Spillane v Curr

The Family Court orders and notations 12The Family Court proceedings were listed for hearing on 29 March 2011. On 30 March 2011, the proceedings were settled. The Family Court made orders for the settlement of the matter. Mr Falcomata states at paragraph 12 of his affidavit: "The court was asked to note that the parties agreed that each of them may rely on information obtained in documents produced on subpoena by the school and that the court raised no objections to such documents being relied upon." 13The precise terms of these orders, and the notation containing the return of subpoena documents were as follows: " BY CONSENT IT IS ORDERED: ... 20. All documents under Subpoena be returned whence they came. 21. No order for costs. THE COURT NOTES: 22. That a subpoena was issued to St Joseph's Primary School, Glen Innes on behalf of the wife Catherine Louise Spillane, who was an applicant in proceedings in the Family Court of Australia at Newcastle in March 2011. 23. That the parties or either of them may seek to rely on information contained in documents produced in response to that subpoena in the proceedings at the District Court in Sydney and the Court raises no objection to such documents being relied upon." 14Mr Gemmell told me, from the bar table, that he was not present in the Family Court on that day. His understanding was that the court was not told that there were defamation proceedings. His description of what occurred conforms with the description set out in paragraph 12 of Mr Falcomata's affidavit. In written submissions, Mr Gemmell states the plaintiff's position is that the Family court gave leave to the parties "to make use of the documents produced on subpoena by the School and that the Family Court raises no objection to such documents being relied upon."

The school objects to use of the documents 15Mr Falcomata then wrote to Ms Maria Mowle, Acting Principal at St Joseph's Glen Innes, on 13 April 2011. The text of that letter is not in evidence, but its contents may be gleaned from the reply set out by the Catholic Schools Office on behalf of the school which is as follows: "Frank Falcomata Rice More & Gibson Solicitors PO Box 551 ARMIDALE NSW 2350 Dear Mr Falconata [sic], RE: Your Ref FF:DF:210069 I am writing to provide you with a formal response to the April 13 letter you sent to Ms Maria Mowle Acting Principal at St Joseph's Glen Innes. After consultation with Maria and the school's consultant Alan Williams a decision has been made to not [emphasis of this word is contained in the original letter] to give consent to the release of information for use in defamation proceedings. The specific statement referred to in your letter contained an allegation of criminal conduct in relation to your client and Ruth Brummel a staff member of the school at the time of the allegation. The alleged criminal conduct was referred [sic] Inspector George McGilvray from Glen Innes police on August 11. The school did not receive any advice in relation to a finding or that it was deemed to constitute a vexatious or mischievous complaint. The school and the office are of the view that the separation of your client and Andrew Curr has been a difficult and emotional one for both parties that has been characterised by intemperate remarks. The school believes that it has responded to any alleged child protection or criminal behaviour according to legislative requirements. It has insisted that all complaints or concerns be raised in a civil manner without recourse to behaviour that could be deemed offensive, harassing or intimidatory. If you require any further clarification on the above response please do not hesitate to contact me in the first instance. Yours sincerely, Paul Holman Executive Assistant to the Director"

The defamation proceedings continue 16The matter was next in the Defamation List on 13 May 2011. On 27 May 2011, copies of the notice of motion and affidavit in support were sent to the court for filing and service. A copy of that affidavit is still in the court file, and it reveals that the last page, namely the letter from this school's office of 4 May 2011 is missing. 17On 2 June 2011, Mr Falcomata wrote to the court enclosing a fresh copy of his affidavit of 27 May 2011, resworn on 2 June 2011. It is not clear which of these copies was served on the solicitor for the defendant, who was still acting for the defendant up until approximately July 2011. 18The notice of motion relied upon the information set out in this affidavit sought the following orders: "1. To the extent that leave of the Court is required, leave of the Court is granted to the Plaintiff to rely on information contained in documents produced on the subpoena by St Joseph's Primary School, Glen Innes, to the Family Court of Australia in proceedings number (P) NCC 2675/2008. 2. Any other Order the Court deems fit. 3. Costs in the cause." 19The matter came before Elkaim SC DCJ on 10 June 2011. Mr Gemmell, who appeared for the plaintiff, mentioned the matter on behalf of the defendant, who neither consented to, nor opposed these orders. There is no evidence before me that the school was notified of these proceedings. 20There is no judgment, but orders were made as follows: " 1. Orders 1 and 3 in the Notice of Motion filed by the plaintiff on 30 May 2011. 2. Notice of these orders is to be given to the Catholic Schools Office by the plaintiff (as referred to in the letter from that Office dated 4 May 2011) informing the Office that if it wishes to oppose the orders that it inform the plaintiff within seven days of receipt of the notice. 3. If the plaintiff receives such notice the plaintiff is to relist the matter in the Defamation List as soon as practical thereafter. 4. Relisted for further directions in the Defamation List on 22 July 2011." 21Mr Gemmell told me from the bar table that following the orders made by Elkaim SC DCJ, the school was notified that it had seven days to indicate to the court whether it wished to oppose the orders. They did not do so. I was briefly shown a diary note prepared by Mr Falcomata relating to his follow-up conversation. This document was not tendered. Mr Gemmell, in his written submissions, characterised the contents of this conversation as amounting to a statement that the Catholic Schools Office did not oppose the use of the information.

