospital, but denied the balance of the charge.
It should be observed that the Child Youth Protection Service (“CYPS”) and Queensland Welfare Agency records were transposed in the charge. The CYPS records were misdescribed as tag 6 when they were in fact tag 7, and the Queensland Welfare Records were misdescribed as tag 7 when they were tag 6.
It however did not appear that the misdescription caused any confusion in the presentation of the case, nor in the respondent’s answer to the case.
It should be noted that at the close of the applicant’s case, he conceded that there was no prima facie case in respect of the first charge. That charge will accordingly be dismissed and not otherwise substantively dealt with in this judgment.
That left any contempt as reliant upon the orders made by Registrar Walker Munro on 30 June 2020 that were in the following terms:
It is ordered that:
1. The legal representatives and the Independent Children’s Lawyer have leave to photocopy documents produced pursuant to the section 69ZW order made 25 November 2019 and documents produced pursuant to subpoena to J Hospital and L Hospital.
2. Any photocopies are to remain in the possession of the legal representatives and are to be returned to the [City E] registry for destruction at the completion of the proceedings.
3.The parties and their legal representatives are restrained from providing a copy of the documents or disclosing their contents to any other person without an order of the Court.
As identified in the second charge, the operative order relied upon was Order 3.
Material relied upon
The applicant relied upon his affidavit of 6 August 2022, and specifically [13-33] and the associated annexures, along with the affidavit of the respondent produced from the Region O Magistrates Court file, being Exhibit A1 (formerly N1). Although the applicant had annexed the body of the subject affidavit to his, this did not include the annexures to the subject affidavit that he conceded formed the strongest part of his case. There was thereby a need to tender the subject affidavit as produced by the Region O Magistrates Court, which included the annexures.
The applicant further tendered the material produced pursuant to s 69ZW by the Queensland Department of Child Safety, Youth and Women, CYPS (together forming Exhibit A2) and on subpoena by the J Hospital (Exhibit A3) and L Hospital (Exhibit A4).
The respondent relied upon her oral evidence.
Principles
The relevant powers in respect of contempt are set out at s 112AP of the Act as follows:
112AP Contempt
(1)Subject to subsection (1A), this section applies to a contempt of a court that:
(a)does not constitute a contravention of an order under this Act; or
(b)constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.
(1A)This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court.
(2)In spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that court.
(3)The applicable Rules of Court may provide for practice and procedure as to charging with contempt and the hearing of the charge.
(4)Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.
(5)Where a corporation is in contempt, the court may punish the contempt by sequestration or fine or both.
(6)The court may make an order for:
(a) punishment on terms;
(b) suspension of punishment; or
(c) the giving of security for good behaviour.
(7)Where a person is committed to prison for a term for contempt, the court may order the person’s discharge before the expiry of that term.
(8)To avoid doubt, the serving by a person of a period of imprisonment as a result of a contempt of a court arising out of a failure by the person to make a payment in respect of the maintenance of another person does not affect the first‑mentioned person’s liability to make the payment.
(9)In this section:
order under this Act means an order under this Act affecting children or an order under this Act within the meaning of Part XIIIA.
In the Marriage of Tate,[4] makes it clear that while contempt pursuant to s 112AP is not an offence against a law of the Commonwealth, it is an offence arising under an Australian law, meaning that, in accordance with s 141 of the Evidence Act 1995 (Cth), each element must be proven beyond reasonable doubt.
[4] (2002) 29 FamLR 195.
Given that what is alleged here is the breach of a court order, it is required to prove not only that the order has been breached, but that the breach “involves a flagrant challenge to the authority of the court.”[5]
[5] Family Law Act 1975 (Cth) s 112AP(1)(b).
As stated by the Full Court in Ibbotson and Wincen,[6] at 81,162:
The use of the term “flagrant challenge” to the authority of the Court is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as the general run of breaches which are intended to be dealt with under s.112AD.
[6] (1994) FLC 92-496.
In the ultimate, it is a question of fact and degree whether the stringent terms of [s 112AP(1)(b)] are satisfied.
While it is not necessary that breaches be repeated to constitute a flagrant challenge, repetition “may more readily attract” the provision.[7] In Medlow & Medlow,[8] the Full Court confirmed the relevant inquiry as being as to “the “exceptional or striking nature” of the contravention in question”.[9]
[7] Ibbotson and Wincen (1994) FLC 92-496 at 18,162.
[8] (2017) FLC 93-796.
[9] (2017) FLC 93-796 at 6.
It is necessary that both the breach of the order, and its characterisation as a flagrant challenge to the authority of the Court, are proven beyond reasonable doubt.
The trial
The applicant presented his case. He was not cross-examined by virtue of the mother proceeding without a lawyer, and given the effect of the s 102NA orders.
