R Pty Ltd ATF the Fletcher Trust & Jones & Anor
[2016] FamCA 928
•4 November 2016
FAMILY COURT OF AUSTRALIA
| R PTY LTD ATF THE FLETCHER TRUST & JONES AND ANOR | [2016] FamCA 928 |
| FAMILY LAW – PRACTICE AND PROCEDURE - Limitation on the use of documents – Whether use of documents in Supreme Court proceedings would be a publication or dissemination to the public - Implied undertaking of disclosure - Whether the Court should permit the use of documents produced and disclosed in Family Court proceedings in Supreme Court proceedings between interrelated parties - Where the parties are subject to an implied undertaking not to use documents disclosed in family law proceedings - Where the documents are voluminous - Where matters of a personal and confidential nature are already in the public domain by reason of an earlier Supreme Court action |
| Family Law Act 1975 (Cth) ss 121, 121(9)(a) Family Law Rules 2004 (Cth) 6.15, 13.07A |
| Toric (1981) FLC 91-046 T and T (1984) FLC 91-588 Donnelly v. Edelsten & Ors (1988) FLC 91-937 Jago v District Court (NSW) (1989) 168 CLR 23 Attorney-General v Wurrabadlumba [1990] NTCCA 8; 74 NTR 5; 101 FLR 414 (5 December 1990) Re Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 472 In the matter of P (1993) FLC 92-376 Re W: Publication Application (1997) FLC 92-756 AH & SS [2005] FamCA 854, (2006) 34 FamLR 24 at 29 Hearne v Street (2008) 235 CLR 125 Northbuild Constructions Pty Ltd v Discovery Beach Project Pty Ltd [2009] QCA Ambridge Investments Pty Ltd (in Lia) (Receiver app’td) v Baker & Ors(No 3) [2010] VSC 545 Zarins & Mylne (No 3) [2013] FamCA 737 Hermann & Hermann [2014] FamCA 587 345Commissioner of Taxation &Darling[2014] FamCAFC 59 In the matter of Provident Capital Limited (recs & Mgrs. Apptd) (in liq) [2015] NSWSC 713 |
| APPLICANT: | R Pty Ltd as trustee for the Fletcher Trust |
| FIRST RESPONDENT: | Mr Jones |
| SECOND RESPONDENT: | P Pty Ltd CAN … as trustee for Jones Trust |
| FILE NUMBER: | BRC | 3721 | of | 2011 |
| DATE DELIVERED: | 4 November 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 31 October 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Savage QC with Mr Hackett |
| SOLICITOR FOR THE APPLICANT: | Hawthorn Cuppaidge & Badgery |
| COUNSEL FOR THE RESPONDENT: | Mr Williams |
| SOLICITOR FOR THE RESPONDENT: | Barry.Nilsson |
Orders
Pursuant to Rule 13.07A of the Family Law Rules 2004 (Cth) (“the Rules”) the Applicant and First and Second Respondents are permitted to disclose the contents of and provide a copy of all documents inspected or copied under the Rules in Family Court of Australia proceedings BRC3721/2011 for the purposes of the Queensland Supreme Court proceedings … and ...
The Applicant and First and Second Respondents are permitted to use all documents produced or disclosed (including correspondence) in Family Court of Australia proceedings BRC3721/2011 for the purposes of the Queensland Supreme Court proceedings … and ...
All outstanding applications are dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym R Pty Ltd ATF the Fletcher Trust & Jones And Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 3721 of 2011
| R Pty Ltd as Trustee for the Fletcher Trust |
Applicant
And
| Mr Jones |
First Respondent
And
| P Pty Ltd CAN … as trustee for the Jones Trust |
Second Respondent
REASONS FOR JUDGMENT
This application concerns the use that may be made of documents produced or disclosed (including affidavits, correspondence, disclosed documents, orders, transcripts, reasons for judgment) (“the documents”) in proceedings in the Family Court of Australia for the purposes of the proceedings recently commenced in the Supreme Court of Queensland.