The defamation proceedings are listed for hearing 22When the matter came before the District Court on 22 July 2011, the matter was set down for hearing, with an estimate of 2 days. The plaintiff was directed to notify the defendant, who did not appear, and was unrepresented, as well as to make enquiries as to a secure court because the defendant was in custody in relation, I am informed, to a breach of an apprehended violence order in relation to the defendant. 23When the matter came before me for hearing, I noted the defendant was both unrepresented and in custody, and provided both the plaintiff and defendant with copies of Higgins v Sinclair [2011] NSWSC 163 and Lamont v Dwyer [2008] ACTSC 125 in order to assist the defendant in understanding my limits of my role as a judge in proceedings where he was unrepresented. 24The defendant told the court that he had thought everything had been settled in the Family Court, and that when he received notice from the court in July he had consulted his Family Court solicitor (who has filed a Notice of Ceasing to Act) and, more recently, the Prison Legal Services. He said he had expected to be represented by the Prison Legal Services, but that he had had difficulty contacting them because of jail communication problems. He provided the name of the Prison Legal Services officer, Ms Naismith, to whom he had spoken. On being contacted by my associate, the Prison Legal Services officer, Ms Naismith, confirmed these matters and arranged for urgent representation of the defendant at the hearing. Mr Chapple appeared at 2.00pm on 20 September 2011, informing me that he was instructed by Ms Naismith. 25The first issue in the hearing, after determining how the matter should proceed, had been a consideration of the plaintiff's tender bundle, and it was during my consideration of this tender bundle that it became apparent that the issue of whether leave had been granted (or, indeed being sought) to rely upon material under subpoena for the "very foundation" ( P and W v Manny [2010] ACTSC 50) of the proceedings (including, I note, information about an asserted republication to the police of the allegations). The desirability of this being dealt with at the outset of the hearing is underlined by what occurred in P and W v Manny [2010] ACTSC 50 where there were substantial delays caused by the matter being raised long after trial commenced. Mr Gemmell proposed to tender the diary note, and not to call its maker, and the matter needed to be determined at an early stage of the hearing.

The issues for determination 26The issues before me are: (a)The extent to which a party may use documents produced under subpoena in collateral proceedings; (b)Whether leave to use the Subpoenaed Documents in the District Court Proceedings has properly been granted; and (c)The power of the District Court to make further orders in light of the orders made by the Family Court and the District Court.

The use of documents obtained under subpoena in collateral proceedings 27The "implied undertaking" in relation to the use of documents produced under subpoena is now recognised as an obligation of substantive law. This is explained by the High Court as follows in Hearne v Street [2008] HCA 36 per Hayne, Heydon and Crennan JJ at [96]: "[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." 28This requirement attaches both to documents produced by a party and a third party in proceedings: P and W v Manny [2010] ACTSC 50 at [24] per Gray J. This prohibition extends to any use or disclosure other than for the purpose of the proceedings in which the documents were obtained. Any wider use is collateral and consequently improper, unless authorised by prior leave: Bell Group Ltd (in liq) v Westpac Banking Corporation (1998) 166 ALR 699 at 705-706. 29The procedure for obtaining leave to use a document obtained either under a subpoena or obtained on discovery is one which has been employed in defamation proceedings, such as P and W v Manny [2010] ACTSC 50.

