Thornton & Workcover Corporation of South Australia
[2009] FamCA 449
•27 May 2009
FAMILY COURT OF AUSTRALIA
| THORNTON & WORKCOVER CORPORATION OF SOUTH AUSTRALIA | [2009] FamCA 449 |
| FAMILY LAW – PRACTICE AND PROCEDURE – where the father seeks that the respondents be restrained from using documents or information relating to parenting proceedings in the Family Court – where documents and information relating to the proceedings have been used by the respondents in civil and criminal proceedings against the father – where the respondents seek to be able to continue to use such documents and information – whether the respondents are bound by an implied undertaking or obligation not to use the documents or information – where the court has the discretion to release a person from an undertaking – where the respondents seek to use the information for the purposes of investigating and prosecuting an alleged criminal offence and for the recovery of funds allegedly improperly obtained – need to maintain the principles of justice – application dismissed – respondents released from any implied undertaking or obligation FAMILY LAW – PRACTICE AND PROCEDURE – where the respondents seek permission to use documents relating to Family Court proceedings for the purposes of investigation and in proceedings involving the father in other courts – where the respondents are a person with a “proper interest” pursuant to r 24.31 of the Family Law Rules 2004 – respondents given permission to search, inspect and copy any part of the court record |
| Family Law Act 1975 (Cth) ss 21, 35, 68B, 114, & 121 Family Law Rules 2004 rr 1.09, 1.10, 1.12, 13.07, 15.27 & 24.13 |
| Harman v Secretary of State for the Home Department [1983] 1 AC 280 Springfield Nominees Pty Ltd and Ors v Bridgelands Securities Ltd and Ors (1992) 110 ALR 685 Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] 1 All ER 41 Hearne v Street (2008) 235 CLR 125 Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756 K & S Corporation Ltd & Anor v Number 1 Betting Shop Ltd & Ors [2005] SASC 228 H M Attorney-General for Gibraltar v May & Ors [1998] EWCA Civ 1707 Prime Finance Pty Limited and Ors v Randall and Ors [2009] NSWSC 361 |
| APPLICANT: | Mr Thornton |
| RESPONDENT: | WorkCover Corporation of South Australia |
| FILE NUMBER: | ADC | 498 | of | 2009 |
| DATE DELIVERED: | 27 May 2009 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 8 April 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | N/A |
| SOLICITOR FOR THE APPLICANT: | Self-Represented |
| COUNSEL FOR THE RESPONDENT: | Mr White |
| SOLICITOR FOR THE RESPONDENT: | Johnson Winter and Slattery Lawyers |
Orders
That all applications of the applicant father in the Family Court of Australia, Action No ADC498 of 2009 (being the Initiating application filed on the 13 February 2009 seeking final orders and interim or procedural orders) be dismissed.
That 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.
The respondents, their servants or duly authorised agents have permission to search, inspect and copy any documents forming part of the record of the Family Court of Australia in proceedings in which the applicant father was or is a party and to make use of any such document or information in the investigation or proceedings of the type referred to in paragraph (4) hereof.
That 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.
I will hear the parties on any application for costs.
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
REASONS FOR JUDGMENT
Introduction
By application filed on the 13 February 2009 the applicant Mr Thornton (the father) sought orders against “Julia Davidson as Chief Executive Officer of the WorkCover Corporation of South Australia and/or the WorkCover Corporation of South Australia” (the respondents) by way of final orders and interim orders as follows:
“1.That the Respondent WorkCover Corporation and its servants and agents be restrained from distributing or from causing to be distributed any documents, matter or fact relating to the Family Court of Australia in respect of the residential proceedings concerning the infant child […] born […] July 1992.
2.That the respondent WorkCover Corporation and its servants and agents be restrained from distributing or from causing to be distributed any document, matter, or fact derived directly or indirectly from or through the use of any document, matter, or fact relating to the Family Court of Australia in respect of the residential proceedings concerning the infant child […] born […] July 1992.
3.That the respondent WorkCover Corporation and its servants and agents deliver up to the Family Court all such documents in its possession or control relating both directly and indirectly to the Family Court of Australia in respect of the residential proceedings concerning the infant child […] born […] July 1992.
4.That the respondent WorkCover pay the Applicant’s costs of and incidental to this application.
Interim or procedural orders sought: …
1.That the respondent WorkCover Corporation and its servants and agents be restrained from distributing or from causing to be distributed any document, matter, or fact derived directly or indirectly from or through the use of any document, matter, or fact relating to the Family Court of Australia in respect of the residential proceedings concerning the infant child […] born […] July 1992.
2.That the Respondent WorkCover Corporation and its servants and agents be restrained from distributing or from causing to be distributed any documents, matter or fact relating to the Family Court of Australia in respect of the residential proceedings concerning the infant child […] born […] July 1992.”
The respondents opposed the orders sought. The respondents sought that the application of the father be dismissed, that he pay the costs of and incidental to the application on an indemnity basis and “such other orders as this Honourable Court thinks fit”.
The Hearing
The matter was heard on the 8 April 2009 when the father appeared in person. The respondents were represented by Mr White of Counsel. Leave was granted to both parties to provide further written submissions. Judgment was reserved.
The parties relied upon the application and response together with the affidavit of the father filed on the 13 February 2009 and the affidavit of Ms Thomson, a Senior Associate in the firm of solicitors acting for the respondents.
The Court has subsequently received submissions of the respondent solicitors (six pages) and the submissions of the father (20 pages).
Main Issues
The father seeks to restrain the respondents from using documents or information obtained by the respondents which the father says were obtained as a result of proceedings between the father and Ms H (the mother) in the Family Court.
The respondents argue that the issue has already been dealt with in previous hearings of this Court (Res Judicata); that the application is an abuse of process and that the application acts as a fragmentation of the criminal proceedings pending against the father.
The respondents seek that the application by the father be dismissed and further, or in the alternative, that the respondents should be given permission to use documents in their possession relating to Family Court proceedings for the purposes of investigation and litigation concerning the applicant.
The father opposes the orders sought by the respondents.
Background
The history of the matter is set out in the affidavits of the parties, in particular, the affidavit of the father sworn on the 3 February 2009 and filed in these proceedings on the 13 February 2009.
