Plantier & Plantier
[2022] FedCFamC2F 840
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Plantier & Plantier [2022] FedCFamC2F 840
File number(s): DGC 1773 of 2019 Judgment of: JUDGE KIRTON Date of judgment: 30 June 2022 Catchwords: FAMILY LAW – Applications in a proceeding – release of implied Harman undertaking – exemption from s.121 of the Family Law Act 1975 (Cth) prohibition against publication and dissemination of court documents – mutual applications to use certain documents in a Fair Work proceeding filed in the Federal Court of Australia and the Australian Taxation Office – unilateral application of the Wife to provide documents to the D Authority and the D Commissioner – Application to provide documents to the D Authority and the D Commissioner refused Legislation: Family Law Act 1975 (Cth) ss. 4, 121
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr.11.71, 12.06
Cases cited: Harman v Secretary of State for Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
In the marriage of T & T (1984) FLC 91-588; [1984] FamCA 66
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3
Plantier & Plantier [2020] FCCA 1399 (unreported)
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45
Re Edelston; ex parte Donnelly (1988) FCR 434
Re Springfield Nominees Pty Ltd [1992] FCA 472
Division: Division 2 Family Law Number of paragraphs: 83 Date of hearing: 20 May 2022 Place: Melbourne, by video link The Applicant: Self-represented Counsel for the Respondent Dr K Hanscombe QC and Dr R Smith Solicitors for the Respondent Clayton Utz ORDERS
DGC 1773 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PLANTIER
Applicant
AND: MR PLANTIER
Respondent
ORDER MADE BY:
JUDGE KIRTON
DATE OF ORDER:
30 JUNE 2022
THE COURT ORDERS THAT:
1.The Applicant Wife (Wife) and the Respondent Husband (Husband), and their legal advisers, be relieved of the implied undertaking to this Court in Harman v Secretary of State for Home Department [1983] 1 AC 280 with respect to:
(a)Any document sworn or affirmed and filed in this Court in this proceeding, being DGC 1773 of 2019 (Proceeding);
(b)Any Orders made and Judgments delivered in the Proceeding, including these Reasons for Judgment;
(c)Notices to admit facts and/or documents filed in the Proceeding and any response thereto, whether filed or otherwise;
(d)Case summaries or outlines of case filed in the Proceeding;
(e)The case summaries submitted to the Court by the Husband and the Wife for the Interim Defended Hearing of the Proceeding on 26 May 2020; and
(f)Such of the documents in the Wife’s Court Book submitted to the Court for the Final Hearing of the Proceeding on 6 August 2020 that are referred to in:
(i)The Wife’s Affidavits filed on 4 February 2020, 24 February 2020 and 3 August 2020; and
(ii)The Notice to Admit Facts and Authenticity of Documents, filed by the Wife on 10 February 2020.
(together, the Documents)
2.The relief from the implied Harman obligation referred to in Order 1 herein, is to be limited to the use of the Documents as follows:
(a)In the Federal Court of Australia proceeding …; and
(b)For the provision to tax authorities concerning the Husband’s tax affairs.
THE COURT FURTHER DECLARES THAT:
3.None of the Wife, the Husband, nor their legal advisers will be in breach of s.121 of the Family Law Act 1975 (Cth) by using any of the Documents from the Proceeding for the purpose set out in Order 2(b) herein, and such use will not constitute a breach.
THE COURT ORDERS FURTHER THAT:
4.Within seven (7) days of the date of these Orders, both parties file and serve a Costs Notice prepared in accordance with r.12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) in relation to the Interim Defended Hearing held on 20 May 2022.
5.The Husband file and serve written submissions as to costs in relation to the dismissal of the Wife’s Application in a Proceeding filed on 9 February 2022 and sealed on 14 February 2022, within twenty-eight (28) days of the publication of these Reasons for Judgment.
6.The Wife file and serve written submissions as to costs in relation to the dismissal of the Wife’s Application in a Proceeding filed on 9 February 2022, within fourteen (14) days of receipt of the Husband’s submissions on costs referred to in Order 5 herein.
7.The Husband file and serve written submissions in reply on costs within seven (7) days of receipt of the Wife’s submissions on costs referred to in Order 6 herein.
8.The written submissions referred to in Orders 5 to 7 herein are not to exceed five (5) pages in length.
9.The question of whether an order for the Husband’s costs will be made as a result of the dismissal of the Wife’s Application in a Proceeding filed on 9 February 2022, will be determined on the papers in the absence of either party making an application to the Chambers of Her Honour Judge C. E. Kirton QC to present further oral submissions.
10.The Wife’s Application in a Proceeding filed on 15 February 2022 is otherwise dismissed.
11.The Husband’s Amended Application in a Proceeding filed on 12 May 2022 is otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Plantier & Plantier has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE KIRTON:
INTRODUCTION
This matter comes before the Court by way of the following Applications in a Proceeding filed by both the Applicant Wife, Ms Plantier, (Wife) and the Respondent Husband, Mr Plantier (Husband):
(a)Application in a Proceeding, filed by the Wife on 9 February 2022 and sealed on 14 February 2022 (Wife’s 9 February 2022 Application in a Proceeding);
(b)Application in a Proceeding, filed by the Wife on 15 February 2022 (Wife’s 15 February 2022 Application in a Proceeding); and
(c)Amended Application in a Proceeding, filed by the Husband on 12 May 2022 (Husband’s 12 May 2022 Amended Application in a Proceeding).
(together, the Applications).
