Moore and Moore

[2010] FamCA 1190

FAMILY COURT OF AUSTRALIA

MOORE & MOORE [2010] FamCA 1190

FAMILY LAW – PROPERTY – Particulars of claim – Discovery of documents filed in South Australian Supreme Court actions

Family Law Act 1975 (Cth)
Supreme Court Act 1935 (SA) s 131

Hearne v Street (2006) 235 CLR 124
Australian Competition v Consumer Commission & Cadbury Schweppes Pty Ltd (2009) FCAFC32

APPLICANT: Ms Moore

RESPONDENT: Mr Moore

FILE NUMBER: ADF 4732 of 1998

DATE DELIVERED: 29 November 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 29 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Whitington QC
with Mr Jordan

SOLICITOR FOR THE APPLICANT: City East Legal

COUNSEL FOR THE RESPONDENT: Mrs Shaw QC
with Mr Bleby

SOLICITOR FOR THE RESPONDENT: BBS Lawyers

Orders

1. That the Application in a Case filed on 26 November 2010 be dismissed.

2. That the wife have leave to amend her substituted particulars of claim by adding paragraphs 14A through 14F inclusive.

3. That the husband provide discovery of all documents in relation to his dealings with P Trust and its assets from the date of the approval of the deed the subject of these proceedings to the date of distribution identified in paragraph 207 of his trial affidavit, including all documents filed in the three Supreme Court actions between Mr Moore and Mr S and any document referred to in the list of documents filed in action number … of 2007 that are relevant to these proceedings.

4. That further consideration of the time for compliance with order 3 be adjourned to 10:00am on Thursday 2 December 2010.

IT IS NOTED that publication of this judgment under the pseudonym Moore & Moore is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 4732 of 1998

MS MOORE

Applicant

And

MR MOORE

Respondent

EX TEMPORE REASONS

1. I have before me an Application in a Case filed by the husband on 26 November 2010 seeking that the wife’s Senior Counsel be restrained from further acting for the wife in these proceedings.  That is supported by an affidavit of the husband filed on the same date.  That application is opposed.  It is an application that has been made before; indeed, it was the subject of an Application in a Case filed by the husband on 19 March 2010.

2. There were other orders sought in that particular application but paragraph 4 of that application is the specific paragraph to which I refer.  That application was supported by three affidavits, all sworn by the husband’s solicitor, Mr Barnes.  The application was not proceeded with, but written submissions were presented both in support of and in opposition to the application.

3. It seems to me there are two issues that the husband is raising with this application before me today. First, and to summarise, Mr Moore says that the documents that appear to be now relied upon as part of the wife’s case are documents which cannot, in fact, be used in these proceedings. They are documents that were produced to the Supreme Court in other proceedings and they are attended by an implied undertaking that without leave of the court they cannot be used for any purpose other than in the proceedings for which they were produced.

4. It is submitted by the wife’s senior counsel that there is nothing new in this application that is now before me compared with the application of 19 March 2010.  However, in so far as the first issue that I have just identified, Mrs Shaw says that there is quite a lot that is new, namely the detailed information contained in the written outline of the wife and the list of documents intended to be relied upon by her.

5. The identified documentation now goes far wider than what was put to this court when I heard an application for summary dismissal in August 2008, and Mrs Shaw says that between that time and March 2010 there was no movement, if you like, in the sense of any expansion of the documentation on which the wife sought to rely, and indeed Mrs Shaw further says that there was no indication of any expansion between March 2010 and the last week or so when the outline and the list of documents were provided.

6. I accept that submission, namely that there now is a different scenario in terms of the documents now identified upon which the wife wishes to rely. 

7. Second, Mr Moore says that Mr Whitington previously acted for a Mr S in Supreme Court proceedings in which Mr Moore was a party and he, Mr Moore, assumes and is concerned that Mr Whitington has information available to him as a result of acting for Mr S which places the wife at a distinct advantage in these proceedings and, on the other side of the coin, places him and his legal advisors at a distinct disadvantage.