At the close of his case, the applicant was directed to identify the documents annexed to the respondent’s affidavit in the Magistrates Court that were identical to those produced on subpoena and per s 69ZW. As noted above, on doing so the applicant conceded that there was no evidence to support the first count that alleged that the respondent had used documents produced by the Queensland Welfare Agency per s 69ZW, there being no such documents identified as annexed to the mother’s affidavit.
Accordingly, the contempt was reduced to count 2, particularised in relation to documents from the J Hospital (tag 2 of Exhibit A1), L Hospital (tags 3 and 4 of Exhibit A1) and CYPS (Tag 7 of Exhibit A1).
As noted above the respondent admitted the use of the J Hospital documents.
Otherwise, the applicant’s case was reliant upon a correlation between the documents behind the tags in Exhibit A1, as annexed to the subject affidavit, and the documents produced under subpoena by the L Hospital and those produced pursuant to s 69ZW by CYPS and the Queensland Welfare Agency. As the case progressed it became evident that there were no such documents identified as produced by the Queensland Welfare Agency, further reducing the scope of documents.
The correlation of documents
The annexed documents were produced in the subject affidavit by reference to paragraphs of the subject affidavit. It is convenient to replicate the relevant paragraphs and identify where the annexed documents appear, along with the purportedly corresponding documents produced under subpoena or pursuant to s 69ZW as contained in Exhibits A2, A3 and A4.
The J Hospital documents
Although in his affidavit the applicant identified a range of documents asserted to be relevantly produced by the J Hospital, by his particularisation the relevant portion of exhibit A1 was identified as contained behind tag 2, being annexures A5 to A7 at pages 24–35 of exhibit A1.
Annexure A5 was produced by the following paragraph:
[21]The third incident of strangulation took place [in] 2018 around 7pm, I went into uterine contractions that time as it was my third trimester with our second child [Y]. Following that incident I rushed to [J Hospital] emergency department, later had ruptured uterus and emergency caesarean section. Annexure marked as A5 is the true copy of hospital record and my operation notes following that incidence.
Annexure A6 was produced by the following paragraph:
[23]In the third trimester I had gestational diabetes and carpal tunnel syndrome [a medical condition in which there is extreme pain in the hands radiating to arms and forearms]. [Mr Kabir] forced me to do all household, cooking, cleaning, giving shower to [X]. Whenever I asked his support he said I am busy and upset with my interviews and job. [Mr Kabir] never asked me to get any support from anyone else he isolated me. Annexure marked as A6 is the true copy of hospital record.
Annexure A7 was produced by the following paragraph:
[24]Before the birth of [Y] I had severe anaemia. With that condition I forced to do all household and look after our elder child as [Mr Kabir] was mostly busy with job. I remembered in June I had severe palpitations and I was unable to even stand I shared with [Mr Kabir]. [Mr Kabir] ignored, didn’t bother. Following that I have been prescribed an iron infusion which was delayed as [Mr Kabir] was not home. Annexure marked as A7 is the true copy of hospital record. The relevant portion of Annexure A7 to exhibit A1 was contained at pages 32-35 of exhibit A1.
The J Hospital records as produced under subpoena of 10 February 2020 were tendered at Exhibit A3.
Each of the documents from Annexure A5 to A7 appeared also in Exhibit A3.
The L Hospital documents
The particularised portions of the L Hospital documents were identified as those behind tag 3 of Exhibit A1 (corresponding to Annexure A8) and tag 4 of Exhibit A1 (corresponding to Annexure A9)
Annexure A8 was introduced by the respondent in the following paragraph of the subject affidavit:
[37] Following that incident a police protection notice and later domestic violence order was made by QUEENSLAND POLICE. Annexure marked as A 8 is the true copy of details following that incident.
…
[52] Domestic Violence Crisis Service helped me to apply for a recovery order to the court in [City E]. I was new in [City E], didn’t know anything. Annexure marked as A9 is the true copy of DVCS file notes.
The L Hospital records as produced under subpoena of 5 February 2020 were tendered as Exhibit A4.
The only matching document appearing behind tag 3 that also appeared in Exhibit A4 was correspondence from Queensland Health to the respondent’s general practitioner dated 5 May 2019.
All of the documents behind tag 4 corresponded to the material produced under subpoena at Exhibit A4 except for one document, being the first document that bore tag 4. That document was a letter from a consultant psychiatrist, Dr M, regarding the respondent, dated 28 November 2019, and addressed “To Whom It May Concern.”
The respondent said that the only documents attached to the subject affidavit from the L Hospital were those that she had received other than by the subpoena.
She explained that she had received the L Hospital records from her general practitioner and from the hospital. The respondent identified a previous affidavit of April 2020 where correspondence was identified relating to an access application made by the respondent to the hospital for information. That request provided eight pages of documents to the respondent, including correspondence from her psychiatrist, Dr M.