The father and Ms H (the mother) are the parents of a child who was born in July 1992. There have been proceedings in the Family Court between the father and mother since 1994.
The father asserts that in April 1994 he suffered decompression sickness as a result of an injury at work. He lodged a claim for Worker’s Compensation under the Workers Rehabilitation and Compensation Act 1986 (SA).
Orders were made by Registrar Radzevicius of the Family Court of Australia on the 8 April 2002 which gave the father permission to obtain a passport for the child and further provided:
“2.That the said child be permitted to travel overseas with his father from on or about the 15 September 2002 to the 23 October 2002.
3.That the said child’s travel is permitted on the following conditions:
(a)The father do provide to the mother a detailed itinerary in respect of the proposed trip not later than thirty (30) days prior to the said child’s departure;
(b)Such itinerary to include the flight details, the details of where and with whom the said child will be residing including if they are hotels or other forms of accommodation;
(c)Such itinerary to also include telephone number and any facsimile numbers that are available;
…”
The father asserts that in July 2003 he became aware that WorkCover were using Family Court documents “for investigations of my WorkCover claim”. (Paragraph 5 of his affidavit filed on the 13 February 2009).
In April 2004 in the proceedings that were then ongoing between the father and mother, the father sought various orders concerning the child and also sought the following orders:
“4.That the mother and her solicitor(s) be restrained from releasing or otherwise communicating any part of these proceedings, including orders that form part of these proceedings to any member of the public. Or otherwise unnecessarily involving or disclosing information to any persons information which has been supplied as evidence to this court or which forms part of the proceedings of this court except as is required under Section 121 part (9) of the Family Law Act 1975.
…
9.That liberty be granted to the respondent father to issue a subpoena to the Workcover Corporation to produce any part of the proceedings in the Family Court including any orders itinaries (sic) or any other material supplied by the applicant mother that relate to the Family Court proceedings.”
In support of those orders the father filed an affidavit. Paragraphs 40 and following of that affidavit sworn on the 5 April 2004 relate to the allegation that the father makes that the mother supplied to WorkCover a copy of his itinerary which was provided to the mother as a result of the father’s application in February 2002 to travel overseas with the child.
In August 2004, WorkCover served the father with proceedings issued out of the Adelaide Magistrates Court alleging 96 offences of dishonesty under Section 120 of the Workers Compensation Act.
In his affidavit sworn on the 1 March 2005 and filed in the Family Court of Australia on the 2 March 2005 (document 143) the father sets out in paragraph 65 the father’s allegations and concerns about the provision of Family Court information and documents to WorkCover by the mother.
The paragraphs of the affidavit which follow also deal with documents or information provided by the mother to WorkCover. Further in the paragraphs commencing paragraph 92 of that affidavit the father again refers to the investigations carried out by WorkCover in relation to his overseas trip and other complaints he makes about the mother’s involvement with WorkCover.
On the 14 March 2005 the father filed an Application in a Case (document 149) in which he named WorkCover Corporation of South Australia, CEO, Julia Davidson as the second respondent. That application sought the following orders:
“1.That Workcover Corporation, its servants and or agents be restrained from receiving, collecting or using any document, matter or fact relating to, or having been produced, to the Family Court of Australia or to any of the parties to the proceedings for and relevant to, or as a consequence of the custodial proceedings that relate to the child […] born on […] July 1992.
2.That the applicant be granted leave to subpoena any documents from Workcover or its servants and or its agents.
3.That the respondent [mother] pay the costs of this application.
…”
On the same day the father filed an affidavit of some twenty nine paragraphs with a large number of attachments. This affidavit and the attachments dealt specifically with the provision of information by the mother to persons concerned with the father’s Workcover claim.
On the 14 March 2005 the father also filed an application seeking the following orders:
“1.That the mother of the Child […] born on […] July 1992 be restrained from communicating, or distributing, or causing to be communicated, or distributed, any document, matter or fact relating to, or having been produced, to the Family Court of Australia for and relevant to the custodial proceedings of the child […] save and except for the communication by the mother with her legal representative who may be representing the mother in the custodial proceedings relating to the child […] from time to time.
…”
The father also filed an affidavit in support of that application which referred to allegations that the mother was providing WorkCover with information and documents obtained from the Family Court proceedings.
On the 24 March 2005, Her Honour Justice Murray made the following orders:
“BEFORE THE HONOURABLE JUSTICE MURRAY
24TH MARCH 2005
UPON APPLICATION made to this Court Mr Berman appearing on behalf of the father, the mother appearing in person, Mr Stephen appearing as Child Representative and Mr Rofe appearing on behalf of Workcover Corporation
AND UPON NOTING the mother’s undertaking that she will not distribute or cause to be distributed any document, matter or fact relating to the Family Court of Australia in respect of the residential proceedings concerning the child […] born […] July 1992 save and except for the communication by the mother with her legal representative in such proceedings or any Reasons for Judgment thereof
BY CONSENT, IT IS ORDERED:-
1.That both Form 2 Applications filed by the father on 14 March 2005 do stand dismissed and be removed from the pending list.”
The father asserts in his recent affidavit filed on the 13 February 2009:
“On personal undertakings given by WorkCover’s counsel Mr P Rofe QC and on the basis that there would be no order for costs I withdrew my application for an injunction against WorkCover.” (Paragraph 9)
Subsequently, the father inspected documents provided to him as a result of subpoenas issued to WorkCover.
The criminal trial proceeded in 2005 and was completed in 2007. The father was convicted of 16 of the 96 offences. He appealed to the Supreme Court. The appeal was allowed in 2008 and a re-trial ordered. The father has appealed the order for the re-trial.
Some of the evidence produced in the Magistrates Court criminal proceedings related to observations and video recordings made by private investigators who followed the father and his current wife and the child on their overseas holiday in 2002.
Other documents were provided to various experts who were providing information to WorkCover in relation to the father’s claim.
Proceedings are also on foot between the respondent WorkCover and the father in the Worker’s Compensation Tribunal, including proceedings wherein the father challenges the cessation by WorkCover of his Worker’s Compensation payment.
