Munro & Waleria
[2023] FedCFamC2F 1534
•1 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Munro & Waleria [2023] FedCFamC2F 1534
File number(s): PAC 6460 of 2021 Judgment of: JUDGE NEWBRUN Date of judgment: 1 December 2023 Catchwords: FAMILY LAW – PROPERTY – Harman undertaking – Where respondent husband is deceased – Where applicant wife has applied for Letters of Administration to Supreme Court of NSW, Equity Division, in respect to the deceased’s estate – Where applicant wife contends that the deceased died intestate – Leave granted to provide documents from this Court’s property proceedings to Supreme Court of NSW, Equity Division. Legislation: Family Law Act 1975 (Cth) ss 79, 121
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 3.19, 6.04
Succession Act 2006 (NSW) s 127
Cases cited: Hearne v Street [2008] HCA 36
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; 218 ALR 283
Littlefield & Pemble [2023] FedCFamC1A 198
Pace & Halkias [2021] FamCAFC 81
S (deceased) & S [2002] FamCA 1281
Sapphire (SA) Pty Ltd (trading as River City Grain) v Barry Smith Grains Pty Ltd (in liq) [2011] NSWSC 1451
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
Re W: Publication Application (1997) FLC 92-756
Division: Division 2 Family Law Number of paragraphs: 45 Date of hearing: 16 November 2023 Place: Parramatta Solicitor for the Applicant: Ms Singh, Justice Family Lawyers Solicitor for the Respondents: No appearance ORDERS
PAC 6460 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MUNRO
Applicant
AND: MR WALERIA
First Respondent
MS WALERIA
Second Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
1 DECEMBER 2023
THE COURT ORDERS THAT:
1.The Applicant Wife is granted leave to file the Orders of this Court dated 30 August 2023 and the affidavit of Mr Waleria filed 6 September 2023 in the Supreme Court of New South Wales, Equity Division, in support of her application for Letters of Administration in respect to the estate of the deceased husband.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This is the determination of an Application in a Proceeding filed 3 October 2023 filed by the wife in these property proceedings seeking leave to file the affidavit of Mr Waleria, the First Respondent, filed in this Court on 6 September 2023, and the Orders of this Court dated 30 August 2023, in the Supreme Court of NSW, Equity Division (hereinafter “the Supreme Court”), in support of the wife’s application for Letters of Administration regarding the deceased husband’s estate.
MATERIAL RELIED UPON
The wife relies upon:
(a)Her Application in a Proceeding filed 3 October 2023;
(b)Her Written Submissions filed 6 November 2023;
(c)Her affidavit filed 22 September 2023.
BACKGROUND
These are property proceedings brought by the wife against the late Mr B, her former husband. On 16 November 2022 the parents of the husband, Mr Waleria and Ms Waleria, were joined as the First and Second Respondents. The Respondents allege that they are creditors of the estate of the deceased husband.
The husband died in 2022. Pursuant to s 79(8) of the Family Law Act 1975 (Cth) (“the Act”), these proceedings may be continued against the legal personal representative of the deceased husband.
No legal personal representative has yet been appointed. This Court does not have the power to appoint a legal personal representative: S (deceased) & S [2002] FamCA 1281 at 26.
The wife contends that the husband died intestate. As the husband and the wife were divorced at the time of the husband’s death, if this contention is correct, the beneficiaries of the estate are the two children of the marriage, X (aged 11) and Y (aged 7) (“the children”): Succession Act 2006 (NSW) s 127(1).
In mid-2022, the wife applied to the Supreme Court of New South Wales for Letters of Administration of the deceased husband’s estate in her capacity as legal guardian of the children. The wife submits that if that application is successful, she will become the legal personal representative of the deceased husband’s estate, and could then be substituted for him in these proceedings pursuant to Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 3.19(3).
In mid-2023, the wife received requisitions from the Supreme Court, stating, inter alia, that the wife’s application cannot proceed without affidavit evidence by a person who conducted searches for an original Will with the deceased’s personal effects.
During a directions hearing on 30 August 2023, the Respondents orally informed the Court that they had searched the husband’s residence and had found no Will. Subsequently the Court ordered that:
1.The First and Second Respondents, within 7 days, shall file and serve a short affidavit stating that, after the death of the deceased husband, they have conducted searches for an original Will of the deceased husband with his personal effects at his property at [C Street, Suburb D] and have discovered no Will.
…
On 6 September 2023 the First Respondent, Mr Waleria, filed an affidavit ostensibly in compliance with the above Order.
The wife, on 11 September 2023, made a request to chambers seeking leave to provide the Orders dated 30 August 2023 and the abovementioned affidavit to the Supreme Court. The First and Second Respondents communicated the following by email to chambers:
Dear all.