In each of the Applications, the parties seek competing orders excusing them from s.121 of the Family Law Act 1975 (Cth) (Act) prohibition against publication or dissemination of Court documents and the implied undertaking in Harman v Secretary of State for Home Department [1983] 1 AC 280 (Harman): that documents produced or filed in a court proceeding are to be used only for the purposes of that proceeding.
The Interim Defended Hearing of the Applications took place on 20 May 2022 (Interim Defended Hearing). During the Interim Defended Hearing, the Wife’s 9 February 2022 Application in a Proceeding was dismissed, prompting Senior Counsel for the Husband to move for costs. These Reasons for Judgment are in relation to: the Wife’s 15 February 2022 Application in a Proceeding; the Husband’s 12 May 2022 Amended Application in a Proceeding; and the Husband’s costs application arising as a result of the dismissal of the Wife’s 9 February 2022 Application in a Proceeding.
ISSUES FOR DETERMINATION
The following issues are to be determined:
(a)Should both parties be relieved from the implied Harman undertaking:
(i)In relation to any document sworn or affirmed and filed in this proceeding, being proceeding DGC1773 of 2019 (Proceeding) only; or
(ii)In relation to any document sworn or affirmed and filed in the Proceeding and also in relation to court books, unfiled case outlines, summaries, orders and any other documents used, or prepared for the Proceeding;
with such relief to be limited to the use of the documents: in the Federal Court of Australia proceeding; and for the provision to tax authorities concerning the Husband’s tax affairs?
(b)Should the Wife be relieved from the implied Harman undertaking for the purpose of providing the documents referred to in sub-paragraph (a)(ii) to the D Authority and the D Commissioner to investigate the conduct of the Husband and B Lawyers in relation to the Proceeding?
(c)What order, if any, should be made in relation to the Husband’s application for costs arising as a result of the dismissal of the Wife’s 9 February 2022 Application in a Proceeding at the Interim Defended Hearing?
SYNOPSIS
I have determined:
(a)Subject to sub-paragraph (b), both parties should be relieved from the implied Harman undertaking:
(i)In relation to any document sworn or affirmed and filed in the Proceeding; and
(ii)In relation to: Orders; Judgments, including these Reasons for Judgment; filed Notices to Admit and any responses thereto whether filed or otherwise; filed case summary documents and the unfiled case summaries submitted to the Court by the Husband and the Wife for the Interim Defended Hearing on 26 May 2020; and such of the documents referred to in the Wife’s Court Book submitted to the Court for the Final Hearing on 6 August 2020 (Final Hearing) that are referred to in the Wife’s Affidavits filed on 4 February 2020, 24 February 2020, and 3 August 2020 and the Notice to Admit Facts and Authenticity of Documents, filed by the Wife on 10 February 2020.
(b)The relief from the implied Harman undertaking referred to in sub-paragraph (a) is to be limited to the use of the documents: in the Federal Court of Australia proceeding; and for the provision to tax authorities concerning the Husband’s tax affairs.
(c)To decline to make an Order relieving the Wife from the implied Harman undertaking for the purpose of providing the documents referred to in sub-paragraph (a) to the D Authority and D Commissioner.
(d)Whether an order for costs will be made as a result of the dismissal of the Wife’s 9 February 2022 Application in a Proceeding at the Interim Defended Hearing will be determined on the papers, in the absence of either party making an application to Chambers to present further oral submissions. Orders for a timetable for the delivery of written submissions by each party are made.
BACKGROUND
Family Law Proceedings
The Wife was born in 1964 and is presently 58 years of age. The Husband was born in 1953 and is presently 69 years of age. The parties commenced living together in or around mid-2009, were married in early 2010 and separated on a final basis in mid-2019. The parties were divorced effective 22 November 2020.
In or around mid-2009, the Wife commenced working for the Husband, who at the time practiced as a professional. The Wife assisted the Husband with the day-to-day administration of his business. The Wife ceased working for the Husband in or around mid-2017.
The Wife commenced the substantive proceedings by filing an Initiating Application on 6 June 2019 (Initiating Application) seeking interim and final property and spousal maintenance orders. The Initiating Application was subsequently amended on 9 August 2019 (Amended Initiating Application). The Husband contested the Initiating Application and the Amended Initiating Application.
The substantive proceedings were on foot for just over 12 months. The Wife was represented until her lawyers withdrew in January 2020, after which point she remained self-represented. The Husband was represented for the entirety of the substantive proceedings.
During the substantive proceedings the parties filed approximately 35 documents, including some 12 affidavits and two (2) financial statements. The substantive proceedings came before the Court on seven (7) occasions, and seven (7) orders were made. One (1) Judgment was delivered by Judge Baker (as Her Excellency then was) on 5 June 2020 in Plantier & Plantier [2020] FCCA 1399 (unreported). A number of unfiled documents were also referred to and relied upon throughout the substantive proceedings.
The volume of the material filed was due to the contentious nature of the substantive proceedings and the attitude of the parties with respect to complying with orders and disclosure obligations.
The Wife’s application for spousal maintenance was dismissed by Judge Mercuri (as Her Honour then was) on 11 October 2019.[1] The remainder of the substantive proceedings were finalised by consent on 6 August 2020.
[1] Orders of Judge Mercuri, dated 11 October 2019, Order 3.
Fair Work Proceeding
The mutual foundation for the filing of the Applications is Fair Work proceedings brought by the Wife against the Husband in the Federal Court of Australia (Federal Court) in a Fair Work Proceeding. The Originating Application[2] and the Wife’s supporting Affidavit, filed on 28 October 2021,[3] seeks from the Husband payment of allegedly unpaid employment entitlements accrued whilst the Wife was in the Husband’s employ.