At the hearing on the 24 March 2005 the mother gave an undertaking to the Court that she would not distribute or cause to be distributed “any document, matter or fact relating to the Family Court proceedings save and except for the communication by [the mother] with her legal representative in such proceedings or any reason for judgment thereof”.
The affidavit filed on behalf of the respondents on the 2 April 2009 in these proceedings says as follows:
“15.At the hearing before this Court on 24 March 2005, counsel for the WorkCover and Counsel for the Applicant agreed that WorkCover would not press for its costs of the abandoned application, on the basis that the Applicant would not make any further applications of this kind against WorkCover in the Family Court.”
During the criminal proceedings in the Magistrates Court the father challenged the admissibility of the evidence including of the video surveillance of the father during his overseas trip in 2002.
When the father was convicted on the original charges in the Magistrates Court he appealed to the Supreme Court of South Australia.
The affidavit filed on behalf of the respondents states:
“23.In his appeal against conviction to the Supreme Court of South Australia, one of the Applicant’s grounds of appeal was that:
‘3.The investigation of the alleged criminal conduct and the commencement of the criminal proceedings represent an abuse of process in that the material used to investigate and subsequently commence criminal proceedings was obtained in breach of an explicit or implied undertaking to the Family Court of Australia
Particulars
3.1The Magistrate erred in that the video (Exhibit C11) should not have been admitted into evidence.
See paragraphs 7-10 inclusive of the Reasons for Ruling published 16 May 2007.
3.2The Magistrate erred in admitted evidence obtained through the use of documents which had their origin in Family Court of Australia proceedings, or which the Appellant was required to produced to a party to those proceedings under a compulsory order or process of the Family Court of Australia.’
Now produced and shown to me and marked ‘EDT5’ is a true copy of the Consolidated Grounds of Appeal filed by the Applicant in the Supreme Court [in] January 2008.
“24.Justice […] dealt with Ground 3 in her reasons for judgment as paragraphs 112 to 117 (see the exhibit marked ‘EDT2’). Her Honour rejected this ground of appeal, and found that the interests of justice supported the admission of the video material.
25.In his appeal to the Full Court of the Supreme Court, the Applicant is not appealing against her Honour’s dismissal of Ground 3 of his Notice of Appeal. Now produced and shown to me and marked ‘EDT6’ is a true copy of the Applicant’s Notice of Appeal to the Full Court.
The Criminal Proceedings – Current Status
26.The Applicant’s appeal to the Full Court of the Supreme Court is listed for hearing [in] 2009. In the event that the Applicant’s appeal is unsuccessful, WorkCover will be in a position to conduct a retrial of the charged in the Magistrates Court.
27.The video surveillance evidence will be relevant evidence in any retrial.
The Workers Compensation Tribunal Proceedings (WCT Proceedings) – Current Status
28.The WCT Proceedings between the Applicant and WorkCover have not yet been listed for hearing. However, both parties are in the course of preparing for hearing, and collating and obtaining evidence for use in that hearing.
29.I am informed by Ms Tracey Kerrigan, of Piper Alderman (the solicitors representing WorkCover in the WCT Proceedings), and believe, that on or about 11 March 2009 she received a letter from Mr John Cronshaw, the Applicant’s solicitor in the WCT Proceedings. In that letter Ms Kerrigan was given notice of the Applicant’s intention (sic) join her to the within application if she made any use directly or indirectly of material or information derived from the Family Court Proceedings. Now produced and shown to me and marked ‘EDT7’ is a true copy of that letter.”
The Family Court is not aware of the outcome, if any, of the appeal listed before the Full Court of the Supreme Court of South Australia in 2009.
The Law
The Family Court of Australia was created as a superior Court of record by virtue of section 21 of the Family Law Act 1975 (Cth). Its capacity to make injunctions of the type sought by the father may form part of its inherent powers.
The father mentioned in his submissions section 68B which is included in Part VII of the Family Law Act which deals with children. That section provides:
“(1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
…”
The material filed by the father in support of the application does not establish on the balance of probabilities that the injunction is one of the type which could be made under section 68B.
Section 35 of the Family Law Act 1975 is as follows:
“Contempt of court
Subject to this and any other Act, the Family Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court. ”
The father alleges that the respondents have committed a contempt of Court because he alleges that they have failed to comply with the implied undertaking that they would not use documents or information obtained by them in relation to the Family Court proceedings.
The respondents do not admit any contempt of Court.
The injunctions sought by the father do not fall within the type referred to in section 114 of the Family Law Act.
Section 121 of the Family Law Act provides for restrictions on publication of Court proceedings. It creates certain offences for publishing information. Sub-section 9 of section 121 however provides:
“(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.”
The Family Law Rules 2004 rule 13.07 provides:
“Duty of disclosure – documents
The duty of disclosure applies to each document that:
(a)is or has been in the possession, or under the control, of the party disclosing the document’ and
(b)is relevant to an issue in the case.”
Note 4 appears after that rule:
“A document disclosed to a party must be used for the purposes of the case only and must not be used for any other purpose without the consent of the other party or an order.”
This note is in contrast to rule 15.27 of the Family Law Rules which relates to subpoenas:
“(1) This division applies to a subpoena for production.
(2)A person who inspects or copies a document under these Rules or an order must:
(a)use the document for the purpose of the case only; and
(b)not disclose the contents of the document or give a copy of it to any other person without the court’s permission.”
Nor does the note which appears after rule 13.07 have the same status as the provision in the Federal Magistrates Court Rules 2001, rule 14.11:
“Use of documents
(1)An order or undertaking, whether express or implied, not to use a document for any purpose other than for the proceeding in which it is disclosed does not apply to the document after it has been read to or by the Court or referred to in open Court in such terms as to disclose its contents.
NoteAn implied undertaking arises where documents are produced in the process of discovery: Harman v Secretary of State for the Home Department [1983] 1 AC 280.