We oppose for our affidavit to be used in the Supreme Court in all circumstances.
Regards
Mr and Mrs [WALERIA]
The Court, by reply email through its Associate, advised the wife that a formal
Application in a Proceeding would be required.
On 12 September 2023 the First and Second Respondents sent an email to chambers which included the following:
…
I objected on both 28th and 30th August, 2023 to his honour, that we were not obligated to make an affidavit for search of a will for the Supreme Court, as we are not part of the proceedings in this Court.
…
We object any documents to be used in the Supreme Court for the client to progress with Letters of Administration, as we are not part of the proceedings.
…
(As per the original)
The Court interpolates that, in the intervening period between the filing and hearing of the Application in a Proceeding, chambers received various email communications from the Respondents indicating, inter alia, that they wished to withdraw from proceedings, that they were too unwell to continue, and attaching various medical certificates. This included an email dated 4 October 2023, headed “NOTICE TO CEASE AS RESPONDENTS TO LATE MR B”.
On 15 November 2023 the Court, through its Associate, directed the Respondents to the Notice of Discontinuance and Application in a Proceeding forms available on the Court website and advised of the procedure to be followed for seeking leave to discontinue a Response or be removed as a party. The Respondents were also reminded that the wife’s Application in a Proceeding was listed for hearing the following day.
The wife’s affidavit filed 22 September 2023 states, inter alia:
4.[In mid-]2022, I filed an application for Letters of Administration in the Supreme Court Equity Division (Case number […]).
5.[In mid-]2023, I received Requisitions from the Supreme Court that the application cannot proceed without Affidavit evidence by a person who conducted searches for an original will with the deceased’s personal effects. Annexed and marked “Annexure A” are the Requisitions dated [mid-]2023.
6.In accordance with Order 1 of Federal Circuit and Family Law Court Orders dated 30 August 2023, the Respondents filed an Affidavit on 6 September 2023 stating that they have conducted searches for an original copy of the deceased’s Will, among his personal effects, after the date of his death. The Respondents confirmed that they located a message from the deceased for his children, and no other document. Annexed hereto and marked “Annexure B” is a copy of the Federal Circuit and Family Law Court Orders dated 30 August 2023 and Respondent Affidavit dated 6 September 2023.
7.The Application for Letters for Administration cannot proceed in the Supreme Court Equity Division without the Affidavit provided by the Respondents. The reasons for this are:
a)The Respondents are the only persons who have access to the deceased’s property and who can conduct a physical search among his personal effects;
b)Due to my separation from the deceased, I no longer had access to the deceased’s property to search his personal effects, from the date of his death;
c) I have attempted to contact previous neighbours residing near the deceased’s property and have not been able to obtain any assistance for affidavit evidence;
…
e)I have exhausted all other means of searching for a will in the deceased’s name;
f)The Supreme Court has indicated that the matter cannot proceed without Affidavit evidence of a physical search for an original Will among the deceased’s personal defects.
8.I therefore ask the Honourable Court to grant leave for me to file the Federal Circuit and Family Court Orders dated 30 August 2023 and Respondent Affidavit dated 6 September 2023 in the Supreme Court, Equity Division. My reasons for this are:
a) The application has been on-going for over 12 months;
b) I have incurred significant time and legal costs in this process;
c)I have conducted all other required searches required for a Will, have filed an affidavit deposing to those searches and have complied with all other requisitions;
d)My application for grant of letters of administration in the Supreme Court are for the benefit of [X], born [in] 2012, and [Y], born [in] 2016 (“the children”). As per the entitlements sought in my Affidavit filed 19 February 2023, I will not be receiving any entitlements from the deceased’s estate;
e)Further, in accordance with my Undertaking dated 23 December 2022, I have sworn to undertake steps to ensure that the funds due to the children are deposited on their behalf with the NSW Trustee within 12 months of the grant of letter of administration. Nothing in the application warrants or entitles me to any share, title or benefit in the deceased’s estate;
f)If the matter cannot proceed in the Supreme Court, it will be referred to the NSW Trustee and Guardian at both parties’ detriment, but particularly, the detriment of the children.
(As per the original)
The wife’s Application in a Proceeding was heard by the Court on 16 November 2023 and there was no appearance by or on behalf of the First and Second Respondents. Judgment was reserved. No Response to an Application in a Proceeding was ever filed by the Respondents, and no application seeking leave to discontinue or to be removed as a party, has been filed by the Respondents. The Application in a Proceeding was therefore heard effectively undefended on 16 November 2023. However, as discussed below, the Court will take into account the Respondents’ opposition to any grant of leave.