During the hearing R Pty Ltd as trustee for the Fletcher Trust was substituted as the applicant in the Application in a Case filed 22 July 2016 without objection.
Relevant background facts
The parties to the Family Court proceedings were Ms Fletcher and Mr Jones (also known as Jones).
Ms Fletcher and Mr Jones lived in a de facto relationship from July 2002 to May 2009.
Ms Fletcher commenced proceedings seeking a property adjustment order on 5 May 2011.
At the time of commencement of the Family Court proceedings Ms Fletcher was the trustee and principal beneficiary of the Fletcher Trust (FT) and Mr Jones was the sole director and shareholder of P Pty Ltd which was the trustee of the Jones Trust. In addition, there were numerous other entities associated with Ms Fletcher and Mr Jones about which extensive disclosure was made and correspondence exchanged.
Commencing in 2002, Ms Fletcher (acting in her capacity as trustee of FT) and P Pty Ltd (acting in its capacity as trustee of JT) jointly acquired property which is referred to in the financial records prepared at the direction of Mr Jones as being the ‘FT/JT partnership’.
Ms Fletcher (acting in her capacity as trustee of FT) also made other investments which are referred to in the financial records prepared at the direction of Mr Jones as being the ‘S Partnership’.
During the Family Court proceedings various affidavits were sworn by Ms Fletcher and Mr Jones concerning inter alia the terms of the investments of the FT/JT partnership, the S partnership and the business affairs involving FT.
Ms Fletcher died intestate in 2014 and the proceedings were continued by her legal personal representative, Mr Cook (Ms Fletcher’s then husband), who was substituted for Ms Fletcher as a party pursuant to Rule 6.15 of the Family Law Rules 2004 (Cth) (“the Rules”).
As a consequence of her death, Ms Fletcher ceased to be the trustee and beneficiary of FT.
On 29 October 2014, Mr Cook was appointed the trustee of FT but retired as trustee on 4 May 2015 and in lieu, R Pty Ltd was appointed trustee of FT. Mr Cook’s father, Mr T Cook, is the sole director of R Pty Ltd.
The Family Court proceedings were resolved by agreement when an order was made by consent on 11 August 2015 (“the consent order”).
The order provided inter alia:
3. That Ms Fletcher and/or the Applicant [Mr Cook as legal personal representative] assign to the Respondent [Mr Jones]:-
(a) All debit balances in any loan accounts owing to or by Ms Fletcher and/or the Applicant in the entities, trusts and partnerships particularised in Annexure A hereof (“The Jones Group Entities”);
(b) All credit balances in any loan accounts owing to or by Ms Fletcher and/or the Applicant in The Jones Group Entities; and
(c) All liabilities owing by Ms Fletcher and/or the Applicant in The Jones Group Entities.
and the Respondent agrees to assume full responsibility for any liabilities mentioned above and indemnify Ms Fletcher and/or the Applicant in relation to same.
Annexure A to the order identified numerous companies, trusts and partnerships, in particular, the Jones Trust & Fletcher Trust Partnership, S Partnership, U Partnership, V Partnership, W Partnership and all of the unit trusts about which there is now litigation in the Supreme Court of Queensland.
The order included the following Notation:
B. The Applicant and Respondent agree and acknowledge that all matters relating to the assets of the [Fletcher] Trust will be resolved outside the jurisdiction of the Family Court of Australia and the terms of these Orders do not act as a bar to, or estoppel by, the Respondent personally or as trustee of the [Jones] Trust (or any of the [Jones] Group Entities) bringing or prosecuting any claim and/or cause of action they or each of them may have or have had against the Trustee of the [Fletcher] Trust in relation to the following:
a.The claim of the Respondent and/or the [Jones] Trust to a 4.5% beneficial interest in the [S] Partnership (including the units in the thirteen [S] Trusts more specifically described in point 9 of Annexure A under the hearing “Trusts”) offset by an amount equal to the original equity contribution of the [Fletcher] Trust towards the acquisition of that interest (and the units described above);
b.The claim of various [Jones] Group entities to rectification of the title to the [X] Street car parks (more particularly described as Lots … on …) whereby a 1/16th interest was mistakenly registered in name of the [Fletcher] Trust; and
c.The claim of the [S] Partnership to indemnity costs in relation to Supreme Court proceedings … and … of 2015.
