Strahan and Strahan and Anor - [2015] FamCA 992

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN & ANOR

[2015] FamCA 992

FAMILY LAW – EVIDENCE – where consideration is given to the Harman obligation – where the second respondent is the business partner of the first respondent – where the second respondent is restrained from using, disseminating, publishing or relying upon any affidavit filed in these proceedings in the proceedings returnable in the High Court of the Hong Kong Special Administrative Region Court of First Instance –– where permission is required to use the affidavit material for any other purpose – where the respondent has liberty to bring an application to have the implied obligation set aside.

Family Law Act 1975 (Cth)

Hearne v Street (2008) 235 CLR 125

Thornton v WorkCover Corporation of South Australia [2009] Fam CA 449

APPLICANT:

Mr Strahan

RESPONDENT:

Ms Strahan and Another

SECOND RESPONDENT:

Mr TA

FILE NUMBER:

ADF

228

2005

DATE DELIVERED:

6 November 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

6 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wilson

SOLICITOR FOR THE APPLICANT:

Kennedy Partners

COUNSEL FOR THE RESPONDENT:

Mr Kenny

SOLICITOR FOR THE RESPONDENT:

Winter & Co

COUNSEL FOR THE SECOND RESPONDENT:

N/A

SOLICITORS FOR THE SECOND RESPONDENT:

N/A

Orders

During the period of the adjournment the second respondent is hereby restrained and an injunction is granted restraining him by himself, his servants and/or his agents from using, disseminating, publishing, or relying upon any affidavit filed in these proceedings and in particular but not limited to using any such affidavit in the proceedings returnable in the High Court of the Hong Kong Special Administrative Region Court of First Instance, action number 1095 of 2015.
The second respondent has liberty to make urgent application to set aside the injunction during the period of adjournment provided that written notice is given to the other parties at least two (2) business days before such request is made to the Court.
Further consideration of Application in a Case filed 3 November 2015 is adjourned to 28 January 2015 at 11:30 am before the Honourable Justice Dawe.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Strahan & Strahan & 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 ADELAIDE

FILE NUMBER: ADF 228 of 2005

Mr Strahan

Applicant

And

Ms Strahan

Respondent

And

Mr TA

EX TEMPORE REASONS FOR JUDGMENT

This is an urgent hearing of an Application in a Case filed on 3 November 2015 by the husband in these matrimonial proceedings between him and his former wife, Ms Strahan. The application seeks urgent orders. The matter was listed before me urgently following upon the receipt of the documents, together with the letter from Kennedy Partners, the solicitors for the applicant husband, dated 29 October 2015, which has been referred to in the hearing of this matter and, therefore, should become an exhibit. (Exhibit 1).
The matter came on before me today. There is no appearance by or on behalf of the second respondent, Mr TA. Information I have obtained from the bar table indicates that the solicitors for the second respondent, Mr TA, in Hong Kong have been sent the documents by email, but there has been no response. It would appear that at the best they received it some time Wednesday of this week and, therefore, the matter cannot be considered to be one in which they have failed to respond. Rather, I am requested to and am dealing with it as if it were an ex parte matter.
Taking into account the orders sought and the timing of the Hong Kong proceedings, I am satisfied that, based on the material before me, it is appropriate and just to consider the matter on an ex parte basis to make orders during the period of the adjournment.
The wife in these proceedings is represented by counsel today who, quite properly with the need to take instructions, seeks an adjournment of the matter. I propose to adjourn the matter, but need to consider the application to make the ex parte orders during the period of the adjournment and give leave to the second respondent to bring an urgent application to set aside the injunction during the period of the adjournment.
The affidavit material which I consider, is the affidavit of the applicant husband sworn on 29 October 2015, which sets out the correspondence between the solicitors for the applicant husband and the second respondent, Mr TA, and the history of the matter. I am well aware of the history of the matter so far as the matrimonial proceedings are concerned between the husband the wife, which have been on foot for over 10 years and are not yet listed for resolution due to the frequent adjournment of the listing of the matter for non-compliance with various orders to prepare the matter appropriately for trial.
The part of the affidavit which needs to be considered is that which deals with the relationship between the applicant husband and the second respondent, Mr TA, in their CX Company business. The affidavit sets out in paragraph 6 what is alleged to be the difficulties which occurred in the relation to the CX Company and subsequent difficulties in the relationship between the applicant husband and the second respondent, Mr TA.
It is also alleged that in relation to the previous relationship between the applicant and the second respondent, it appears that certain affidavit material and documents which relate to these Family Court proceedings were inadvertently provided to Mr TA’s agents or Mr TA. Correspondence has then occurred seeking for the return of those documents and requesting that Mr TA not use those documents in the Hong Kong proceedings which have subsequently commenced.
The material in that affidavit will need to be established with the appropriate evidence if it is not accepted by the second respondent.
However, on the basis of this ex parte application and the urgent need for an interim order, I am satisfied that it would appear that Mr TA and/or his agents have received the material which has been filed in the Family Court of Australia proceedings between the husband and wife and has refused to provide an undertaking not to use those documents which he has received in the Hong Kong proceedings.
I am satisfied that the law in Australia clearly indicates that a party who receives documents which have been filed in the Family Court of Australia, even if they are received inadvertently, if they are documents which were required to be filed in the Family Court of Australia proceedings are documents which should not be used by the recipient for any other purpose without the consent of this Court. That is usually referred to as the “Harman obligation”. The law in this country has clearly been confirmed by the High Court decision in Hearne v Street (2008) 235 CLR 125 and subsequent cases including, as I have been referred to, my own decision of Thornton v WorkCover Corporation of South Australia [2009] FamCA 449.
The Hearne v Street (supra) authority has also been referred to in relation to cases where applications have been made to release a party from the implied obligation. At this time there is clearly nothing before this Court by Mr TA seeking that he be released from the implied obligation in order to allow him to use the documents in the Hong Kong proceedings. It is proposed that the order I make by way of injunction during the period of the adjournment will also provide for Mr TA to have liberty to bring an application to have the implied obligation set aside on appropriate notice and urgently.
I am satisfied that in these circumstances the implied obligation appears, on the face of the ex parte material before me, to apply to Mr TA and that he should not use the material he has obtained, which is material provided to this Court in the Hong Kong proceedings unless and until he receives permission from this Court so to do.
The issue in relation to the Court making an order which relates to using documents in the Hong Kong Court is an issue which I will not determine on a final basis as it is appropriate to allow Mr TA and his representatives to be heard on that matter.
However, on the face of it, I am satisfied that the Family Court of Australia, being a Superior Court of Record, can make an order which protects the documents and the information contained in documents to prevent them being used in any other Court. The expression “other Court” includes other Courts around the world. The decision which will have to be made in the long run will depend upon whether Mr TA does make an application to be released from the implied obligation. If that happens the Court will then take into account the need to balance what is described as the comprise between the rights of the litigants and strangers to the litigation who have proceedings in another Court which may be connected to the factual material provided to this Court.
At this stage, however, it is not appropriate to start guessing and making orders in relation to the release of the implied obligation until such time as further material has been presented to the Court. I, therefore, propose to make orders in terms of the application in the case in paragraph 1 during the period of the adjournment.
The further consideration of the Application in a Case is adjourned to 28 January 2016 at 11.30 am before me. That fits in with the directions hearing in relation to the overall property settlement proceedings. I have no indication that anything has been done about the valuations or moving the matter on since I made the remarks in December 2014.
The question of costs is also adjourned.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 6 November 2015.

Associate:

Date: 10 November 2015