Graham v Colonial Mutual Life Assurance Society Limited [2013] FCA 1213 | Case summary

CONSIDERATION 11 There do not appear to be published authorities dealing directly with a direction of the kind sought under the FCR. However, there are cases from other jurisdictions which I will examine and which provide some guidance to factors relevant to the exercise of discretion to make such a direction. Key considerations in my view are that: (a) Contrary to what I take to be the submission for CML, I do consider that Family Court WA proceedings stand in a special category. So much appears to be accepted in relation to child-related documents but, in my view, unlike a commercial dispute, for example, there are clear indications that the legislature contemplated that Family Court WA proceedings should remain private and that the exchanges arising in those proceedings should not in the ordinary course of events enter the public domain. (b) Further, in my view, access to the Family Court WA file should not be permitted until the views of the former wife are sought, obtained and considered by the Registrar in relation to access. (c) Again, contrary to the submissions for CML, the implied obligation of confidentiality is a factor to take into account. Parties engaging in dispute resolution being required to observe obligations of confidentiality would not in the ordinary course of events expect third parties to obtain access to those confidential materials. (d) Contrary to the submissions for M/s Graham, however, I am unable to discern any client legal privilege or other privilege which would be relevant to matters currently under my consideration. (e) Also contrary to the submissions for M/s Graham, all other matters being equal, particularly, public interest factors, the fact that inspection may constitute 'fishing' would not be sufficient to preclude it. However and importantly, it must be clear that some specific utility would be produced by the inspection. (f) It is accepted that the request of the Registrar of the Family Court WA that there be no copying of child-related documents should be complied with, although this presents a difficulty in this application in that the entire file which has been produced is essentially comprised of child-related documents as the dispute between the parents pertained to access, custody, and maintenance of children of the former marriage. This must, as the Registrar's request implies, be a particular consideration because the children were neither capable of instituting the proceedings themselves and/or placing evidence on record. 12 It is beneficial, in my view, to consider the approach taken to examination of such files by the Family Court of Australia itself. That indication is most helpfully gleaned from a decision of the Full Family Court (Finn, Thackray and Strickland JJ) in Oates & Q [2010] FamCAFC 202. In that decision the Full Court was considering an appeal from orders made by the primary judge pursuant to r 24.13 of the Family Court Rules 2004 (Cth) which relevantly provides that a person with permission of the Court and who has a proper interest in the case or in information obtainable from the Court record in the case may inspect and copy a document forming part of the Court record. The Full Court upheld the decision to permit access to the Court file which had been sought by a legal practitioner who was in a relationship with the husband and against whom the wife had made allegations of giving false evidence in the Family Court proceeding. A complaint had been made to a professional supervisory body, the Office of the Legal Services Commissioner (OLSC). The primary judge and the Full Court had no hesitation at all in that case in deciding that the solicitor against whom the wife had made the complaint had a proper interest in examining the file, indeed, that she had an 'extremely strong case' for access given that she needed access to the documents to defend herself against the wife's complaint. In relation to the contention that the solicitor was merely 'fishing', the Full Court concluded there was no substance in this complaint for the following reasons (at [79]-[84]): 79 With respect to the issue of "fishing" the trial judge said: "32. One of the wife's submissions on why I should not make the order the applicant seeks that the applicant is merely fishing and should not be permitted to do so. 33. I regard this argument as quite misconceived. The matter I am dealing with is not an issue over whether a notice to produce or subpoena should be enforced in accordance with its terms in the course of adversary litigation. There are some critical distinctions between the use of subpoenas and notices to produce and the inspection of documents sought by the applicant. 34. Firstly, the person seeking to enforce a subpoena or notice to produce must be a party to the proceedings. A person seeking to inspect under the part of the rule specifically relied on by the applicant must be a non-party with a proper interest to succeed. A non-party is specifically disqualified from issuing or enforcing a subpoena or notice to produce. Further, in a most authoritative case, Waind v Hill & National Employers' Mutual General Association Limited [1978] NSWLR 372 at 383, it was said that it would be an abuse of process if a party inspects or uses documents in the proceedings in which he is a party for a purpose other than the conduct of the proceedings; that is, for an independent private purpose. Such a purpose is the very basis for permitting inspection under r 24.13 in circumstances where the applicant is far less likely to know what she might find than if she had been a party. To permit fishing is really part of the reason for the existence of r 24.13. After all, a stranger to litigation should not ordinarily know, without being the beneficiary of an order under r 24.13, the contents of a file and in most instances would merely be hoping to find what it is he or she is seeking. Thus, provided there is 'sufficient interest', fishing is not a disqualifying factor, rather it is really justified by the rule." (Emphasis added) 80 The wife submitted that the purpose for which Ms Q sought access to the court file, namely, as she says, for the purposes of determining if she has a defence to the wife's complaint, indicates that Ms Q's application/request is clearly "fishing". Although she initially denied it at the hearing before us, following the hearing the wife confirmed to us in writing that she provided to the OLSC full copies of an affidavit affirmed by Ms Q on 5 January 2007 and a statement affirmed by her in relation to the ADVO application in the local court dated 10 October 2007. 