Thornton and WorkCover Corporation of South Australia (No 2)

[2009] FamCA 814

FAMILY COURT OF AUSTRALIA

THORNTON & WORKCOVER CORPORATION OF SOUTH AUSTRALIA (NO. 2) [2009] FamCA 814

FAMILY LAW – ORDERS – stay – application by the father seeking a stay of orders pending determination of an appeal – stay of previous orders granted to the extent that the respondent is not to present as evidence in any other jurisdiction any document or information from proceedings in the Family Court

Family Law Rules 2004 (Cth) r 22.11

In the marriage of Kelly (1981) FLC 91-007
Jennings Construction Limited v Burgundy Royale InvestmentsPty Ltd (No 1) (1986) 161 CLR 681
Federal Commissioner for Taxation v Myer Emporium Limited (No 1) (1986) 160 CLR 220.
Molier and Van Wyk (No 2) (1981) FLC 91-001
De Lewinski v Director General, New South Wales Department of Community Services (1996) FLC 92-678

APPLICANT: Mr Thornton

RESPONDENT: Workcover Corporation of South Australia

FILE NUMBER: ADC 498 of 2009

DATE DELIVERED: 13 August 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 13 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR J. CRONSHAW

SOLICITOR FOR THE APPLICANT: JOHN CRONSHAW

COUNSEL FOR THE RESPONDENT: MS CLARK

SOLICITOR FOR THE RESPONDENT: JOHNSON WINTER SLATTERY

Orders

1. Pending the decision of the Full Court of the Family Court of Australia in the appeal commenced by the applicant father (Appeal No SA52/2009) the orders in paragraphs 2, 3 and 4 of the Honourable Justice Dawe made on the 27 May 2009 are stayed only to the extent that the respondents WorkCover Corporation of South Australia shall not present as evidence in any other jurisdiction in proceedings concerning the applicant father, any document or information arising from previous proceedings in the Family Court of Australia between the applicant father and mother Ms H.

2. Otherwise, the application for a stay filed by the applicant father on the 29 May 2009 is dismissed.

3. The respondents WorkCover Corporation of South Australia have liberty to apply for further orders in relation to the stay provided the applicant father is given not less than seven [7] days notice of that application.

IT IS NOTED that publication of this judgment under the pseudonym Thornton & WorkCover Corporation of South Australia is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 498 of 2009

MR THORNTON

Applicant

And

WORKCOVER CORPORATION OF SOUTH AUSTRALIA

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I have before me the amended application in a case filed by the father on 26 June 2009 in which he seeks orders that the orders of 8 April 2009 be stayed pending the outcome of any appeal made by the applicant and that any documents or information obtained by the WorkCover Corporation subsequent to the orders of Justice Dawe be delivered up to the Family Court until further order. 

2. In support of that application for a stay, the applicant father has filed an affidavit of 26 June 2009.  Before me this morning, Mr Cronshaw appears for the applicant father and Ms Clarke for the respondent, WorkCover.  WorkCover opposes the stays sought by the applicant father, save and except that WorkCover does not oppose a stay of order (3) of my orders of 27 May 2009 on the basis that the WorkCover Corporation does not intend to avail itself of the provisions of my order (3) of 27 May 2009. 

3. However, the WorkCover Corporation does oppose any stay of paragraphs (2) and (4) of those orders of 27 May 2009:

   (2)The respondents, their servants or duly authorised agents are released from any implied undertaking or obligation concerning the use of documents or information obtained by them which may have arisen out of previous proceedings in the Family Court of Australia between the applicant father and the mother Ms [H].

   (4)The respondents, their servants or duly authorised agents are permitted to use any documents or information from or in relation to Family Court of Australia proceedings in which the father is or was a party being any documents or information which has been or will be obtained by them provided the use of the information or documents relates to any investigation, prosecution or litigation civil or criminal concerning the father.