8. In respect of that aspect, in my view there is nothing new whatsoever that has been put to me comparing the current application with the application of 19 March 2010.  The only semblance of anything new is perhaps Mr Moore now saying that given the extent of the documentation that the wife seeks to rely upon that that has heightened his concern about the information which Mr Whitington gleaned when he was acting for Mr S.

9. In any event, my finding that there is nothing new in that aspect of the application does not mean that I do not propose to determine it, but it obviously affects how I deal with it. 

10. In terms of the documentation, Mr Moore in his affidavit and particularly in paragraph 15 refers to the summary of argument filed on behalf of the wife and, reading from paragraph 15, he:

    now apprehend(s) that Mr Whitington QC will cross-examine (him) on the matters outlined in paragraph 24.5 (a) to (j) of the Wife’s Summary of Argument.

11. He continues and says that he assumes that that cross-examination will be informed by information given to Mr Whitington by way of instructions from Mr S. 

12. I pause to identify the written submissions that I have been referring to.  On 7 May 2010 the husband’s senior counsel filed written submissions.  There were two parts, and the second part is relevant to this topic, and that commences at paragraph 56.  In response, there were written submissions provided on behalf of the wife, and they were dated 20 May 2010 and the relevant paragraphs commence at paragraph 45.  In addition, there are some brief submissions which were handed to me last Friday by Mrs Shaw in support of this particular application. 

13. In relation, then, to the documents which are said to be caught by this implied undertaking, as I say, in the affidavit of Mr Moore, he refers to paragraph 24.5 (a) to (j) of the wife’s summary of argument.  I am told, and it is now conceded that the documents from the husband’s list of documents identified in paragraph 24.5, save and except the one in paragraph 24.5(i), were all annexures to an affidavit of Mr Moore sworn on 17 April 2007 and filed in the Supreme Court proceedings.

14. There is no dispute about the principle that is said to apply here, and it is encapsulated in paragraph 96 of the decision of the majority in Hearne v Street (2006) 235 CLR 124, and it reads:

    Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents, or information, the party obtaining the disclosure cannot, without leave of the Court, use it for any purpose other than that for which it was given unless it was received into evidence.

15. Mrs Shaw puts to me that she was not, of course, involved in the Supreme Court proceedings.  She does not know, nor does her learned junior know, of the circumstances pertaining to those proceedings, and the part that these documents played in those proceedings.  Mr Whitington though, has been able to take me to the transcript of the relevant hearing in the Supreme Court, and identified where the affidavit of Mr Moore, which I have just identified and to which are annexed these documents, was referred to.  His submission is that that satisfies the condition, namely, that this material was received into evidence in the Supreme Court and, thus, it is not caught by the implied undertaking. 

16. Pausing there, I note that I have not sighted the transcript but Mr Whitington has undertaken to provide the relevant parts of the same as soon as practicable.  Mrs Shaw’s position is that she accepts that Mr Whitington, as an officer of the court, has been accurate in what he has said from the bar table but she cannot concede anything or take the matter any further because she has no direct knowledge of this.

17. I am prepared to proceed on the basis of what Mr Whitington has put to me from the bar table on the specific understanding that he will provide the relevant parts of the transcript in due course.  Thus, for my part, I cannot see any issue remaining about those documents which are identified by the wife as documents she relies upon, and being documents which it is conceded are annexed to the affidavit of Mr Moore, and the circumstance being that, as far as I am concerned, Mr Moore’s affidavit and the annexures thereto were received into evidence in the Supreme Court.  That is the end, in my view, of that issue.

18. I return though to the document referred to in paragraph 24.5(i) which is a valuation by KPMG, and which is document 100 in the documents relied upon by the wife.  There are two affidavits, apparently, of Mr J, filed in the Supreme Court proceedings, and which affidavits have come across to this Court pursuant to my order of 1 August 2008.  I note that in respect of one of those affidavits, one paragraph was specifically referred to in the summary dismissal proceedings which I heard, and that is paragraph 10.