(2)Subrule (1) does not apply to a family law or child support proceeding and is subject to any order of the Court on the application of a party or of a person to whom the document belongs. ”
Rule 24.13 of the Family Law Rules 2004 (the Family Court of Australia Rules) provides:
“Searching court record and copying documents
(1)The following persons may search the court record relating to a case, or inspect or copy a document forming part of the record:
(a) the Attorney-General;
(b) a party, a lawyer for a party, or an independent children’s lawyer, in a case;
(c) with the permission of the court, a person with a proper interest:
(i)in the case; or
(ii)in information obtainable from the court record in the case;
(d) with the permission of the court, a person researching the court record relating to the case.
(2)For subrule (1):
(a) the parts of the court record that may be searched are:
(i)court documents; and
(ii)with the permission of the court — any other part of the court record; and
(b) a permission:
(i)may include conditions, including a requirement for consent from any person who is mentioned in the record; and
(ii) for paragraph (1) (d) — must specify the research to which it applies.
(3)In considering whether to give permission under paragraph (2) (a) (ii), the court must consider the following matters:
(a)the purpose for which access is sought;
(b)whether the access sought is reasonable for that purpose;
(c)the need for security of court personnel, parties, children and witnesses;
(d)any limits or conditions that should be imposed on access to, or use of, the record.
(4)In this rule:
"court document" includes a document filed in a case, but does not include correspondence forming part of the court record.
Note Section 121 of the Act restricts the publication of court proceedings.
NoteAccess to court records may be affected by the National Security Information (Criminal and Civil Proceedings) Act 2004.”
Rules 1.09 and 1.10 of the Family Law Rules 2004 provide:
“RULE 1.09
Procedural orders in cases of doubt or difficulty
If the court is satisfied that:
(a) a legislative provision does not provide a practice or procedure; or
(b a difficulty arises, or doubt exists, in relation to a matter of practice or procedure;
it may make such orders as it considers necessary.
RULE 1.10
Court may make orders
(1) Unless a legislative provision states otherwise, the court may make an order, on application or on its own initiative, in relation to any matter mentioned in these Rules.
(2) When making an order, the court may:
(a) impose terms and conditions;
(b)make a consequential order;
(c)specify the consequence of failure to comply with the order; and
(d)take into account whether a party has complied with a pre-action procedure.” (emphasis added)
Rule 1.12 of the Family Law Rules 2004 provides:
“RULE 1.12
Court may dispense with Rules
(1) These Rules apply unless the court, on application or its own initiative, orders otherwise.
(2) The court may dispense with compliance with any of these Rules at any time, before or after the occasion for compliance arises.
(3) In considering whether to make an order under this rule, the court may consider:
(a)the main purpose of these Rules (see rule 1.04);
(b)the administration of justice;
(c)whether the application has been promptly made;
(d)whether non-compliance was intentional; and
(e)the effect that granting relief would have on each party and parties to other cases in the court.” (emphasis added)
The Federal Court Rules provide in Order 15 Rule 18 as follows:
“Use of documents
Any order or undertaking, whether express or implied, not to use a document for any purpose other than those of the proceedings in which it is disclosed shall cease to apply to such a document after it has been read to or by the Court or referred to, in open Court, in such terms as to disclose its contents unless the Court otherwise orders on the application of a party, or of a person to whom the document belongs.”
The Common Law
The House of Lords decision Harman v Secretary of State for the Home Department [1983] 1 AC 280 stated the common law position that documents produced through discovery are subject to an implied undertaking that the documents would not be used for a collateral or ulterior purpose. Authorities such as Springfield Nominees Pty Ltd and Ors v Bridgelands Securities Ltd and Ors (1992) 110 ALR 685 also confirmed that this principle applied in Australia and that improper use of such documents may amount to a contempt of court.
Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] 1 All ER 41 held that the so called “implied undertaking” binds “anyone into whose hands the documents might come” if they know that the documents have been obtained by discovery. The Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd (supra) case also referred to the principle not applying where the public interest permitted the use of the documents, such as where the documents disclosed evidence of some fraud or crime.
In the recent High Court of Australia decision of Hearne v Street (2008) 235 CLR 125, the High Court considered in detail the common law rule which had previously been described as the “implied undertaking”. The 2008 decision was an appeal in which the Court was considering a charge of contempt for breach of the implied undertaking not to use affidavits or expert reports, or the information contained in those reports, for any purpose not directly connected with the conduct of the original proceedings.
Gleeson CJ said at page 131:
“Compulsory pre-trial exchange or disclosure of materials, such as witness statements and experts’ reports, is now extensive. The rationale sometimes given for the obligation concerning discovered documents (it is the condition upon which a court compels disclosure of private documents) may not always be applicable to witness statements or experts’ reports. There may be little or nothing about them that is private. This, in turn, is connected with the scope of the potential liability of strangers to the litigation into whose hands such materials may come. In this case, however, the appellants were no strangers to the litigation. The issue, as framed, assumes that they were agents of a party, that they were aware that the documents were prepared for legal proceedings, and that the documents were subject to the rule against use other than for the purposes of the proceedings. This case does not raise a question whether, in the events that occurred, the documents were used for a collateral purpose, or whether the particular use to which they were put (political lobbying) involved any special considerations.” (emphasis added)
His Honour Justice Kirby referred to the dissenting reasons in the Court of Appeal of Handley A-JA. In paragraph 39 of Justice Kirby’s judgment he referred to paragraph 61 of Handley A-JA’s judgment:
“Unless such uses are protected by Parliamentary privilege or by an exception in the implied undertaking such as that recognised for the use of the material in criminal proceedings …” (emphasis added).
In paragraph 49 of His Honour’s judgment, Justice Kirby says as follows:
“49.In the event, as I have noted, the appellants declined to press for any such fundamental re-expression of the common law. They were content to argue their appeal by reference to the conventional, and traditional, concept of an “implied undertaking”. This was so notwithstanding that, as they were themselves forced to acknowledge, there has been a recognition, in England and elsewhere (including to some extent in the Court of Appeal in this case), that the fiction of an “implied undertaking” is looking rather threadbare. Arguably, this is why courts today recognise and express the governing law in terms of what it “in reality” (76) obliges.” (emphasis added)
Footnote:
“(76)Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756 at 764-765; [1991] 3 All ER 878 at 885-886; approved in Mahon v Rahn [No 11] [1998] QB 425 at 431-432, 454. See joint reasons at [108].”