None of the entities referred to in Annexure A to the consent order were a party to the Family Court proceedings although Mr Jones deposes as follows:
11. The consent orders not only dealt with [Ms Fletcher] and my respective interests in personal property but sought to bind third parties including the [Fletcher] Trust.
As part of the Family Court proceedings, extensive material was disclosed in relation to the numerous entities and partnerships referred to in Annexure A of the consent order. For instance, the affidavit of Mr Jones filed 27 March 2015 and relied upon by the applicant at this hearing (by way of background) annexes 2167 pages of financial material and other documents relating to the various entities and investments.
In early 2015 Mr Jones in his capacity as sole director and shareholder of P Pty Ltd commenced proceedings in the Supreme Court of Queensland seeking to set aside creditor’s statutory demands served by FT which concerned the S Partnership.
On 9 March 2015 Mr Jones made application to the Family Court which resulted in an order being made in the following terms:
1.The parties be at liberty to use the following documents, or parts thereof for the purpose of extant Supreme Court of Queensland proceedings between the applicant and [P Pty Ltd], namely:
(a)Affidavit of [Ms Fletcher] filed 28 November 2011;
(b)Affidavit of [Ms Fletcher] filed 15 May 2012;
(c)Affidavit of [Ms Fletcher] filed 6 August 2012;
(d)Affidavit of [Ms Fletcher] filed 12 September 2013;
(e)Affidavit of [Ms Fletcher] filed 23 July 2014;
(f)Affidavit of Ms Fletcher 15 August 2014;
(g)Affidavit of [Mr Jones] filed 17 February 2012;
(h)Affidavit of [Mr Jones] filed 14 August 2014;
(i)Financial Statement of [Mr Jones] filed 17 June 2011;
(j)Financial Statement of [Ms Fletcher] filed 13 September 2013;
(k)Further Amended Response to Initiating Application by [Mr Jones] filed 22 December 2014;
(l)Expert Report of [Q Forensics] dated 16 February 2015;
(m)Financial Statements for the [Fletcher] Trust for the financial years ending 2011, 2012, 2013;
(p)Reasons for Judgment of the Honourable Justice Bell dated 29 November 2012;
(q)Notice to Admit Facts filed by the Applicant on 10 December 2014; and
(r)Notice Disputing Facts filed by the Respondent on 23 December 2014.
P Pty Ltd succeeded in its application in the Supreme Court. As a result of those proceedings, Mr Jones and Ms Fletcher’s relationship and private financial affairs were the subject of considerable media attention.
Further proceedings have now been commenced in the Supreme Court of Queensland. R Pty Ltd as trustee for FT commenced proceedings in the Supreme Court of Queensland in May 2016 (“the new Supreme Court proceedings”). The new Supreme Court proceedings are firstly against P Pty Ltd concerning the FT/JT Partnership (...) and secondly against P Pty Ltd and Mr Jones concerning FT and various partnerships and trusts referred to in Annexure A to the consent order (4849/16).
The relief sought in the new Supreme Court proceedings includes the appointment of trustees for sale of certain real property owned by the FT/JT Partnership, declarations in relation to the dissolution of the FT/JT Partnership and the partnership between FT and other trusts, declarations in relation to the redemption of units in certain trusts and reinstatement of FT as the holder of the units, the appointment of receivers and the taking of accounts.
The new Supreme Court proceedings challenge the accuracy of the partnership accounts which were maintained by or at the direction of Mr Jones. In addition it is alleged that P Pty Ltd has breached its fiduciary obligations to the partnership by making unsecured loans to itself.
