Winters v Fogarty (No 3)

[2020] FCA 315

FEDERAL COURT OF AUSTRALIA

Winters v Fogarty (No 3) [2020] FCA 315

File numbers:

VID 1288 of 2013
VID 323 of 2016

Judge:

BROMBERG  J

Date of judgment:

4 March 2020

Catchwords:

PRACTICE AND PROCEDURE – application for release from implied undertaking to use documents filed or discovered in civil proceeding for purposes of criminal proceeding – discussion of relevant principles – whether special circumstances exist warranting exercise of discretion to release applicant from the implied undertaking – application granted.

Cases cited:

Ashby v Slipper (No 2) [2016] FCA 550

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3

Date of hearing:

4 March 2020

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

9

Counsel for the Applicant:

The Applicant did not appear

Counsel for the Respondent:

Mr L Howard

Solicitor for the Respondent:

Sladen Legal

ORDERS

VID 1288 of 2013
VID 323 of 2016

BETWEEN:

LEILA WINTERS

Applicant

AND:

BASIL MICHAEL FOGARTY

Respondent

JUDGE:	BROMBERG  J
DATE OF ORDER:	4 MARCH 2020

THE COURT ORDERS THAT:

1.The Respondent has leave to use the following documents filed in the proceeding:

(a)the pleadings;

(b)the parties’ lists of documents;

(c)the affidavits, outlines of evidence and medical reports filed by the parties;

(d)the records produced under subpoenas issued by the parties; and

(e)documents discovered by the parties

for the purposes of the conduct of his defence, including the obtaining of legal advice, in the proceeding commenced in the Magistrates’ Court of Victoria at Warrnambool (Case No K13235843) and any trial or committal hearing in relation to that proceeding.

2.There be no order as to costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMBERG J:

1. This application relates to two proceedings before the Court.  At the heart of the controversy between the parties and these proceedings are allegations of discrimination and sexual harassment made by the applicant (“Ms Winters”) against the respondent (“Mr Fogarty”). 

2. By an interlocutory application dated 10 February 2020, Mr Fogarty seeks a release from the implied undertaking that usually applies to documents that have been produced or filed in a proceeding, that exists by reference to the principles outlined in cases such as Harman v Secretary of State for the Home Department [1983] 1 AC 280.

3. The applicable principles for the grant of leave are well settled.  In Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3 at [31], Branson, Sundberg and Allsop JJ expressed the principles to be applied as follows:

   [31]In order to be released from the implied undertaking it has been said that a party in the position of the appellants must show ‘special circumstances’:  see, for example, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217. It is unnecessary to examine the authorities in this…