The portion of the judgment in Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756 to which Justice Kirby refers includes the following passage:
“The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle. It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information. However treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties, not one which is owed simply to the parties; likewise, it is an obligation which the court has the right to control and can modify or release a party from. It is an obligation which arises from legal process and therefore is within the control of the court, gives rise to direct sanctions which the court may impose (viz. contempt of court) and can be relieved or modified by an order of the court. It is thus a formulation of the obligation which has merit and convenience and enables it to be treated flexibly having regard to circumstances of any particular case.” (Emphasis added)
In the joint judgment of Hayne, Heydon and Crennan JJ the High Court Judges referred to “Issues not in controversy” and said at paragraph 86:
“Finally, no argument took place on the question of what exceptions to the rule forbidding disclosure exist – for example, in relation to the disclosure of criminal conduct.” (emphasis added)
Under the heading “The extent of the “implied undertaking”” the joint judgment says as follows:
“95.Before turning to the appellants’ submissions in relation to the extent and enforceability of the “implied undertaking”, it is desirable to set out some background legal principles which were not in controversy.
96.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 (93), 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 (94), answers to interrogatories (95), documents produced on subpoena (96), documents produced for the purposes of taxation of costs (97), documents produced pursuant to an Anton Piller order (99), witness statements served pursuant to a judicial direction (100) and affidavits (101). The appellants did not dispute the existence of this principle, and in particular did not dispute its potential application to the affidavit of Mrs Hesse and the witness statement of Dr Tonin.
97.It is common to speak of the relevant obligation as flowing from an “implied undertaking” (102).”
…”(emphasis added)
Footnote
“(93)Bourns v Raychem Corporation [No 3] [1999] 1 All ER 908 at 916 [19]; affd [1999] 3 All ER 154 at 169-170.”
Under the heading “The appellants’ arguments: problems in principle” the judgment states:
“101.There are two propositions which are damaging to the appellants’ arguments.
102.The first is that to call the obligation of the litigant who has received material generated by litigious processes one which arises from an “implied undertaking” is misleading unless it is understood that in truth it is an obligation of law arising from circumstances in which the material was generated and received.
103.The second is that that obligation would be of very limited protection if it were only personal to the litigant, which is why it is often said to be extended also to a litigant’s solicitor, industrial advocate or barrister, and also to third parties like a shorthand writer or court officer. For that reason the authorities recognise a broader principle by which persons who, knowing that material was generated in legal proceedings, use it for purposes other than those of the proceedings are in contempt of court.
…
105.Originally the restrictions on the use of documents generated by litigious processes depend on an express undertaking (108). Then in Williams v Prince of Wales Life, etc, Co (109), Sir John Romilly MR, while requiring an express undertaking, put the matter in terms of legal rights: “[I]t is not the right of a Plaintiff, who has obtained access to the Defendants’ papers, to make them public.” The following year the “rule” that “where documents have been produced in obedience to an order of this Court, the Court has a right to say to the person who has obtained their production: ‘Those documents shall never be used by you except under the authority of the Court’.” (110) In Alterskye v Scott (111), although Jenkins J referred to a concession by counsel that his client obtained discovery on an “implied undertaking”, in the operative part of his reasoning he did not analyse the matter in terms of “undertaking”, either express or implied, but in terms of an “implied obligation not to make an improper use of the documents.” And other judges have preferred to the language of “implied undertaking” the words “implied obligations” (112) or “obligation” (113) or “duty” (114). Another formula is that the party obtaining discovery is “taken to undertake to the court that the documents obtained on discovery will not be used for any purpose other than the action in which they are produced” (115). In Harman v Secretary of State for Home Department (116) Lords Simon of Glaisdale and Scarman, who accepted the general rule of limited use but disagreed with the majority about applying it to documents read in open court, said:
“Imposed by law the obligation is formulated as arising from an undertaking exacted by the court from the party and his solicitor to whom the documents are disclosed. It is the condition upon which discovery is ordered.”
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Lord Denning MR in Riddick v Thames Board Mills Ltd (117) said:
“A party who seeks discovery of documents gets it on condition that he will make use of them only for the purpose of that action, and no other purpose.”
106.The fact that the role of the word “undertaking” is merely to indicate the way in which an “obligation” which is “imposed by law” as a “condition” of discovery binds the disclosee highlights the substantive nature of the obligation. There is nothing voluntary about the “undertaking”.
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107.The expression “implied undertaking” is thus merely a formula through which the law ensures that there is not placed upon litigants, who in giving discovery are suffering “a very serious invasion of the privacy and confidentiality of [their] affairs”, any burden which is “harsher or more oppressive … than is strictly required for the purpose of securing that justice is done” (119). To that statement by Lord Keith of Kinkel of the purpose of the “implied undertaking” may be added others. In Riddick v Thames Board Mills Ltd (120) Lord Denning MR said:
“Compulsion [to disclose on discovery] is an invasion of a private right to keep one’s documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The courts should, therefore, not allow the other party – or anyone else – to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice.”
In Harman v Secretary of State for Home Department (121) Lord Diplock said:
“The use of discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his own documents to himself; it is an inroad that calls for safeguards against abuse, and these the English legal system provides … through its rules about abuse of process and contempt of court.”
In Watkins v A J Wright (Electrical) Ltd (122) Blackburne J said:
“In my judgment, a serious inroad into [the safeguards referred to by Lord Diplock] and, therefore, into the utility of the discovery process in the just disposal of civil litigation would occur if it were open to a litigant (or his solicitor) to enjoy the fruits of discovery provided by the other side, but avoid the risk of committal for contempt for acting in breach of the countervailing implied obligation on the ground that he was unaware of the existence of the undertaking. I take the view that it does not lie in the mouth of a person to plead ignorance of the legal consequences of the discovery process.”
To speak in terms of “undertaking” serves:
“a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties, not one which is owed simply to the parties; likewise, it is an obligation which the court has the right to control and can modify or release a party from. It is an obligation which arises from legal process and therefore is within the control of the court, gives rise to direct sanctions which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court (123).”