In the new Supreme Court proceedings, Mr Jones in his capacity as sole director and shareholder of P Pty Ltd as trustee for the JT denies the existence of the partnerships other than ‘for taxation purposes’. He relies upon alleged oral agreements between himself and Ms Fletcher (in their various capacities) in relation to the acquisition of the properties and other investments. It is also alleged that certain loans made to the JT and FT ‘Partnership’ were made in Ms Fletcher’s personal capacity. Accordingly, it is alleged that any such alleged entitlement of FT was in fact owned by Ms Fletcher in her personal capacity and therefore compromised in the Family Court proceedings.
In addition, Mr Jones has already filed an affidavit in the new Supreme Court proceedings identifying his business strategies and investors ; his conversations with Ms Fletcher about their business dealings and investments; his conversations with her about her intentions for her children upon her death; his bill facilities with the National Australia Bank and difficulties about those facilities not being extended; the extent of financial accommodation provided by NAB to the Jones Group etc.
Mr Cook, in his capacity as a party to the Family Court proceedings between Mr Jones and Mr Cook as the legal personal representative of Ms Fletcher, consents to the application made by the applicant.
Order sought by R Pty Ltd as trustee for the Fletcher Trust (“the applicant”)
The order sought by the applicant (as amended)[1] is as follows:
(1)That the Applicant and Respondents be granted approval to publish documents produced or disclosed for the purpose of the proceedings (P)BRC3721/11 including correspondence (“the documents”) in Queensland Supreme Court proceedings … and ….
(2)That the Applicant and Respondents be released from the implied undertaking in respect of the documents for use in Queensland Supreme Court proceedings ... and ....
(3)Such further or other order as the court considers appropriate.
[1] Mr Savage QC sought leave to amend without objection and a minute of the amended application was received after the hearing which has been marked exhibit 6. Notably the application to be able to use the documents in proceedings that have not yet commenced was no longer pressed.
Order sought by Mr Jones and P Pty Ltd (“the respondents”)
The order sought by the respondents is as follows:
(1)That Orders 1 – 3 of the Application in a Case filed by [R Pty Ltd as trustee for the Fletcher Trust] be dismissed.
(2)That the First and Second Respondents be released from the implied undertaking not to publish documents produced or disclosed in proceedings (P)BRC3721/2011 as set out below for publication in Queensland Supreme Court proceedings … and …:
(a)Consent Orders dated 27 September 2001 between [Ms and Mr Fletcher]
(b)Initiating Application filed 5 May 2011
(c)Affidavit of [Ms Fletcher] sworn 9 September 2013
(d)Affidavit of [Ms Fletcher] sworn 16 May 2014
(e)Affidavit of [Ms Fletcher] sworn 23 July 2014
(f)Affidavit of [Ms Fletcher] sworn 15 August 2014
(g)Written submissions of Counsel for the Applicant dated 18 August 2014
(h)Transcript of Proceedings dated 18 August 2014
(i)Amended Initiating Application filed 27 August 2014
(j)Amended Initiating Application filed 1 December 2014
(k)Affidavit of [Mr Cook] sworn 3 December 2014
(l)Reasons for Judgment of Justice Stevenson dated 22 December 2014
(m)Affidavit of [Mr Cook] sworn 12 February 2015
(n)Orders dated 11 August 2015
(o)FT Financial Statements and Taxation Returns for the financial years ending 2011, 2012 and 2013
(p)Letter from Barry.Nilsson. Lawyers dated 13 February 2014
(q)Notice to Admit Facts filed 6 June 2014
(r)Notice Disputing Facts or Documents filed 20 June 2014
(s)Letter from Barry.Nilsson. Lawyers dated 18 June 2014
(t)Letter from Y Lawyers dated 25 June 2014
(u)Letter from Barry.Nilsson. Lawyers dated 8 July 2014
(3)That such leave be approved to the Supreme Court of Queensland (Brisbane Registry) and the offices (sic) of that Court.