[2] Originating Application, filed 28 October 2021 and sealed 11 November 2021, Details of Claim, Exhibit A1, [1].
[3] Affidavit of the Wife, filed 28 October 2021 and sealed 11 November 2021, Exhibit A2.
On 10 February 2022, the Husband filed an Interlocutory Application seeking to have the Fair Work Proceeding summarily dismissed (Interlocutory Application).[4] The Husband contends: that the Federal Court lacks jurisdiction to hear the Fair Work Proceeding as the Fair Work Proceeding is a “matrimonial cause”, as defined in s.4(1) of the Act; and that the Wife is prevented from bringing her claim due to the Anshun estoppel principle: that a party is prevented from bringing a claim which ought to have been pursued in earlier proceedings: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45. The Husband further claims that the Fair Work Proceeding is vexatious and an abuse of process, and that the Wife has no reasonable prospect of successfully prosecuting it.[5]
[4] Interlocutory Application, filed 10 February 2022, Exhibit R1 (Interlocutory Application).
[5] Interlocutory Application, Interlocutory orders sought, [1] and [2]; Affidavit of Mr C, sworn and filed 10 February 2022 and sealed 11 February 2022, Exhibit R2, [10].
The Fair Work Proceeding came before Justice O’Callaghan in the Federal Court for a Case Management Hearing on 11 February 2022. On that occasion, His Honour listed the Interlocutory Application for hearing on 26 April 2022 (Interlocutory Hearing).[6] On 18 February 2022, Justice O’Callaghan administratively re-listed the Interlocutory Hearing to a date to be fixed after 27 May 2022, and directed the Husband’s solicitors to notify His Honour’s chambers of the outcome of the Interim Defended Hearing.[7]
[6] Orders of Justice O’Callaghan, dated 11 February 2022, Order 1.
[7] Orders of Justice O’Callaghan, dated 18 February 2022, Orders 2 and 5.
PROPOSALS OF THE PARTIES
As the Husband has made an application for costs arising from the dismissal of the Wife’s 9 February 2022 Application in a Proceeding, it is necessary to set out the orders that were sought by the Wife in the Wife’s 9 February 2022 Application in a Proceeding. The Wife sought the following orders:
1.That the matter be listed before Judge Kirton.
2.That the [Wife] be released from the Harman Undertaking and be permitted to provide all documents in this proceeding to the Federal Court […].
3.That the [Wife] be released from the Harman Undertaking and be permitted to give all documents in this proceeding to the [D Authority].
4.That if a charge is found proven, a custodial sentence be imposed on the [Husband].
5.That if a charge is found proven, that the [Husband] be referred to the [D Authority] for investigation.
6.Such Orders as this Honourable Court determines.[8]
(As written)
[8] Application in a Proceeding, filed by the Wife 9 February 2022, Part D, The orders you are seeking, [6].
The Wife’s 15 February 2022 Application in a Proceeding sought the following orders:
1.That the matter be listed before Judge Kirton.
1.That pursuant to Section 121(9)(a), section 121(9)(b)(i) and section 121(9)(b)(ii) of the Family Law Act (1975) and rule 6.04 and rule 14.11 of the Federal Circuit and Family Court of Australia Rules 2021, the [Wife] be permitted to provide:-
a.All affidavit material filed herein; and
b.All court orders, judgments, decisions, applications, and filed documents herein; and
2.To publish and/or disclose information in relation to this proceeding to –
a.The Federal Court - Fair Work case number […];
b.The [D Authority] and Commissioner for investigation into the conduct of the [Husband] and/or his legal representatives during the family law proceedings;
c.The Australian Taxation Office for investigation into the conduct of the [Husband] during the family law proceedings;
d.The Victoria Police for investigation into the conduct of the [Husband] and/or his legal representatives during the family law proceedings.[9]
(As written)
[9] Application in a Proceeding, filed by the Wife 15 February 2022, Part D, The orders you are seeking, [6].
The Wife further deposed that she sought the following documents:
37. […]
(a)The [Wife’s] court books numbered 1 to 5;
(b)The [Husband’s] financial disclosure documents emailed to the [Wife] on 5 August 2020;
(c)The [Husband’s] Court book allegedly provided for trial;
(d)All disclosure documents provided to the parties, by the parties in the proceedings; and
(e)Copies of all Orders made by the Court during these proceedings.[10]
[10] Affidavit of the Wife, filed 15 February 2022, [37].
The Husband’s 12 May 2022 Amended Application in a Proceeding sought the following orders:
1.The [Husband], and his legal advisers, be relieved of the implied undertaking to this Court with respect to the use of the documents produced under compulsion in this proceeding, which documents are enumerated in the schedule to this application.
2.The relief from the undertaking be limited to:
(a)use by the [Husband] of those documents in the Federal Court of Australia proceeding […]; and
(b)use by the [Husband] and his legal advisers in any engagement with tax authorities concerning his tax affairs.
3.For the purposes of section 121 of the Family Law Act 1975 (Cth), the [Husband] and his legal advisers are permitted to use any documents from the proceedings for the purpose set out in paragraph 2(b) above, and such use will not constitute a breach of section 121 of the Family Law Act 1975 (Cth).