Staughton LJ said: “[A]lthough described as an implied undertaking it is a rule which neither party can unilaterally disclaim” (124). The importance with which the courts have viewed the obligation under discussion is indicated by the fact that although it can be released or modified by the court, that dispensing power is not freely exercised, and will only be exercised where special circumstances appear (125).” (emphasis added).
The High Court specifically affirmed that the obligation binds other people to whom the documents and information are given. The judgment continued to consider the Australian authorities and in particular at paragraph 110 said:
“110.Turning to Australian authorities, in Esso Australia Resources Ltd v Plowman (135), Mason CJ (with whom Dawson and McHugh JJ agreed) said:
“It would be inequitable if a party were compelled by court process to produced private documents for the purposes of the litigation yet be exposed to publication of them for other purposes. No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation.”
In Hammersley Iron Pty Ltd v Lovell (136) Anderson J (Pidgeon and Ipp JJ concurring) said: “The implied undertaking is binding upon anyone into whose hands the discovered documents come, if he knows that they were obtained by way of discovery.” And Ryan J said in Spalla v St George Motor Finance Ltd (137): “To be effective, the undertaking must bind the litigant by whom it is given and his or her privies.”” (emphasis added).
Again in paragraph 111 the judgment said:
“111.If this principle did not exist, the “implied undertaking” or obligation on the litigant would be of little value because it could be evaded easily. That is why Lord Denning MR said in Riddick v Thames Board Mills Ltd (138): “The courts should … not allow the other party – or anyone else – to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice” (139). And in the same case (140) Stephenson LJ also said: “[I]t is important to the public and in the public interest that the protection should be enforced against anybody who makes improper use of it.” Use with knowledge of the circumstances would be improper use.” (emphasis added).
Assistance is also gained from the decision of His Honour Justice Debelle, as he then was, of the Supreme Court of South Australia in K & S Corporation Ltd & Anor v Number 1 Betting Shop Ltd & Ors [2005] SASC 228. His Honour discussed at length the law in relation to implied undertaking as it then applied in South Australia. In particular he acknowledged that the implied undertaking does not apply in South Australia once the document has been produced and read out in open Court or admitted into evidence. His Honour referred a document which has been admitted into evidence “enters the public domain once it has been admitted into evidence … unless the Court restrains the publication or in some way preserves the confidentiality of the document”.
There is limited discussion in the High Court decision of Hearne v Street (supra) of the use of the documents or information for other Court proceedings, be they civil or criminal proceedings.
In H M Attorney-General for Gibraltar v May & Ors [1998] EWCA Civ 1707 it is stated that:
“the case of Riddick had nothing to do with the use of information for prosecution in the public interest. On the contrary, both Lord Denning M.R. at p.896 and Stephenson L.J. at p.901, referred with approval to the observations of Talbot J. in Distillers Co. (Biochemicals) Ltd v Times Newspapers [1975] QB 613, 621, recognising that there might be a public interest in favour of disclosure which would override the public interest in the administration of justice which goes to preserve the confidentiality of documents disclosed on discovery. That is clearly correct. If a defendant’s answers to interrogatories tend to show that he has been guilty of a serious offence I cannot think that there would be anything improper in his opponent reporting the matter to the criminal authorities with a view to prosecution, certainly if he had first obtained leave from the court which ordered the interrogatories, and probably without such leave.” (emphasis added)
In May 2009 His Honour Justice Johnson of the NSW Supreme Court in Prime Finance Pty Limited and Ors v Randall and Ors [2009] NSWSC 361 said at paragraphs 17 and 18:
“17Where 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: Hearne v Street [2008] 235 CLR 125 at 154-155 [96]. The types of material disclosed to which this principle applies include witness statements served pursuant to a judicial direction and affidavits: Hearne v Street at 155 [96].
18The implied undertaking with respect to use of documents produced by way of compulsory process for the purpose of litigation may be characterised as an obligation of substantive law: Hearne v Street at 157-160 [105]-[108]. The importance with which the courts have viewed the obligation is indicated by the fact that although it can be released or modified by the court, that dispensing power is not freely exercised, and will only be exercised where special circumstances appear: Hearne v Street at 159-160 [107]. Deciding whether special circumstances have been made out involves a balancing exercise which takes into account the particular nature of the material produced, the policy underlying the implied undertaking as to using the documents for the purpose of the proceedings in which they were produced, and any other relevant factors, and asks whether the needs of justice are better served by relieving from or maintaining the undertaking: Springfield Nominees Pty Limited v Bridge Lands Securities Limited (1992) 38 FCR 217 at 225; Wellness Pty Limited v Hamilton-Bond [2002] NSWSC 1259 at [8]; Premier Travel Pty Limited v Satellite Centres of Australia Pty Limited [2004] NSWSC 864 at [2].” (emphasis added)
And at paragraphs 37, 38, 39, 40, 41 and 42 the judgment states:
“37.The courts have recognised that there can be a public interest in favour of disclosure in respect of information that is relevant to the investigation and prosecution of a criminal offence, which can override the public interest, in the administration of justice, in the preservation of the confidentiality of discovered documents: Rank Film Distributors Limited v Video Information Centre [1982] AC 380 at 447; Bailey v Australian Broadcasting Corporation [1995] 1 Qd R 476 at 486-487, 490-491; Moage Ltd v Jagelman at 176-177 [16], [21]; North East Equity Pty Limited v Golden West Equities Pty Limited [2008] WASC 190 at [42]-[45].
38This public policy is illustrated by the offence in this State of concealing a serious indictable offence contrary to s.316 Crimes Act 1900. If a person has committed a serious indictable offence (punishable by imprisonment for five years or more) and another person knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender, and the person fails without reasonable excuse to bring that information to the attention of a member of the police force or other appropriate authority, then that person is guilty of an offence under s.316. Of course, the existence of the implied undertaking would no doubt constitute a reasonable excuse for the non-provision of the information to police whilst that undertaking remains on foot. However, the existence of this offence emphasises the policy foundation in support of the public interest in reporting of serious crime which is believed to have occurred so that the police may investigate.