4. Annexed to the affidavit of the applicant father, document 10, is the Notice of Appeal filed by the applicant father on 4 June 2009 wherein he appealed the orders of 27 May.  The grounds of appeal are set out in Part E :

   “1.The learned Justice erred in dismissing all applications off the Father in the Family Court of Australia.

   2.         The learned Justice;

   a)erred in finding the respondents had any proper interest in the Family Court file and by permitting the respondents, their servants or duly authorised agents to search, inspect and copy any documents forming part of the record of the Family Court of Australia in which the Applicant Father was a party.

   b)erred in allowing access to the documents notwithstanding that the Applicant was denied any opportunity to Appeal the decision before it took effect.

   c)erred in finding that any special circumstances existed which might release the respondent from the implied undertaking.

   3.The learned Justice erred in failing to determine whether any of the Family Court material in the possession of the respondent had ever been read or referred to in Court.

   4.         The learned Justice erred in her discretion by not considering;

   a)        the nature of each document;

   b)        the circumstances under which the document came into existence;

   c)the attitude of the authors of the documents and any prejudice those authors may sustain;

   d)whether the document pre-existed the litigation or were created for the purpose of the custodial proceedings only and therefore expected to enter the public domain;

   e)the nature of the information in the document (and in particular whether it contains personal data in respect of the Applicant father, the infant child or other parties);

   f)the circumstances in which the documents came into the hands of the applicant that were contained in the Affidavit of the Applicant and/or on the Family Court file of the Applicant father.

   5.The learned Justice erred in not finding that at least some of the material was subject to the implied undertaking having been ordered to be produced to a party in the proceedings by compulsory order of a Registrar of the Family Court.

   6.The learned Justice failed to give proper reasons for her decision.

   7.The learned Justice erred in not finding that the release of the material relating to the Family Court proceedings may cause the Applicant father an injustice and erred in reversing the onus of proof on to the Applicant.

   8.The learned Justice erred in making orders inconsistent with the orders of Her Honour Murray J on 24 March 2005.

   9.The learned Justice erred in not finding that the Respondent had given personal undertakings on 24 March 2005 in respect of the future collection of any material relating to the Family Court proceedings.

   10.The learned Justice erred in not assisting the unrepresented litigant and failing to accord procedural fairness in respect of the application for contempt and a directions hearing in respect thereof.

   11.Erred in refusing the Applicant leave to Subpoena the Respondent.

   …”

5. The Court is told by the counsel this morning that they have been informed by correspondence from the Appeals Registry that it is likely that the applicant father’s appeal will be heard in the week of 5 October 2009, assuming that the appellant proceeds to prepare the matter for the appeal in accordance with the appropriate orders for preparation.

6. The Rules of the Family Court and specifically r 22.11 of the Family Court Rules indicates:

   “(i)The filing of a notice of appeal does not stay the operation or enforcement of the order appealed from unless otherwise provided by a legislative provision.”

7. There is no such legislative provision in relation to the orders that I have made. The Rules provide for a party applying for leave to appeal or starting an appeal may apply for an order staying the operation on enforcement of the order which has been appealed. That application is to be heard by the Judge who made the order under appeal. It is pursuant to r 22.11 that the application for stay comes before me.

8. The principles to be applied in relation to the consideration of a stay have been the subject of consideration in many of the authorities.  It is clear that a stay is not ordered as a matter of right or simply upon application.  There must be established a ground for the stay.

9. There is no particular criteria specified in the Family Law Act1975 (Cth) and Rules. It is clear, however, that the Court has a discretion and must consider the circumstances of each case carefully when considering whether a stay should be granted. The authorities which the Court takes into account include In the marriage of Kelly (1981) FLC 91-007; Jennings Construction Limited v Burgundy Royale InvestmentsPty Ltd (No 1) (1986) 161 CLR 681 and Federal Commissioner for Taxation v Myer Emporium Limited. (No 1) (1986) 160 CLR 220. It is also useful to consider the comments made in relation to the decisions of Molier and Van Wyk (No 2) (1981) FLC 91-001 and De Lewinski v Director General, New South Wales Department of Community Services (1996) FLC 92-678. I would summarise the provisions of those authorities as indicating that a stay is not a matter of a right and that normally a successful party should not be deprived of the fruits of the judgment.

