Pace & Halkias
[2021] FamCAFC 81
•25 May 2021
Family Court of Australia
Pace & Halkias [2021] FamCAFC 81
Appeal from: Halkias & Pace [2021] FCCA 1062 Appeal number(s): EAA 47 of 2021 File number(s): MLC 2969 of 2017 Judgment of: AINSLIE-WALLACE, ALDRIDGE & TREE JJ Date of judgment: 25 May 2021 Catchwords: FAMILY LAW – APPEAL – Harman undertaking – Appeal against orders releasing the parties from a Harman undertaking in respect of an affidavit sworn by the appellant – Where defamation proceedings are on foot – Where s 121 of the Family Law Act 1975 (Cth) does not apply – No material error in failing to consider the privacy of the appellant and child – Material already in the public domain which has attracted media attention – Interests of justice requires leave to be granted to use the affidavit in defamation proceedings – Leave to appeal granted – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 121
Judicial Proceedings (Regulation of Reports) Act 1926 (UK)
Matrimonial Causes Act 1959 (Cth) (repealed) s 123
Open Courts Act 2013 (Vic) s 7(d)(i)
Cases cited: Bateman and Patterson (1981) FLC 91-057; [1981] FamCA 101
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Hinchcliffe v Commissioner of Australian Federal Police (2001) 118 FCR 308; [2001] FCA 1747
Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576; [1991] FCA 354
Lenova & Lenova (Costs) [2011] FamCAFC 141
Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283; [2005] FCAFC 3
Mann v O’Neill (1997) 191 CLR 204; [1997] HCA 28
Porter v Byrne (2009) 40 Fam LR 644; [2009] FamCAFC 8
Sahadi & Savva and Anor (2016) FLC 93-704; [2016] FamCAFC 65
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; [1992] FCA 720
Division: Appeal Division Number of paragraphs: 55 Date of hearing: 21 May 2021 Place: Sydney (via video link) Counsel for the Appellant: Mr Knox SC with Ms Kaiti (direct brief) Counsel for the Respondent: Mr Hayes SC with Ms Collaris Solicitor for the Respondent: Galea Fausten Solicitors ORDERS
EAA 47 of 2021
MLC 2969 of 2017APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS PACE
Appellant
AND: MR HALKIAS
Respondent
orderS made by:
AINSLIE-WALLACE, ALDRIDGE & TREE JJ
ORDERS MADE ON 21 MAY 2021:
1.Leave is granted to the appellant to make an oral application for leave to appeal from an order made on 14 May 2021 by a judge of the Federal Circuit Court.
2.Leave is granted to the appellant to rely on amended grounds of appeal as set out in the Proposed Amended Grounds and Further Submissions filed on 21 May 2021.
3.Leave is granted to the appellant to make an oral Application in an Appeal to adduce further evidence being:
(a)a Notice of Risk filed on 27 April 2017 in the Federal Circuit Court proceedings between the parties; and
(b)an article published in a newspaper.
4.The oral Application in an Appeal to adduce further evidence is dismissed.
5.Leave to appeal the order of a judge of the Federal Circuit Court on 14 May 2021 is granted.
6.The appeal against the order made on 14 May 2021 is dismissed.
IT IS FURTHER ORDERED THAT:
The appellant pay the respondent’s costs fixed in the sum of $10,000.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pace & Halkias has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE, ALDRIDGE & TREE JJ:
INTRODUCTION
On 21 May 2021, we made orders granting leave to appeal, but then dismissed the appeal. These are our reasons for doing so. The question of costs was reserved.
The appeal was from an order made by a judge of the Federal Circuit Court of Australia (“the Federal Circuit Court”) on 14 May 2021, which granted leave to the respondent to use an affidavit which had been filed in that Court, in defamation proceedings which are currently being heard in the State Court.
The affidavit in the Federal Circuit Court had been sworn by the appellant on 27 April 2017 in parenting proceedings between the parties.
Leave by the Federal Circuit Court to use the affidavit was sought because information required to be produced in one proceedings, which have not become part of the evidence in those proceedings, cannot be used in other proceedings without the leave of the Court (Harman v Secretary of State for the Home Department [1983] 1 AC 280 (“Harman”)).