(4)Any other Order that the Court deems meet.
Limitations on the use of documents
There are a number of restrictions imposed on the use of documents produced, disclosed or subpoenaed for proceedings in this Court. The restrictions in relation to the use of information and documents apply not only to a party to Family Court litigation but also to strangers to that litigation.[2]
[2] Commissioner of Taxation &Darling[2014] FamCAFC 59
Section 121 restricts the publication or dissemination of information and documents save for specified exemptions or with approval of the Court.
Rule 13.07A of the Rules restricts the use of documents inspected or copied to the case only, save where the Court permits otherwise.
Further, there may be an implied undertaking not to disclose documents or information for any purpose other than for which it was given save where it has been received into evidence or where the person has been relieved from the implied undertaking.[3]
Purpose of section 121 of the Family Law Act 1975 (Cth) (“the Act”)
[3] Hearne v Street (2008) 235 CLR 125
Section 121 of the Act relevantly provides:
Restriction on publication of court proceedings
(1)A person who publishes … 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.
(4) – (8) …
(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
…
[emphasis added]When the Act was passed in 1975, s 121 of the Act (in an earlier form) was inserted to prevent “prurient reporting that had occurred prior to the passing of the Family Law Act in relation to parties who were involved in divorce proceedings.”[4]
[4] AH & SS [2005] FamCA 854, (2006) 34 FamLR 24 at 29.
A number of cases in this Court and others[5] have considered the meaning of “publishes … or otherwise disseminates to the public or to a section of the public” and in my view the proposed use of the documents does not breach s 121.
[5] In the matter of P (1993) FLC 92-376; Toric (1981) FLC 91-046; T and T (1984) FLC 91-588; Re W: Publication Application (1997) FLC 92-756Attorney-General v Wurrabadlumba [1990] NTCCA 8; 74 NTR 5; 101 FLR 414 (5 December 1990).
In Donnelly v. Edelsten & Ors[6] Mrs Edelsten was summonsed to give evidence in her husband’s bankruptcy proceedings. When considering whether Mrs Edelsten would be rendered liable for prosecution if she answered questions about proceedings between herself and her husband, in the Family Court of Australia, Morling J said:
[6] (1988) FLC 91-937 at 76,775.
Quite apart from the involuntary nature of such answers, I do not think a witness who gives such answers disseminates to "the public'' the information contained in the answers. The publication, if it be regarded as such, is to the court. Cf. T and T where a Full Court of the Family Court of Australia held that the transmission of documents to the Attorney-General or to responsible officers in his department was not a publication to the public or to a section of the public of the information contained in the documents.
Counsel for the Deputy Commissioner submitted, in my view correctly, that in the context of sec. 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.
Prior to amendments made to the Family Law Act in 1983, sec. 121(1) provided as follows:
"121(1) A person shall not print or publish —
(a)any statement or report that proceedings have been instituted in the Family Court or in another court exercising jurisdiction under this Act; or
(b)any account of evidence in proceedings instituted in the Family Court or in another court having jurisdiction under this Act, or any other account or particulars of any such proceedings.''
Section 121(1), in its old form, was considered by a Full Court of the Family Court [76776] of Western Australia in In the Marriage of Bateman and Patterson (1981) 51 F.L.R. 263. It was there held that the use of pleadings, affidavits and transcript of evidence in Family Court proceedings in proceedings under the Bankruptcy Act did not amount to publishing that material within the meaning of sec. 121(1) of the Act in its then form. This decision is consistent with the view I take of the Act in its present form.
Even if I had been of the view that sec. 121(1) of the Family Law Act applies to answers given by a witness examined under sec. 81 of the Bankruptcy Act, I would have held that the wife would be protected by the provisions of sec. 121(9)(a) of the Family Law Act, which provides as follows:
"121(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.''
