Oates & Q and Anor
[2010] FamCAFC 202
•20 October 2010
FAMILY COURT OF AUSTRALIA
| OATES & Q AND ANOR | [2010] FamCAFC 202 |
| FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – access to inspect and copy the court file – where the trial judge, hearing the wife’s application for review of a registrar’s decision, granted a non-party permission to inspect and copy the Family Court file for the purpose of the non-party defending herself against a complaint made by the wife to the Office of the Legal Services Commissioner in relation to matters arising from the Family Court proceedings – whether the trial judge erred in stating he was not satisfied that r 24.13(3) of the Family Law Rules 2004 (Cth) was valid – whether the trial judge erred in finding that r 24.13 allows access to the court file for the purposes of “fishing” – discussion of the provisions of r 24.13 and the validity of r 24.13(3) – whether the trial judge erred in finding the non-party was a person with a “proper interest” in information obtainable from the court file – no merit in grounds. FAMILY LAW - APPEAL – JURISDICTION – whether the trial judge acted without jurisdiction or power – whether the trial judge acted outside of his jurisdiction by purporting to deal with and determine the merits of the wife’s complaint to the Legal Services Commissioner – whether allowing access to the court file is an exercise of judicial discretion – whether the trial judge was required to apply administrative law principles to the request – no merit in grounds. FAMILY LAW - APPEAL – BIAS – PROCEDURAL FAIRNESS – whether comments by the trial judge give rise to an apprehension of bias – whether the trial judge failed to accord the wife procedural fairness – no merit in complaints. FAMILY LAW - APPEAL – PUBLICATION – consideration of the operation of s 121 of the Family Law Act1975 (Cth) – whether s 121 prohibits access to the court file being granted to the non-party and dissemination of material to the Legal Services Commissioner – no merit in submissions. FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – no merit in any ground of appeal – appeal dismissed – no order as to costs. |
| Family Law Act 1975 (Cth) ss 31, 37A, 121 & 123 Family Law Rules 2004 (Cth) rr 1.09, 18.05, 18.06, 18.10 & 24.13 Family Law Amendment Rules 2010 (No 1) Cth |
| DJL v The Central Authority (2000) 201 CLR 226 WA Pines Pty Ltd v Bannerman (1980) 41 FLR 169 |
| APPELLANT: | Ms Oates |
| FIRST RESPONDENT: | Ms Q |
| SECOND RESPONDENT: | Mr Crest |
| FILE NUMBER: | SYF | 2939 | of | 2006 |
| APPEAL NUMBER: | EA | 120 | of | 2009 |
| DATE DELIVERED: | 20 October 2010 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, Thackray and Strickland JJ |
| HEARING DATE: | 16 June 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 2 October 2009 |
| LOWER COURT MNC: | [2009] FamCA 1043 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| COUNSEL FOR THE FIRST RESPONDENT: | In person |
| COUNSEL FOR THE SECOND RESPONDENT: | In person |
Orders
The appeal is dismissed.
There be no order for costs.
IT IS NOTED that publication of this judgment under the pseudonym Oates & Q and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 120 of 2009
File Number: SYF 2939 of 2006
| Ms Oates |
Appellant
And
| Ms Q |
First Respondent
And
| Mr Crest |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Ms Oates (“the wife”) against orders made by Cohen J on 2 October 2009 granting Ms Q (“Ms Q”) permission to inspect and copy documents on the Family Court file in proceedings between the wife and Mr Crest (“the husband”).
The substantive proceedings in this Court were proceedings for property settlement between the wife and the husband. Ms Q was not a party to those proceedings.
Ms Q is employed … as a solicitor. She is also in a relationship with the husband. Ms Q sought access to the court file for the purposes of defending a complaint the wife had made against her to the Office of the Legal Services Commissioner (“OLSC”) in relation to documents affirmed by Ms Q in the property settlement proceedings in this Court and in support of an application for an Apprehended Domestic Violence Order (“ADVO”) in a state court. The documents in question apparently contain statements by Ms Q about her relationship with the husband.
Ms Q seeks that the wife’s appeal be dismissed. The husband did not seek to be heard with respect to the appeal.
Background
As mentioned, the substantive proceedings were between the husband and the wife for property settlement, and they commenced in 2006.
In the course of the property settlement proceedings the wife issued a subpoena to Ms Q on 24 October 2006 to produce documents. Ms Q objected to the production of these documents and on 5 January 2007 she affirmed and filed an affidavit in the proceedings explaining her objection and responding to an affidavit filed by the wife.
On 25 August 2007 Ms Q made a statement to the police in support of an application by them for an ADVO to protect Ms Q from alleged violence by the wife.
On 10 October 2007 Ms Q made a supplementary statement in support of the application for an ADVO.
The trial in the property settlement proceedings was heard by Moore J from 25 to 27 June 2008, from 15 to 18 December 2008 and on 30 January 2009.
On 28 April 2009 Moore J delivered judgment in the property settlement proceedings. An appeal against these orders was ultimately settled by consent.
On 15 May 2009 the wife made a complaint to the OLSC regarding Ms Q’s conduct.
On 23 July 2009 the OLSC formally informed Ms Q by letter of the complaint made against her by the wife. The allegations made by the wife, as summarised by the Legal Services Commissioner (“the LSC”), were that Ms Q:
· made false statements in an affidavit sworn on 5 January 2007;
· made false statements to the police in making an Application for an Apprehended Domestic Violence Order dated 29 August 2007;
· made further false statements in a Supplementary Statement dated 10 October 2007; and
· in making such false statements Ms [Q] attempted to pervert the course of justice.
A copy of the wife’s complaint form was enclosed with the formal notification.
On 27 July 2009 Ms Q wrote to the “Duty Registrar” of the Family Court requesting access to and to photocopy the Family Court file. In her letter Ms Q explained:
The respondent in the Family Court proceedings, [the wife], has made a complaint to the Legal Services Commissioner about me regarding, in part, matters arising from the Family Court proceedings. I am not a party with regard to the Family Court proceedings, but have been the recipient of subpoenas in those proceedings, some of which I objected to and one of which I did not object to, from memory. I have also been named in judgements in those proceedings.
In order to deal with the matter before the Legal Services Commissioner, I seek access to some of the material on the court file. In particular, I wish to obtain copies of affidavits filed by [the wife] and [the husband], an order made by Registrar George on application by me to strike out a subpoena to me, court orders made by a single judge at the conclusion of subpoena proceedings on 8 March 2007, and judgements of Justice Watts dated 31 May 2007 and Justice Moore dated 28 April 2009.