4.In the alternative, a declaration that the [Husband] and his legal advisers will not be in breach of section 121 of the Family Law Act (Cth) by using any documents from the proceedings for the purpose set out in paragraph 2(b) above.[11]
(As written)
[11] Amended Application in a Proceeding, filed by the Husband, 12 May 2022, Part D, The orders you are seeking, [6].
The Schedule to the Husband’s 12 May 2022 Amended Application in a Proceeding sought the following documents:
Schedule to Application in a Proceeding
1.Affidavit of [the Wife] dated 10 July 2020;
2.Affidavit of [the Wife] dated 6 June 2019;
3.Financial Statement dated 6 June 2019;
4.Sealed Notice of Risk dated 3 February 2020*;
5.Affidavit of [the Wife] dated 5 August 2020;
6.Affidavit of [the Wife] dated 24 February 2020;
7.Affidavit of [the Wife] dated 9 August 2019;
8.Amending initiating application by [the Wife] dated 9 August 2019*;
9.Application in a case by [the Wife] dated 24 February 2020*; and
10.Amending initiating application by [the Wife] dated 6 June 2019*.
*Indicates the 4 documents the [Husband] seeks to be additionally relieved from with respect to his Harman obligations, further to the 6 documents the [Husband] initially requested to be relieved from with respect to his Harman obligations.
(As written)
At the commencement of the Interim Defended Hearing, the matter was briefly stood down to facilitate discussions between the parties to narrow the issues in dispute. Following those discussions, the parties each submitted a minute of proposed orders.
The minute of proposed orders submitted by the Wife at the Interim Defended Hearing (Wife’s Minute of Proposed Orders) provided as follows:
BY CONSENT IT IS ORDERED
1.That the [Wife] and the [Husband], and their legal advisers, be relieved of the implied undertaking to this Court with respect to any document sworn or affirmed and filed in this Honourable Court in this proceeding, and for the purposes of clarity, it includes, but is not limited to court books, unfiled case outlines, summaries, orders, and any other document used, or prepared for the family law proceedings between the parties (being DCG 1773 of 2019) (the Documents), with such relief be limited to the use of the Documents as follows:
a)In Federal Court of Australia proceeding […];
b)For the provision to the [D Authority] and [D Commissioner] concerning the conduct of the [Husband] and [B Lawyers];
c)For the provision to the tax authorities concerning the [Husband’s] tax affairs.
THE COURT FURTHER DECLARES THAT
2.None of the [Wife], the [Husband], nor their legal advisers will be in breach of s 121 of the Family Law Act 1975 (Cth) by using any documents from these proceedings for the purposes set out in paragraph 1(b) above, and such use will not constitute a breach.
(As written)
The minute of proposed orders submitted by the Husband at the Interim Defended Hearing (Husband’s Minute of Proposed Orders) provided as follows:
IT IS ORDERED
1.That the [Wife] and [the Husband], and their legal advisers, be relieved of the implied undertaking to this Court with respect to any document sworn or affirmed and filed in this Honourable Court in this proceeding (being DCG 1773 of 2019) (the Documents), with such relief be limited to the use of the Documents as follows:
a)In the Federal Court of Australia proceeding […]; and
b)For the provision to tax authorities concerning [the Husband’s] tax affairs.
THE COURT FURTHER DECLARES THAT
2.None of the [Wife], the [Husband], nor their legal advisers will be in breach of s 121 of the Family Law Act 1975 (Cth) by using any documents from these proceedings for the purpose set out in paragraph 1(b) above, and such use will not constitute a breach.
(As written)
The parties’ respective minutes of proposed orders were substantially similar. Both parties proposed an order that they, and their legal advisers, be relieved of the implied Harman undertaking to enable them to use certain documents in the Fair Work Proceeding and to provide those documents to the tax authorities concerning the Husband’s tax affairs.
In relation to the Fair Work Proceeding, Senior Counsel for the Husband submitted that the parties were in agreement that:
[…] [I]t will be necessary for the proper resolution of the Fair Work [P]roceedings to have [Harman] relief for both parties because the Federal Court in that proceeding may well need to look at least at some of the documents which have been sworn in these proceedings before your Honour.[12]
[12] Transcript, P5:L20-L24.
The parties did not agree upon the breadth of the documents with respect to which the relief from the implied Harman undertaking ought to apply, and the Wife’s application to provide the documents to the D Authority and the D Commissioner.
The differences in the parties’ respective proposals at the Interim Defended Hearing are as follows.
The Wife’s Proposal
In the Wife’s Minute of Proposed Orders, the Wife seeks that both parties be relieved from the implied Harman undertaking with respect to:
[…] [A]ny document sworn or affirmed and filed in this Honourable Court in this proceeding, and for the purposes of clarity, it includes but is not limited to court books, unfiled case outlines, summaries, orders, and any other document used, or prepared for the family law proceedings between the parties […]
(As written)
In the Wife’s Minute of Proposed Orders the Wife also seeks an order that the relief from the implied Harman undertaking be extended to providing the documents to D Authority and the D Commissioner in relation to “the conduct of the [Husband], and [B Lawyers]”.
The Husband’s Proposal
In the Husband’s Minute of Proposed Orders, the Husband seeks that both parties be relieved from the implied Harman undertaking with respect to:
[…] [A]ny document sworn or affirmed and filed in this Honourable Court […]
The Husband proposes that the class of documents sought in the Husband’s Minute of Proposed Orders includes any affidavits deposed by the parties or third parties and the financial statements.[13]
DOCUMENTS RELIED ON BY THE PARTIES
[13] Transcript, P6:L4-L15.
