Zha & Wun (No 10)
[2024] FedCFamC1F 850
•9 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zha & Wun (No 10) [2024] FedCFamC1F 850
File number: SYC 4269 of 2020 Judgment of: SCHONELL J Date of judgment: 9 December 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Slip rule – Application to vary order of the Court under rule 5.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Whether the orders in question reflect the Court’s intention at the time the orders were made – Where the wife seeks leave to provide documents in Australian family law proceedings to other jurisdictions – Where the wife contends that the documents form part of the court record, were used in the proceedings, are not the subject of any Harman undertaking, and that disclosure of them would not be a communication to the public within the meaning of s 114Q – Where the husband does not consent to the release of documents due to the lack of specificity and precision of the documents – Where the second respondent contends that there is an absence of any evidence on behalf of the wife that the documents were necessary for the wife to achieve justice in the other proceedings – Application dismissed. Legislation: Family Law Act 1975 (Cth) s 114Q
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.01, 6.04, 10.13(e), 10.13(g)
Cases cited: Chakora and Bhander [2023] FedCFamC1F 127
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283; [2005] FCAFC 3
Littlefield & Pemble (2023) FLC 94-165; [2023] FedCFamC1A 198
Pace & Halkias [2021] FamCAFC 81
R Pty Ltd ATF The Fletcher Trust & Jones and Anor [2016] FamCA 928
Re Orana Barellan Aboriginal Corporation (In Liq) [2002] NSWSC 990
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
Zha & Wun (No 8) [2024] FedCFamC1F 648
Division: Division 1 First Instance Number of paragraphs: 32 Date of hearing: 27 November 2024 Place: Sydney Counsel for the Applicant: Mr Reynolds Solicitor for the Applicant: Pickering Pendleton Counsel for the First Respondent: Mr Gray Solicitor for the First Respondent: York Law Counsel for the Second, Third and Fourth Respondents: Mr Turnbull Solicitor for the Second, Third and Fourth Respondents: David H Cohen & Co ORDERS
SYC 4269 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ZHA
Applicant
AND: MR WUN
First Respondent
MR A WUN
Second Respondent
MS YANG (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
9 DECEMBER 2024
THE COURT ORDERS THAT:
1.The relief as sought in the wife’s Further Amended Application in a Proceeding filed 25 November 2024 as to Order 1 – 3 is dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Zha & Wun has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By Application in a Proceeding initially filed 1 November 2024 but subsequently amended on 8 November 2024, 25 November 2024 and then by Minute of Order, the wife seeks the reinstatement of an order made 25 January 2021 pursuant to r 10.13(e) or r 10.13(g) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) or in the alternative to be, in essence, released from the Harman implied undertaking in respect of certain documents (wife’s Case Outline filed 26 November 2024, paragraph 11; Harman v Secretary of State for the Home Department [1983] 1 AC 280 (“Harman”)). The category of documents to which the application applies are recited in Order 3 of Exhibit 1 in this application, which records they include, but are not limited to:
3.1.Orders made in the Federal Circuit and Family Court of Australia proceedings number SYC4269/2020.
3.2.Judgments delivered in the Federal Circuit and Family Court of Australia proceedings number SYC4269/2020.
3.3.Transcripts of the Federal Circuit and Family Court of Australia proceedings number SYC4269/2020.
3.4.All documents formally read and marked as an exhibit during the course of any hearing in Federal Circuit and Family Court of Australia proceedings number SYC4269/2020.
3.5.Any documents setting out the relief sought by the parties in these proceedings, any affidavit and/or Financial Statements filed by the parties or on their behalf and any case outlines and/or written submissions filed by the parties or on their behalf.
The orders sought by the wife are opposed by all the respondents to the proceedings.
The parties have been involved in hotly contested financial proceedings before this court. To provide some context to this application, these Reasons should be read in conjunction with findings made in the Reasons for judgment in Zha & Wun (No 8) [2024] FedCFamC1F 648 (the “substantive proceedings”). On 25 September 2024, the Court made final orders in the substantive proceedings. The wife has filed an appeal against the final orders.