81 Ms Q submitted that the prohibition with respect to "fishing" is limited to issues of discovery and that r 24.13 itself does not limit the scope of any grant of access or prohibit "fishing", perhaps subject to the condition that documents/information should only be used for the purposes for which access was sought. Ms Q submitted that there are some documents on the court file of which she does have knowledge, but there are others that she does not, and to that extent she accepted that she could be seen as "fishing". She maintained however, that such "fishing" was necessary in that she does not know what is on the court file and that is why she sought access to inspect it. She submitted that the LSC would also be assisted by having the whole record before him in the determination of the wife's complaint. Essentially Ms Q's argument is that she cannot defend herself against the wife's complaint without knowing what material there is and what the wife will be relying on. 82 As found by the trial judge at paragraph 35, the wife's submissions with respect to fishing were not relevant to the matter which was before his Honour. The concept of fishing arises in relation to discovery and the issuing of subpoenas. Indeed, the authorities on which the wife relied in this regard, namely National Employers' Mutual General Association v Waind and Hill [1978] 1 NSWLR 372; Mulley v Manifold (1959) 103 CLR 341; Metcash Trading Limited v Bunn [2010] FCA 8 and WA Pines Pty Ltd v Bannerman (1980) 41 FLR 169, all relate to discovery, rather than access to the court file. 83 There is no prohibition placed on so called "fishing" by the terms of r 24.13. If the court determines that a person has the requisite proper interest, it is within the discretion of the court to grant access to the entire court record/file. 84 There is no merit in this ground of appeal. 13 The particular interest held by the solicitor seeking access to the Family Court file in Oates was quite striking. The analysis by the Court in that decision is, with respect, not at all surprising. The position in the present case is less compelling in my view. CML, of course, had no role whatsoever in the Family Court WA file which it now seeks to examine. On the other hand, it does contend that given debates between the parents as to orders that should be made for custody, access and maintenance of the children, there could be expected to be information exposed which might be relevant to some aspect of the requisite disclosure to be given by Mr Elwaly on an application for life insurance. 14 There are only a handful of examples where similar issues have been considered. This may well be accounted for by the fact that access to such a file by someone other than a person with an obvious proper interest might rarely be permitted. In this regard I emphasise that the file is a Family Court WA file which is essentially private in its nature and even more so in relation to child-related issues. 15 In Hillston v Bar-Mordecai [2002] NSWSC 973, it was said that the confidentiality of material in Family Court files should be given a relatively high value in evaluation of a claim for inspection. It was accepted that Family Court files contain material that is highly confidential to the parties to the proceedings, and contain material which other persons not party to the proceedings would reasonably regard as confidential. In Hillston, Bryson J said (at [6]-[8]): 6 Notwithstanding that neither rule literally applies, I am of the view that I should follow in substance Pt 37 r 10 of the Supreme Court Rules and also Order 5 r 6 of the Family Law Rules 1984; the Family Court of Australia would itself apply Order 5 r 6, and I interpret its act of comity in delivering its documents as made on an implied assumption that I will exercise like control over its documents as that court would exercise itself. Under Order 5 r 6(3) leave to inspect " … may be granted by the court or a Registrar to a person who demonstrates a proper interest in searching records or inspecting a document and may be granted, subject to such conditions, as the court or a Registrar may determine." 7 In my view I should apply like controls. I should also apply the controls which would apply under Pt 37 r 10 to documents produced on subpoena. 8 Family Court files could readily become a treasure house on issues of credit for cross-examiners if they had ready access to them, but I do not think they should be treated in that way; the confidentiality of material in them should be given a relatively high value in evaluation of the claim of the plaintiff in this case for inspection. I have looked through the two boxes of documents which were produced by the Registrar of the Family Court. I have not read every document, but I have looked sufficiently closely to understand the nature of each document. They include much material which was highly confidential when recorded and so remains, and much material which persons other than Mr Bar-Mordecai who are not parties to this case would reasonably regard as confidential material which ought to be protected. Mr Bar-Mordecai himself has expressed concern for the protection of material confidential to himself and to others. There is much confidential material relating to the dissolution of the marriage, custody of and access to infants, maintenance, and enforcement and variation of orders which I regard as having a strong claim for protection of confidentiality. With the limited exceptions to which I will refer this claim outweighs any discernible legitimate forensic purpose of the plaintiff and his advisers in having inspection of them. (emphasis added) 16 Like Bryson J, I have also conducted a similar examination of the Family Court WA file and would describe it as being similar in nature. 