Please advise whether I can gain access to your court file for the purpose of making copies. If access is granted, please advise whether there is any objection to production of those copies in the Legal Services Commission proceedings.
On 30 July 2009 Registrar George wrote to the solicitors for the husband and the wife seeking the parties’ consent to Ms Q’s request. In her letter, the registrar advised that she may decide to grant Ms Q access to the file even if the parties did not consent, in which case the parties would be so advised prior to the access being granted.
The wife advised the Court by letter dated 5 August 2009 that she did not consent to Ms Q being granted access to the file.
On 18 August 2009 Registrar George wrote to Ms Q advising that although both parties had not given their consent, she had decided to grant Ms Q access to inspect the file on the ground that she had “a proper interest”. However, the letter from the registrar did not give express permission to Ms Q to photocopy material from the file. The registrar also wrote to the wife and the solicitor for the husband on this date advising of her decision to grant Ms Q access, but that such access would not be granted until 24 August 2009.
On 20 August 2009 the wife filed an Application in a Case seeking a review of the deputy registrar’s decision pursuant to r 18.08 of the Family Law Rules 2004 (Cth) (“the Rules”). The wife sought the following orders:
1. This is an Application for review of a Registrar’s determination, pursuant to R.18.08 of the Family Law Rules 2004.
2. That this Honourable Court set aside the determination of Registrar George, dated 18 August 2009, purported to be made pursuant to R.24.13.
3. That this Honourable Court declare that Registrar George had no power or authority per R.18.06(1), Table18.5, Item 37 to make the purported decision; and in purporting to do so, acted ultra vires.
4. That this Honourable Court find that the Applicant [Ms Q] (a non-party to the relevant proceedings) is not a person with a proper interest, as per R24.13(1).
5. That this Honourable Court having regard to the provisions of R.24.13(3) (a) and (b) refuse to grant access to file documents in the matter of [Crest] & [Q], SYF 2939/2006, as sought by [Ms Q], a non-party to those proceedings.
6. Such other order as the Honourable Court deems necessary.
On 20 August 2009 the wife also filed an Application in a Case seeking a stay of the deputy registrar’s determination granting Ms Q access to the court file.
The wife’s applications came before Cohen J on 28 August 2009.
On 2 October 2009 Cohen J delivered judgment and made the following orders (order 1 was subsequently amended pursuant to the slip rule to reflect the correct file number):
(1) That the applicant, [Ms Q], is hereby granted permission to search the Court record consisting of the Court file in proceedings SYF2939 of 2006, inspect it and copy any document in it for the purpose of defending herself from the complaint made by the wife to the Legal Services Commissioner and dated 15 May 2009 and as it may be amended and any proceedings pursuant to the Legal Profession Act, 2004 (NSW) taken against the said applicant arising from the said complaint and solely for that purpose provided that she first undertakes to the Court in the usual written form not to use any information or copy of a document obtained from such search and/or inspection for any purpose other than to defend herself from the said complaint without further leave of the Court.
(2) Costs are reserved.
On 13 October 2009 the wife filed an Application in a Case seeking a stay of the order of 2 October 2009. On 16 October 2009 Rose J granted a stay of Cohen J’s order pending determination of the appeal.
The relevant legislative provisions
Rule 24.13 of the Rules outlines the circumstances in which the court record may be searched and copied. At the time of the hearing before the trial judge, r 24.13(1), (2) and (3) provided and still provide:
(1) The following persons may search the court record relating to a case, or inspect or copy a document forming part of the record:
(a)the Attorney‑General;
(b)a party, a lawyer for a party, or an independent children’s lawyer, in a case;
(c)with the permission of the court, a person with a proper interest:
(i)in the case; or
(ii)in information obtainable from the court record in the case;
(d)with the permission of the court, a person researching the court record relating to the case.
(2) For subrule (1):
(a)the parts of the court record that may be searched are:
(i)court documents; and
(ii)with the permission of the court — any other part of the court record; and
(b)a permission:
(i)may include conditions, including a requirement for consent from any person who is mentioned in the record; and
(ii)for paragraph (1) (d) — must specify the research to which it applies.
(3) In considering whether to give permission under paragraph (2) (a) (ii), the court must consider the following matters:
(a)the purpose for which access is sought;
(b)whether the access sought is reasonable for that purpose;
(c)the need for security of court personnel, parties, children and witnesses;
(d)any limits or conditions that should be imposed on access to, or use of, the record.
At the time of the hearing before the trial judge r 24.13(4) provided:
(4) In this rule:
court document includes a document filed in a case, but does not include correspondence forming part of the court record.
NoteSection 121 of the Act restricts the publication of court proceedings.
NoteAccess to court records may be affected by the National Security Information (Criminal and Civil Proceedings) Act 2004.
Section 121 of the Family Law Act 1975 (Cth) (“the Act”) restricts the publication or dissemination to the public or to a section of the public any account of any proceedings or part of proceedings under the Act as follows:
(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
(c)a witness in the proceedings;
is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
There are, however, exceptions to the general prohibition contained in s 121. Subsection (9) provides:
(9) The preceding provisions of this section do not apply to or in relation to:
(a) the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or
(b) the communication of any pleading, transcript of evidence or other document to:
(i) a body that is responsible for disciplining members of the legal profession in a State or Territory; or
(ii) persons concerned in disciplinary proceedings against a member of the legal profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the legal profession in that State or Territory; or
…
Trial judge’s reasons for judgment
The trial judge provided detailed reasons for judgment on 2 October 2009. However, not all aspects of his Honour’s judgment are relevant for the purposes of this appeal. We summarise below only those parts of the judgment which we consider to be of relevance to this appeal.
In addressing the wife’s application for review, after referring to the source of power to review a decision of a registrar in the Act (s 37A) and the nature of a review as provided in the Rules (r 18.10), his Honour turned to consider the provisions of r 24.13, in particular sub-r (1)(c)(ii), and the need for the applicant to have “a proper interest … in information obtainable from the court record in the case.”
With respect to r 24.13 his Honour said:
19. I am by no means satisfied that r 24.13(3) is valid and can create or impose on the Court principles of law as it purports to do. As the matters it intends to require the Court to consider in the exercise of its discretion are matters I would consider in any event with other matters I regard as relevant to the exercise of my discretion, I simply note that the matters the rules purport to require are:
·the purpose of seeking access;
·whether the access sought is reasonable for that purpose and any conditions which should be imposed; and,
·whether the safety of witnesses or persons involved in the case or Court personal would be compromised by inspection.
