Wilmoth & Wilmoth
[2021] FedCFamC1F 281
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wilmoth & Wilmoth [2021] FedCFamC1F 281
File number(s): BRC 13237 of 2019 Judgment of: JARRETT J Date of judgment: 24 November 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – orders sought for the respondent to be released from the “implied undertaking” not to use material received in the course of litigation for a collateral purpose – where respondent has defamation proceedings before the District Court of Queensland Legislation: Evidence Act 1995 (Cth), ss 131, 131(2)(a), 131(2)(b)
Uniform Civil Procedure Rules 1999 (Qld)
Cases cited: ESSO Australia Resources Ltd v Plowman (1995) 183 CLR 10
Hearne v Street (2008) 235 CLR 125
Prudential Assurance Company Ltd v Fountain Page Ltd [1991] 1 WLR 756
Division: Division 1 First Instance Number of paragraphs: 15 Date of last submission/s: 24 November 2021 Date of hearing: 24 November 2021 Place: Brisbane Counsel for the Applicant: Mr Hii direct brief Counsel for the Respondent: Mr Ferrett QC Solicitor for the Respondent: Romans & Romans Lawyers ORDERS
BRC 13237 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WILMOTH
Applicant
AND: MR WILMOTH
Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
24 NOVEMBER 2021
THE COURT DECLARES THAT:
1.No leave is required for the respondent to use the letter dated 23 June, 2020 written by the applicant’s solicitors to Ms E (being exhibit B-1 to the affidavit of Mr B filed in support of the application), or the information contained within that letter, in connection with District Court of Queensland proceedings.
2.It is not an abuse of the process of the Federal Circuit and Family Court of Australia (Division 1) or the Federal Circuit and Family Court of Australia (Division 2), for the respondent to use the letter referred to in order 1 hereof, or the information contained within that letter, in connection with District Court of Queensland proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilmoth & Wilmoth is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
REASONS FOR JUDGMENT
JARRETT J:
This is an application for an order that leave be granted to the respondent, who is the applicant on this application in the case, to use in connection with certain District Court proceedings a letter dated 23 June, 2020 written by the wife’s solicitors, the applicant in the principal proceedings, to a mediator. For the reasons that follow, that relief will be refused, although it is said that alternative relief ought be granted, namely a declaration that such leave is not required. There will be a declaration to that effect.
The letter in question is a letter that was written by a solicitor for a party to proceedings in this Court commenced pursuant to the Family Law Act 1975 (Cth) to a mediator, wherein the position of that party, in a sense, was set out to the mediator. It included, on the second to last page, under the heading, “[Ms C]”, certain assertions about conversations between Ms C and the solicitor who wrote the letter.
Those assertions, together with some other matters, have led the husband in the proceedings in this Court to commence proceedings in the District Court for defamation against Ms C. Those proceedings are advanced, but recently there was an application to strike out some or all of the statement of claim in that proceeding. That application was dealt with by a judge in the District Court of Queensland. I have before me the reasons for decision given by the judge on that application.
In those reasons his Honour sets out, helpfully with respect, the background to the proceedings in the District Court. I gratefully adopt his Honour’s summary of that background. It is as follows:
[3]The plaintiffs case is that, at the time of the end of his relationship with the defendant (which is in about March 2020), at a time when the Family Proceeding was extant, she firstly made a complaint to a police officer in New South Wales of behaviour which might be characterised as stalking behaviour. The plaintiff says that that complaint identified him and communicated that the plaintiff was a petty and/or vengeful and/or dishonest person, and the kind of person who engages in domestic violence. Those imputations are said to be defamatory. I pause here to observe that it is astounding to someone, not initiated into the secrets of the law of defamation and its defences, that it is possible to bring defamation proceedings in respect of things said to a police officer in the course of reporting what the complainant says is an offence. But I am told that is not the case, although various defences of various kinds arise. The plaintiffs point is that the defendant effectively made a complaint defamatory of him to the police in New South Wales of a stalking kind.
[4]The second publication that troubled the defendant arises out of the fact that, at about the same time, he alleges the defendant spoke by telephone with a solicitor for his wife in the Family Proceeding, called Ms [D]. And in that conversation, the plaintiff alleges Ms [C] told Ms [D] that her relationship with the plaintiff had come to an end because he had been stalking her, that he acted in a controlling manner, that she was concerned about his children in the marriage that was then the subject of the Family Court proceedings, and that she had made a domestic violence complaint in New South Wales about the plaintiffs conduct in that relationship. The plaintiff alleges that is the second publication defamatory of him.
[5]The plaintiff pleads the basis for him to assert that conversation happened, in circumstances where he obviously was not a party to it. I am not sure that the rules of pleading required that to be done. But it has been done, perhaps for good forensic reasons. In any event, the defendant pleads the basis from which it can be inferred that those words were spoken. And the basis identified is a letter written by Ms [D] to [Ms E], acting as a mediator in the Family Court proceedings brought by the wife, which in effect reported the conversation in substantially the terms that are pleaded. Again, it is alleged the second publication identified the plaintiff and communicated a series of defamatory imputations.
The gravamen of the application in the District Court was to the effect that the plaintiff there could not rely upon the letter to which I have referred, written by the wife’s solicitor to the mediator, for the purposes of his District Court proceedings. It is said that the letter was covered by what is described in argument as the implied undertaking not to use material received in the course of litigation for other purposes.
