Judgment - EX TEMPORE
18 October 2021 (revised from transcript; issued 20 October 2021):
Before the Court is an interlocutory application in family provision proceedings. The plaintiffs seek access to a file of the Federal Circuit Court which has been produced to this Court pursuant to arrangements between this Court and the Federal Circuit Court.
The principal proceedings concern the estate of the late Antoine Antoun who died in July 2018. For convenience and without disrespect, I will refer to the members of the deceased's family who come into this judgment by their given names.
The deceased was married twice. By his first marriage, which ended in divorce, he had two daughters, Tarnya and Tamara. He then married his second wife, Mary. The deceased and Mary had two daughters, Angelique and Ashleigh.
The deceased's marriage to Mary also ended in divorce shortly before his death. The Federal Circuit Court proceedings to which I have referred were proceedings for the dissolution of the marriage of the deceased and Mary and for the division of their property.
The present proceedings were commenced in 2019. The plaintiffs are the deceased's daughters by his first marriage, Tarnya and Tamara. They seek provision out of the deceased's estate. This is because under the deceased's will his estate passed to his daughters from his second marriage, Angelique and Ashleigh. Angelique and Ashleigh are the first and second defendants.
The Federal Circuit Court file was produced to the Court in early 2020. It has already been the subject of an application concerning access which was dealt with by Hallen J on 6 July last year: Antoun v Antoun [2020] NSWSC 860. In the course of his judgment, his Honour summarised the procedural history to that point. Relevantly for present purposes, his Honour recorded that in November 2019, as a result of the failure by Angelique and Ashleigh to defend the proceedings, an independent solicitor, Mr Joseph Hanna, was joined as the third defendant so as to represent the interests of the estate.
As his Honour described, the Federal Circuit Court file contains information about the financial affairs of the deceased and Mary which would have been relevant to the Federal Circuit Court's decision as to the sharing of assets between them following their divorce. No doubt that is the principal reason why the plaintiffs took steps to have the file produced to this Court.
Hallen J recognised at [17]-[30] that, generally, material of the type found in the Federal Circuit Court file is highly confidential. Nevertheless it should still be made available to the parties to other proceedings if there is a legitimate forensic purpose for doing so.
In the present case, his Honour considered that, given the nature of the exercise which must be undertaken by this Court to determine whether the provision made for the plaintiffs by the deceased was adequate (and if it was not, what provision ought to have been made), information going to the deceased's financial position was potentially relevant to the plaintiffs' claims. His Honour made orders permitting the plaintiffs, after the completion of their evidence in chief, to inspect certain specified documents which are set out at [37] of his judgment. Relevantly, they included the deceased's financial statement filed with the Federal Circuit Court in August 2017 and certain paragraphs of the deceased's affidavit filed in connection with that financial statement.
His Honour did not grant any access to the documents on the file concerning Mary's financial position. That was because no provision had been made for Mary in the deceased's will and at the time she was making no claim to the deceased's estate. Accordingly, her financial position was irrelevant to the plaintiffs' claims.
Since Hallen J's order, however, Mary has brought her own claim for provision out of the deceased's estate. Mary's proceedings were commenced in late April of this year. As in the 2019 proceedings brought by Tarnya and Tamara, the first and second defendants in the proceedings brought by Mary are Angelique and Ashleigh, and the third defendant is Mr Hanna.
While it does not appear that an order has yet been made formally requiring that the two cases be heard together, such an order will inevitably be made. In these circumstances, the plaintiffs have applied for liberty to inspect further documents on the Federal Circuit Court file.
The order sought by the plaintiffs is an order to inspect "the documents" in the file "including" various categories of documents. Those categories include both the financial statements and affidavits of the deceased, and the financial statements and affidavits of Mary. The documents sought also include submissions filed in relation to consent orders which resolved the proceedings and the whole of the consent orders made in the proceedings (Hallen J allowed access only to some parts of the consent orders in his decision last year).
Counsel for the plaintiffs submits that, in effect, Mary has become a competing claimant and her financial affairs are now directly relevant to the claims made by the plaintiffs in these proceedings. The application is supported by Mr Hanna.
Mary, who appeared for herself before me, vigorously opposes the application. She points out that the Federal Circuit Court proceedings are hers and the deceased's business. They contain material that she claims is highly confidential. She takes two points. First, she submits that the information is irrelevant. She says that she has disclosed or will disclose her assets and there is accordingly no need for the plaintiffs to rummage around in the Federal Circuit Court file. Secondly, she submits that the matter has been dealt with by Hallen J.
I am against these submissions. I have already referred to the nature of the enquiry which the Court must carry out. Now that Mary has made a claim, her financial affairs and her financial dealings with the deceased are relevant, or potentially relevant, to the plaintiffs' claims. It is no answer to say that Mary has disclosed, or will disclose, these matters in her evidence in her proceedings. The whole point of procedures for the production of documents to the Court is to allow parties to test the assertions which are made by their opponents. And while ordinarily there would be no occasion to reconsider Hallen J's considered judgment from July last year, the circumstances have plainly changed since that judgment was delivered.
In my view, the application must succeed. This does not, however, mean that the plaintiffs should necessarily be entitled immediately to the production of all of the documents in the Federal Circuit Court file. The confidentiality of the material on the file should be respected and procedures should be set in place to ensure that the plaintiffs only see what is forensically necessary for them to see from that file.
In Hillston v Bar-Mordecai [2002] NSWSC 973, referred to by Hallen J in his judgment, which likewise involved family documents produced by the Family Court to this Court, Bryson J reviewed the file for himself so as to identify the relevant documents. Hallen J took a similar course. I propose to adopt a somewhat different approach, but one designed to achieve the same end as the approach adopted by their Honours.
What I will do is grant access to the file, limited in the first instance to counsel for the plaintiffs. Counsel may inspect the file for the purpose of identifying the documents which counsel considers it is forensically necessary for the plaintiffs to have. Once those documents have been identified, a further application can be made to allow the documents to be used for the purpose of conducting the proceedings. To the extent that that application is successful, the documents may be copied by the plaintiffs' solicitors and provided to counsel (and, to the extent necessary to allow instructions to be provided) the plaintiffs themselves.
I think orders of this type strike the appropriate balance between, on the one hand, ensuring that no more of the file is inspected and copied than is forensically necessary, and, on the other hand, allowing the plaintiffs' lawyers to make use of the file to the extent that it is relevant to the plaintiffs' case in these proceedings. I emphasise for Mary's benefit that even if documents are so made available, they will be subject to an undertaking to use them only for the purposes of the proceedings. Any use beyond that by the plaintiffs would be a contempt of court which would be liable to be severely punished.
(The parties addressed on the form of orders and costs, and directions were made for a minute of order to be submitted.)
20 October 2021:
The orders of the Court are:
1. Notes the associated proceedings 2021/121060.
2. Orders that access be granted to counsel for the Plaintiffs to subpoena packets C1 (SY8428/2017) and C2 (SYC5628/2017) to:
1. inspect the documents; and
2. mark for identification such documents as may be considered relevant to the finances of each of the deceased and the Plaintiff in the associated proceedings, Mary Antoun (also known as Mary Syriane).
1. Notes Mary Antoun, the plaintiff in the associated proceedings, is to have an opportunity to inform the Court whether she objects to the marked documents being made available to the Plaintiffs' solicitor or the Plaintiffs before such access is granted.
2. Grants leave to the plaintiffs to apply to the Court for orders for access to the marked relevant documents on three days' notice.
[2]
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Decision last updated: 20 October 2021