HILLSTON v. BAR-MORDECAI [2002] NSWSC 973

COUNSEL : J. Whittle SC & B.J. Burke - Plaintiff M. Bar-Mordecai - Defendant in Person SOLICITORS : Shaw McDonald for plaintiff Defendant in Person CATCHWORDS : PRACTICE and PROCEDURE - SUBPOENA - Inspection of documents - legitimate forensic purpose - Family Court file was produced to the Court by Family Court Registrar in response to Letter of Request issued by Supreme Court Registrar on application of party - production was act of judicial comity as Family Court is not subject to Supreme Court's subpoena power - in deciding whether to grant leave to inspect the Court should observe the substance of SCR Pt.37 r.10 and Family Law Rules O.5 r.6 although they do not literally apply - high value placed on confidentiality - leave to inspect limited parts of file which contained information relevant to issues in Supreme Court. Family Law Act 1975 LEGISLATION CITED : Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) Supreme Court Rules Pt 37 rule 10 Family Law Rules Order 5 rule 6 CASES CITED : National Employees Mutual General Association v. Waind & Hill [1978] 1 NSWLR 372 Maronis Holdings Limited v. Nippon Credit Australia Limited [2000] NSWSC 138 DECISION : Restricted leave to inspect Family Court file granted on terms.

1 HIS HONOUR: In proceedings 3240/98 the plaintiff's solicitors obtained from a Registrar a letter of request directed to the Registrar of the Family Court of Australia at Sydney, to which that Registrar responded by producing to the court yesterday files of that court relating to proceedings S3463 of 1980 In the Marriage of Bar-Mordecai and Bar-Mordecai. The plaintiff's counsel applied orally yesterday (see transcript 1345 and following) for leave to inspect the documents so produced. Mr Bar-Mordecai, for reasons which he there stated, objected to leave. 2 Where documents are produced to this court under a subpoena issued by this court the practice of the court about inspection of documents by parties is established by observations of Moffitt P in National Employers Mutual General Association v Waind & Hill [1978] 1 NSWLR 372 at 382-386. I examined this practice and related case law and showed how I apply it in my decision in Maronis Holdings Limited v Nippon 3 Credit Australia Limited [2000] NSWSC 138. As I there sought to explain, the test described by Moffitt P at page 385, which I set out at paragraph 19, is well epitomised as a "legitimate forensic purpose" which the judge must see if he is to proceed as a matter of discretion to allow inspection. 4 In the case of production of documents under subpoena Pt 37 r 10 forbids a party other than the person who produced documents from inspecting them, except with the leave of the court. Such leave is readily granted where there is no objection to inspection by the person who produced them or by anyone else. In the present case leave is objected to, and reasonably so having regard to the confidential nature of Family Court proceedings. The documents are not produced on subpoena but in response to a letter of request. The Family Court of Australia is not subject to this court's subpoena powers, but as a court created by the Federal Parliament stands altogether outside the exercise of any power by this court, in large matters such as control over its orders and exercise of jurisdiction, and also in smaller matters such as the production of its documents and papers. 5 The letter of request was issued in pursuance of a practice in which from time to time this court produces papers to Federal Courts and Federal Courts produce papers to this court in acts of judicial comity. Although this court has jurisdiction under the Family Law Act 1975 under the investment of jurisdiction made by section 4 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Commonwealth) that section does not have any relevant operation, as I am not considering any matter arising under federal law. The substantive proceedings before me are not such a matter, no proceedings under the Family Law Act are before me, and the incidental question whether I should allow inspection of documents is not a matter in the constitutional sense in which the word is employed in s 4. The proceedings before me and the application to inspect documents are not matters under the Family Law Act to which s47 of that Act applies: that section requires Courts to act in aid of each other in those matters. 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. 9 For the most part, the contentious litigation in the Family Court of Australia was heard and disposed of, after many applications and appearances, by or before early August 1983. For the most part the terms and details of the orders were resolved before the time late in August 1983 when Mr Bar-Mordecai alleges that he entered into a de facto relationship with Mrs Hillston. With the exception of the decree of dissolution itself, my view is that I should not allow any of the material from that period to be examined. 10 After August 1983 there appear to have been some applications and hearings; I cannot see the outcome of those applications clearly, although as far as I have been able to observe they did not lead to any reference in the terms of access orders to the place at which access was to take place; this was one subject on which plaintiff's counsel expressed concern. I see no reference to any controls over or indeed any allusion at all to whether the children were to be in contact with Mrs Hillston or were to attend at her residence. As far as I can see that subject was never addressed. 11 Three affidavits and an application by Mr Bar-Mordecai of dates later than August 1983 contain material which might be considered to show his address or to show where he lived, and to that limited extent I discern a legitimate forensic purpose of the plaintiff in inspecting them. However inspection should only take place under restrictions which limit access to the confidential material also contained in those documents and also limit use of the confidential material in those affidavits to use for purposes of the present proceedings. Except as to references to Mr Bar-Mordecai's address and the location of his activities, I would not allow any of the material in these affidavits to be used openly in the conduct of these proceedings without further leave and further address by me in detail to whether that use should be allowed. The affidavits themselves contain material highly confidential to various persons and I will impose restrictions on access to the affidavits. 12 The restrictions on publication of information contained in s121 of the Family Law Act do not apply having regard to the exception in subs.(9)(a). 13 The directions are these:

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Judgment (13 paragraphs)

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