His Honour determined that he should consider the merits of the wife’s complaint, given that if the complaint could not succeed, there was no need for inspection, or at least it would not be reasonably necessary to allow inspection, of the court file.
His Honour then had regard to the relevant facts in this case, in particular the history of the proceedings between the husband and the wife and Ms Q’s involvement in those proceedings, as well as the application made on behalf of Ms Q for an ADVO against the wife.
The wife contended that Ms Q had falsely sworn either statements in support of the ADVO or affidavits sworn and filed in the Family Court proceedings. She asserted that they contained inconsistent statements as to whether or not Ms Q was in a de facto relationship with the husband. The trial judge concluded, however, at paragraph 26, that there was nothing in any of the material on which the wife relied that amounted to an admission by Ms Q or the husband that they were ever in a de facto marriage.
At paragraph 29 the trial judge recorded that Ms Q was not defending herself in adversary proceedings where the rules of evidence should apply, but rather she was “attempting to convince” an administrative body investigating a complaint against her. His Honour said that from an examination of the complaint itself it was obvious that the wife was not merely relying on admissible evidence that had been put before the OLSC. His Honour said:
29. … In fact, the complaint itself largely consists of argument designed to move the LSC to find that the principal allegations against the applicant are sufficiently established to warrant acting against her. To a very significant degree, the material supporting these is a rhetorical appeal to emotion disguised as legal argument based on fact. I do not know if this approach will work. I know the findings which the Act and general law would require the LSC to reach before deciding to take action against the applicant, but I do not know the standards which will be applied in reaching those findings.
30. Different minds and different views of the wife’s materials and arguments to the OLSC might combine in different individuals to reach different conclusions on whether the material provided by the wife is sufficient to raise a reasonable likelihood that the applicant will be found guilty of professional misconduct.. [sic] There is little doubt that if the complaints of false swearing or conspiracy to pervert the course of justice or of making knowingly false allegations […] of criminal conduct are established, the applicant would be unfit to remain on the roll of legal practitioners.
31. The wife’s allegations against the applicant need not be strong to regard it as just, if it is otherwise proper, for the applicant to be able to have photocopy access to the property file for the purpose of using its contents, some of which the wife has chosen to rely on while having also chosen not to rely on other parts despite probably having or having seen copies of all the documents in the file, to defend herself by using any argument she sees fit in an attempt to convince the LSC to take no action against her and ,effectively, dismiss the complaint.
One submission made by the wife in opposition to Ms Q’s application was that Ms Q was “merely fishing”. Cohen J considered this argument to be misconceived, in that the matter in issue was not whether a notice to produce or a subpoena should be enforced. His Honour noted that there are “critical distinctions” between the inspection of documents and the use of subpoenas and notices to produce. With respect to r 24.13 his Honour said:
34. … To permit fishing is really part of the reason for the existence of r 24.13. After all, a stranger to litigation should not ordinarily know, without being the beneficiary of an order under r 24.13, the contents of a file and in most instances would merely be hoping to find what it is he or she is seeking. Thus, provided there is “sufficient interest”, fishing is not a disqualifying factor, rather it is really justified by the rule.
The wife also submitted before the trial judge that his Honour must apply administrative law principles, to the effect that his Honour should overturn the registrar’s decision if it was concluded that the registrar exceeded her powers or made some “fundamental error which has resulted in a denial of natural justice to one of the parties.” The trial judge found the wife’s assumption that the registrar was acting in an administrative capacity was erroneous. His Honour found the power delegated by r 18.06(2) is “more like a judicial power … than a delegated administrative power”, being a power to make judicial decisions.
His Honour concluded that in any event, given the nature of a review, it did not matter whether the registrar had the power or not, as his Honour would still reach his own decision on a rehearing.
The wife also relied on s 121 of the Act to argue that access to and publication or dissemination of the details of matters before the Court is “tightly” restricted and that the Court should thus be diligent in upholding this principle and limiting access to court records under r 24.13. It was submitted that Ms Q does not fall within the class of people exempt under s 121(9).
On this issue, the trial judge found that s 121(9)(b) is wide enough to except communications of material otherwise prohibited by s 121 to the OLSC for the purposes of defending or investigating a complaint made against a solicitor in relation to the Commissioner’s disciplinary powers. His Honour said he was “by no means satisfied”, however, that s 121(1) of the Act actually prohibited what the wife had done or what Ms Q sought to do with the documents on the court file, as the section only prohibits publication to a section of the public. His Honour was of the view that the OLSC and LSC did not come within the meaning of “public” or “a section of the public” as described in s 121. His Honour concluded, however, that if s 121 would otherwise prohibit the use to which Ms Q wished to put the documents and information in the file, then that use comes within the exception created by sub-s (9)(b).
The trial judge identified that the proceedings ultimately turned on whether Ms Q had a “proper interest” in information obtainable from the court record, as required by r 24.13(1)(c). His Honour concluded that Ms Q had the “prime purpose” of using the material on the record for her defence against the wife’s complaint. The trial judge accepted Ms Q’s submission that in fairness and justice she should be able to search the record, to which the wife had full access, given that the wife was arguing her case against Ms Q in part on the basis of material on the court record, which she had not actually disclosed to the OLSC. His Honour said:
44. … After all, the wife has argued by [sic] case relying, in addition to documents which come from the record, on conclusions she would seek the LSC to reach and asserted them as fact, from material in the record without actually disclosing the record. She has used highly emotive language and, by not providing the record which is said to support these conclusions, she has made it more difficult for the Commissioner to reject them or at least to find a path in reliance only on the objective facts which would clearly permit the rejection of the wife’s conclusions.
The trial judge considered that the circumstances in which the wife had made the complaint and sought to rely on selected parts of the record were relevant, finding that there was a “strong flavour of vindictiveness, obsession, bullying, lack of candour and reliance on half truths in the wife’s presentation before [his Honour]”. In such circumstances, his Honour concluded it was appropriate for Ms Q to have access to the whole record if she wished to use it to argue, as his Honour found she should be able to, that the wife’s motives were not based on a “quest for professional integrity” but rather driven by “malice”. His Honour commented that the wife’s claims should be “very carefully and sceptically examined despite […]”
His Honour also determined that it was reasonable for Ms Q to have photocopy access to the whole record. His Honour reiterated that he had “no doubt” that Ms Q’s interest in the record was “quite proper”.