LEGAL PRINCIPLES
Leave of the Court is required because the relevant documents are subject to both statutory restrictions on their use, and the implied Harman undertaking.
Section 121(1) of the Family Law Act 1975 (Cth) (“the Act”) provides:
(1)A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a)a party to the proceedings;
(b)a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or a witness in the proceedings;
commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
The release of the affidavit of Mr Waleria, the First Respondent, filed in this Court on 6 September 2023, and the Orders of this Court dated 30 August 2023, to the Supreme Court is not publication or dissemination “to the public or to a section of the public” and hence s 121 is not engaged (Re W: Publication Application (1997) FLC 92-756): see Littlefield & Pemble [2023] FedCFamC1A at 31.
In any event, as discussed in Littlefield & Pemble (supra) at 32-33, s 121(9)(a) provides an exception to the preceding provisions of s 121 and applies here, and thus s 121 need not be further considered.
The Harman undertaking, as it is commonly termed, is an obligation arising at common law which prevents parties to proceedings from using documents obtained through compulsory processes for any purpose other than that for which they were produced. The scope of the undertaking was described by the High Court in Hearne v Street [2008] HCA 36 as follows:
96.Where one party to the litigation is compelled, either by reason of a rule of court, or by reason of a specific order otherwise to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits…
Although there is some uncertainty whether affidavits in general are captured by the Harman undertaking (see, e.g., Sapphire (SA) Pty Ltd (trading as River City Grain) v Barry Smith Grains Pty Ltd (in liq) [2011] NSWSC 1451), the Court considers that the affidavit of Mr Waleria is such a document because its production was compelled by a Court Order.
The wife also seeks leave in relation to the Orders of this Court dated 30 August 2023. These Orders are not captured by the Harman undertaking because they were not produced by a party under compulsion.
The use of Court documents is also restricted by r 6.04(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021:
(1)A person who inspects or copies a document, in relation to a proceeding, under these Rules or an order:
(a)must use the document for the purpose of the proceeding only; and
(b)must not otherwise disclose the contents of the document, or give a copy of it, to any other person without the court's permission.
The test to be applied when considering a release from the Harman undertaking is that set out in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217, summarised and approved by the Full Court of the Federal Court of Australia in Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; 218 ALR 283 as follows:
31.In order to be released from the implied undertaking it has been said that a party in the position of the appellants must show “special circumstances”: see, for example, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217. It is unnecessary to examine the authorities in this area in any detail. The parties were not in disagreement as to the legal principles. The notion of “special circumstances” does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined. In Springfield Nominees, Wilcox J identified a number of considerations which may, depending upon the circumstances, be relevant to the exercise of the discretion. These were:
•the nature of the document;
•the circumstances under which the document came into existence;
•the attitude of the author of the document and any prejudice the author may sustain;
•whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain;
•the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information):
•the circumstances in which the document came in to the hands of the applicant; and
•most importantly of all, the likely contribution of the document to achieving justice in the other proceeding.
The above test was approved by the Full Court of the Federal Circuit and Family Court of Australia (Division 1) in Pace & Halkias [2021] FamCAFC 81 at 17-18 and more recently in Littlefield & Pemble [2023] FedCFamC1A 198 at 35-36.
The same considerations probably apply in respect of the grant of leave under r 6.04: see Littlefield & Pemble (supra) at 34.
DISCUSSION
The affidavit of Mr Waleria is a document comprising 14 pages, including annexures. The body of the affidavit details the events immediately following the death of the deceased husband. The First Respondent deposes to, inter alia, attending the husband’s residence, along with police, and relevantly for the wife’s purposes, to the fact that no documents were discovered at the property.
The subject matter of the affidavit is plainly of great personal significance to both of the Respondents. Photographs are annexed of what is purported to be a note left by the husband. The Court takes into account the sensitive and personal nature of this material.
The affidavit came into existence during these proceedings as a result of a Court Order, over the objections of the Respondents. The Court takes this into account.
The attitude of the author of the affidavit is clear. Both of the Respondents oppose the grant of leave. This notwithstanding, they have elected not to file any affidavit material in response to the wife’s Application in a Proceeding, nor to participate in the hearing, and as far as this Court is aware they have not sought to be joined as a party to the wife’s proceedings in the Supreme Court.