19. There was a second affidavit though in respect of which Mr Whitington has not been able to satisfy me that it became evidence before the Supreme Court.  However, Mr Whitington says that that affidavit, or rather the annexure being the KPMG valuation, can still be before this Court and it is not caught by the implied undertaking to which I have already referred.  There are a number of bases for that. First Mr Whitington relies on the decision of the Full Federal Court in Australian Competition v Consumer Commission & Cadbury Schweppes Pty Ltd (2009) FCAFC32.

20. In summary, what Mr Whitington says is that the effect of that decision is that an affidavit voluntarily filed is not caught by the principle encapsulated in paragraph 96 of the decision in Hearne & Street. In other words, the principle does not apply because there is no disclosure of documents or information by compulsion.

21. However, Mrs Shaw has submitted that that is not a correct interpretation, and that, where there is litigation, and where a party is brought to the Court as a result of that litigation, and using her words “forced to respond”, then, that can be considered a situation where a party is compelled to file the affidavit, for example.

22. I do not accept Mrs Shaw’s submission.  In my view, it is quite clear that the affidavit is an affidavit voluntarily filed and Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd is authority for that proposition.

23. Second, Mr Whitington relies on the orders that I made on 1 August 2008 in relation to the affidavits filed in the Supreme Court proceedings as providing the necessary authority to rely on the same in the Family Court proceedings. (Section 131 of the Supreme Court Act).

24. What happened was, there was a request of the Registrar of the Supreme Court by the wife’s solicitors for access to the file, and to be able to copy affidavits.  That was refused and it was said that an order was required for the affidavits to be produced to this Court.  I made that order on 1 August 2008.  I note, there was no submission put to me at the time that I should refuse to make that order because the principle, for example, emanating from paragraph 96 of Hearne v Street would apply.  In any event, I made the order and, then, I made orders for the inspection and copying of the affidavits, including, of course, the affidavit to which I have been referring, namely, the affidavit of Mr J.

25. Apart from the fact that no objection was taken at that time to those orders on the basis that the implied undertaking would be breached, and thus those documents could not be used in these proceedings, I note that during the hearing of the summary dismissal application reference was made to documents from the Supreme Court file, particularly the pleadings and, also, as I have said already, paragraph 10 of the other affidavit of Mr J, and no objection was taken to using those documents in these proceedings.

26. It is only now that this issue of the implied undertaking is raised.  In any event, Mr Whitington rests on the orders that I made as satisfying the need for leave if that was necessary, in respect of relying on the valuation.  However, for my part, I do not need to go beyond acceptance of Mr Whitington’s submission based on the decision in Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd, and the fact that this was an affidavit voluntarily filed in the proceedings, and thus not the subject of compulsion. 

27. Thus there is no basis to make the order sought as a result of any suggested breach of an implied undertaking.

28. For completeness, I mention that submissions were made to me about the understanding that the husband and his legal advisors had as to what was being relied on by the wife from the Supreme Court proceedings. I have been referred to what was said at the summary dismissal hearing, but I do not accept that that was in any way limiting what the wife might ultimately rely on. I was also referred to a letter from the wife’s solicitors to the husband’s solicitors, and which is annexure “ALB1” to the affidavit of Mr Barnes filed on 8 September 2009.  It is said that this is important in the husband’s case, in that, in this letter, which followed on from the summary dismissal proceedings, although, of course, some months after, there is a heading “Use of Pleadings From Supreme Court Proceedings”, and then there is paragraph 21 which reads:

    The husband reserves his position whether it is permissible to refer to any pleadings or affidavits from the file of the Supreme Court in the above action for any purpose or at all.

29. I emphasise the words, “or affidavits,” but for my part, I fail to see how the husband reserving his position in relation to that on 24 July 2009 can support in any way the application that is now before me. 

30. Nor can there be any suggestion of the husband being caught by surprise by the wife relying on the Supreme Court proceedings or indeed by what the wife’s case is.  As Mr Whitington has pointed out, the husband was a party to those Supreme Court proceedings.  He knows very well what went on in those proceedings.  He knows what they were about.  He also knows, and has known always, that the issue of the control of the P Trust is a primary issue in these proceedings.