10. In considering whether to exercise the discretion to stay the proceedings, one of the factors which needs to be taken into account is the effect of any delay that is likely to be incurred in relation to the hearing of the appeal and how that would affect the various rights of the parties. 

11. It is anticipated in this matter that the appeal is likely to be heard in early October of this year.  However, it is not clear when a judgment might be received from the appeal.  If the appeal is heard in early October and judgment delivered promptly, then it is anticipated that the effects of the order or the effects of any stay would not be significant, save and except that WorkCover, as the respondent, would wish to continue to use the benefit of paragraphs (2) and (4) of my order to take steps to prepare for further litigation likely to place in the future in the Magistrates Court concerning criminal proceedings and in relation to the Workers Compensation Tribunal.

12. One of the other factors is whether the application for a stay has been brought promptly.  In this case the applicant for the stay has taken steps to bring the application for a stay before the Court quickly. 

13. One of the other factors is the consideration of the likelihood of success of the appeal.  It is difficult for the Judicial Officer, who made the decision which is the basis of the appeal, to set aside that involvement to consider carefully the merits of the appeal.  Currently, as the appeal stands, there are not strong indications of what could be described as grounds of appeal which may have merit.  However, bearing in mind what I have said in the costs judgment, namely, that the decision did involve consideration of a number of authorities, I cannot set aside altogether the possibility that the applicant father may establish some merit in the appeal when it is heard.

14. The authorities clearly indicate that it is necessary to consider whether refusing a stay would render a successful appeal nugatory or make it impossible or impractical to restore the position of the parties.  I am satisfied in this case that if the proceedings before the Magistrates Court and Workers Compensation Tribunal or indeed any other Court were to proceed to a hearing, then the applicant father would be disadvantaged if a stay were not granted to prevent the use of the materials referred to in my judgment in those Court proceedings.  In other words, if the father were successful in his appeal, his appeal would be rendered nugatory if by then WorkCover had already used the information and documents in final proceedings or a final hearing before some other jurisdiction.

15. It is necessary in considering the question of the stay to balance the hardship that would be suffered by the applicant and the hardship that would be suffered by the respondent.  Obviously, if WorkCover were able to use the documents and present it to a Court of another jurisdiction, then the applicant father’s hardship may be significant.  Similarly, if WorkCover were prevented from using that information in proceedings in another jurisdiction, then the hardship to them would also be significant.  I am not satisfied; however, that there would be significant hardship to the father if WorkCover were permitted to continue to prepare for final hearings as the hardship to the father would only arise if they were permitted to use the information in other proceedings.

16. I accept the submission of Ms Clark that if experts were provided with material, the use of which was later restricted, then they would have to arrange for further experts’ opinion to be obtained using only that material which was permissible.  I, therefore, consider that the applicant father should be entitled to a stay to the extent that it would prevent WorkCover from presenting evidence to another jurisdiction which is based upon material referred to in the orders that I have made.  I emphasise “presenting as evidence to another Court of jurisdiction at the final hearing of those matters”.  To extend the stay in a general sense would cause hardship to the respondents which is significant and would not, in effect, cause a significant hardship to the applicant father.

17. I also consider that the question of the stay of the orders in that way phrased would allow the decision to be made, hopefully by the Full Court of the Family Court, in time for the matters to be heard in an appropriate fashion in either the Magistrates Court or the Workers Compensation Tribunal.  The stay should, of course, be made on the basis that it is assumed the applicant father will take all necessary steps to comply with the directions of the Family Court in the preparation and hearing of his appeal from my orders. 

18. Otherwise, I dismiss the application for a stay. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  31 August 2009