Proceedings first commenced in this court on 30 June 2020. During the course of the proceedings on 25 January 2021, an order was made by consent to the following effect:
2.That upon an undertaking provided by the Applicant Wife that the following documents shall only be disclosed to her legal representatives in [Country AD] and China and to the Courts in those jurisdictions, the Applicant Wife be granted leave to produce all Court documents filed in these proceedings to [various courts] in China, and the [Country AD court], including but not limited to:-
2.1Response to Initiating Application filed 17 August 2020;
2.2Affidavit of [Mr Wun] filed on 17 August 2020;
2.3Financial Statement of [Mr Wun] filed on 17 August 2020;
2.4Case Outline filed on behalf of [Mr Wun] on 17 August 2020;
2.5Notices of Objection (x4) filed by [Mr Wun] on 29 July 2020, to four (4) subpoenas issued to National Australia Bank, [Q Bank], [Z Bank] and Commonwealth Bank;
2.6Orders made in Family Court of Australia proceedings number SYC 4269/2020;
2.7Transcripts of Family Court of Australia proceedings number SYC 4269/2020;
2.8Response to Amended Application in a Case (to be filed by the Respondent Husband pursuant to Orders made by his Honour Justice Watts of the Family Court of Australia on 14 October 2020);
2.9Affidavit evidence filed by or on behalf of [Mr Wun] in support of his Response to Amended Application in a Case (to be filed by the Respondent Husband pursuant to Orders made by his Honour Justice Watts of the Family Court of Australia on 14 October 2020); and
2.10Any further documents setting out the final and/or interim relief sought by the Husband in these proceedings, any Affidavit and/or Financial Statement filed by the Husband or on his behalf, any Orders made in these proceedings and any transcript of these proceedings.
On 25 September 2024, as part of the final orders, the Court discharged all existing orders.
Submissions of the Wife
The wife’s counsel submits that it was not the intention of the Court at the time that it made the final orders to revoke the leave granted to the wife pursuant to the orders made on 25 January 2021 and/or that it was an error that arose from an accidental slip or omission, engaging the discretion inherent in r 10.13. In support of that argument, the wife contends that at trial no party sought the revocation of the grant of leave, that the Court did not give notice that it was considering revoking the grant of leave, and that the Court was on notice that at the time of making the order that there were proceedings pending in China as between the husband and wife (the “China proceedings”). Accordingly, the wife submits that the orders of 25 September 2024 should be amended.
In the alternative, the wife seeks leave to disclose the documents referred to and more particularly identified in Exhibit 1 as referred to above. The wife contends that the documents form part of the court record, were used in the proceedings, are not the subject of any Harman undertaking, and that disclosure of them would not be a communication to the public within the meaning of s 114Q of the Family Law Act 1975 (Cth) (“the Act”).
Nevertheless, to avoid any doubt occasioning same, the wife’s counsel submits in essence erring on the side of caution that she should be granted the leave she seeks. The reasons advanced by the wife for leave are more fully set out in her affidavits filed 1 November 2024, 8 November 2024 and 25 November 2024. Why the wife found it necessary to swear three, rather than one, affidavits is not adequately explained. The reasons in her affidavits include that she regards it as important that her lawyers have access to the documents to be able to provide her with advice and prepare for what is described as the current and anticipated litigation in China and in Country AD. She contends by her counsel’s Case Outline:
(a)She is concerned about s 114Q of the Family Law Act, particularly in light of the Respondents’ history of making complaints about her use of documents in the overseas proceedings;
…
(d)In [Country AD], W sought an injunction in aid of the freezing orders made by the Court in the property settlement proceedings. The proceedings have concluded, however, there remains a question as to a costs order in favour of [AB Pty Ltd]. W wishes to seek advice from her [Country AD] solicitors as to whether the concession made by the Second Respondent in the Australian proceedings as to the provision of false evidence to the Court in [Country AD] provides a basis to set aside the costs order made against her in [Country AD] and, also, to make such application as is appropriate. Additionally, H has failed to pay the sum of $9,744,000 as he was ordered to do by the Court in order 2 made on 25 September 2024, which raises the possibility that W may have to commence enforcement proceedings in [Country AD] against the Respondents, which will entail having to provide relevant material to the [Country AD] Court about these proceedings if its assistance is to be obtained.
(Footnotes omitted)
The wife had initially sought to use the documents in arbitration proceedings involving the husband currently before an arbitration institution in City R (the “City R proceedings”). It is not immediately apparent what interest the wife would have had in those proceedings in circumstances where she is not a party to them. During submissions, the Court was informed that an application by her to intervene in the City R proceedings was dismissed. As it was, she abandoned that part of the application seeking use of the documents in the City R proceedings. In essence, the wife sought the use of the documents, in the words of her counsel, to enable the:
14. … progression of her property settlement proceedings against the husband in respect of overseas assets which is not an improper purpose; to the contrary it intersects with the dispute determined by the court in the Australian proceedings. There is no good reason why the court documents in these proceedings should be withheld from the courts in [Country AD] or China determining the property settlement dispute in relation to assets in their jurisdictions particularly in circumstances where the respondents have in the proceedings given evidence as to those overseas assets.