In relation to documents provided by the general practitioner, the respondent identified that she had previously produced the printout to the applicant and to her solicitor on 24 November 2019. The respondent asserted that she no longer had that bundle.
The question arises as to whether the respondent’s explanation should be rejected, or whether it leaves reasonable doubt about the provenance of the documents annexed to the subject affidavit.
Where the applicant’s case was reliant upon the items annexed to the respondent’s affidavit corresponding with the material produced under subpoena, the absence of a document that was produced on subpoena, from the annexed documents is not necessarily problematic for the applicant, as it may simply have been omitted from the annexure, by design or by inadvertence.
However, where as here a document is annexed that does not appear in the Exhibit of produced documents, and where the respondent has given evidence that she obtained the documents from other sources (being from the hospital directly and through her general practitioner), the presence of the stray document is supportive of her contention that she has obtained documents other than through access to the subpoenaed material. Here the additional document, from Dr M, was explained on the basis that the respondent received it following a request for documents form the hospital. That explanation cannot be rejected.
The respondent further explained that she also received hospital records through her general practitioner. While the applicant disputed that such could occur, I was not provided with sufficient information to be confident that this was so. This again leads to the conclusion that the respondent’s explanation in relation to the L Hospital records should not be rejected.
This means that a reasonable doubt should be entertained as to whether the documents annexed to the affidavit were sourced from the material produced under subpoena.
The Queensland Welfare Agency documents
During the trial the applicant conceded that he was unable to identify any documents produced by the Agency and used by the applicant in the subject affidavit.
The CYPS documents
The particularised portions of the CYPS documents were identified as those behind tag 7 of Exhibit A1 (corresponding to Annexure A20).
Annexure A20 was produced by the following paragraph:
[78] Before the Recovery Order was made by Honourable Judge Hughes Child and youth protection services of [City E] are involved. Annexure 20 is the true copy of child and youth protection report [Region O].
The CYPS records produced pursuant to the s 69ZW order of 25 November 2019 were tendered as Exhibit A2.
The applicant tagged 50 documents behind tag 7 of Exhibit A1 (Annexure A20) and a corresponding 50 documents from Exhibit A2. Each document in Annexure A20 appeared in Exhibit A2.
The respondent chose to give evidence in relation to this issue. She explained that the documents had been sent to her, and had come from the Domestic Violence Crisis Service (DVCS). The respondent asserted that CYPS and DVCS were the same department, then “almost the same department.”[10] She asserted that they were interrelated. The witness was reluctant to accept that the two entities bore different names. She however maintained that they were the same department, then later said that she did not know if they were the same.
[10] Transcript 21 October 2022, p.53 line 13.
The witness later denied that she had asserted that DVCS had provided the CYPS file to her, asserting rather that the record was the same.
The respondent was asked whether she had correspondence showing that the documents had been so sent to her. She described that she had an email requesting her address. She produced an email from her telephone from herself to the DVCS support worker of 14 June 2020 identifying her postal address.
It should not be accepted that CYPS, the government authority charged with dealing with child welfare issues in the Region O, is the same as, or part of the same department as DVCS, which is itself referred to at tab 46, and which may be inferred to be an external, community based organisation.
It should not be thought that DVCS has access to the CYPS records as a part of the one department.
However, although the applicant asserted that DVCS cannot have access to CYPS records, it remains unclear that this is the case.
While I was not addressed by the applicant as to why I should form a view that DVCS could not have access to the CYPS records, it may be observed that of the documents produced by CYPS, those tabbed by the applicant as 1, 7 and 9 all bore a warning that the information in the documents was subject to the confidentiality requirements of the Children and Young People Act 2008 (ACT) (“CYP Act”).
Examining those confidentiality provisions suggests that, assuming that DVCS is a community-based service providing services to the respondent, then both the respondent and DVCS would fall within the information sharing regime (ss 858–860) contained in the confidentiality provisions of the CYP Act. Those provisions permit the Minister or Chief Executive to share safety and wellbeing information with the mother or DVCS, including information needed to assess whether a child is in need of care or at risk of abuse or neglect, and may be what the CYP Act terms as protected or sensitive information.
These provisions appear to undermine the proposition that DVCS could not have obtained the information and provided such to the respondent.
That means that there is no solid basis to reject the account given by the respondent that she obtained the CYPS material that she annexed to the subject affidavit other than through the documents provided to the court.
Discussion
The contempt is reliant upon establishing, firstly, that there has been a breach of the order of Registrar Walker-Munro through the use of documents procured through subpoena or s 69ZW order by the respondent in the subject affidavit used in the Region O Magistrates Court.