17 In In the Matter of Proceeding No. 291 of 1944 [2006] VSC 50, Whelan J considered an application for leave to inspect the Court file in a divorce proceeding. (Prior to the introduction of the Family Court Act 1975 (Cth), the Supreme Court had jurisdiction in divorce and matrimonial cases.) The applicant for access was 68 years old and the only child of the parties to the divorce proceeding. The parents were married in 1925 and a petition for the dissolution of the marriage was filed in March 1944. A decree nisi was granted two months later. The parents both died in 1967. Their son sought leave to inspect the divorce file in 2005 on the ground that he did not have a clear understanding of the processes the Court followed in making the custody orders and there was a lack of written material in his parents' written possessions. Moreover, there was a lack of oral history from his relatives, who by 2005 had all passed away. The son deposed that the custody orders made by the Court in 1944 had been a significant event in his early childhood. 18 Whelan J noted (at [13]-[14]) that while the Supreme Court has generally adopted an open approach to civil proceeding files, 'a more restrictive approach with an emphasis on confidentiality governs inspection of divorce files in Federal jurisdictions'. His Honour held (at [19]) that it was appropriate to note the confidential nature of certain information on divorce files and that his approach should be consistent with that taken by Federal Courts. Whelan J concluded (at [24]) that the applicant for access should have leave to inspect his parents' divorce file given: the age of the Court file; his status as the only child of the parties to the divorce proceedings and the subject of the custody order (thus he clearly had a 'direct association with the proceeding'); both parties to the divorce proceedings had passed away; inspection of the file by their son would not compromise the privacy of the parties or non-parties; and he had a valid interest because the documents or file may assist him in gaining an understanding of a significant event that took place in his childhood (the custody order made in his parents' divorce proceeding). 19 In In the Matter of Proceeding No. 1496 of 1956 [2010] VSC 192, Warren CJ dealt with an application where an applicant grandchild of the parties to divorce proceedings who were married in 1951 sought to examine the file on the ground of 'looking for family medical history'. The applicant for access did not give particulars for seeking the family medical history, although he deposed that his grandmother had passed away and that he had never met his grandfather. Her Honour also cited Bryson J in Hillston and Whelan J in Proceeding No. 291 of 1944, particularly the latter, with whose approach her Honour agreed. While the only apparent person with an interest in the file, the applicant's father, was agreeable to access being provided, her Honour noted (at [8]) that no information was provided as to how the applicant perceived the access would further his broader purpose. Her Honour concluded (at [9]-[10]): 9 On that basis, the application should fail. However, taking a generous view of the applicant's application and assuming a medically based need to locate the respondent to clarify, for example, genetic difficulties, I do not consider access to the file would add to the applicant's knowledge. In other words, the application if granted would probably be of no utility even if a sound medical basis for the access was given. Whilst utility would not necessarily constitute a fatal blow to an application for access, I would add to the list of factors set out by Whelan J: "(f) the utility of access in all the prevailing circumstances." 10 It follows that the application is refused. 20 In In the Matter of Proceeding No. 1342 of 1958 [2010] VSC 291, after discussing Hillston, Hargrave J cited Whelan J in Proceeding No. 291 of 1944 where his Honour said (at [21]): … Notwithstanding these considerations, in my view, the Prothonotary has been correct in adopting the general practice of treating documents on divorce files as confidential. Any other course would produce a marked disconformity between this Court and current law and practice in courts having jurisdiction in such matters. 21 However, unlike Whelan J, Hargrave J refused the request for inspection of the divorce file by the daughter. The daughter had deposed that her mother was 'approaching 94 and is not interested in the application' while her father was deceased. The daughter wanted to inspect the file for her own 'personal knowledge and understanding'. The daughter had a sister who was still alive. Hargrave J refused the request for access, holding that the file should remain confidential until the mother's death and the wishes of the sister had been disclosed to the Court. 