39Where a conflict arises, the Court must weigh up the competing public interests, as it will not necessarily be in every case where documents are sought in respect of the investigation and prosecution of the offence that the public interest in disclosure will outweigh the public interest in the preservation of the confidentiality of documents subject to the implied undertaking. Where an application such as this is made, it has been said that factors relevant to the exercise of the Court’s discretion will include the nature of the offence alleged, the cogency of the evidence sought to be adduced in support of it, the authority to which the documents are sought to be disclosed, the manner of the authority’s intended use and the possibility of misuse by that authority and any prejudice, actual or potential, which may be occasioned by the disclosure: Bailey v Australian Broadcasting Corporation at 486; North East Equity Pty Limited v Golden West Equities Pty Limited at [43]. A further relevant factor is whether the application has been brought for some personal advantage or improper purpose, rather than to advance the public interest: North East Equity Pty Limited v Golden West Equities Pty Limited at [44].
40The subject affidavits in this case appear to provide evidence of the commission of offences of dishonesty, including obtaining a financial advantage by deception contrary to s.178BA Crimes Act 1900, an offence punishable by imprisonment for five years. There may be other dishonesty offences revealed in the subject affidavits. In my view, the circumstances here cannot be characterised as trivial or inconsequential: Bailey v Australian Broadcasting Corporation at 486. It might be considered that the acts of a mortgage broker, who encourages persons to make false statements for the purpose of obtaining finance which would not otherwise be granted, constitute a serious state of affairs where it would be understandable that the criminal law ought be invoked. Of course, if leave is granted so as to allow the police to investigate these matters using the subject affidavits, it will be a matter for the police to determine who would be prosecuted and for what offences. There may be factors bearing upon the exercise of discretion by police as to prosecution of individuals referred to in the subject affidavits. However, that would be a matter for investigating police to consider. The personal circumstances of the First and Second Defendants are, of course, relevant to the balancing exercise to be undertaken on the present application. However, in the circumstances of this case, I do not consider that those factors operate against a grant of leave.
41I have given consideration to the question whether the application ought be declined at the present time, upon the basis that it could be agitated at a later time when these proceedings are at an end. I do not consider that this would be an appropriate course to take in this case. There is a public interest in the early investigation of alleged criminal conduct. Further, I do not consider that any real purpose would be served by refusal of this application for that reason. If the matter is referred to the police now, the First and Second Defendants may or may not wish to participate in any investigation. Of course, they cannot be compelled to answer questions in any police investigation. It will remain a matter for the First and Second Defendants to determine what course they wish to take in the present proceedings by way of evidence. In my view, that position will not be affected by the provision of the subject affidavits at this time to the police. It will be a matter for the First and Second Defendants as to whether they seek to avail themselves of the protection of a certificate under s.128 Evidence Act 1995 at any hearing of the matter.
42I accept that the provision of the subject affidavits to the police at this time will increase the stress which no doubt is already being experienced by the First and Second Defendants. I am conscious that the material reveals that they became involved in this venture at the suggestion of others, and that their actions appear to have been taken in the interests of others, and not themselves. However, the provision of the subject affidavits to the police will facilitate the investigation of a number of persons, including the First and Second Defendants. What action may be taken by the police as part of that investigation and any subsequent prosecution would, as I have observed already, be a matter for the police in the exercise of discretion. I do not think that these factors ought stand in the way of the advancement of the public interest in the investigation and prosecution of crime.” (emphasis added)
Discussion
If the father established that the respondents were bound by an obligation or implied undertaking not to use the documents and information the Family Court has the power to exercise its discretion to consider granting injunctions preventing further use of the documents and information.
It would then be necessary to consider whether the arguments put forward by the respondents concerning Res Judicata and abuse of process were applicable.
The mother gave an undertaking to the Court in 2005:
“AND UPON NOTING the mother’s undertaking that she will not distribute or cause to be distributed any document, matter or fact relating to the Family Court of Australia in respect of the residential proceedings concerning the child […] born […] July 1992 save and except for the communication by the mother with her legal representative in such proceedings or any Reasons for Judgment thereof”
By that time the respondents had received documents and information from the mother.
The Magistrates Court criminal proceedings brought by the WorkCover against the father involved an allegation of 69 offences of dishonestly making a statement about a claim under the Workers Rehabilitation and Compensation Act 1986 knowing that that statement was false and misleading. The offences were alleged to have been committed between the 11 June 2002 and 5 April 2004. He was also charged with 26 offences of obtaining by dishonest means a payment or other benefit under the Act, being offences which were alleged to have been committed between August 2001 and July 2004.
The particulars of dishonesty referred to in the Magistrate’s judgment relate to:
“The defendant dishonestly pretended that he suffered from a decompression illness sustained during the course of his employment …”
The Magistrate’s judgment refers to the video of the father taken in both South Australia and Europe which was admitted into evidence before him. The video was also shown to experts who were asked to assess the father’s alleged condition.
In mid-2007 the father was sentenced to a term of imprisonment of 2 years and 4 months with a non-parole period of 5 months.
One of the grounds of appeal by the father against his convictions was referred to in the judgment of the Supreme Court in 2008:
“Ground 3 raises an issue of abuse of process, specifically in relation to the respondent’s investigation of the appellant and the commencement of criminal proceedings against the appellant on the basis of evidence unlawfully or improperly obtained. This ground relates to the evidence of surveillance of the appellant during an overseas trip in October 2002”.
When discussing the particular ground of the admissibility of the evidence, Her Honour says as follows:
“112. Ground 3 relates to the ruling of the magistrate to admit the evidence of the video surveillance of the appellant whilst he was in Europe in October 2002. It was submitted that the respondent’s use of an itinerary obtained from Ms [H], was in breach of an explicit or implied undertaking in the Family Court of Australia.
113.The appellant submitted that Ms [H’s] disclosure of the itinerary to the respondent was contrary to Rule 13.07 of the Family Law Rules 2004 (Cth) and amounted to a contempt of the Family Court of Australia. Therefore the material obtained as a result of that unlawful disclosure should have been excluded in the exercise of the court’s discretion.
114.There is no doubt that the respondent, through its investigators, relied on the disclosure of the itinerary to pursue the appellant to Europe and obtain the video tendered in evidence (Exhibit C11).