Finally, with respect to the limits, if any, to be placed on Ms Q’s access to and use of the court record, his Honour determined that she should not use any of the documents for any purpose other than for which they had been sought.
His Honour had regard to the provisions of s 128 of the Evidence Act1995 (Cth) which may impose a limit on the use of a certain type of document which may be in the file. A certificate can be given under that section providing protection from self-incrimination in respect of evidence given in court. Following a discussion of the effect of s 128 in this case, his Honour ultimately concluded that the section did not prevent any evidence given by the husband or the wife in the property proceedings which has been protected by a certificate from being considered by the OLSC or LSC and the disciplinary tribunal. His Honour thus did not see any purpose in placing any limit on Ms Q as a result of any evidence she might gain access to, copy or use which is protected by a s 128 certificate.
The trial judge was of the opinion that there was an “extremely strong case” for granting Ms Q photocopy access to the whole court file, provided she was not permitted to use the documents or information for any other purpose. His Honour thus made Ms Q’s inspection and copying of the file conditional upon her entering an undertaking not to use the documents except to defend herself against the wife’s complaint.
Grounds of Appeal and orders sought
The Notice of Appeal filed by the wife on 9 October 2009 contains the following grounds of appeal:
1. On 2 October 2009, Judge [sic] Cohen of the Family Court of Australia, Sydney Registry, made Orders in favour of [Ms Q], in the Matter of an Application by her to have access to Family Court files in the matter, SYF2939/2006.
2. [Ms Q] is not a party to those Family Court Proceedings.
3. The abovenamed [Ms Q] [sic] is a Solicitor of the Supreme Court of NSW; and she is the subject of a complaint lodged by the present Applicant to the Office of the Legal Services Commission.
4. By letter dated 30 July 2009, Registrar George of the Family Court, Sydney Registry, notified the present Applicant that [Ms Q] had made a request to inspect files in the matter SYF2939/2006, and asked whether the Applicant consented to the request. The Applicant advised Registrar George that she did not consent.
5. By e-mail forwarded to the Applicant from the Case Co-ordinator on 19 August 2009, Registrar George advised that she had decided to grant [Ms Q] access to the files.
6. By Application dated 19 August 2009 the present Applicant sought Review of Registrar George’s decision.
7. The present Applicant seeks leave to appeal His Honour’s decision on the grounds that he erred in law, in finding, as he did, that the Applicant [Ms Q] was a person with “a proper interest in information obtainable from the Court record in the case”.
8. Further, His Honour erred in law in stating, as he did, that he was not satisfied that R.24.13(3) is valid, and compounded that error by adopting the view that the Rule cannot create or impose on the Court principles of law.
9. That in so proceeding, His Honour acted without jurisdiction or power.
10. His Honour then further erred in law when he proceeded to deal with the application for access on the basis of matters outside his jurisdiction to consider, in that he purported to assume power to deal with the present Applicant’s complaint lodged with the Office of the Legal Services Commission against Ms [Q], to determine its merits.
11. His Honour again erred in law when he purported to assume jurisdiction to make improper remarks about the present Applicant in respect of her lodgment of the Complaint with the Office of the Legal Services Commission, in that such matters are (i) outside his power to consider;(ii) do not go to the issue of whether Ms [Q] had/has “a proper interest” such as to [sic] entitle to access to Family Court files in a matter in which she is a non-party. In making comments about the present Applicant, His Honour was unnecessarily abusive and insulting, thus giving rise to an apprehension of bias and/or prejudice.
12. His Honour erred in law in finding that the provisions of R.24.13 enables a non-party access to Family Court files for the purposes of “fishing”, and further, that such a party is to be allowed access to any such material for the purposes of “defending herself from [a] complaint” made by another person to a disciplinary tribunal.
13. His Honour erred in law in finding that allowing access by a non-party to Family Court files is an exercise of judicial power, and thereby is not an exercise to be governed by the application of administrative law principles.
In her Notice of Appeal the wife seeks the following orders:
1. Quash Orders 1 & 2 made by Judge [sic] Cohen on 2 October 2009.
2. A Declaration that [Ms Q] is not a person with a proper interest for the purposes of accessing Family Court files in a matter in which she is not a party.
3. A Declaration that applications made by non-parties for access to Family Court files are administrative matters, and governed by principles of administrative law.
4. A Declaration that His Honour Judge [sic] Cohen misdirected himself in considering the merits of the present Applicant’s complaint lodged with the Office of the Legal Services Commissioner against Ms [Q] to determine that Ms [Q] is a person with a proper interest in accessing Family Court files in matter SYF2939/2006.
5. A Declaration that His Honour acted beyond power in purporting to determine that matters set out in R.24.13(3) do not and cannot apply to a judicial officer purporting to determine applications made under R.24.13; and further acted beyond power in finding that [Ms Q] is entitled to access [sic] to Family Court files and to copy any document in it for the purpose of defending herself from a complaint made against her by the present Applicant.
6. A Declaration that R.24.13 is not a provision enabling “fishing”.
7. A Declaration that His Honour was biassed [sic] and/or prejudiced in making improper remarks about the present Applicant in respect of her lodgment of a complaint against Ms [Q] with the Office of the Legal Services Commission; or alternatively, that he acted improperly in so doing.
8. A Declaration that the Family Court is limited in its jurisdiction to those matters specifically addressed in the Family Law Act 1975, its Rules and Regulations (as amended).
9. The Applicant seeks leave to amend the Grounds of Appeal if necessary.
10. Such other Orders and or Declaration as this Honourable Court deems necessary.
In her Amended Summary of Argument filed on 14 May 2010 the wife outlined her submissions with respect to differently constructed grounds of appeal as follows:
Ground 1A: The learned judge erred in principle and in law in that he purported to exercise a power to make decisions in respect of matters which are beyond the scope of the Court’s jurisdiction.
Ground 1B: The learned judge erred in principle and in law in that he purported to consider and determine matters pursuant to the exercise of “inherent jurisdiction”, which is beyond the scope of the Court to deal with.
Ground 2: The learned judge erred in principle and in law in purporting to find that a Rule of the Family Court could not be valid and binding on the Court.
Ground 3: The learned judge erred in principle and in law in (i) failing to accord the Appellant Procedural Fairness, and (ii) making comments and observations about the Appellant in terms which give rise to an Apprehension of Bias.
Ground 4: The learned judge erred in principle and in law in failing to consider properly or at all which parties are entitled to access Family Court files, or who is a person with a proper interest in having access.