The principle was described by the High Court of Australia in Hearne v Street (2008) 235 CLR 125 (“Hearne”) at [96] as follows:
96.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 the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence…
(Footnotes omitted)
BACKGROUND
In order to understand the appeal, it is necessary to place it in the context of the relevant facts.
According to the evidence of the appellant, the parties met in July 2012 and were in an intermittent relationship from August 2012 to approximately June 2015. A child of that relationship was born in 2014. The child has lived with the appellant since May 2015.
The respondent commenced parenting proceedings in the Federal Circuit Court in 2017 and on 27 April of that year, the appellant filed and served the affidavit that is the subject of these proceedings. In that affidavit the appellant asserts that during and after the relationship, the respondent misused drugs, including ice, which adversely affected his behaviour. She alleged that he was physically violent as well as being coercive and controlling. Based on evidence that she set out in that affidavit the appellant formed the view that during their intermittent relationship, the respondent was deceiving her with a number of other women.
At paragraph 100 of the affidavit, the appellant records that she contacted a person named Ms B, and “informed her that [the respondent] was dangerous and unfaithful”.
It transpires that Ms B is currently in a relationship with the respondent and is engaged to marry him.
The appellant annexed to the affidavit letters from three other women who had been involved with the respondent and raised similar concerns.
Proceedings in the State Court
The respondent commenced defamation proceedings by way of a writ filed in January 2019. The Second Further Amended Statement of Claim, which was filed by the respondent on 10 May 2021, asserted that the appellant made the following defamatory publications:
(a)Publication of a letter dated 13 January 2018 to the respondent’s fiancée (Ms B); and
(b)Publication of the appellant’s affidavit of 27 April 2017 to:
(i)Ms C (in or about June 2017);
(ii)Ms D (in or about September 2018); and
(iii)Ms E (in or about September 2018).
In her Second Further Amended Defence to that Statement of Claim the appellant admits to providing at least parts of a copy of her affidavit to Ms C as alleged, but denies that it was disseminated to Ms D or Ms E.
The hearing of the defamation proceedings commenced in the State Court on 17 May 2021, and is continuing to be heard. As an order had been made granting leave for the affidavit to be used in those proceedings, the affidavit has been referred to in the opening of the proceedings and in the examination-in-chief of the respondent, which occurred on 19 May 2021. However, pursuant to a direction by the presiding judge, the affidavit has only been referred to in open court as a ‘document’ rather than as an affidavit of the appellant. Presumably, this is because the judge has been made aware of the appeal and the application for a stay before the primary judge.
After referring to the facts, and to Harman and Hearne, the primary judge referred to Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 (“Springfield”). In that case, Wilcox J at page 223, relied on the following passage of Burchett J in Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 578–579 to reaffirm that special circumstances are required before leave should be given:
… As far as the expression “special circumstances” is concerned, it is an expression which is liable to be misunderstood unless care is taken to ask and answer the question, special in relation to what? “Special” is one of those words which derive almost all their meaning from the context… If all that is required is that, among the great number of cases in the court in which documents have been discovered, this one must evince some special feature which affords a reason for releasing or modifying the undertaking, there will be no difficulty. Circumstances in which there is a legitimate reason why documents discovered in one proceeding should be made available in another will, viewed in this way, be rare. In the ordinary course, the ordinary rule should apply, there being no special circumstance to suggest otherwise. Cf Jess v Scott (1986) 12 FCR 187, where the Full Court was concerned with the construction of O 52, r 15(2), by which leave to file an appeal out of time could be granted “for special reasons”. The joint judgment described (at 195) the expression “special reasons” in this rule as:
“an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.”
Thus, Wilcox J considered that relevant factors to be taken into account included the nature of the document, the circumstances under which it came into existence, the attitude of the author and any prejudice that he or she may suffer, whether the document was created for the purpose of litigation or existed before it (that is, whether it was expected to enter the public domain), the nature of the information in the document (such as personal details or commercially sensitive information) and the circumstances by which the document came into the hands of the person seeking leave. Finally, his Honour regarded as “perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding” (at 225).
In Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 the Full Court of the Federal Court of Australia said:
31.… 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 Court then endorsed the list of factors identified by Wilcox J as a “helpful guide” (at [32]).
The primary judge found that the special circumstances which warranted the release of the affidavit for use in the defamation proceedings, were that the appellant had admitted to disseminating her affidavit to Ms C and that the affidavit, particularly its publication, the truth of its contents, and the circumstances surrounding its publication, were central to the determination of the defamation proceedings. Accordingly, her Honour found that it was in the interests of justice that leave be granted.
The primary judge granted a stay of her order of leave on 19 May 2021 pending the outcome of the appeal.
THE APPEAL
On the morning of the appeal hearing the appellant sought to rely on a further outline of submissions and an entirely new set of amended grounds of appeal. Although there was four grounds of appeal relied upon, they essentially raise three points:
(1)The primary judge failed to take into account s 121 of the Family Law Act 1975 (Cth) (“the Act”);
(2)The primary judge erred in finding that there were special circumstances justifying granting leave to use the affidavit; and
(3)The primary judge failed to take into account the impact of leave on the appellant, and on the child, who is the subject of the proceedings.
The role of s 121 of the Act
Section 121 of the Act is obviously designed to protect the privacy of persons involved in family law proceedings. Section 121(1) states:
(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;
commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
As is made plain by s 121(3) of the Act, the scope of the section is wide indeed. However, s 121(9)(a) 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…
The Full Court decision in Bateman and Patterson (1981) FLC 91-057 concerned the provisions of the then s 121(5) of the Act, which was in similar terms, and provided as follows (at 76,460):
(5) The preceding provisions of this section do not apply to or in relation to –
(a)the printing of any pleading, transcript of evidence or other document for use in connexion with proceedings in any court or the communication of any such document to persons concerned in the proceedings…
…
The Full Court had regard to similar provisions of the Judicial Proceedings (Regulation of Reports) Act 1926 (UK) and s 123 of the Matrimonial Causes Act 1959 (Cth) (by then repealed). Their Honours concluded (at 76,464):
… There is no definition in the English Act or in the repealed Act which would support an argument that the grammatical or ordinary sense of the words “any judicial proceedings” or “any court” should be cut down. In other words, perhaps out of an abundance of caution, the legislature in each case sought to make it quite clear that any of the matters which were not amongst those which could be given publicity under subsec. 1(b) of the English Act, or under sec. 123(1) of the repealed Act, could be printed for use in any legal proceedings, and that any such document (pleading, transcript of evidence or other document) could be communicated to persons concerned in such proceedings.
The Court applied this reasoning to the then s 121(5) and found that the provision of documents for use in a public examination of a bankrupt was not publishing within the meaning of s 121(1) but, in any event, permitted by s 121(5) of the Act (at 76,464).
We see no reason to depart from the reasoning in that case. It follows that s 121 of the Act has no role to play in the present proceedings and the primary judge was correct to come to that conclusion at [19].
We would also refer to Hinchcliffe v Commissioner of Australian Federal Police (2001) 118 FCR 308 where Kenny J said:
53.First, before s 121(1) can be contravened, there must be a dissemination of an account of proceedings, or part of them, under the Act. I accept, as the respondents submitted, that an “account”, for this purpose, is a narrative, description, retelling, or recital of such proceedings. Paragraph 10 of the letter of complaint does not allege that anyone has given an account in this sense. Rather, the most the complaint alleges is that “fabrications and lies” contained in documents in the John Hinchcliffe proceedings were communicated by Ms Walker, her solicitor, and Mr Foale to associates of the Hinchcliffes. There is no account of proceedings merely because some allegations made in the proceedings are reiterated outside the Court. Before there can be an account of proceedings in the relevant sense, a communication must purport to narrate, describe, retell or recite something that has happened in the proceedings, or something about the proceedings. Even if Ms Walker and Mr Foale were repeating untruths about the Hinchcliffes, which were untruths asserted in the John Hinchcliffe proceedings, this would not amount to an account of these proceedings.