Section 121(9)(a) was substituted in 1983 for the former sec. 121(5)(a) which, in relevant respects, was in almost identical terms. In R. v. Howe (1978) 19 S.A.S.R. 303 the Court of Criminal Appeal of South Australia held that the former sec. 121(5)(a) operated so as to exclude from the operation of the former sec. 121(1) (which was in terms not dissimilar to sec. 121(1) of the Family Law Act in its present form), a reference by counsel to evidence given in proceedings in the Family Law Court by persons against whom proceedings were subsequently brought in the Criminal Court. I respectfully agree with this decision. In Howe, the Court held that the phrase "persons concerned in the proceedings'' in sec. 121(5)(a) were apt to include, inter alios, judge, counsel, reporters and any members of the public present in court. Section 121(9)(a) was inserted into the Family Law Act after Howe's case was decided. I think it is plain that the legislature must have intended that sec. 121(9)(a) should give the same immunity from prosecution as was given by the almost identical provision which it replaced. It therefore seems to me that if answers given by the wife disclose something that appears in the transcript in the Family Court, she would be protected by sec. 121(9)(a).
I accept the submissions of counsel for the applicants and respondents that the proposed use of the documents is not a breach of s 121 because it is not intended to publish or disseminate within the meaning of s 121(1) and in any event the proposed use is an exemption within the meaning of s 121(9)(a).
Rule 13.07A
Rule 13.07A was inserted into the Rules in 2015 and became effective on 1 January 2016. It provides:
Use of documents
A person who inspects or copies a document, in relation to a case, under these Rules or an order:
(a)must use the document for the purpose of the case only; and
(b)must not otherwise disclose the contents of the document, or give a copy of it, to any other person without the court's permission.
Although this rule is found in Division 13 which relates to the Duty of Disclosure, the rule is not, on its face, limited to documents produced pursuant to such a duty but extends to a document inspected or copied under the Rules generally and it would apply to at least some of the documents sought to be used by the parties.
There is no guidance in the Rules as to what matters should inform the Court’s discretion in granting permission but I accept Mr Savage QC’s submission that the considerations relevant to determining whether a person should be relieved from an implied undertaking not to use the documents should apply.
Is there an implied undertaking not to use the documents
While often referred to as an undertaking it is in fact a substantive legal obligation to the Court.[7] In the High Court decision of Hearne v Street[8] the nature of the undertaking was described as follows:
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. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.
[footnotes omitted][7] Hearne v Street (2008) 235 CLR 125 at [3].
[8] (2008) 235 CLR 125 at [96].
The purpose of the undertaking is to preserve privacy and confidentiality so far as reasonably possible while ensuring that justice is done.[9]
[9] Hearne v Street (2008) 235 CLR 125 at [107].
The Family Court of Australia is a superior Court of record created by Statute. It has the jurisdiction and powers devolved to it by the Act and Rules but it also has power to control and manage its own process.[10] In my view, this would include the power to limit the use of documents produced or disclosed in proceedings before it, quite apart from any statutory provision to that effect.
[10] Jago v District Court (NSW) (1989) 168 CLR 23 at 74
As observed by the High Court in Hearne it is not uncommon for this general law protection to be “buttressed by protection from rules of court.”[11]
[11] (2008) 235 CLR 125 at [98]
I am satisfied therefore that the parties are subject to an implied undertaking not to use the documents save as exempted or permitted.
Competing arguments
Mr Savage QC for the applicant submitted that the commonality in subject matter and interested parties should weigh heavily in favour of acceding to the application. The consent order itself notes that all matters relating to the assets of the Fletcher Trust will be resolved outside the jurisdiction of the Family Court of Australia. He submits that Mr Jones has himself already caused personal and business matters to be placed in the public domain by the proceedings commenced by him in the Supreme Court last year.