31. The issue then comes down to what I have termed the second aspect of the application, namely the concern expressed by the husband as to the fact that Mr Whitington previously acted for Mr S in the Supreme Court proceedings.  Now, it is of course a serious matter to restrain a client’s choice of lawyer, and as Mr Whitington has rightly submitted, such a restraint should only be imposed upon the basis of clear evidence as to the need for it. 

32. The key paragraph in the husband’s affidavit is, of course, paragraph 15, to which I have already referred, and where he says:

    I now apprehend that Mr [Z] will cross-examine me on the matters outlined in paragraph 24.5 (a) – (j) of the Wife’s Summary of Argument, and in doing so, will be informed by information, both given to him by way of instructions from Mr [S], and filed or produced in discovery in those proceedings but which were not necessary tendered in open court. 

33. There has been no evidence presented to me on behalf of the husband that would support that claim.  I have dealt with the documents which are relied upon by the wife and to which the husband has referred in his affidavit and expressed concern.  However there is nothing more.  There is simply no evidence to allow me to conclude that Mr Whitington has an unfair forensic advantage in having acted for Mr S previously in the Supreme Court proceedings.  All that I have is assumption and conjecture. 

34. Thus I dismiss the application.

35. Next, I have before me an Application in a Case filed by the wife on 18 November 2010 seeking to amend her substituted particulars of claim by adding several paragraphs, namely 14(A) through to 14(E).  In addition there is an oral application to add a paragraph 14(F).  Those new paragraphs are set out in a document which I do not think has been filed, but it has certainly been provided to me and to the other side, and which inserts those further paragraphs in the substituted particulars of claim. 

36. The application is opposed by the husband, and there is a written outline of argument provided on behalf of the husband which addresses this.  In that outline the point is well made that in relation to paragraph 14(D) it does not plead any material facts as to when, where and in what form the husband falsely represented his position.  However, I have been taken to Mr J’s affidavit in support of the application and, where it is identified, the evidence in support of that particular, and it seems to me that answers all the questions that the husband could have about the material facts relied upon. 

37. The other significant paragraph is 14(C), and, again, Mrs Shaw is quite correct that as it appears, no material facts are pleaded as to the discovery. However Mr Whitington has identified that the material facts are contained in paragraph 143 of the husband’s own trial affidavit. 

38. Thus, although, as I say, the submission made by Mrs Shaw on her client’s behalf in relation to those particulars is well made, sufficient information has now been provided to alert the husband to and give him sufficient opportunity to deal with and respond to those particulars.  Therefore, I propose to give leave to the wife to amend her substituted particulars of claim by adding paragraphs 14(A) through 14(F) inclusive.

39. I now have an oral application before me by the wife seeking an order that the husband provide discovery of all documents filed in the three Supreme Court actions, including the list of documents filed in action no … of 2007 and any documents referred to in that list which are relevant to these proceedings. 

40. I have heard submissions from both counsel, and I am satisfied that the issue of the husband’s dealings with P Trust, subsequent to the approval of the deed, is relevant to these proceedings, up to and including the distribution of assets as identified in paragraph 207 of the husband’s trial affidavit. 

41. The apparent difficulty that has been created though by this application is that it is brought on the second day of this hearing, although I note, of course, we haven’t yet heard a word of evidence.  It said that to make discovery in terms of an order like that would be a time consuming effort and would involve many, many thousands of documents.  I should add that in any event Mrs Shaw’s instructions are that these documents are not relevant to these proceedings. 

42. Now, in this court, Chapter 13 of the Family Law Rules places an obligation on both parties to provide full and frank disclosure.  It is an ongoing obligation, and it is open-ended.

43. As I have commented earlier in these reasons I consider that the husband is and has been aware that the wife’s case centred around P Trust, and a large part of that case is how the husband has dealt with P Trust and the assets of P Trust since the approval of the deed. 

44. I have not been taken to any specific lists of the documents that have been discovered by the husband, and it has not been suggested that there has been specific discovery in relation to this topic.  My position though is that there should have been, and although it is late in the piece, I propose to make an order about it.  The question of where we go from there will depend, initially at least, on how the husband responds to this order. 

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 29 November 2010.

Associate: 

Date:  24 December 2010