Documents Relied on by the Wife
At the Interim Defended Hearing the following documents were before the Court:
(a)The Wife’s 9 February 2022 Application in a Proceeding;
(b)An Affidavit filed by the Wife on 9 February 2022 (Wife’s 9 February 2022 Affidavit) filed in accordance with Joint Practice Direction 2: JPD 2 of 2020 – Special Measures in Response to COVID-19 Electronic Filing, Viewing Subpoenas, Annexures to Affidavits, Signatures of Documents to Affidavits and Fees (Joint Practice Direction 2). It is to be noted that the Annexures to the Wife’s 9 February 2022 Affidavit were not annexed to the Affidavit. The Wife’s 9 February 2022 Affidavit refers to a “Court Book 8-2-2022” and refers to individual page numbers of “Court Book 8-2-2022” in various paragraphs of the Affidavit. No Court Book was filed by the Wife on 8 February 2022. On 14 May 2022, the Wife emailed an electronic Court Book to my Associates Chambers. More will be said about this in relation to the Husband’s costs application arising from the dismissal of the Wife’s 9 February 2022 Application in a Proceeding;
(c)The Wife’s 15 February 2022 Application in a Proceeding;
(d)The Affidavit filed by the Wife on 15 February 2022 pursuant to Joint Practice Direction 2 (Wife’s 15 February 2022 Affidavit);
(e)A document titled ‘Case Summary for and on Behalf of [the Wife] for the Interim Defended Hearing before Judge Kirton on 20 May 2022’ (Wife’s Harman Case Outline).
The Wife also tendered the following documents at the Interim Defended Hearing, which became exhibits:
(a)The Originating Application, filed by the Wife in the Federal Court on 28 October 2021 and sealed on 11 November 2021 in relation to the Fair Work Proceeding, (Exhibit A1); and
(b)The Affidavit of the Wife, filed by the Wife in the Federal Court on 28 October 2021 and sealed on 11 November 2021 in relation to the Fair Work Proceeding, (Exhibit A2).
Documents Relied on by the Husband
At the Interim Defended Hearing the following documents were before the Court:
(a)Husband’s 12 May 2022 Amended Application in a Proceeding;
(b)Affidavit of Mr C, Partner of the firm of Clayton Utz, sworn and filed 3 March 2022;
(c)Affidavit of Ms E, solicitor at the firm of Clayton Utz, sworn 10 May 2022 and filed 12 May 2022;
(d)Outline of Case Re Harman Application, dated 17 May 2022; and
(e)Document titled ‘Orders Sought’, received 17 May 2022.
The Husband also tendered the following documents at the Interim Defended Hearing, which became exhibits:
(a)The Interlocutory Application, (Exhibit R1);
(b)The Affidavit of Mr C, filed by the Husband in the Fair Work Proceeding on 10 January 2022 and sealed 11 February 2022, (Exhibit R2);
(c)The Affidavit of Mr C, filed by the Husband in the Fair Work Proceeding on 7 January 2022, (Exhibit R3);
(d)Submissions by Counsel for the Husband in relation to the Wife’s 9 February 2022 Application in a Case (Contempt Application Submissions), (Exhibit R4).
CONDUCT OF THE HEARING
The Interim Defended Hearing proceeded by way of submissions. At the conclusion of the Interim Defended Hearing orders were made: dismissing the Wife’s 9 February 2022 Application in a Proceeding; reserving the Husband’s application for costs in relation to the Wife’s contempt application; and reserving Judgment in relation to the Wife’s 15 February 2022 Application in a Proceeding and the Husband’s 12 May 2022 Amended Application in a Proceeding.
RELEVANT LEGAL PRINCIPLES
I will now turn to consider the relevant legal principles.
Legislation
The function of s.121 of the Act is to restrict the publication and dissemination of information about a family law proceeding and any documents filed, produced or disclosed in a family law proceeding.
Section 121(1) of the Act provides:
(1)A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;
commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
Sub-sections 121(9)(a) and (b) of the Act absolve the offence in s.121(1) of the Act by permitting the use of documents filed in family law proceedings in other proceedings.
Relevantly, s.121(9) of the Act 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;
[…]
(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
[…]
The Harman Undertaking
The exemptions in s.121(9)(a) and (b) of the Act do not however extinguish the implied Harman undertaking. The purpose of the implied Harman undertaking is to preserve privacy and confidentiality, whilst ensuring that justice is done.[14] The scope of the Harman undertaking was qualified by the High Court of Australia in Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 (Hearne) where Court said at [96]:
Where one party to litigation is compelled, either by reason of a rule of the court, by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.[15]
[14] Harman v Secretary of State for the Home Department [1983] 1 AC 280, [308].
[15] Hearne v Street (2008) 235 CLR 125; [2008] HCA 36, [96].
In Hearne, the High Court of Australia found that the implied Harman undertaking applies to a wide range of material, including affidavits.[16]
[16] Hearne v Street (2008) 235 CLR 125; [2008] HCA 36, [96].
The Court has discretion to relieve a party of the implied Harman undertaking in special circumstances. The Full Court of the Federal Court said in Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3 (Liberty Funding), at [31]:
In order to be released from the implied undertaking it has been said that a party […] must show “special circumstances” […] [t]he 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 another non-litigious purpose. The discretion is a broad one and all the circumstances of the case must be examined.[17]
[17] Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3, [31].