The procedure to obtain leave to commence proceedings for defamation based on a document obtained under subpoena 30The procedure for obtaining leave to commence proceedings for defamation based on material obtained under subpoena is a straightforward one of making application to the court to which the undertaking had been given ( Holpitt Pty Ltd v Varimu Pty Ltd (1991) 103 ALR 684) as well as seeking the consent of the party from whom the documents have been sought. This was the procedure followed by the plaintiff in Bechara v Bonacorso [2009] NSWDC 131. The plaintiff in those proceedings obtained the permission of both the Burwood Local Court and NSW Police Service and, as noted in [24], the Attorney General's Department went further, in that they provided fresh copies of these documents for use by the court. 31There have been a number of cases where a party producing a document has consented to, and the court granted leave for, the use of documents: Halcon International Inc v Shell Transport & Trading Co Ltd [1979] RPC 459; Crest Homes plc v Marks [1987] AC 829; [1987] 2 All ER 1074; [1987] 3 WLR 293; Holpitt Pty Ltd v Varimu Pty Ltd (1991) 103 ALR 684; Capital Television Group Ltd v Northern Rivers Television Pty Ltd (Bainton J, 4 September 1995); Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1995) 13 ACLC 1611; Ainsworth v Burden [1999] NSWSC 793 and Australian Competition and Consumer Commission v INFO4PC.COM Pty Ltd [2001] FCA 258. A helpful list of factors to consider is set out in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 225. 32On occasion leave has been refused. In Metway v Doublelock Limited [1978] 1 All ER 1261, an affidavit of means in matrimonial proceedings was not permitted to be used in a security for costs application against a company controlled by the husband. The checklist in Springfield refers to a number of matters which, in a case such as the present, might factor against leave being refused, such as the confidential nature of the publication, the identity and attitude of the party creating the document and the circumstances in which it came into the possession of the applicant for leave. These criteria should be regarded with even greater caution given the concerns expressed by the High Court in Hearne v Street as to what are now regarded as "special circumstances".

The requirement for "special circumstances" 33The obligation of substantive law referred to in Hearne v Street is owed to the Court, and is not an obligation between the parties to proceedings. As Mr Chapple points out in his helpful submissions at paragraph 11, this has two consequences. The first is that because the obligation is owed to the Court, it is not one that the parties can unilaterally disclaim. The second is that the Court controls and releases a party from the obligation. Nevertheless, special circumstances must be demonstrated before the Court will make an order to relief a party of this obligation, as Hayne, Heydon and Crennan JJ stated in Hearne v Street at [107]: "The importance with which the courts have viewed the obligation under discussion is indicated by the fact that although it can be released or modified by the court, that dispensing power is not freely exercised, and will only be exercised where special circumstances appear." 34Mr Chapple draws my attention (at paragraph 13 of his written submissions) to the explanation of "special circumstances" of Wilcox J in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 225 and points out that this decision and Liberty Funding Pty Ltd v Phoenix Capital Ltd (1995) 218 ALR 283 at 289 both predate Hearne v Street . This is critical because, in Hearne v Street , Hayne, Heydon and Crennan JJ referred with approval to the judgment of Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 775, to the effect that there will be few circumstances that justify a release from the undertaking where the party that produced the documents does not consent to disclosure in collateral proceedings. There was no evidence before the Family Court of the school even being notified, and the school indicated in its letter of 4 May 2011, before Elkaim SC DCJ, that it did not consent. One issue to which I have given anxious consideration is the fact that, in the defence, the defendant agrees he spoke the words complained of. That may be a factor of relevance concerning special circumstances (although in practical terms, this factor would be present in almost all such applications) but it is not a reason for failing to have regard to the important principles explained by the High Court in Hearne v Street. 35This brings me to the issue of whether leave to use the documents under subpoena has properly been granted (or granted at all), either by the Family Court, or by Elkaim SC DCJ in the District Court, or both. I shall first consider the orders made by the Family Court.