Mr Williams for the respondents resists the order sought by the applicant because of the lack of specificity of particular documents; the prejudice to Mr Jones because of media interest and potential disclosure of personal and commercially sensitive material and the conduct of the applicant (or its predecessor). He notes the extensive nature of the filed material and disclosed material and submits that not all of it could be relevant to the new Supreme Court proceedings. Mr Williams does not particularise any commercially sensitive material other than to rely upon the assertion by Mr Jones that the material produced in the Family Court proceedings is “by its nature, commercially sensitive and personal”.
Mr Williams submits that there are special circumstances warranting the respondents being able to use the documents specified in the amended Response because those documents are relevant to the factual disputes apparent on the face of the new Supreme Court proceedings pleadings.
How should the documents be identified
A significant issue in this hearing focussed on the extent to which the documents need to be identified.
Mr Williams submitted that the application by the Applicant must fail at the threshold as the documents are not sufficiently specified and referred to a number of authorities to support that proposition.[12]
[12] Ambridge Investments Pty Ltd (in Lia) (Receiver app’td) v Baker & Ors (No 3) [2010] VSC 545; In the matter of Provident Capital Limited (recs & Mgrs. Apptd) (in liq) [2015] NSWSC 713; Zarins & Mylne (No 3) [2013] FamCA 737
Mr Savage QC submitted that the applicant resists such specificity stating that the applicant “requires access to all court documents, disclosed documents and correspondence” and that it does not “intend to explain to Jones the forensic use of the documents either at or before trial”.
I observe that a comprehensive list would necessarily be extensive given the evidence that the documents disclosed in the Family Court proceedings exceeded some 12,000 pages.
Despite that submission, Mr Savage QC for the applicant identified some particular documents sought to be used by reference to the record of documents filed (taken from the court portal) in the Family Court proceedings (exhibit 5). It includes applications, responses, affidavits, financial statements, case summaries, written submissions and lists of documents identifying documents disclosed in the proceedings but it does not purport to be a comprehensive list of the documents sought to be used. Some of the documents in exhibit 5 are also sought to be used by the respondents.
Mr Williams for the respondents submitted that even where a complete list is provided each document must be relevant to an issue in dispute in the new Supreme Court proceedings and that if there were a dispute about relevance the Court would need to consider the document and make a ruling as to its relevance. Such a task could conceivably take months given the breadth of documentation produced and disclosed in this case. I was not taken to any authority to support that proposition.
It is important to observe that even if an order is made granting the parties permission to use the documents for the purposes of the new Supreme Court proceedings that does not mean that the documents will suddenly be in the public domain. It will simply permit the applicant and respondents to use such of the documents that they consider will be advantageous in their prosecution of the new Supreme Court proceedings. They will each remain bound by their implied undertakings not to use the documents for any purpose other than those proceedings.
While I accept that in many cases where an application of the type presently before me a particular document or documents would be specifically identified I am not persuaded, in the particular circumstances of this case, that specificity of the type submitted by Mr Williams is required.
The cases to which I have been referred can be distinguished by reason of the very different nature of the proceedings for which documents were required to be used and the absence of any interrelationship between the parties and the dispute.
The commonality of the dispute, the interrelationship of the parties and the time and cost that would be associated with a task as proposed by the respondents cause me to find that a more general identification of the documents is permissible in this case. It is also relevant that Mr Jones has already caused personal and confidential information to become available in the public domain by the earlier Supreme Court proceedings.
In what circumstances can a person be released from an implied undertaking
A person may be released from an implied undertaking not to use the documents where there are special circumstances which would justify that course. In Re Springfield Nominees Pty Ltd v Bridgelands Securities Ltd[13] Wilcox J said that for special circumstances to exist “it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present”. While Wilcox J cautioned against prescribing an exhaustive list of factors that might lead to a finding of special circumstances he did identify the following matters as relevant:
… the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the documents came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.
[13] [1992] FCA 472 at [26]; see also Hermann & Hermann [2014] FamCA 587
In most of the cases to which I have been referred the purpose to which the disclosed documents were put had no connection with the prosecution of the proceedings in which and for which they were produced. The use was clearly improper.