115.In his ruling of […] 2007, the magistrate concluded that it was quite wrong for Ms [H] to have passed on the material to the respondent and also wrong for the respondent to have used it. The evidence given on the topic by both Ms [H] and Mr […] a Workcover investigator, reveals that no-one turned their mind to the possibility of the contempt at the relevant time. Certainly in the case of Ms [H], the evidence did not permit any finding that her actions amounted to a deliberate and conscious breach of the Family Court Rules.
116.Having concluded nevertheless that Ms [H’s] actions and the respondent’s actions were wrong, the magistrate in the exercise of his discretion declined to exclude the document. After reviewing the material in relation to this topic, I have reached the same conclusion as the magistrate.
117.In any event any suggested impropriety on the part of Ms [H] or outright contempt of court in handing over the appellant’s European itinerary, seems very remote from the evidence ultimately relied on by the respondent in the video (C11). As the magistrate observed, the surveillance of the appellant would, in all probability, have proceeded with only slightly less difficulty without the provision of the itinerary. There appears to have been no deliberate breach of the Family Court Rules by any person involved. The evidence obtained was highly probative. In these circumstances I consider the interests of justice supported the admission of that material, notwithstanding the wrongful actions of Ms [H] in providing it”
For other reasons Her Honour concluded that the father did not receive a fair trial. She concluded:
“202.Finally, I do not consider that the magistrate’s reasons, given the complexity of this case, are sufficiently transparent for this court to properly review the magistrate’s decision. In particular, the decision to dismiss 79 counts inextricably linked to the 16 counts in respect of which guilty verdicts were recorded, called for a clear explanation.
203.For these reasons the appeal is allowed. The whole of the magistrate’s orders are set aside. The complaint is remitted to the Adelaide Magistrates Court for re-hearing and determination before another magistrate. I will hear the parties in relation to costs.”
The decision of the Supreme Court sets out background and information but is not binding on this Court in this matter.
Conclusion
The Family Court of Australia is now being asked to restrain the respondents from using the documents or information in either the criminal proceedings or the civil proceedings commenced by WorkCover if the documents or information came into existence because of the Family Court proceedings.
The Family Court is obliged to apply the principle that there is an implied undertaking or obligation on a person who receives documents knowing that the documents have been obtained because of Family Court proceedings. This undertaking prevents the improper use of those documents.
I am satisfied on consideration of all of the authorities that the implied undertaking does not apply, is modified or can be the subject of release by the Court, if the circumstances in which the documents are to be used are such that the public interest is in favour of disclosure rather than in the preservation of secrecy or confidentiality in the information or documents.
The Family Court of Australia should exercise its discretion to prevent improper use in appropriate matters. The implied undertaking or obligation may not relate to, or may be the subject of an exception, if the use to which the documents are to be put by that person is one where the public interest in favour of disclosure outweighs the general obligation.
I am satisfied that the respondents seek to use the material they have obtained for the purposes of investigating and prosecution of a criminal offence and to recover funds allegedly obtained due to improper behaviour. Such use is one which clearly falls in the category of maintaining the interest of justice and discouraging crime and other improper activities.
The obligation may not exist in this case because the implied undertaking does not apply (or the obligation is not created) if the use to which the documents are to be put is one which falls within the exceptions discussed.
If however the obligation or implied undertaking does exist then the Court has the discretion to release a person from the undertaking or obligation if the necessary exception is made out.
The obligation or undertaking is one given to the Court. It is for the Family Court to decide whether the party, if bound by the obligation or undertaking, should be released.
It is clear from the circumstances of this case that the respondents seek to be released from any undertaking in order to permit proper investigation and prosecution for alleged criminal activity and for civil proceedings to be conducted for the return of monies allegedly wrongfully received.
When considering the release of the respondents from the obligation or undertaking it is necessary to weigh up the competing factors of any disadvantage to be suffered by the other party, in this case the father.
The disadvantage to the father relates to information provided by him to the mother being the itinerary he supplied to the mother or the documents and information they both provided to the Family Court concerning their capacity to provide care for the child. This information was provided by the parties in the proceedings before the Family Court of Australia. The Family Court of Australia expects the information provided to the Court or by order of the Court to be true. Affidavits sworn on oath are required to be true.
The Family Court of Australia should be seen to maintain the principles of justice. The Family Court of Australia should be seen to support the application of the laws of Australia.
The best interests of the child of the parties are not the paramount consideration in this exercise of discretion. However, it is appropriate when exercising the discretion to consider whether any order made by this Court would be detrimental to the interests of the child. In this case there are no significant factors which relate directly to the welfare of the child which would influence the Court’s discretion. The interests of the child however do not outweigh the public interests of ensuring that justice is done.
The respondents have used the information and documents derived from the Family Court proceedings and wish to continue to use those documents for a purpose which is not improper. The purpose which has been the basis and will continue to be the basis for use of the information and documents is to maintain public interest in justice by prosecuting for alleged criminal activities and recovery of monies allegedly improperly obtained.
The father has therefore failed to establish that the respondents should be bound by the implied undertaking or obligation.
The respondents have established that the Court should exercise its discretion to waive the obligation or release the respondents from any implied undertaking so that the criminal and civil proceedings can be continued in the interests of justice.
The father was opposed to the Court granting any leave to the respondents to use the documents, submitting that there was “no material that supports the interest of justice being balanced in favour of the WorkCover Corporation”. The Court finds that this is not the case. To the contrary there is material which supports the interest of justice being balanced in favour of the respondents by the Court exercising its power, when dismissing the application by the father, to make such further or other orders as is appropriate, including an order granting the respondents (WorkCover Corporation) permission to use the material in its possession which may have been obtained as a result of Family Court proceedings.
It is also appropriate to grant leave to the respondents to inspect, and if necessary copy, documents on the file of the Family Court of Australia in relation to the proceedings between the father and the mother which documents can thereafter be used by the respondents or its duly authorised agents to conduct either criminal or civil proceedings in relation to the father. (The respondents fall within the definition of a person with “a proper interest” in rule 24.31 of the Family Law Rules).
Having reached the conclusions set out in the preceding paragraphs it is not necessary to consider if the principle of Res Judicata applies to the orders sought by the father.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.
Associate:
Date: 27 May 2009
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