Ground 5: The learned judge erred in principle and in law in finding that R.24.13(1)(c) allows “fishing”.
In her Amended Summary of Argument the wife sought the following orders:
1. That the appeal be allowed.
2. That this Court quash the Orders of Cohen, J. made on 2 October 2009.
3. That this Honourable Court make the following declarations:
a.That jurisdiction of the Family Court is limited to those matters set out in its enabling legislation;
b.That such “inherent jurisdiction” as the Family Court might have is limited to matters of practice and procedure;
c.That the Family Court Rules were made by the Judges of the Court, or the majority of them in accordance with their statutory powers, and are valid;
d.That no one Judge of his own motion has power or authority to declare a Rule invalid and not binding on a Family Court, however constituted;
e.That the learned judge failed to conduct proceedings in accordance with principles of procedural fairness;
f.That the learned judge made comments and observations of the Appellant in terms which gave rise to an apprehension of bias and/or prejudice;
g.That the learned judge erred in law and in principle in finding that since the Appellant was a person who had full access to the court’s files, the Respondent (not a party to proceedings) was also entitled to full access;
h.That in so finding in “g”, the learned judge misunderstood the task before him, and accordingly misdirected his mind to issues extrinsic to Family Court matters;
i.That the learned judge erred in law and in principle in finding that R.24.13 specifically allows “fishing” and/or discovery.
4. That the Respondent pay the Appellant’s incidental costs of the Appeal.
5. That the Decision of Cohen, J. made on 2 October 2009 as published on the Internet be removed therefrom.
The wife did not formally amend her Notice of Appeal to reflect the above grounds as addressed in her Summary of Argument. The Respondent filed her Summary of Argument on 23 March 2010, and thus responded only to the grounds as contained in the Notice of Appeal. We consider that the grounds of appeal as outlined in the wife’s summary of argument in reality overlap, and in some instances mirror, the grounds as contained in the Notice of Appeal. We thus propose to deal with the wife’s appeal by reference to those latter grounds which are still formally before us.
As is apparent from the grounds contained in the Notice of Appeal, grounds 1 to 6 inclusive are not in the form of identifiable grounds of appeal but are rather a preamble setting out the background to the orders under appeal. We therefore do not propose to say anything about these grounds.
Ground 7 is also a general ground of appeal but we will address that later in these reasons.
The respondent seeks that the appeal be dismissed.
Preliminary matter
Leave to Appeal issue
By ground 7 the wife seeks leave to appeal his Honour’s orders, although such leave is not sought in her Notice of Appeal. This issue was not addressed further before us, and in any event, we do not consider that such leave is required in this case.
Principles applicable to an appeal from a discretionary judgment
It is important to remember that this is an appeal against a discretionary judgment. The principles applicable to an appeal from a discretionary judgment are well settled.
In House v The King (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ said at 504:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Discussion
Ground 8
This complaint relates to the following paragraph of the trial judge’s reasons:
19. I am by no means satisfied that r 24.13(3) is valid and can create or impose on the Court principles of law as it purports to do. As the matters it intends to require the Court to consider in the exercise of its discretion are matters I would consider in any event with other matters I regard as relevant to the exercise of my discretion, I simply note that the matters the rules purport to require are:
·the purpose of seeking access;
·whether the access sought is reasonable for that purpose and any conditions which should be imposed; and,
·whether the safety of witnesses or persons involved in the case or Court personal [sic] would be compromised by inspection. (Emphasis added)
The wife contended that his Honour erred in stating that he was not satisfied that r 24.13 is valid. The wife referred to s 123 of the Act, which provides that a majority of the judges of the Court may make Rules of Court with respect to matters of practice and procedure, and the High Court’s decision in Harris v Caladine (1991) 172 CLR 84. The wife submitted that given s 123, no one judge can, of his or her own motion, make a rule of court nor does a single judge have the power to declare a rule or rules invalid.
The wife contended that his Honour did not identify any “difficulty” or “doubt” which would give rise to the Rules being set aside in this matter, nor did his Honour identify a “proper case” for dispensing with compliance with r 24.13. In this regard, the wife also referred us, in her written submissions, to r 1.09 which provides as follows:
Procedural orders in cases of doubt or difficulty
If the court is satisfied that:
(a) a legislative provision does not provide a practice or procedure; or
(b) a difficulty arises, or doubt exists, in relation to a matter of practice or procedure;
it may make such orders as it considers necessary.
The wife complained that his Honour, having found that r 24.13 was “invalid”, proceeded to consider the application pursuant to “some other head of power” which was not revealed to the parties. The wife also contended that r 24.13 sets out mandatory considerations that must be considered before the Court exercises its discretion, and that by failing to consider these matters, his Honour “purported to exercise a discretion which he did not have.” The wife contended that r 24.13 is valid in its entirety.
Despite his Honour’s comment that he was not satisfied that r 24.13(3) is valid, it is not correct to say that he found that it was “invalid”. His Honour said that the matters outlined in the sub-rule are matters which he would consider “in any event”, and his Honour approached the matter by having regard to the purpose for which Ms Q sought access to the court file, whether such access was reasonable for that purpose (i.e. for the purpose of defending herself in relation to the complaint) and also whether the safety of witnesses or persons in the case or court personnel would be compromised if access was granted. These are the same matters outlined in the sub-rule. His Honour therefore clearly had regard to the matters which the Court is to consider under r 24.13(3) although his Honour was not satisfied that the sub-rule itself was valid or could impose principles of law as it purported to.
There is therefore no merit in this complaint by the wife.
It is perhaps unnecessary, given the nature of the wife’s complaint, for us to address the trial judge’s comment as to the validity of the sub-rule. However, so far as it is relevant, there is no doubt that r 24.13 in its entirety is a valid rule of the Court, being a matter of practice and procedure, having been made under s 123 of the Act by a majority of the Judges of the Family Court.
It may be that the trial judge was concerned that r 24.13(3) attempts to set out substantive law in the sense of prescribing the matters to be taken into account in exercising discretion under r 24.13. Again it may well be that it is unnecessary and even inappropriate to spell out in Rules of Court substantive law in that sense. But in our view, nothing turns on this concern for the purposes of this appeal.
Grounds 9, 10 and 11
These three grounds can conveniently be dealt with together.