The authoritative statement of the relevant principles in Australia comes from Hearne v Street (2008) 235 CLR 125. At paragraph 96 of the joint judgment of Hayne, Heydon and Crennan JJ, with whom the Chief Justice agreed, their Honours stated the relevant principle as this (footnotes omitted):
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, 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, answers to interrogatories, documents produced on subpoena[69], documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. 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.
Later in the plurality’s judgment they, with approval, cite a statement of principle from Hobhouse J in Prudential Assurance Company Ltd v Fountain Page Ltd [1991] 1 WLR 756 at 764 to this effect:
The expression of the obligation as an implied undertaking given to the court derives from the historical original 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.
So the position is that as a matter of the operation of law, there is a legal obligation on a person receiving information or documents in the course of litigation, where the other side or a third party is compelled to provide that information or those documents, to not use those documents or information for any purpose other than the litigation at hand without the leave of the Court in which the litigation was being conducted.
Although it does not seem to be well developed in the authorities, there may be an exception. At page 33 of the High Court’s decision in ESSO Australia Resources Ltd v Plowman (1995) 183 CLR 10 this appears:
It would be inequitable if a party were compelled by court process to produce 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, e.g. discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation.
In the second sentence of that passage, there seems to be the suggestion that there is an exception to the implied obligation or the obligation imposed as a matter of the operation of law to not use documents received in the course of litigation for other purposes, namely the use of information or documents if required by curial processes in other litigation. That is important here in this sense. Even if the document in question or the information in question was compelled to be disclosed by the wife in the family law proceedings, a point I will come to shortly, given that the husband has expressly pleaded the letter in his statement of claim in the District Court and the pleading remains intact, disclosure of the letter is probably compelled by the Uniform Civil Procedure Rules 1999 (Qld), which requires the provision of documents that are referred to or mentioned in pleadings. I have not thought that through in its entirety. It might be a circular argument, because paragraph 16 of the relevant pleading pleads the publication of the defamatory material between the defendant and the solicitor and paragraph 16A as senior counsel for the applicant before me says, is a pleading that what appears in paragraph 16 can be inferred from what appears in the letter pleaded in paragraph 16A. So what appears in paragraph 16 is, in fact, of itself the use of the information contained in the letter. But I am not going to trouble myself with resolving this potential issue. It is unnecessary to do so.
The letter was not compelled to be produced by the applicant wife in the family law proceedings. It is not a letter that is compelled in the course of the litigation between the husband and the wife in the sense referred to by the High Court in Hearne v Street, or in ESSO. Whilst it might be the case that one could expect correspondence to be written by the solicitors for each of the parties to the mediator, pursuant to an order of the court that there would be a mediation, the content of the letter is a different matter and this particular content – the offensive content, if I might call it that – was not something which was the subject of any compulsion. The wife through her solicitor chose to reveal the information. There was no compulsion to reveal it. The efficacy of the letter would not have been affected if it was excluded. On any view of it, it was a voluntary disclosure of information which no doubt the wife or her solicitor thought would assist the wife’s case. In my view, there was no compulsion to reveal that information, or indeed to write the letter at all.
Counsel for the respondent to this application suggested that if the husband were refused leave to rely on the letter by this Court, then he would be handicapped in the District Court. I am not so sure about that, because as I had discussed with senior counsel for the applicant, it seems to me that really the letter was nothing more than an evidentiary aid, which might go to prove the allegations in paragraph 16 of the statement of claim, but the primary way, of course, to prove what is pleaded in paragraph 16 is to call the participants to the relevant conversation said to constitute the publication of defamatory material. The defendant probably would not be called by the plaintiff to give evidence of the conversation, but the solicitor would and is compellable. So, one would expect that the allegation would be proved in that way. The use to which the document might be put would depend upon the course of the examination-in-chief, one might think, or the cross-examination if it came to that. But I do not need to trouble myself about those things either.
It was suggested that perhaps the use of the document or the information contained within it, even if it is not covered by the implied undertaking nonetheless represents an abuse of the process of this Court, but I do not think that it does. It is information which was, as I have already indicated, voluntarily disclosed by the wife in the course of the proceedings. The information that she has disclosed is, in the context of the family law proceedings, evidence that supports assertions she made in her case. It is simply evidence – one part of the evidence – and parties in proceedings in this Court are not obliged to reveal their evidence until there is an order by the court that they do so through the filing of affidavits of evidence-in-chief by themselves or their witnesses, or unless compelled by the rules, when these proceedings were commenced – as the judge has traversed in his reasons, I think – there was an obligation on the parties to file an affidavit, but it says nothing about witnesses’ affidavits and I gather from what I have read that the information referred to in the letter that came from the defendant in the defamation proceedings came to the wife or her solicitors well after the commencement of the proceedings.
So the short answer is it was just evidence. There was no compulsion to reveal it, but the solicitor for the wife or the wife chose to reveal it in any event. To the extent that it might be said that the letter to the mediator attracts privilege under s 131 of the Evidence Act 1995 (Cth), as a document that is produced in connection with an attempt to negotiate a settlement of the dispute, given its nature, it is difficult to see how that might be so. In any event it would seem that more than one of the exceptions set out in s 131(2) of the Evidence Act is engaged in this case, specifically ss 131(2)(a) and 131(2)(b). The applicant in the present application was copied in on the letter when it was sent to the mediator and it has been produced to Ms C in any event by the wife, or her solicitors.
For those reasons, leave is unnecessary. The use of the letter and the information contained in it is not a breach of what is described as the implied undertaking, nor is it an abuse of this Court’s process, or that of the Federal Circuit Court – to use that information. There will be a declarations accordingly.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 24 November 2021
0
2
0