The considerations relevant to the exercise of discretion were identified by the Federal Court in Re Springfield Nominees Pty Ltd [1992] FCA 472 (Springfield Nominees), at [26]. These are:
(a)The nature of the document;
(b)The circumstances under which the document came into existence;
(c)The attitude of the author of the document and any prejudice the author may sustain;
(d)Whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain;
(e)The nature of the information in the document (in particular whether it contains personal data or commercially sensitive information);
(f)The circumstances in which the document came into the hands of the applicant; and
(g)The likely contribution of the document achieving justice in the other proceeding.
Therefore, the task of the Court in determining whether leave is granted to exempt the Wife from the Harman undertaking is to consider:
(a)Any injustice caused to the Husband; and
(b)Whether the Wife ought to be relieved from the Harman undertaking because some “special circumstance” exists.
Whilst s.121(9)(a) of the Act provides that s.121(1) will not apply when the communication is “to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings”, there is no such exception for providing the documents to the Commissioner for Taxation.
In In the marriage of T & T (1984) FLC 91-588; [1984] FamCA 66, the Full Court considered that:
As regards the submissions based on the prohibition against publication of proceedings contained in sec. 121 of the Act, we consider that the transmission of documents to the Attorney General or to responsible officers in his department is not “publishing” or “publication” “to the public or a section of the public” within the meaning of sec. 121 of the Family Law Act, and that this section does not inhibit a judge’s discretion to refer papers to the Attorney General.
Further, in Re Edelston; ex parte Donnelly (1988) FCR 434, Morling J in the Federal Court considered that the reference to “disseminates to the public” in s.121(1) of the Act should be read widely. The Court held:
Counsel for the Deputy Commissioner submitted, in my view correctly, that in 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.[18]
[18] Re Edelston; ex parte Donnelly (1988) FCR 434, 436.
The Role of the D Authority and D Commissioner
The disciplinary and supervisory jurisdiction of the D Authority (D Authority) and the D Commissioner (D Commissioner) is defined in state legislation.
Part 5.2 of this legislation deals with complaints and Division 1 of Part 5.2 deals specifically with the making of complaints. A complaint must be made to the F Authority, which in Victoria is the D Authority and the D Commissioner (F Authority). A complaint must: be in writing; identify the complainant; identify the professional about whom the complaint is made; and describe the alleged conduct that is the subject of the complaint: s.267.
A complaint must be about conduct alleged to have occurred within a period of three (3) years immediately before the complaint is made, however the F Authority may waive the time limit if it is satisfied that: it is just and fair to deal with the complaint having regard to the reasons for the delay; or the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint: s.272(1) of the legislation.
The provisions of Division 2 of Part 5.2 of the legislation deal with the preliminary assessment of complaints. The F Authority must conduct a preliminary assessment of a complaint: s.276(1). The F Authority may close the complaint at any stage after the preliminary assessment of a complaint without further consideration of its merits, for any of the reasons specified in s.277(1)(a) to (j) of the legislation. A compliant may be closed without any investigation or without completing an investigation: s.277(3). The F Authority is not required to give a complainant or a professional an opportunity to be heard or make a submission to the F Authority before determining whether or not to close a complaint: s.277(4).
The provisions of Division 4 of Part 5.2 empower the F Authority to investigate complaints: s.282. When investigating a complaint the F Authority may extend the scope of an investigation so as to include the conduct of the respondent revealed during the investigation: s.283(1). Conduct revealed during the course of an investigation may be the subject of a new complaint: s.283(2).
The investigatory powers of the F Authority are set out in Chapter 7 of the legislation. A person, including the F Authority who carries out an investigation of a complaint pursuant to s.368(1) of the legislation is referred to in Chapter 7 as an ‘investigator’: s.368(2). Part 7.2 of the legislation deals with the powers an investigator has when investigating a complaint in relation to a professional. These powers include requiring a professional: to produce specified documents; to provide written information, verified by statutory declaration if required; to provide access to documents relating to the affairs of the professional; and to provide information in relation to the affairs of the professional, verified by statutory declaration if required. A failure to comply with a request by an investigator in a reasonable time may incur a penalty of up to 50 penalty units: s.371.
The powers of an investigator to enter and search premises for the purpose of carrying out a complaint investigation are set out in Part 7.3 in ss. 374 to 381.
If in the course of a complaint investigation an investigator becomes aware of any matter that may constitute unsatisfactory professional conduct or professional misconduct on the part of a professional, the investigator must refer the matter to the F Authority to consider whether disciplinary action should be taken: s.386.
A person must not, without reasonable excuse, obstruct an investigator from exercising a function under the legislation. The penalty for doing so is up to 50 penalty units: s.387(1). A professional must not mislead an investigator in the exercise of any function under Chapter 7 of the legislation. The maximum penalty for doing so is 100 penalty units: s.388(2).
CONSIDERATION
Which Documents Should be Subject to the Implied Harmen Undertaking?
The Husband and the Wife are in agreement that the parties and their legal advisors should be relieved from the implied Harman undertaking with respect to any document sworn or affirmed and filed in the Proceeding for the limited use of these documents:
(a)In the Fair Work Proceeding; and
(b)For the provision to tax authorities concerning the Husband’s tax affairs.
The Wife contends in [1] of the Wife’s Minute of Proposed Orders that the category of documents should be extended to “court books, unfiled case outlines, summaries, orders, and any other document used, or prepared for” the Proceeding.
During submissions Senior Counsel was instructed to consent to Orders made in the Proceeding being relived of the implied Harman undertaking for the purposes referred to in [59].[19] An Order will be made accordingly.
