LEVENTIS & LEVENTIS

[2021] FamCA 251

FAMILY COURT OF AUSTRALIA

LEVENTIS & LEVENTIS [2021] FamCA 251

FAMILY LAW – COSTS – point not maintainable – alleged “privacy” of a party – alleged confidentiality of information – just to make a costs order under s 117(2A).

Family Law Act 1975, s 117(2A)
Privacy Act 1988 (Cth)

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Coco v A N Clark (Engineers) Ltd [1969] RPC 41
Fitzgerald v Fish (2005) 33 Fam LR 123

APPLICANT: Ms Leventis

FIRST RESPONDENT: Mr Leventis

SECOND RESPONDENT: Mr B Leventis

THIRD RESPONDENT: Ms C Leventis

FILE NUMBER: MLC 7710 of 2018

REASONS GIVEN: 29 April 2021

PLACE DELIVERED: Melbourne

PLACE HEARD: Sydney

JUDGMENT OF: Wilson J

HEARING DATE: 22 April 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr E. Kelly

SOLICITOR FOR THE APPLICANT: Nicholes Family Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Not applicable

SOLICITOR FOR THE FIRST RESPONDENT: Coote Family Lawyers

COUNSEL FOR THE SECOND RESPONDENT: Not applicable

SOLICITOR FOR THE SECOND RESPONDENT: Pauline Madden Conveyancing & Legal

COUNSEL FOR THE THIRD RESPONDENT: Not applicable

SOLICITOR FOR THE THIRD RESPONDENT: Pauline Madden Conveyancing & Legal

Orders

1. The applicant’s costs of and incidental to the argument on 22 April 2021 must be paid by the second and third respondents, such costs to be assessed by a registrar of this court, such assessment to be completed by 5 June 2021 and paid by 1 July 2021.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Leventis & Leventis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7710 of 2018

Ms Leventis

Applicant

And

Mr Leventis

First Respondent

And

Mr B Leventis

Second Respondent

And

Ms C Leventis

Third Respondent

REASONS FOR JUDGMENT

1. These written reasons have been produced because the solicitor for the second and third respondents said she required them, notwithstanding that debate leading to them took place during a mention which ordinarily does not result in written reasons.

2. In response to a subpoena addressed to it, various documents were produced by a major bank and were stored in the registry of this court.  Orders had been previously made for the inspection of those documents.  An expert who is preparing a report to be adduced in evidence in this case has asked to inspect various documents including the documents produced by the bank in response to the subpoena served on it.  When an endeavour was made to inspect the documents produced by the bank, the solicitor for the second and third respondents protested and required the registry staff to not release certain of those documents until I ruled on whether the second and third respondents were entitled to assert the claims they now make.

3. Orders previously made canvassed the production and inspection process for various documents relevant to the trial of this proceeding currently fixed for 5 July 2021, a matter of weeks away.  The timing of the inspection of the subject documentation is acute.

4. By reason of the looming trial date and the need for the expert to complete his evidence in accordance with dates previously ordered and by reason of the impasse that presented itself, I directed the parties to appear before me on 22 April 2021 to explain the real issue in this impasse.

5. The second and third respondents’ solicitor argued that any release of the documents produced by the bank represented a breach of her clients’ privacy.  I told her that her submission was not easily understood having regard to the fact that the provisions of the Privacy Act 1988 (Cth) had specific application and the facts of this case were not among them. After I gave her five hours to investigate the soundness of her submissions in that regard she abandoned her contention about a breach of privacy. However she continued to resist the release of the documents previously ordered to be released saying that her clients were somehow prejudiced by that release. She said the information on the bank statements were confidential and that her clients did not consent to any breach of confidentiality.

6. Dr Kelly argued that this issue had been debated exhaustively on 11 March 2021 when the parties appeared at a contested discovery application.  Dr Kelly submitted that orders had already been made on the point and that the second and third respondents were traversing ground already the subject of extensive debate the subject of orders made on 11 March 2021.

7. In my view Dr Kelly was correct.  No valid basis had been made out for the second and third respondents’ resistance to the expert inspecting the documents he says he needs to inspect in order to complete his report.  I do not accept that the information on the disputed bank statements is impressed with confidentiality within the contemplation of his Lordship Mr Justice Megarry’s statement of the three conditions that must exist before an obligation of confidence will arise as set out in Coco v A N Clark (Engineers) Ltd.[1]

   [1] [1969] RPC 41.

8. So far as the asserted privacy issue was concerned, in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[2] any tort of invasion of privacy was considered and denounced.  No such tort exists in Australian jurisprudence.

   [2] (2001) 208 CLR 199.

9. Dr Kelly informed me that court officials in the registry required an indication from me about how they were to deal with the release of the impugned documents in view of the second and third respondents’ instruction to the court officials to not release those documents.  On 22 April 2021 I informed counsel that it was my direction for the registry staff to forthwith release those documents for inspection by the expert.  The word “forthwith” means what it says.

10. Dr Kelly applied for costs of the hearing on 22 April 2021. He submitted that the second and third respondents had been wholly unsuccessful in their resistance to the expert’s legitimate request for inspection of relevant bank documents and that pursuant to s 117(2A) of the Family Law Act a costs order should be made against the second and third respondents.

11. Dr Kelly was correct in submitting that the second and third respondents had been wholly unsuccessful in their resistance.  The argument based on the Privacy Act had no merit whatsoever and was abandoned with only the slightest pressing by the second and third respondents’ solicitor to substantiate it.  The mention of this matter on 22 April 2021 commenced at 9am.  The case was stood down for five hours to enable the second and third respondents’ solicitor to endeavour to mount a maintainable argument in relation to the so-called privacy argument.  All parties were thereby detained while she investigated the issue, something she should have been prepared to debate when the case was first called on for hearing.  Then, somewhere prior to 2:15pm she altogether abandoned the so-called privacy argument pressing it not the faintest.  At 2:15pm she debated points that were ultimately unsuccessful also.  This was set against a backdrop in which orders had already been made on the issue after a lengthy debate before me.

12. An order under s 117(2A) need only be grounded in one of the several subsections of s 117(2A), as was held in Fitzgerald v Fish.[3]

    [3] (2005) 33 Fam LR 123.

13. In my view a costs order is just in the circumstances of this application.  Legal representatives must be prepared to debate legal issues even if required at a directions hearing.  I do not encourage, still less tolerate, the orderly progress of cases fixed for trial being impeded by legal argument wholly devoid of merit.  There was no merit in the privacy argument.  If the solicitor for the respondents who propounded the argument entertained doubts about the validity of the privacy argument, counsel’s advice should have been sought.  As it transpired, the argument was abandoned, correctly so.

14. I direct that the applicant’s costs of and incidental to the argument on 22 April 2021 be paid by the second and third respondents, such costs to be assessed by a registrar of this court, such assessment to be completed by 5 June 2021 and paid by 1 July 2021.  The first respondent indicated no desire to be heard on costs.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 29 April 2021.

Associate: 

Date:  29 April 2021