By ground 9 the wife asserts generally that the trial judge acted without jurisdiction or power. The wife submitted that the jurisdiction of the Family Court is limited to those matters conferred by legislation and provided for by the Constitution, as outlined in s 31 of the Act. She submitted that while the court is a superior court of record, it is not a “superior court of unlimited jurisdiction”. She submitted, relying on High Court authority of DMW v CGW (1982) 151 CLR 491, Taylor v Taylor (1979) 143 CLR 1 and DJL v The Central Authority (2000) 201 CLR 226, that the Family Court does not have an inherent jurisdiction. She contended that as this Court is a creature of federal statute it “does not have jurisdiction to wander at large … and to deal with all and any matters placed before it.”
The wife contended that by the trial judge failing to have regard to this “fundamental issue” of jurisdiction, his Honour misdirected his mind so as to fall into appealable error.
We do not accept that his Honour acted without jurisdiction or power in this case. As we have stated above, r 24.13(3) is a valid rule of court. Indeed, it was not contended by the wife that the rule or sub-rule was invalid. As such, there is no doubt as to his Honour’s jurisdiction and power to make orders with respect to access to, inspection of and copying of the court record.
However, the wife goes further complaining, by ground 10, that the trial judge acted outside his jurisdiction by purporting to deal with and determine the merits of her complaint to the OLSC. The wife also asserts that the trial judge erred in purporting to assume jurisdiction to make “improper remarks” regarding the wife and her lodgment of the complaint.
The wife submitted before us that her complaint to the OLSC is beyond the purview of this Court, and that his Honour, by considering the merits of her complaint, erred in law. She submitted that no part of the proceedings before the OLSC was a matter of concern for this Court and that it was not within the jurisdiction of the Family Court to “investigate” the matter. The wife did concede before us that his Honour did not deal with her complaint “per se”, but maintained that his Honour went further than looking merely at the factual matrix or background to her complaint, and thus took into account extraneous or extrinsic matters.
We do not accept the submission by the wife that his Honour purported to deal with or determine her complaint in any way. His Honour had regard to the merits of her complaint in the context of determining whether it was appropriate or indeed necessary for Ms Q to have access to the court file. As his Honour said at paragraph 20:
After all, if on its face, assuming all the facts relied on are true, the complaint cannot succeed, there is no need for inspection or at least it is not reasonably necessary to allow the applicant to defend herself fully. If the facts are so clear and uncontroversial that nothing in the complaint could warrant the conclusion that there is a reasonable likelihood, given the facts, of finding professional misconduct there is also no basis for permitting inspection.
The wife’s complaint that his Honour acted outside of his jurisdiction is therefore without merit.
The wife further complains that comments made by the trial judge about the wife were “abusive and insulting” and give rise to an apprehension of bias.
The wife submitted before us that at the hearing the trial judge was terse with her, and that an apprehension of bias arises from the trial judge’s conduct during the hearing, as well as from the reasons for judgment. The wife contends that his Honour made denigratory comments about her, the lodging of her complaint and the manner in which she had presented her application before his Honour. The wife did not take us to any parts of the transcript, however, that she says illustrate the trial judge’s alleged bias. We also observe that, in relation to the wife’s allegation of terseness on the part of the trial judge, in her submission to us she expressed that on the basis that his Honour was terse to both her and Ms Q.
In relation to the reasons for judgment, the wife complains about comments the trial judge made about her personally, in particular in the following passage found at paragraph 45:
The circumstances in which the wife has made the complaint and sought to rely on selected parts of the record are relevant. There was a strong flavour of vindictiveness, obsession, bullying, lack of candour and reliance on half truths in the wife’s presentation before me when she argued her case in person, I would regard it as appropriate for the applicant to have access to the whole record if she wishes to use it to argue, as she should be able to, that the wife’s motives are not based on any quest for professional integrity and that they are driven by malice and, therefore, her claims are to be very carefully and sceptically examined despite […].
The wife contends that by making such personal comments the trial judge went further than merely looking at the factual matrix surrounding her complaint to the OLSC.
The law with respect to apprehended bias is well settled (see for example Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and Johnson v Johnson (2000) 201 CLR 488). The test is whether a fair-minded lay observer might reasonably apprehend that the judge may not bring an impartial and unprejudiced mind to the resolution of the issue. It is also clearly the case that an apprehension of bias must be “firmly established” (see Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352).
We do not accept in this case that the comments of the trial judge in his reasons give rise to an apprehension of bias. The wife has also not established that the trial judge’s conduct at the hearing gave rise to any apprehension of bias.
Finally, in her written submissions, the wife also complained that the trial judge failed to accord her procedural fairness. Again, the wife did not take us to any specified process, event or exchange that she asserts amounts to a denial of procedural fairness. We also do not consider there is any merit in this complaint.
There is therefore no merit in any of these grounds of appeal.
Ground 12
The wife submitted that his Honour erred in finding that r 24.13 allows a person access to the court file for the purposes of “fishing”.
With respect to the issue of “fishing” the trial judge said:
32. One of the wife’s submissions on why I should not make the order the applicant seeks that the applicant is merely fishing and should not be permitted to do so.
33. I regard this argument as quite misconceived. The matter I am dealing with is not an issue over whether a notice to produce or subpoena should be enforced in accordance with its terms in the course of adversary litigation. There are some critical distinctions between the use of subpoenas and notices to produce and the inspection of documents sought by the applicant.
34. Firstly, the person seeking to enforce a subpoena or notice to produce must be a party to the proceedings. A person seeking to inspect under the part of the rule specifically relied on by the applicant must be a non-party with a proper interest to succeed. A non-party is specifically disqualified from issuing or enforcing a subpoena or notice to produce. Further, in a most authoritative case, Waind v Hill & National Employers’ Mutual General Association Limited [1978] INSWLR 372 at 383, it was said that it would be an abuse of process if a party inspects or uses documents in the proceedings in which he is a party for a purpose other than the conduct of the proceedings; that is, for an independent private purpose. Such a purpose is the very basis for permitting inspection under r 24.13 in circumstances where the applicant is far less likely to know what she might find than if she had been a party. To permit fishing is really part of the reason for the existence of r 24.13. After all, a stranger to litigation should not ordinarily know, without being the beneficiary of an order under r 24.13, the contents of a file and in most instances would merely be hoping to find what it is he or she is seeking. Thus, provided there is “sufficient interest”, fishing is not a disqualifying factor, rather it is really justified by the rule. (Emphasis added)
The wife submitted that the purpose for which Ms Q sought access to the court file, namely, as she says, for the purposes of determining if she has a defence to the wife’s complaint, indicates that Ms Q’s application/request is clearly “fishing”. Although she initially denied it at the hearing before us, following the hearing the wife confirmed to us in writing that she provided to the OLSC full copies of an affidavit affirmed by Ms Q on 5 January 2007 and a statement affirmed by her in relation to the ADVO application in the local court dated 10 October 2007.