In the case of Northbuild Constuctions Pty Ltd v Discovery Beach Project Pty Ltd[14] the documents sought to be used concerned the same parties and the same dispute although the dispute was being agitated in both the Supreme Court and at arbitration. When considering the nature of the implied undertaking Chesterman JA said:
[50] The scope of the undertaking may be better expressed by saying that documents produced on discovery or other compulsive process may only be used for a purpose connected with or related to the determination of the dispute in which the parties are engaged and to assist in the resolution of which the documents were required. Such a formulation extends to the determination of disputed rights other than by trial.
[14] [2009] QCA 345
Chesterman JA was of the view that the use of the documents that had been disclosed in the Supreme Court could be used for cross-examination purposes in the arbitration without breaching the implied undertaking but he nevertheless agreed with the proposed orders granting permission.
In the present case it could not be said that the dispute is the same in both courts nor indeed that the parties are the same. However I accept, as submitted by Queen’s Counsel for the applicant that there is a commonality of subject matter and interrelationship between the parties. Further, it was specifically anticipated at the time of the consent order that the disputes relating to the assets of FT would be determined in another jurisdiction.
Conclusion
Significant factual disputes are apparent on the face of the pleadings in the new Supreme Court proceedings. By way of example, the applicant alleges the existence of a partnership between FT and JT which is denied by the respondents. The applicant wishes to rely upon documents produced by Mr Jones in the Family Court proceedings which are said to be inconsistent with his pleadings in the new Supreme Court proceedings. Cross-examination on issues of credit is fundamental to most litigation and can be a basis to permit use of the documents.[15] In the new Supreme Court proceedings the accuracy of the loan accounts, accounting treatment of the investments and use of funds for the partnership and FT and JT are put in issue as are the terms of the investments comprising the FT/JT Partnership and the S Partnership.
[15] Northbuild Constructions Pty Ltd v Discovery Beach Project Pty Ltd [2009] QCA 345 at [17]; see also Laen Pty Ltd v At the Heads Pty Ltd [2011] VSC 315
It seems to me inconceivable that the applicant could not use the documents in the new Supreme Court proceedings.
The mischief sought to be prevented by the Act, Rules and implied undertaking it is to protect the privacy of a party and prevent information and documents that were disclosed for the purpose of particular litigation being wrongly used in other litigation or for other purposes.
It is relevant that matters of a personal and confidential nature are already in the public domain by reason of Mr Jones earlier Supreme Court action and have been referred to in the media. The information disclosed by Mr Jones in his affidavit already filed in the new Supreme Court proceedings is now on the public record in that any person paying the prescribed fee could search the Supreme Court file and obtain the information.
In my view, given the significant commonality in the subject matter and interrelationship between the parties and relevant entities, the applicant and respondents would be at a considerable disadvantage if they could not use documents in the new Supreme Court proceedings not least because a principal witness to so many relevant matters is now deceased.
The purpose of granting the parties relief from their implied undertaking is to enable each of them to properly prepare and present their respective cases in the new Supreme Court proceedings.
In my view it is plainly in the interests of justice that each party be at liberty to use the documents in the new Supreme Court proceedings.
The order should in my view reflect the words of Rule 13.07A and the implied undertaking and will apply to all documents produced and disclosed in the Family Court proceedings.
I note that the respondents include in the documents they seek to use the following:
(a)Transcript of Proceedings dated 18 August 2014;
(b)Reasons for Judgment of Justice Stevenson dated 22 December 2014; and
(c)Orders dated 11 August 2015.
In can be observed that none of these documents were produced or disclosed by the parties. In my view they do not fall within the category of documents covered by Rule 13.07A or the implied undertaking. Any restriction on their use would be pursuant to s 121 of the Act and for the reasons already given I do not regard the proposed use to be in breach of that section.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 3 November 2016.
Associate:
Date: 3 November 2016
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