54.Section 121(1) also requires that there be a dissemination of an account of proceedings or part of them “to the public or to a section of the public”. In Re Edelsten;Ex parte Donnelly (1988) 18 FCR 434, Morling J considered what was intended by the reference to “the public” in s 121(1) of the Act. His Honour said (at 436):
“[I]n the context of s 121 ‘disseminates to the public’ should be taken as a reference to widespread communication with the aim of reaching a wide audience. It cannot have been intended by the legislature that the restriction on dissemination should apply, for example, to conversations between a party to Family Court proceedings and a close personal friend.”
(Emphasis in original)
We did not receive submissions upon either of these passages and we shall refrain from expressing a concluded view as to them, although the propositions are clearly relevant. As to the first, consideration would need to be given to whether the words “or of any part of any proceedings” refers to part of an account of the proceedings or, more simply, just any part of the proceedings. The latter would be more consistent, with, for example, s 121(9) of the Act which specifically exempts a pleading which, otherwise presumably would be caught by s 121(9)(a) of the Act.
As to the second, consideration would need to be given to whether production of an affidavit to another court in a proceeding, against the same party as in Federal Circuit Court proceedings, is dissemination to the public.
Did the primary judge fail to consider the privacy of the appellant and the child?
As we have already observed, there is a statutory presumption in favour of the privacy of persons involved in family law litigation that may be particularly significant in relation to children who are not active litigants. Although not a parenting order, a decision to grant leave for documents to be filed should, where appropriate, take into account the best interests of the children (see Sahadi & Savva and Anor (2016) FLC 93-704 (“Sahadi”), which concerned leave to use a family report).
In her written submissions made to the primary judge, the appellant did not directly raise the issue of privacy or the best interests of the child.
The closest the submission came was:
10.… if the Court were to make such an order, it is highly likely that parties, particularly to family law litigation, would lose confidence in the legal system in that they would lose confidence in their being protected by making affidavits and by making allegations which had not yet been ruled on. No doubt, if an order were made, this would deter many litigants from making the allegations that they would naturally wish to make for fear of being sued for defamation.
(Exhibit 3, Written submissions of the respondent dated 13 May 2021, paragraph 10)
This submission is misconceived. It is “well settled that absolute privilege attaches to all statements made in the course of judicial proceedings” and that it is “necessary that persons involved… be able to discharge their duties freely and without fear of civil action for anything said by them in the course of proceedings” (Mann v O’Neill (1997) 191 CLR 204 at 211 and 213). This protects the publication of defamatory material, irrespective of the intention of the person making the defamatory statement.
Here, the complaint is not that the defamatory material was contained in a filed affidavit but that the affidavit was published outside the proceedings.
We return to the issue of privacy.
Senior counsel for the appellant submitted that if the respondent was not given leave to use the affidavit, the respondent would not be able to prove three out of the four defamatory publications pleaded in the State Court. Senior counsel for the respondent accepted that to be so.
The appellant accepts that she showed parts of her affidavit to Ms C, but denies that this act was a publication for the purposes of the defamation action. In those circumstances, where there has been an admitted showing of parts of the affidavit, we consider that the interests of justice are best served by being determined on their merits, rather than have three out of the four claims determined on a procedural application for leave to use a document. That course would, in the words of Wilcox J, best contribute to the achieving of justice in the defamation proceedings.
In her defence in the State Court the appellant pleads that, in the event that it is found that the she published the relevant material (that being disputed) and also that the alleged contextual implications are established, then those implications are substantially true and that their publication could not harm the reputation of the respondent (Second Further Amended Defence filed on 14 April 2021, paragraph 35). The relevant implications were that the respondent was and is, amongst other things, mentally unstable, violent towards women, a perpetrator of family violence, a thief, a stalker, an unfit parent, a cheat, a drug addict, a paedophile, a prescription drug dealer, a sex offender, a criminal, that he broke the appellant’s foot, that he had committed fraud against his employer and that he had fabricated evidence in the family law proceedings (Second Further Amended Defence filed on 14 April 2021, paragraph 37).