Ms Q submitted that the prohibition with respect to “fishing” is limited to issues of discovery and that r 24.13 itself does not limit the scope of any grant of access or prohibit “fishing”, perhaps subject to the condition that documents/information should only be used for the purposes for which access was sought. Ms Q submitted that there are some documents on the court file of which she does have knowledge, but there are others that she does not, and to that extent she accepted that she could be seen as “fishing”. She maintained however, that such “fishing” was necessary in that she does not know what is on the court file and that is why she sought access to inspect it. She submitted that the LSC would also be assisted by having the whole record before him in the determination of the wife’s complaint. Essentially Ms Q’s argument is that she cannot defend herself against the wife’s complaint without knowing what material there is and what the wife will be relying on.
As found by the trial judge at paragraph 35, the wife’s submissions with respect to fishing were not relevant to the matter which was before his Honour. The concept of fishing arises in relation to discovery and the issuing of subpoenas. Indeed, the authorities on which the wife relied in this regard, namely National Employers’ Mutual General Association v Waind and Hill [1978] 1 NSWLR 372, Mulley v Manifold (1959) 103 CLR 341, Metcash Trading Limited v Bunn [2010] FCA 8 and WA Pines Pty Ltd v Bannerman (1980) 41 FLR 169, all relate to discovery, rather than access to the court file.
There is no prohibition placed on so called “fishing” by the terms of r 24.13. If the court determines that a person has the requisite proper interest, it is within the discretion of the court to grant access to the entire court record/file.
There is no merit in this ground of appeal.
Ground 13
At the hearing before the trial judge, the wife submitted that his Honour was required to apply administrative law principles to the determination of Ms Q’s request for access to the court file. With respect to this submission his Honour said:
36. The wife has submitted that I must apply administrative law principles to the appeal. This submission is really to the effect that I should not overturn the decision of the Deputy Registrar unless I conclude she has exceeded her powers or, in making her decision, has exceeded her authority or made some fundamental error which has resulted in a denial of justice to one of the parties. This submission assumes the Deputy Registrar was acting in an administrative capacity. This assumption is quite erroneous. Section 37A of the Act permits delegation of the powers of the Court. The power delegated by r 18.06(2) is a power vested in the Court which is only capable of vesting in a deputy registrar because the judges retain effective control and supervision by way of the appellate process of rehearing. It is, therefore, more like a judicial power which has been delegated than a delegated administrative power. It is a power to make judicial decisions which the Court has and can still re-exercise despite the exercise of the same power in relation to the same issue in the one proceedings by a deputy registrar despite there being no discernable error made by the Deputy Registrar. It is enough to reverse a decision of a deputy registrar if a judge decides that a different result is more appropriate (see generally, Harris v Caladine (1991) 172 CLR 84). The rehearing is not even limited to the same circumstances. Fresh evidence can be introduced without leave on the rehearing, as can previous evidence be discarded.
The wife contended in her written submissions before us that the matter before the trial judge related to the practice and procedure of the Court and as such the proceedings were administrative in nature. The wife did not expand on this in her oral submissions.
By s 37A of the Act the judges of the Family Court, or a majority of them, may make Rules of Court delegating any or all of the powers of the Court (subject to s 37A(2)) to the registrars of the Court. The relevant parts of s 37A provide:
Delegation of powers to Registrars
(1) The Judges, or a majority of them, may, subject to subsection (2), make Rules of Court delegating to the Registrars all or any of the powers of the Court …
…
(2) The powers of the Court that may be delegated under subsection (1) do not include the power to make:
(a)a divorce order in proceedings that are defended; or
(b)a decree of nullity of marriage; or
(c)a declaration as to the validity of:
(i) a marriage; or
(ii) a divorce; or
(iii) the annulment of a marriage; or
(d)an excluded child order (as defined in subsection (2A)); or
(e)an order setting aside a registered award under section 13K.
…
(3) A power delegated by applicable Rules of Court under subsection (1), when exercised by a Registrar, shall, for all purposes, be deemed to have been exercised by the Court or a Judge, as the case requires.
…
(7) The provisions of this Act, the regulations, the standard Rules of Court, and other laws of the Commonwealth, that relate to the exercise by the Court of a power that is, by virtue of a delegation under subsection (1), exercisable by a Registrar apply in relation to an exercise of the power by a Registrar under the delegation as if references in those provisions to the Court or to a court exercising jurisdiction under this Act were references to a Registrar.
(8) Notwithstanding any other provision of this Act and any provision of the Public Service Act 1999 or of any other law, a Registrar is not subject to the direction or control of any person or body in relation to the manner in which he or she exercises powers pursuant to a delegation under subsection (1).
(9) A party to proceedings in which a Registrar has exercised any of the powers of the Court pursuant to a delegation under subsection (1) may, within the time prescribed by, or within such further time as is allowed in accordance with, applicable Rules of Court made by the Judges or a majority of them for the purposes of this subsection, apply to the Court to review that exercise of power.
(10) The Court may, on application under subsection (9) or of its own motion, review an exercise of power by a Registrar pursuant to a delegation under this section and may make such order or orders as it considers appropriate with respect to the matter with respect to which the power was exercised.
…
In Harris v Caladine the High Court held that the delegation of judicial powers to registrars pursuant to then O 36A and s 37A was constitutionally valid.
As previously mentioned, pursuant to s 123 of the Act, the judges of the Family Court, or a majority of them, may make Rules of Court “not inconsistent with this Act, providing for or in relation to the practice and procedure to be followed in the Family Court and any other courts exercising jurisdiction under this Act, and for and in relation to all matters and things incidental to any such practice and procedure, or necessary or convenient to be prescribed for the conduct of any business in those courts”.
Division 18.1.3 of the Rules deals with the delegation of power to registrars (r 18.05) and deputy registrars (r 18.06). Table 18.5 contained in r 18.06(2) outlines those powers under the Rules that are delegated to deputy registrars. At the time of the hearing before the trial judge, item 37 of that table delegated the powers under Chapter 24 of the Rules, “other than a permission in relation to the conduct of research”.