(Wife’s Case Outline filed 26 November 2024)
Submissions of the Husband
The husband’s counsel submitted that the wife’s affidavits do not shed light, with precision, on what specific documents are the subject of the application and why it is necessary to release the wife from her obligations under the Rules and/or the Harman obligation. His counsel contended that the wife was in breach of prior orders and had used documents in an impermissible way. There is no application for the wife to be dealt with by way of contravention of an order and beyond the bald assertion, I was not taken to the specifics of the contention. In those circumstances, I ignore that aspect of the submission.
The husband submits that the wife’s application pursuant to r 10.13 that the Court did not intend to make final orders is misguided, without merit, without any evidentiary basis, and inconsistent with the provisions of r 5.01.
He also submits that whilst the order as framed by the wife seeks to permit her to show documents to various courts, it does not limit the wife to only certain proceedings. Further, the wife seeks to rely on documents, it is contended, both past and future that form part of the court record and which were admitted into evidence or provided to the court. It is submitted as follows:
28.The applicant wife makes plain in her affidavit and lawyers correspondence that she does not seek to limit herself in respect of certain document, but rather wishes to take the approach of providing everything to her lawyers and leave it to them to determine whether those documents will have any utility in any proceedings”.
(Husband’s Case Outline filed 26 November 2024)
It was also submitted that the introductory words to the categories of documents being “included but not limited to” demonstrate that the wife seeks access to a broad range of documents. Such a broad request, so it is submitted, does not enable the Court to properly determine the application. The husband’s counsel contends that the wife carries the burden of specifically identifying the documents sought so that the Court can determine whether special circumstances exist such as to enable the making of the order she seeks.
The husband’s counsel submitted that the final judgment, orders made, or the transcripts of the final hearing are “arguably not caught by the Harman undertaking or [Rule] 6.04 in any event” (husband’s Case Outline filed 26 November 2024, paragraph 32).
He further submitted that the wife has not provided any evidence as to why the documents are relevant to the overseas proceedings or necessary for the purposes of obtaining advice. Counsel submits that the wife’s bare assertion is insufficient.
Submissions of Second to Fourth Respondents
The second to fourth respondent’s counsel adopted the husband’s submissions and in particular drew the Court’s attention to the absence of any evidence on behalf of the wife that the documents were necessary for the wife to achieve justice in the other proceedings (Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217).
APPLICABLE LAW
In Chakora and Bhander [2023] FedCFamC1F 127 the Court observed as follows:
4The leave to which the application refers is that identified by the High Court in Hearne v Street (2008) 235 CLR 125 (“Hearne v Street”), where their Honours record in the following terms:
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, 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, 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. ...
(Footnotes omitted)
5At [97], the High Court said that “[i]t is common to speak of the relevant obligation as flowing from an “implied undertaking” (footnote omitted).
6That said, the plurality observed at [102] that the use of the term ‘“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”.
7Lord Denning MR in Riddick v Thames Board Mills Ltd [1977] QB 881 at 896 explained the reasoning in the following terms:
Compulsion 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.
8The purpose of the implied undertaking has variously been described as protecting privacy, preserving confidentiality and to encourage full and frank disclosure in the knowledge that such production will be protected.
9The obligation extends to all Australian courts and tribunals as well as arbitration proceedings. It binds not just parties but their solicitors and counsel and third parties including experts who are in receipt of documents generated or produced by the litigation. It is not just limited to documents but covers information.
10As the implied undertaking arises in the context of litigation and is given to the Court, then it is only the Court that may release a party from the undertaking (Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576).
11The implied undertaking finds its expression in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). Rule 6.04 of the Rules of Court is in the following terms:
6.04 Use of documents
(1) A person who inspects or copies a document, in relation to a proceeding, under these Rules or an order:
(a) must use the document for the purpose of the proceeding only; and
(b) must not otherwise disclose the contents of the document, or give a copy of it, to any other person without the court’s permission.
(2) However:
(a) a solicitor may disclose the contents of the document or give a copy of the document to the solicitor’s client or counsel; and
(b) a client may disclose the contents of the document or give a copy of the document to the client’s solicitor or counsel; and
(c) this rule does not affect the right of a party to use a document or to disclose its contents if that party has a common interest in the document with the party who has possession or control of the document.
12The permission to which r 6.04(1)(b) is directed has been described as requiring the establishment of special circumstances.
13In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 (“Springfield Nominees”), Wilcox J said at 225:
… For “special circumstances” to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.