On 28 November 2023 the Court informed the parties by email that judgment in respect to the Wife’s Application in a Proceeding was listed for delivery on 1 December 2023 at 9.45 am. The Respondents sent an email to the Court’s Associate on 30 November 2023 at 4.49 pm attaching a document which was stated to be, “Submission new for Ms Munro for Nov 23 hearing2.docx”. The Court has not had regard to this document because the wife’s Application in a Proceeding was heard on 16 November 2023 and judgment was reserved on that day, the Respondents have had ample time to provide affidavit evidence and/or submissions to the Court prior to 16 November 2023 which was not done, the Court has had regard to the affidavit of the first Respondent filed 6 September 2023 in which, inter alia, the First Respondent sets out his opposition to the wife’s application for Letters of Administration (see below), and no application in proper form has been made by the Respondents seeking leave to provide submissions after judgment was reserved.
The Orders of 30 August 2023 are brief. They are set out in large part at paragraph 9 of these Reasons. They also contain a number of notations about the procedural history of the matter and the circumstances in which the Orders were made.
At paragraphs 20 and 21 of his affidavit, the First Respondent makes it clear that he opposes the wife’s application for Letters of Administration:
20.I believe the mother of the children [Ms Munro] the applicant and ex wife of Late [Mr B], manipulated the courts with her lies. She has not come clean that she was bankrupted and she lied she wasn’t on the mortgage as she was on maternity leave. This is not true.
21.I also believe my son who is taken from us and the children, because of the fabricated material given to the courts and Department of Community Justice (DCJ) from their mother [Ms Munro]. I believe she can’t be the trustee of the children’s estate.
(As per the original)
It is not for this Court to determine whether the wife is the appropriate person to be granted Letters of Administration in respect to the deceased husband’s estate assuming that the deceased husband died intestate; that determination is one for the Supreme Court. It is apparent that the wife has standing to make such an application in the Supreme Court and that she is presently the only person seeking Letters of Administration; if the wife can establish that the deceased husband died intestate and thereby the children are sole beneficiaries of his estate, then as the children’s primary carer she would arguably be an appropriate person to apply for Letters of Administration. It is open to the Respondents to seek to challenge that application in the Supreme Court.
The Court observes that the deceased husband’s estate is said to comprise an item of real estate at C Street, Suburb D, NSW, with there being outstanding mortgage loans on that property in the sum of at least about $255,060.
In any case, the Court accepts the wife’s evidence that her application in the Supreme Court cannot be determined unless and until the requisition of the Supreme Court is answered. In this regard, the Court is satisfied that the provision of the affidavit to the Supreme Court will contribute significantly to achieving justice in the Supreme Court proceedings, as it may well allow the wife’s application to progress to a final determination (whatever the outcome of that determination may be) in that Court.
Whilst acknowledging the opposition of the Respondents and the possible emotional impact on them that may flow from a grant of leave, the Court does not consider that there is any significant prejudice to the Respondents. The Respondents claim to be a creditor of the husband’s estate in these property proceedings which, as with the wife’s claim in this Court, cannot progress to be determined until the appointment of a legal personal representative for the deceased husband.
Both these proceedings and the Supreme Court proceedings have been ongoing for some time. The Court accepts the wife’s evidence that she has incurred significant legal costs.
The Court pauses to note that it presently has a concern as to whether, in the event that the wife is successful in her application to the Supreme Court and is appointed legal personal representative of the deceased husband (assuming the wife can establish in the Supreme Court that the husband died intestate and the children thereby become the sole beneficiaries of the deceased husband’s estate), she could then be substituted for the husband in these proceedings pursuant to r 3.19(3). Prima facie, viewing the ensuing proceedings in this Court prospectively, there may well be a conflict between the wife as applicant in her own right, on the one hand, and as respondent in her capacity as the effective representative of the children, the beneficiaries of the estate from which she seeks a property division, on the other. The Court placed the parties on notice of this concern and referred to the decision of Bailey (1987) FLC 91-803, and invited written submissions as to whether an administrator ad litem might need to be appointed to represent the deceased husband. The wife submitted that no such conflict would arise. The Respondents provided no submissions.
It is not necessary to determine the above issue now. The Court accepts the wife’s submission that the question of an administrator ad litem can be considered at a later stage, if and when the wife applies to be substituted as legal personal representative of the deceased husband in these proceedings.
Taking into account the above discussed matters, the Court is satisfied that special circumstances exist. It will be in the interests of justice to grant the wife leave to provide the affidavit of Mr Waleria dated 6 September 2023 to the Supreme Court.
In circumstances where the affidavit will be provided, and for the reasons discussed above, the Court considers that it will be in the interests of justice for the wife to also provide a copy of the Orders of 30 August 2023 to the Supreme Court, which Orders explain the circumstances in which the affidavit was filed.
The Court makes Orders accordingly.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Deputy Associate:
Dated: 1 December 2023
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