[19] Transcript P7:L17-19.
Senior Counsel objected to the inclusion of court books on the basis that they included documents that did not have any relevance to the Fair Work Proceeding.[20] The difficulty with this submission is that three of the Affidavits that the Wife filed prior to the Final Hearing did not include annexures but instead referred to documents in the Wife’s court book. These Affidavits were filed by the Wife on 4 February 2020, 24 February 2020 and 3 August 2020. Prior to the Final Hearing the Wife submitted a Court Book that constituted 1704 pages of documents in five (5) folders (Wife’s Court Book). In the circumstances I intend to Order that the documents in the Wife’s Court Book, insofar as they are referred to in the Wife’s Affidavits filed on 4 February 2020, 24 February 2020 and 3 August 2020, will be relieved from the implied Harman undertaking and s.121 of the Act.
[20] Transcript P6:L30-32.
Further in relation to the inclusion of documents contained in the Wife’s Court Book, I turn now to consider the Wife’s submission in relation to notices to admit. The Wife submitted that notices to admit which had been filed and any responses, whether filed or otherwise should be produced in the Fair Work Proceeding.[21]
[21] P11:L28-P12:L21.
A Notice to admit facts and documents, when drawn appropriately can be a significant evidentiary document. In this jurisdiction often the response to a notice to admit will not be filed. In the Proceeding only one notice to admit was filed. On 10 February 2020 the Wife filed a document titled ‘Notice to Admit Facts (and authenticity of documents)’ (Wife’s Notice to Admit). This document seeks that the Husband admit the authenticity of various documents referred to in the Wife’s Court Book. The Husband’s solicitors did not file a response to the Wife’s Notice to Admit. The Wife has deposed that the Husband’s solicitor’s sent a letter by email to the Wife on 13 February 2020 responding to the Wife’s Notice to Admit.[22] In my view any response from the Husband’s solicitors to the Wife’s Notice to Admit by way of correspondence to the Wife, should be disclosed in the Fair Work Proceeding. In the circumstances therefore I intend to Order that the documents in the Wife’s Court Book, insofar as they are referred to in the Wife’s Notice to Admit will be relieved from the implied Harman undertaking and s.121 of the Act.
[22] Affidavit of the Wife, filed 15 February 2022, [6].
I now turn to consider case outlines. In my view case outlines or case summaries which have been filed should be disclosed for the Fair Work Proceeding, as these are documents upon which the Court relies as representing a party’s account of the financial affairs between the parties. Senior Counsel objected to unfiled case outlines on the basis that they may be privileged.[23]
[23] Transcript P6:L32-34.
The difficulty with case outlines or case summaries is the practice of a case outline or case summary not being filed and being emailed to Associates’ Chambers or handed up in Court and then being relied upon during a hearing. In this Proceeding the file discloses two unfiled case summaries, one for the Husband and the other for the Wife, both prepared for the Interim Defended Hearing before Judge Baker (as Her Excellency then was) on 26 May 2020. In my view these case summaries should be disclosed for the Fair Work Proceeding and I intend to Order accordingly. I otherwise agree with the submission by Senior Counsel that an unfiled case outline or case summary may be privileged and I otherwise decline to make the order sought by the Wife on the basis that it is not clear what would be encompassed by such an order.
The Wife seeks the inclusion of the following words “any other document used, or prepared for” the Proceeding. Senior Counsel opposed the inclusion of these words in the Orders on the basis that such an order would: be vague and imprecise; include documents which were subject to professional privilege; and would cover documents that did not have even a tangential connection with the Fair Work Proceeding.[24] I agree with those submissions and I decline to include these words in the orders.
[24] Transcript P7:L23-46.
In considering this matter it is my view that in addition to the Orders in the Proceeding, the Reasons for Judgment of Judge Baker (as Her Excellency then was) and these Reasons for Judgment should be made available in the Fair Work Proceeding.
Should the Documents in the Proceeding be made available to the D Authority and the D Commissioner?
In the Wife’s Minute of Proposed Orders the Wife seeks an order that the implied Harman obligation in relation to specified documents be extended to the “provision to the D Authority and Commissioner concerning the conduct of the [Husband] and [B Lawyers]”.
The Wife’s Harman Case Outline at Part E ‘Special Circumstances’, at [1] to [29] sets out the special circumstances pursuant to which the Wife submits that documents filed in the Proceeding should be made available to the D Authority and the D Commissioner. In the Wife’s Harman Case Outline at Part F ‘D Authority and Commissioner and Police’ at [2], the Wife submits that there is “an open investigation involving” the Husband. The Wife further submits at [4], that the documents filed in the Proceeding should be made available to the D Authority and the D Commissioner, to enable the assessment of whether the Husband was suitable to practise. The Wife’s 9 February 2022 Affidavit and the Wife’s 15 February 2022 Affidavit do not contain evidence in relation to any complaint made by the Wife to the D Authority or the D Commissioner concerning the Husband.
At the Interim Defended Hearing the Wife submitted that she had made numerous complaints to the D Authority about the Husband, including his conduct in the Proceeding. The Wife submitted that there were “significant open investigations” concerning the Husband.[25] The Wife further submitted that the D Authority required a release from the implied Harman undertaking before being able to proceed with further investigation against the Husband. The Wife read from a letter dated 2 December 2020 from the D Authority.[26] The Wife was invited to show this letter to Counsel for the Husband and then tender this letter, however she declined to do so unless it was redacted.[27] The Wife further submitted that she had not received a response from the D Authority and that the matter had not been resolved.[28]
[25] Transcript P20:L22-30.