There is therefore no doubt that at the time of Ms Q’s request for access to the court record, the deputy registrar had the power, delegated from the judges, to grant access to the court record pursuant to r 24.13. As such, this was an exercise of judicial power.
We note that tables 18.2, 18.3, 18.4 and 18.5 contained in r 18.05 and r 18.06 were recently amended, however, by the Family Law Amendment Rules 2010 (No 1) (Cth) which commenced on 1 August 2010. This included an amendment to item 37 of table 18.5 with respect to Chapter 24. This item now provides that the powers under Chapter 24 “(except rule 24.13)” are delegated to deputy registrars. Rule 24.13 is thus now expressly excluded from those powers delegated to deputy registrars. The Explanatory Statement accompanying the amendments does not provide any explanation for this change, however, stating only that is of a “technical drafting nature”.
His Honour was also clearly exercising judicial power on review of the registrar’s decision. A review of a decision of a registrar is by way of a hearing de novo (r 18.10). The judge therefore hears the matter afresh. It is not necessary to establish any error on the part of the registrar whose decision is under review.
We agree with his Honour that allowing access to the court file is an exercise of judicial discretion. His Honour was thus not required to apply principles of administrative law to the matter. There is therefore no merit in this ground.
Ground 7
Although a general ground, the principal issue of complaint by the wife is that his Honour erred in finding that Ms Q was a person with a “proper interest” in information obtainable from the court file.
The wife maintains that Ms Q has no such “proper interest”. In support of this contention, the wife referred to a decision of Dawe J in Thornton & Workcover Corporation of South Australia [2009] FamCA 449 and the authorities to which her Honour had regard in that matter (notably Hearne v Street (2008) 205 CLR 125).
Ms Q obviously maintained the position taken before the trial judge, namely that she is a person with a proper interest. She contended it was proper for a solicitor to have access to the court file for the purposes of “saving” their career and reputation. She maintained it was also appropriate for all material to be placed before the OLSC so that the Commission can make a full enquiry and determine the complaint.
This was a matter within his Honour’s discretion. His Honour clearly had regard to the purpose for which Ms Q sought access to the file, had regard to the nature of the complaint and determined it was appropriate for Ms Q to have access to the file for the purpose of defending the complaint. His Honour had regard to the fact that the wife had access to the whole court file, while Ms Q did not.
Rule 24.13 requires only that a person have a proper interest in the case or information obtainable from the court record. No other limitation is placed upon the circumstances in which the Court may grant a person access to the court record.
In Hearne v Street at 155 the High Court recognised that the common law rule of non-disclosure, without the leave of the Court, of court documents (which have not come into the public domain through production in open court or otherwise) can be the subject of Rules of Court. In the Family Court, Rules of Court have been made and of course leave was given here pursuant to those Rules.
In this case, it was clearly open on the material available to his Honour to conclude that Ms Q was a person with a proper interest and to grant her access to inspect and copy the file. No appealable error has been established by the wife. There is no merit in this ground.
Section 121 issue
Although not contained in a specific ground of appeal, the wife also sought to rely on the provisions of s 121 of the Act to support her argument that Ms Q should not be granted access to the court file.
The wife submitted that s 121 prohibits the dissemination of any part of proceedings and that s 121 and other provisions, including r 24.13, are designed to “close out all but a tiny category of persons who are able to access information” arising from Family Court proceedings.
Ms Q contended, as found by the trial judge in this matter, that this matter comes within the exception contained in s 121(9), and that dissemination of the material to the OLSC would not be prohibited.
With respect to the s 121 argument his Honour said:
41. … I have little doubt that s 121(9)(b) is sufficiently clearly expressed to regard the words used in it as having their ordinary meanings and, therefore, to be wide enough to except communications of material otherwise prohibited by s 121 to the OLSC for the purpose of defending or investigating a complaint of the type made against a solicitor in relation to the Commissioner’s disciplinary powers. I should add that I am by no means satisfied that s 121(1) actually prohibits what the wife has done or the applicant is seeking to do. It only prohibits publication to the public or a section of the public. The OLSC and the LSC himself, I find, do not come within the description “the public” or “a section of the public” in the circumstances.
42. I conclude that if s 121 would otherwise prohibit the use the applicant wishes to put documents and information in the file to that use comes within the exception created by subsection (9)(b), but that s 121 itself does not prohibit or create an offence to put it to the use the applicant intends.
Section 121 of the Act was considered by the Full Court in Re W: Publication Application (1997) FLC 92-756 in the context of determining whether a judgment of the Court could be provided to child welfare authorities. The Full Court determined that the child representative did not need the leave of the Court to forward a copy of the judgment to relevant welfare authorities as such authorities were not “a section of the public” within the meaning of s 121(1). Fogarty and Baker JJ said this at 84,260:
Accordingly, the transmission envisaged here would not be to “the public” or to a “section of the public”, and would not be in breach of s 121. Therefore, no order of the Court is required to grant a dispensation from the provisions of s 121. And, for similar reasons, neither would the registrar’s transmission of a judgment under s 67ZA(3) or a judge’s transmission of a judgment to the Attorney- General’s Department breach s 121.
In Oscar & Traynor [2008] FamCAFC 158 the Full Court (May, Thackray and Benjamin JJ) dealt, inter alia, with an appeal from an order that a judgment be provided to the director of a contact centre. The Full Court endorsed the approach of the Court in Re W: Publication Application. Further, the Full Court said that the principle in that case is not restricted to “child welfare authorities”.
In this case, we are not satisfied that there is any merit in the wife’s submissions with respect to the restrictions or prohibition pursuant to s 121 on the dissemination of accounts of proceedings under the Act. The wife has not established that the trial judge erred in concluding that the use to which the wife sought to put the documents on the court file was not prohibited by s 121(1). In any event, we agree with his Honour that the OLSC falls within the exception created by s 121(9), particularly sub-s (9)(b) and dissemination of material to the OLSC would not be prevented by the operation of s 121.
Conclusion
As we explained at the outset, this was an appeal against a discretionary decision. The appellant wife has not been able to persuade us that we should interfere with the decision having regard to the principles stated in House v The King. There being no merit in any ground of appeal, the appeal will accordingly be dismissed.
Costs
At the conclusion of the hearing before us submissions were sought from the parties in relation to the costs of the appeal.
Ms Q advised that in the event the appeal was unsuccessful she did not seek an order for costs as she appeared for herself and had incurred no costs. There will therefore be no order as to costs.
I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 20 October 2010.
Associate:
Date: 20 October 2010
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