Detailed particulars of the allegations were provided by the appellant, many of which resonate in the statements in her affidavit. Presumably, at some stage in the State Court proceedings, the appellant will need to cross-examine the respondent on the above matters and then give evidence herself. It is difficult to see what relevant privacy would remain for her, or sadly the child.
Taking this into account together with the lack of any submissions made to the primary judge on the point, we cannot see any material error on her Honour’s part by failing to consider the privacy of the appellant or the child.
Should the primary judge have been satisfied that special circumstances existed so as to justify granting leave to use the affidavit?
The primary judge said:
16.Given the commonality in the subject matter and the interrelationship between the parties, I cannot see how there is any injustice that would be caused to the Respondent. It is her affidavit. Indeed, it was argued that she equally will seek to rely on its contents in the defamation proceedings. Indeed, it seems to me to be entirely contrary to public policy to resist the release in the circumstances before me. It would ultimately lead to a denial of access to justice to the Applicant if I were to not do so.
17.I also observe that this is a matter where there is already material in the public domain which has attracted media attention. I am told by the parties that [the judge of the State Court] has considered a range of issues regarding confidentiality. That said, and notwithstanding I will relieve the Applicant from the implied undertaking, the release is a limited one and allows the Applicant to use the documents for the purpose of the proceedings.
The challenge is that her Honour failed to consider the matters listed in Springfield. Again, we observe that many of these were not the subject of submissions made to her Honour.
Nonetheless, the primary judge clearly took into account the nature of the document (“[i]t is her affidavit” at [16]) which indicated that it was the appellant’s document which had been created by her with the intention of it being read in the proceedings. Of course, once read, no relevant Harman obligation arises. It was therefore expected to enter the public domain subject to the effect of s 121 of the Act.
The appellant submits that the relevant nature of the document is that it goes to the essence of the personal and private relationship of the parties. That is so, but as her Honour noted, “there is already material in the public domain which has attracted media attention” (at [17]).
The primary judge was well aware of the attitude of the author of the document, the appellant, to the grant of leave.
Finally, the primary judge was aware of the nature of the proceedings against the appellant, however, the continuation of proceedings against her do not depend on the grant of leave.
We consider that the primary judge did not err as suggested, and any failure to expand on these points, and should not be taken as a failure to consider these matters, especially in an ex tempore judgment in which it can be safely taken that such matters have not been overlooked (Porter v Byrne (2009) 40 Fam LR 644 at [44]).
As we have observed, the privacy and best interests of the child is a relevant matter but, sadly, events have moved past a stage where that privacy can be protected. Regrettably, this appears not to have been a concern of the parties in the prosecution of the State Court proceedings. While some confidentiality orders are in place, and no doubt the presiding judge will take what steps can appropriately be taken to preserve the privacy of the child, it may have been better if the proceedings were to be reported under pseudonyms. We note in this regard that the respondent proposed such an order under s 7(d)(i) of the Open Courts Act 2013 (Vic) and that the appellant successfully opposed that course.
Indeed, if the interests of the child were regarded as paramount, the proceedings should not have been commenced at all.
The appellant submitted that, unlike criminal proceedings, there is no public interest in granting leave to use documents in purely private civil proceedings. Whilst we accept that there are a number of cases where the Family Court of Australia has granted leave for documents in criminal proceedings, there is no principle that limits leave to such proceedings. Indeed, most of the relevant cases in other jurisdictions concern leave to use documents on other civil proceedings. We consider that each case must be looked at in all of the circumstances that relate to it.
The final consideration is the interests of justice. We agree with the primary judge that, having regard to the factual issues before the State Court, it is in those interests for leave to be granted to use the affidavit.
Leave is required to appeal against the primary judge’s order (Sahadi at [26]–[36]). We granted leave but dismissed the appeal.
COSTS
The appellant has been entirely unsuccessful. We take into account her poor financial circumstances which clearly carry significant weight. However, impecuniosity is not a bar to a costs order (Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12]–[13]).
Having regard to those matters and the nature of the appeal we consider that the just order, in all of the circumstances, is that the appellant pay the respondent’s costs fixed in the sum of $10,000.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace, Aldridge & Tree. Associate:
Dated: 25 May 2021
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