SIMONS & SIMONS

[2020] FamCA 622

FAMILY COURT OF AUSTRALIA

SIMONS & SIMONS [2020] FamCA 622

FAMILY LAW – PRACTICE AND PROCEDURE – Harman obligation – Where the applicant seeks leave to be released from the implied undertaking not to use documents and information obtained under compulsion in family law proceedings in the conduct of proceedings in the County Court of Victoria – Where the respondent makes no submissions and indicates that she does not consent to or oppose the application – Where the applicant asserts that there are special circumstances, the nature of which justifies release from the undertaking – Where, in circumstances where no submissions are made in opposition, leave is granted

Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; [1995] HCA 19
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

Springfield Nominees Pty Ltd & Ors & Bridgelands Securities Ltd & Ors (1992) 38 FCR 217

APPLICANT: Mr Simons

RESPONDENT: Ms M Simons

FILE NUMBER: MLC 2476 of 2010

DATE DELIVERED: 31 July 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: McEvoy J

HEARING DATE: 31 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Stavris

SOLICITOR FOR THE RESPONDENT: Katherine Moorhouse Perks

Orders

1. That the interim hearing listed before the Honourable Justice McEvoy on 3 August 2020 at 2.15 pm be vacated.

2. That the applicant, Mr Simons, be released from his obligation not to use the documents from Family Court of Australia proceeding MLC2476 of 2010 listed in Exhibit S-02 of his affidavit filed 29 July 2020 in County Court of Victoria proceeding No. ...

3. That the applicant’s Initiating Application filed 29 July 2020 otherwise be 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 Simons & Simons 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 MELBOURNE

FILE NUMBER: MLC 2476 of 2010

Mr Simons

Applicant

And

Ms M Simons

Respondent

REASONS FOR JUDGMENT

1. By an application filed 29 July 2020 the applicant, Mr Simons, seeks leave to use documents previously filed and referred to in proceeding MLC2476/2010 in this Court for the purposes of pursuing a strike out application in response to a claim brought against him in proceeding ... in the County Court of Victoria by his eldest daughter, Ms M Simons.

2. Ms M Simons is the respondent to the application in this Court. Through her solicitor she has informed the Court by email on 30 July 2020 that she will not be appearing at the hearing of the application which has been listed for 3 August 2020. Her solicitor has advised the Court, also by email on 30 July 2020, that she neither consents to nor opposes the application. It is to be noted that the respondent has not sought an adjournment of the hearing of the application, or further time to consider it and make submissions in opposition.

3. In these circumstances it is convenient to deal with the application on the papers.

4. The applicant seeks to be released from the implied undertaking recognised by the High Court in Hearne v Street (2008) 235 CLR 125 not to use documents and information obtained under compulsion in one proceeding in the conduct of another proceeding, unless leave of the court where the documents were first obtained is granted.

5. The documents in respect of which leave is sought are identified in paragraph 9 of the applicant’s submissions dated 29 July 2020 and exhibit S-02 of the applicant’s unsworn affidavit filed 29 July 2020. I proceed on the basis that, consistently with Joint Practice Direction 2 of 2020, the applicant would have been available by videoconference at the hearing of the application to swear or affirm that the contents of the document are true and correct to the best of his knowledge, information and belief.

6. The applicant asserts that there are special circumstances, the nature of which justifies release from the undertaking: see Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10, 37; Springfield Nominees Pty Ltd & Ors & Bridgelands Securities Ltd & Ors (1992) 38 FCR 217. These circumstances are set out in paragraphs 11-25 of the applicant’s submissions. The essence of them is that the documents in question are highly relevant to the applicant’s defence of the County Court proceeding, and that they are likely to make a contribution to achieving justice in the County Court proceeding.

7. It is difficult to assess the strength of the applicant’s claim in the absence of contradicting submissions on the question of the existence of special circumstances as a basis for release from the implied undertaking, and in particular on whether release of the documents is likely to make a contribution to achieving justice in the County Court proceeding.

8. Nonetheless, in the absence of any explicit opposition to the applicant’s request for release from his undertaking, I am prepared to give the applicant the benefit of the doubt. Whether or not the documents are as relevant as the applicant contends, and whether they contribute to achieving justice in the County Court proceeding, is a matter which can be left for resolution in the County Court.

9. There will, accordingly, be orders broadly in the terms sought by the applicant in his Initiating Application, together with an order vacating the interim hearing listed for 3 August 2020. The orders will be as set out at the commencement of these reasons.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 31 July 2020.

Associate:     

Date:              31 July 2020