22 Two other cases involving third party agencies gave rise to different results. In Thornton & Workcover Corporation of South Australia [2009] FamCA 449, WorkCover had served the father with proceedings alleging 96 offences of dishonesty. The father alleged a contempt of court against WorkCover for misuse of the implied undertaking in relation to documents obtained in relation to the Family Court proceedings. The particulars of dishonesty were that the father had dishonestly pretended that he suffered from a decompression illness sustained in the course of his employment. He was convicted on 16 of the 96 offences. He appealed to the Supreme Court. The appeal was allowed in 2008 and a retrial ordered. The father appealed the order for the retrial. One of the grounds of appeal included an assertion that the wife had wrongfully passed on Court document material. That material had been relied upon in the prosecution of the husband. The Court concluded (at [83]) that the implied undertaking did not apply or was modified or could be the subject of release by the Court in circumstances where the documents are to be used in the public interest and the public interest favours disclosure rather than in the preservation of secrecy or confidentiality in the information or documents. One of the factors which was relevant was the best interests of the child of the marriage but Dawe J concluded on that occasion (at [93]) that there were no significant factors relating directly to the welfare of the child which would influence the Court's discretion. Dawe J concluded that it was appropriate to grant WorkCover leave to inspect and copy documents on the Family Court file to be sued to conduct either civil or criminal proceedings against the father; WorkCover fell with the definition of a person with 'a proper interest' under the Family Law Rules 2004. 23 Finally and in contrast, in Commissioner of Taxation & Darling [2013] FamCA 118, the Commissioner sought to be released from the obligation not to make collateral use of documents filed in Family Court proceedings and to search and inspect the Court file. Permission to inspect the Court file had been given in December 2009 and on that occasion Australian Taxation Officers tagged a number of documents but did not copy them. Copies were declined by the Court on the basis that the Court was not persuaded as to the proper interest held by the Australian Taxation Office (ATO). The ATO in response indicated that it could not spell out its proper interest because its duty of confidentiality imposed by income taxation legislation. Subsequently, certain documents were copied. 24 In considering the exercise of discretion, the Court said (at [17]) (footnotes omitted): In determining whether it should exercise its discretion whether to release a party from his or her implied obligation the Court must determine whether "special circumstances" exist for either modifying or releasing a person from that obligation. In Springfield Nominees Pty Ltd v Bridgelands (1992) 38 FCR 217 Wilcox J said that for "..special circumstances to exist, it is enough that there is some special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present." Having said that is was not possible or desirable to propound an exhaustive list of the factors that might be relevant. He said at 225 as follows: "..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 that the author may sustain, whether the document pre-existed the 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 documents came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document achieving justice in the second proceeding." 25 In my view, it is evident from the discussion in these authorities that a Family Court file, particularly one devoted to custody and access issues concerning children of the marriage while, on the one hand, potentially becoming 'a treasure house on issues of credit for cross-examiners' still demands a relatively high value in confidentiality when considering a claim for inspection and copying. Indeed, each of the five volumes of the physical Family Court WA file is clearly marked 'CONFIDENTIAL' in large bold print. Taking into account also the additional observation made by Warren CJ as to the utility to be obtained in such an inspection, I am conscious that, bearing in mind CML has access to the entire medical records of Mr Elwaly, it is improbable that additional utility would be gained by access to the confidential records in this file. I would not, in any event, permit such access without first considering the views of the former wife who has not only contributed observations on the file but is the subject of observations. I accept that CML would be required to not misuse that information but that does not, in my opinion, suffice to warrant the information being revealed in circumstances where its utility is likely to be limited. Given that Mr Elwaly will not, of course, be available for cross-examination, it is personal information relating to the children and the former wife who are totally uninvolved in this dispute that would also be at risk. The file is also considerably more recent compared with those considered by Whelan J in Proceeding No. 291 of 1944 and Warren CJ in Proceeding No. 1496 of 1956 and the children the subject of the custody dispute are still minors. I am conscious that as against the utility criterion indicated by Warren CJ, the Full Court of the Family Court has made the point that a fishing expedition or exercise would not be precluded but I am not satisfied on the material before me that CML has satisfied me that the special protection which should be afforded to the former wife and children should give way to the possibility, even likelihood, that there may be additional information beyond the considerable records CML already has at its disposal on the medical condition of Mr Elwaly. 26 While it is fair to say that this application may be more finely balanced than some, I am not persuaded that it is appropriate to give a direction to the Registrar to make the file available for inspection. 27 Accordingly I decline the request. Costs of this application will be reserved. 28 The following orders are made: 1. The respondent's application to inspect Family Court of Western Australia file PTW 2669/2002 is refused. 2. Costs of the application be reserved. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Graham v Colonial Mutual Life Assurance Society Limited

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