Stinson and Stinson and Anor - [2012] FamCA 520

FAMILY COURT OF AUSTRALIA

STINSON & STINSON AND ANOR

[2012] FamCA 520

FAMILY LAW - PRACTICE AND PROCEDURE - Confidentiality agreement - Implied undertaking and circumstances under which an express undertaking can be sought - An undertaking in either form is really an acknowledgement of an obligation to keep documents confidential - Problems of court control - Need for court to define limits if undertaking orders.

Family Law Act 1975 (Cth)

Esso Australia Resources Limited v Plowman (1995) 183 CLR 10
Hearne v Street (2008) 235 CLR 125
Vincenzo [2012] FamCA 427

APPLICANT:

Ms Stinson

RESPONDENT:

Mr Stinson

INTERVENOR:

Mr Hunt

FILE NUMBER:

MLC

9869

2011

DATE DELIVERED:

9 July 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

26 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Glick SC with Mr Sweeney

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT:

Mr Geddes QC

SOLICITOR FOR THE RESPONDENT:

Kennedy Partners

COUNSEL FOR THE INTERVENOR:

Mr Brown SC with Mr Weil

SOLICITOR FOR THE INTERVENOR:

HWL Ebsworth Lawyers

Orders

That the wife forthwith execute an acknowledgement addressed to the applicant that she will keep all documents provided by him confidential and that they will not be used for any other purpose than the proceedings.
That the wife’s firm of solicitors execute an acknowledgement addressed to the applicant that:
(a)they will keep all documents provided by him confidential and that they will not be used for any other purpose than the proceedings;
(b)they will advise all professional advisers of the wife of that acknowledgement with a request that before being given any documents, they too will keep the documents confidential;
(c)they will ensure all their staff and agents are aware of their acknowledgement.
That for the purposes of paragraph 1, the wife’s acknowledgement include a statement that a breach of that confidentiality may expose her to an application:
(a) for damages; and
(b) that she be dealt with for contempt of court.
That for the purposes of paragraph 2, the solicitors acknowledgement include a statement that a breach of that confidentiality may expose them to an application:
(a) for damages; and
(b) that they be dealt with for contempt of court,
including in relation to breaches by staff, agents and other engaged professionals.
The application filed 18 May 2012 be otherwise dismissed save as to issues of costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stinson & Stinson and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9869 of 2011

Ms Stinson

Applicant

And

Mr Stinson

Respondent

And

Mr Hunt

Intervener

REASONS FOR JUDGMENT

In the property proceedings between the husband and the wife, an issue has arisen involving third party discovery. The third party is Mr Hunt who is involved in commercial ventures with the husband.
On 10 April 2012, Registrar Field ordered the husband…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FamCA 520
Decision Date: 9 July 2012

CaseChat Overview and Summary

In *Stinson and Stinson and Anor*, heard by Cronin J, the dispute concerned the confidentiality of documents provided by the applicant husband to the respondent wife and her legal representatives. The wife's firm of solicitors was also involved in the proceedings, and the court was asked to make orders regarding the handling and use of these documents.

The primary legal issues before the court were whether to grant orders requiring the wife and her solicitors to maintain the confidentiality of documents provided by the husband, and what consequences should attach to any breach of such confidentiality. Specifically, the court had to determine the scope of the confidentiality obligations and the potential remedies available to the applicant in the event of a breach.

Cronin J reasoned that it was appropriate to impose strict confidentiality obligations on both the wife and her solicitors to protect the documents provided by the husband. The court ordered that the wife must forthwith execute an acknowledgement confirming her commitment to keeping all documents provided by the applicant confidential and using them solely for the purposes of the proceedings. Similarly, the wife's solicitors were ordered to execute an acknowledgement undertaking the same confidentiality obligations, and to ensure that their professional advisers, staff, and agents were also made aware of and bound by these undertakings. The court further stipulated that a breach of these confidentiality obligations by either the wife or her solicitors could expose them to applications for damages and for contempt of court.

The application filed on 18 May 2012 was otherwise dismissed, with the court reserving issues of costs.

Orders

Orders of the court

That the wife forthwith execute an acknowledgement addressed to the applicant that she will keep all documents provided by him confidential and that they will not be used for any other purpose than the proceedings.

That the wife’s firm of solicitors execute an acknowledgement addressed to the applicant that:

(a) they will keep all documents provided by him confidential and that they will not be used for any other purpose than the proceedings;

(b) they will advise all professional advisers of the wife of that acknowledgement with a request that before being given any documents, they too will keep the documents confidential;

That for the purposes of paragraph 1, the wife’s acknowledgement include a statement that a breach of that confidentiality may expose her to an application:

(a) for damages; and

(b) that she be dealt with for contempt of court.

That for the purposes of paragraph 2, the solicitors acknowledgement include a statement that a breach of that confidentiality may expose them to an application:

(a) for damages; and

(b) that they be dealt with for contempt of court,

including in relation to breaches by staff, agents and other engaged professionals.

The application filed 18 May 2012 be otherwise dismissed save as to issues of costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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