An essential component of establishing a breach then is that the documents came from the subpoenaed material or the material produced through s 69ZW.
The essential nature of that issue means that it is required to be proven beyond reasonable doubt, effectively as an element of the alleged contempt.
Given the admission made by the respondent, the applicant has established that the respondent sourced the J Hospital documents from material produced under subpoena.
For the reasons set out above, the applicant has fallen short of establishing beyond reasonable doubt that the documents used by the respondent that came from the L Hospital or CYPS were sourced in the documents that were provided to the court.
That means that the contempt is reliant upon the use of the J Hospital documents alone.
The second aspect of establishing that the respondent is in contempt is that the breach of the order is a flagrant challenge to the authority of the Court, again a matter that is factual in nature, is an element of the contempt, and which requires proof beyond reasonable doubt.
The respondent’s evidence that bore upon this issue was:
Your Honour, I’m saying that, I’m not a lawyer. I was not aware. It’s my mistake. I admit it, and I am pleading to the court, I am saying sorry for that. And, I’m happy to give undertaking what I admit what I did, but it was not – it was just a mistake. I never attempted to attack – contempt the court.[11]
[11] Transcript 21 October 2022, p.69 lines 11–14.
Further the respondent said:
Your Honour, again, I’m saying that, yes, I admit I use few documents and the documents that I was ..... I admitted and I am sorry for the court because I was unaware. I’m not a legal practitioner. I was a [medical professional]. And, your Honour, I want to add that if three courts were not sure that it’s a contempt, so how I can be ..... I’m a layman. And first, it’s went into the contravention court, it has been assessed, and then dismissed then it was an application in a proceeding, and then it come to the Family Court as a contempt application. So I am seeking court – I’m requesting court that court will give me less punishment and because it was a mistake without my knowledge. And I have never contempt on ..... court who gave me children.[12]
[12] Transcript 21 October 2022, p.76 lines 42–47, p.77 lines 1–4.
One aspect of the respondent’s evidence was as to a lack of awareness, being, it appears, a lack of awareness that she was breaching the order of the Registrar. I was not addressed as to the significance of such. However, it appears to be of limited significance in the circumstances of this case.
While the charge of contempt relies upon the breach of an order rather than upon the Hearne v Street obligations there are useful parallels to consider, as the order and the Hearne v Street obligations cover the similar territory.[13]
[13] 235 CLR 125.
One is that culpability under Hearne v Street is attracted where the person who has used the information is aware that it was produced to the court for the proceedings. No other awareness of obligation is necessary once it is established that the circumstances giving rise to the obligation were known by the person using the information or documents.[14]
[14] Hearne v Street (2008) 235 CLR 125 at [112] and [129].
The rationale given in Hearne v Street was that ignorance of the law is not generally a matter that prevents liability form arising.[15]
[15] Hearne v Street (2008) 235 CLR 125 at [112]
The position here is that even if the respondent was unaware of the orders of Registrar Walker-Munro, it was those orders that permitted any use of or access to the documents used by the respondent. Those orders, which buttress the Hearne v Street obligations, are not functionally inferior to the Hearne v Street obligations.[16]
[16] 235 CLR 125.
Even if it was accepted that the respondent was ignorant of the orders that granted access, she was aware of the circumstances that the orders governed, being that the documents that she was using were produced under subpoena. That is sufficient to attract culpability.
The second parallel with Hearne v Street is the subject matter. As in Hearne v Street, the orders are directed to the protection of persons who produce to the court under compulsion. In this case it is a third party to the proceedings who was compelled to produce material and was entitled to the protection given by the orders of the Registrar. As was observed in Hearne v Street, whilst it is a protection that may be derogated from by the court, it is a power that is not freely exercised and reliant upon special circumstances.[17]
[17] Hearne v Street (2008) 235 CLR 125 at [107].
These parallels point toward a conclusion that the breach is a flagrant challenge to the authority of the Court.
However, there is a further matter which points in the other direction, being the manner in which the documents were disclosed. While the significance of the use of the material was not dealt with by the parties, who were each self-represented at the making of submissions, it is a matter that cannot simply be ignored or glossed over. It is a matter which the applicant, as the prosecutor of the contempt, should have addressed, and his failure to do so is not a matter that can be to his benefit.
In this case the disclosure of the material was to a court, in proceedings being conducted between the same parties. It was not a publication of the material beyond the parties and a court seized with a dispute between the parties. The restricted nature of the disclosure, being a disclosure in the course of the administration of justice renders a factual conclusion that the breach is a flagrant challenge to the authority of this court, as opposed to a mere breach of the court’s order, as uncertain. That uncertainty means that it cannot be taken that the element of flagrant challenge is made out.
COnclusion
The remaining charge of contempt is to be dismissed.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 10 November 2022
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