The Family Court orders 36The first issue for determination is whether the "notation" is an order at all. On the day in question, the Family Court was making orders between the plaintiff and defendant in these proceedings (who were husband and wife) for property settlement under s 79 Family Law Act 1975 (Cth). Those orders contained a notation at the end concerning the possibility that the parties may use certain documents in District Court proceedings. No order was made to this effect. 37In Kirk v Martens [2008] FamCA 596 at [55] Murphy J stated: "[55] In my judgment, a notation is not an "order", nor specifically "an order made...under s 79". (See Naughton and Naughton (1983) FLC 91 - 327)." 38In Byrd and Byrd & Ors [2010] FamCA 547, where a party sought to enforce the contents of a notation, Murphy J described its contents as "nothing more than a notation indicating future intent with respect to an issue erstwhile live between the parties, but separate and distinct from the s 79 orders that were made by the court consequent upon the agreement of the parties..." 39It was not appropriate, in those circumstances, to vary the orders sought pursuant to s 79A(1)(c) if a person defaulted in carrying out the obligation in the notation. For instance, if the defendant in these proceedings sought to resile from that agreement, what would the Family Court do? Murphy J went on to note that a notation which is not an order is not enforceable or effective as an order (at [38]). 40See also Jell v Jell [2009] FAMCA 960 at [39] per Rose J and Welke v Child Support Registrar (SSAT Appeal) [2011] FMCAfam 2 at [17] per Riethmuller FM. 41While a notation may reflect an agreement between the parties, which may found an estoppel (see Simpson-Cook v Delaforce [2009] NSWSC 357) any agreement between the parties is of no relevance because the undertaking is an obligation owed to the Family Court. It is the Court that has the right to control the undertaking, or to modify or release the party from it, and no waiver by the parties is effective: Hamersley Iron Pty Ltd v Lovell (Supreme Court of Western Australia, Pidgeon, Ipp and Anderson JJ, 22 May 1998). 42Whether or not the notation is an order, the next problem is precisely what the defendant, and the court, consented to. The order is framed to reflect a situation where both parties "may" use documents obtained under subpoena in unspecified District Court proceedings. 43This might be an appropriate notation where, for example, there were concerns about the leading of evidence about family issues which might in some way be seen to cause difficulties under s 121 Family Law Act , or to save the cost of a second subpoena to the school. It is not, however, an appropriate way of apprising the Court that defamation proceedings had been commenced without the knowledge or leave of the court, or the knowledge of the party under subpoena, in reliance upon material obtained under subpoena in a court more careful than most to protect the welfare of the litigants and, most importantly, the welfare of any children caught up in Family Court proceedings. 44Does the notation function as a form of order to which the court agreed? The form of the notation (or order, if it is to be construed as such) refers to the Court having no objection to this course. In oral submissions, Mr Gemmell told me that the nature of the proceedings (defamation) was not mentioned to the court, and it is clear to me that the precise problem (use of a subpoena document to found a claim for defamation) was not identified to the court either. 45The defamation proceedings had been commenced in August 2010, nine months before the Family Court orders, in circumstances which might amount to a contempt of the court. For the Court to give its informed consent, it would be necessary for there to be full disclosure of the use to which subpoenaed documents had already been put, not a notation that "both" parties may "seek to use" (as opposed to "may use" or indeed "use", as the notation appears to contemplate a future grant of leave). 46This was a situation where an examination of the merits of granting leave by the Family Court was required, and the level of "special circumstances" to be demonstrated in Family Court proceedings needed, in accordance with the explanation of this obligation by the High Court in Hearne v Street , to be of some force. 47This generally-worded notation made by the Family Court does not amount to an order of leave of the kind considered necessary by the High Court in Hearne v Street. The essential role of subpoenae in the administration of justice warrants applications of this sought being made in accordance with the procedure required for any person seeking this indulgence. This is all the more the case in a court such as the Family Court, particularly in a case such as the present, where the Court needs to consider such an application in the context of what the school describes as a "difficult and emotional" separation, and where the grounds for objection of the school are of a compelling nature. 48I find that the Family Court has not granted leave by virtue of the notation in the consent orders of 12 May 2011. The next question is what to make of the orders of the District Court.