14His Honour did not import words of limitation to the discretion. It is clear that the discretion is appropriately wide to fit the circumstances of each particular scenario.
In Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 the Full Court of the Federal Court of Australia observed as follows:
31.…The notion of “special circumstances” does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined…
This statement was adopted with approval by the Full Court of the Family Court of Australia in Pace & Halkias [2021] FamCAFC 81 at [87] and Littlefield & Pemble (2023) FLC 94-165.
DISCUSSION
I have read the affidavits and Case Outlines relied upon by each party.
I am satisfied that the wife’s application pursuant to r 10.13 is completely without merit.
During the course of the final hearing, the wife submitted to the Court a Minute of Order that represented her final relief (Exhibit 248 in the substantive proceedings). That document did not seek the continuation of the operation of the order made 25 January 2021. No submission was made that the order should continue.
The provisions of r 5.01 are clear, namely, that:
On the making of final orders in a proceeding, any interlocutory order made in the proceeding pending further order is automatically discharged and ceases to have continuing effect.
As Young CJ in Equity observed in Re Orana Barellan Aboriginal Corporation (In Liq) [2002] NSWSC 990 as follows:
20.There is an inherent power which may slightly expand the actual wording of the slip rule, but generally speaking the rule only covers the situation where there has been a mistake in recording and does not permit an error on a point not argued, considered or decided at the hearing to be rectified: see for instance D'Angola v Rio Pioneer Gravel Co Pty Limited[1977] 2 NSWLR 227.
(Original emphasis)
The wife’s submissions that the order was discharged in error or that it was not the intention of the Court to discharge the order borders on the offensive. If the wife had wanted the order to continue, she should have expressly sought it. If there is an error or omission, then it lies entirely with the wife.
As to the wife’s alternative relief, she seeks to use the documents in what her counsel described, without demur, as matrimonial proceedings between the wife and husband in City R and in possibly as yet unfiled proceedings in Country AD to possibly set aside a costs order in favour of the respondents.
I do not accept the submissions of the husband as to the breadth of documents sought by the wife. The breadth of the order did not trouble the husband when a not dissimilar order was first made, and no cogent submission was advanced as to why it might be so now. I further adopt with respect the sensible observations of Carew J in R Pty Ltd ATF The Fletcher Trust & Jones and Anor [2016] FamCA 928 where her Honour observed in not dissimilar circumstances:
59.The commonality of the dispute, the interrelationship of the parties and the time and cost that would be associated with a task as proposed by the respondents cause me to find that a more general identification of the documents is permissible in this case. It is also relevant that Mr Jones has already caused personal and confidential information to become available in the public domain by the earlier Supreme Court proceedings.
The City R proceedings have been on foot for over 12 months and were referred to in the substantive proceedings that concluded in the final orders. The wife for nearly three years has had the benefit of the prior order to obtain whatever advice she needed to obtain from her Chinese lawyers in so far as the documents in these proceedings might bear on any issue before a court in China. A possible inference arising from the wife’s affidavit is that she has either not to date sought the advice or that the documents do not bear on any issue in the overseas court.
The wife does not adduce any evidence from her lawyers in China that they have requested the documents or that they need the documents to enable them to properly advise her. Her entire lengthy evidence amounts to no more than various assertions by her that she needs the documents. Despite the pages and pages of evidence sought to be relied upon by the wife and her propensity to file numerous affidavits on the same issue, it would have been a relatively simple exercise for her to have adduced evidence from a lawyer retained by her in the China proceedings to provide some evidence touching upon their need for the documents to enable them to properly advise her.
As the authorities earlier referred to establish, the release from the undertaking (and/or effect of the Rules) is warranted where it may contribute to “achieve justice in the other proceedings” (Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217). Accepting as I do that the discretion is very broad, the wife’s unqualified opinion does not establish that the documents are necessary for the purposes for which the wife asserts. Her mere assertion is insufficient to establish a special circumstance.
Much of the evidence, including findings made against the second respondent and admissions made by him, are recorded in the Reasons for judgment and the transcript, which is the source of the admission that the second respondent was untruthful to the Country AD court. It is clear from the submissions of the respondents that neither the orders, the Reasons for judgment, or the transcript attract the operation of the implied undertaking or for that matter r 6.04. I respectfully agree with their interpretation.
DISPOSITION
I am not satisfied the wife has on the evidence established a basis for the making of the order that she seeks and consequentially, that part of her application will be dismissed.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated:9 December 2024
SCHEDULE OF PARTIES
SYC 4269 of 2020 Respondents
Fourth Respondent:
AB PTY LTD
2
11
2