[26] Transcript P20:L30-P21:L24.
[27] Transcript P21:L35-37.
[28] Transcript P22:L5-6
In summary from the Court’s perspective, it does not have evidence before it in relation to any complaints by the Wife to the D Authority and the D Commissioner, as they relate to the Husband’s conduct in the Proceeding.
Senior Counsel opposed the orders sought by the Wife in the Wife’s Minute of Proposed Orders and submitted that to accede to such an application would be to “subvert the proper process” under legislation and be directly contrary to the policy that the Act has set out in s.121.[29]
[29] Transcript P8:L3-24.
I have reviewed the regulatory provisions of the legislation. I have summarised these provisions under the heading Relevant Legal Principles in these Reasons for Judgment. I agree with the submissions made by Senior Counsel. In the absence of any evidence before the Court in relation to complaints made by the Wife and any response, it is impossible to ascertain the status of any complaint investigation pursuant to the law, if any. Further I have reviewed the Wife’s allegations in the context of the requirements of Liberty Funding and Springfield Nominees and I am unable to find any special circumstance to accede to the Wife’s application on the evidence that is before the Court.
HUSBAND’S COSTS APPLICATION
As a result of the dismissal of the Wife’s 9 February 2022 Application in a Proceeding at the Interim Defended Hearing, Senior Counsel made an application for the Husband’s costs. These costs related to the preparation by the Husband’s Counsel of the Contempt Application Submissions (Exhibit R4). The difficulty with the submissions that were made by Senior Counsel at the Interim Defended Heading in relation to costs and the Contempt Application Submissions, is that they relate to an Application in a Proceeding prepared by the Wife and dated 9 February 2022, which had not been accepted for filing by the Court. This document was not before the Court at the Interim Defended Hearing. The Contempt Application Submissions refer to the Wife’s Application in a Proceeding, dated 9 February 2022 as the “Foreshadowed Contempt Application”.[30]
[30] Submissions by Counsel for the Husband in relation to the Wife’s 9 February 2022 Application in a Proceeding, (Exhibit R4), [1].
Subsequent to the Interim Defended Hearing I have been informed by the Court that on 8 February 2022 the Wife lodged with the Court an Application-Contempt (Contempt Application), together with an Affidavit in support of same. Both documents were rejected by a Victorian Registry on 9 February 2022.
On 9 February 2022 the Wife lodged an Application in a Proceeding which was sealed on 9 February 2022 and which was before the Court at the Interim Defended Hearing. On 9 February 2022 the Wife lodged an Affidavit, which was a duplicate of the Affidavit that was lodged on 8 February 2022 by the Wife. The Wife’s 9 February 2022 Affidavit was before the Court at the Interim Defended Hearing.
On 15 February the Wife filed a further Application in a Proceeding, which was sealed that day and which was before the Court at the Interim Defended Hearing.
On 14 May 2022 the Wife sent an email to my Associates Chambers advising that:
(a)There were three (3) applications, all listed for Interim Defended Hearing on 20 May 2022 being:
(i)Two (2) applications concerning the release from the implied Harman undertaking and s.121 of the Act: being the Wife’s 9 February 2022 Application in a Proceeding; and the Wife’s 15 February 2022 Application in a Proceeding; and
(ii)One application for contempt, seemingly the Contempt Application;
(b)The Contempt Application had been emailed to the Husband’s lawyers on 8 February 2022;
(c)The Contempt Application had not been accepted for filing and that the Wife emailed a Victorian Registry on 19 February 2022 seeking assistance, but the Contempt Application was still not appearing on the Commonwealth Courts Portal; and
(d)Forwarding a copy of the unsealed Contempt Application and the corresponding Court Book.
On 16 May 2022 a Registry advised my Associates’ Chambers that the Contempt Application had not been accepted for filing and that the Registry had contacted the Wife in February 2022 and advised her accordingly.
On 16 May 2022 my Associates’ Chambers responded to the Wife’s email dated 14 May 2022 (copied into the Husband’s lawyers) and advised the Wife that the Contempt Application had not been accepted for filing and that it was not listed on 20 May 2022, and as such no submissions would be received in relation to it at the Interim Defended Hearing.
At the Interim Defended Hearing the 9 February 2022 Application in a Proceeding was dismissed. Senior Counsel made submissions in relation to costs, however these submissions did not address the following:
(a)That the Contempt Application had not been filed. The document served on the Husband’s solicitors was not sealed and did not appear on the Commonwealth Courts Portal;
(b)That the Wife could not agitate a contempt application by way of the 9 February 2022 Application in a Proceeding, despite it referring to “charges” and the imposition of a “custodial sentence”, as an application for contempt must be filed in accordance with r.11.71 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth);
(c)The Court was not taking submissions in relation to the Contempt Application at the Interim Defended Hearing and the parties were advised that the Contempt Application would not be heard by email from my Associates’ Chambers, dated 16 May 2022; and
(d)Whether the Husband incurred any costs specifically in relation to the dismissal of the 9 February 2022 Application in a Proceeding.
It is not clear to me how the Court may order costs in relation to the Contempt Application which was not before the Court and has never been filed. In these circumstances, as a matter of procedural fairness I intend to afford the parties a further opportunity to provide written submissions on the matter of costs arising from the dismissal of the Wife’s 9 February 2022 Application in a Case. I have made orders with a timetable for the filing of written submissions accordingly.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kirton. Associate:
Dated: 30 June 2022
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