The power of the District Court of NSW to make further orders 49The application for leave must be made to the Court to which the undertaking was given. While in Holpitt Pty Ltd v Varimu Pty Ltd (1991) 103 ALR 684 at 686 and McCabe v British American Tobacco Australia Services Ltd (No. 3) [2002] VSC 150 the application was heard and determined in proceedings other than those in which the documents were produced, the circumstances were very different. In Holpitt Pty Ltd v Varimu Pty Ltd , not only did the parties agree, but both proceedings in question had been conducted by the Federal Court, a very different situation to the present, where one set of proceedings is in a Federal Court of superior jurisdiction. 50Similarly, in McCabe v British American Tobacco Australia Services Ltd (No. 3) , both proceedings were brought in the Supreme Court of Victoria and the respondent to the application appears not to have taken the point that the application ought properly to have been brought in the earlier proceedings. 51The Family Court is a federal superior court of record: s 21(2) Family Law Act 1975 (Cth). Not only are the two courts separate, but a court of inferior jurisdiction in New South Wales is purporting to either vary, or add to, or otherwise perfect an undertaking given to a court of superior jurisdiction. 52The defendant submits that the fact that Elkaim SC DCJ had no authority to make the orders sought in the notice of motion renders those orders a nullity. Mr Chapple draws my attention to the statement of McHugh JA in Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 357: "If an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt. Such an order is a nullity. Any person may disregard it. Different considerations arise, however, if the order is of a kind within the tribunal's power but which was improperly made. In that class of case, the order is good until it is set aside by a superior tribunal. While it exists it must be obeyed." 53This statement has been referred to by the High Court with approval in Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435 at 445 and by the Court of Appeal in United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 335-336. 54While these statement of principles relate to prosecutions for contempt, the same principle is applicable in the present circumstances. Accordingly, the grant of leave by the District Court is a nullity. 55If I have erred in making this finding, the problem still remains that the appropriate course for determining special circumstances was not followed. The school raised the objection to the use of its document in a letter of 4 May 2011. By making orders in the absence of the school, and giving the school seven days to indicate if it "wishes to oppose", the onus of proof has effectively been reversed. Firstly, the obligation is on the Court to determine whether special circumstances have been made out and, secondly, if an objection is raised, then that objection should be answered by the parties seeking the indulgence of the Court in circumstances where the party objecting to use of its document both knows about, and is able to be heard at, a hearing on the merits, resulting in a judgment of the Court. 56There were compelling reasons why weight should have been given by the District Court to the letter from the Catholic Schools Office. Firstly, this is a carefully thought out letter, written after consultation with the Principal, the school's consultant and the Director of the Catholic Schools Office. Issues relevant to the children of the plaintiff and defendant, who would appear to be children at this school, were at the forefront of the minds of these persons. In addition, Sister Camilleri and the school were the recipients of these matter complained of; apart from a reliance upon an asserted republication to the police by Sister Camilleri of the matter complained of, Sister Camilleri and the Catholic School system constitute the whole of the audience to the matter complained of. I have never before encountered a defamation action that the person or persons to whom the libel was published have indicated that defamation proceedings were inadvisable. 57Although, for case management (and more recently human rights legislation) purposes, cases involving extremely limited publication or absence of serious damage to reputation may be struck out (see Schellenberg v British Broadcasting Commission [2000] EMLR 296 and Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946), this is not the law in Australia: Barach v University of New South Wales [2011] NSWSC 431. This extends to such matters as an application for leave to serve a subpoena outside the jurisdiction ( Barach v University of New South Wales [2011] NSWSC 431) and arguably may be a relevant factor in favour of the granting of leave to the plaintiff, in the event that this is an issue raised before either the Family Court of Australia or any appellate court considering this judgment.

The orders to make 58I agree with Mr Gemmell's oral submission that if I am of the view that an order needs to be made to use the subpoenaed document, the court which should determine all issues, such of "special circumstances" and the issues raised by the school (if relevant) is the Family Court of Australia. 59I know very little of the Family Court disputes between these parties, and what part the defamation claim plays in them. After reading the school's letter, I consider questions of what orders, if any, should be made, or are necessary, are matters for the Family Court's skills and expertise. I have indicated to the parties that I am sending a copy of this judgment to the Registrar of the Family Court at Newcastle and to Justice Cleary of the Family Court at Newcastle. 60It would not be fair to strike out the plaintiff's claim, as it is now time-barred, so I have made an order for a stay pending the determination of any application to the Family Court. 61When the matter was before me, I told the parties that, whatever my decision, I intended to reserve the question of costs. This was a difficult matter for any trial judge, in that the defendant told me frankly he did not understand what was going on, and his representation problems due to being in custody left him at a considerable disadvantage in dealing with this complex issue. Consequently, I reject the plaintiff's application for costs thrown away by reason of the hearing not proceeding. 62Having regard to the subject matter of the issue in dispute I told the parties' legal representatives that, whatever my ruling may be, consistent with British American Tobacco Australia Services Limited v Laurie [2011] HCA 2, I should not regard myself as part-heard, and the matter should be returned to the Defamation List for hearing (depending on the Family Court's orders) by another judge.

Orders (1)These proceedings stayed pending further orders of the Family Court of Australia at Newcastle. (2)Costs reserved (3)A copy of this judgment to be sent by email to the Registrar of the Family Court at Newcastle and to Justice Cleary. (4)Matter returned to Defamation List for further case management on 14 October 2011

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 October 2011