[2008] HCA 36
Liberty Funding Pty Limited v Phoenix Capital Limited [2005] FCAFC 3
218 ALR 283
Strange v Turnbull
Source
Original judgment source is linked above.
Catchwords
[2008] HCA 36
Liberty Funding Pty Limited v Phoenix Capital Limited [2005] FCAFC 3218 ALR 283
Strange v Turnbull
Judgment (5 paragraphs)
[1]
REVISED EX TEMPORE Judgment
These matters again come before me at 3pm on 30 December 2020. I stood the matters over for further hearing before me today when I first heard the applications on 24 December 2020. I refer to my earlier judgment in respect of the orders I made on 24 December 2020. [1] I set out the background to the matters in my first judgment.
I made interim freezing orders on an ex parte basis on 24 December. I ordered that the motions and affidavits in support be served by email on the solicitor for the judgment debtor.
In view of the time, that is Christmas Eve, and the possibility that the solicitor would not be working over the Christmas break, I granted leave to the judgment creditors to serve the motions and affidavits and orders personally on the judgment debtor (Ms Turnbull) in the event that the solicitors for the plaintiffs were unable to make contact with the first respondent, Mr Joseph, by 10am on 29 December 2020.
The matter thus comes back before me today for further consideration, having regard to any developments over the past six days. Mr Judd of counsel again appears for the judgment creditors. There is no appearance by Ms Turnbull, or the first respondent, Mr Joseph.
The judgment creditors seek extension of the freezing orders and, by way of separate application, that they be released from their implied undertaking in respect of documents received in the earlier proceedings.
The plaintiff relies on a further affidavit of Elaine Venetia Tilly Stops, the solicitor for Mr Strange, sworn 29 December 2020. As set out in Ms Stops's affidavit, she sent an email to Mr Joseph, serving the documents on him. She sent a further email to him on 28 December 2020, again providing the documents to him.
The response to service of the documents was a pro forma email indicating that the office is closed for the Christmas holidays and would reopen on 4 January 2021. There has been no other communications from the solicitor. Bearing in mind the importance of these proceedings and the orders that I have made, I would infer that if the solicitor was working or had checked his emails, he would have responded in some way to the solicitor for the plaintiff. He has not.
Because of that possibility, on 24 December I granted leave to the plaintiffs to serve the documents personally on Ms Turnbull. Unfortunately, the judgment creditors have been unable to serve the documents on Ms Turnbull.
As set out again in the affidavit of Ms Stops, contact was made with a process server regarding service of the documents. The process server was provided with all of the documents and asked to attempt service. Ms Turnbull lives on a property somewhere near Moree but it is a remote property.
Having regard to the background to these proceedings, which involve the murder of Mr Turner whilst he was attending a remote property in the course of his duties, the process server indicated that he would not attempt service (because he was aware of the background of the matter).
As such, as far as the judgment creditors are aware, Ms Turnbull remains situated on her remote property, not aware of these proceedings, and the solicitor who has acted for her is on holidays and is not responding to emails. The position thus remains the same as it was on Christmas Eve in terms of service and notice of the applications.
The position also remains the same in terms of any communications from Ms Turnbull or her solicitor as to what has happened to the proceeds of sale of the property known as Eralee.
As I indicated in my earlier judgment, the settlement of the proceedings pursued by both judgment creditors against Ms Turnbull involved entry into a Deed of Settlement and agreement by Ms Turnbull to pay the sum of $1,750,000 to Robert Strange and $2,500,000 to Alison McKenzie and her children. As part of the settlement, Ms Turnbull was required to use her best endeavours to sell certain properties to enable her to pay moneys to the plaintiffs. On the evidence before me, she has been successful in selling Eralee as it is no longer registered to her but no moneys have been forthcoming.
Further, as part of settlement of the proceedings commenced in the Real Property List ("the real property proceedings") Ms Turnbull gave an undertaking to use her reasonable endeavours to sell the properties as necessary and pay the plaintiffs in accordance with the Deed of Settlement and Release dated 9 October 2018 and the net proceeds of sale on or before 20 June 2020. Eralee is one of the properties specified in the consent orders made in respect of the real property proceedings.
The judgment creditors do not suggest that Ms Turnbull should not have sold Eralee. To the contrary, she agreed to use her best endeavours to do so. However, there has been no communication at all from Ms Turnbull either about the sale or about what may have happened to the moneys from the sale. As indicated in my earlier judgment, this is despite a number of attempts by the solicitors to obtain information as to the sale of the properties and receipt of the proceeds of sale.
Indeed, there seems to have been complete silence in terms of what is happening with the sale and the moneys received.
In these circumstances, I am satisfied that it is appropriate to extend the order I made on 24 December. I extend orders 6, 7, 8, 9 and 10 I made on 24 December in respect of each proceedings, [2] which are in the form provided in Annexure A to this judgment, until 5pm on 8 January 2021 or further order of the Court.
[2]
Release from the "Harman" undertaking
By way of notices of motion which I granted leave to file in Court today, the judgment creditors also seek orders that they be released from what is known as the Harman obligation, being an implied undertaking not to use documents obtained in proceedings for any other or collateral purpose.
Again, the judgment creditors rely on the affidavit of Elaine Venetia Tilly Stops sworn 29 December 2020 and in particular paragraphs 30 of that affidavit.
According to Ms Stops, she has reviewed an exhibit to the affidavit of Grant Turnbull served in the real property proceedings and is able to identify an email address that is likely to be that of Ms Turnbull that was current at around 2015. She is also able to identify an email address and mobile telephone number that is likely to be Grant Turnbull as at 2015.
The judgment creditors would not be permitted to use this information for the purposes of making contact with Ms Turnbull because of the implied undertaking not to use information obtained as part of litigation and documents obtained for the purposes of litigation for any collateral purpose. This has been called the Harman restriction. [3]
In Liberty Funding Pty Limited v Phoenix Capital Limited, [4] the Court observed that "[i]n order to be released from the implied undertaking it has been said that a party in the position of the [plaintiffs] must show 'special circumstances'". As the Court elaborated:
"[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."
The plaintiffs also direct me to r 21.7 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") which relevantly provides:
21.7 Discovered documents not to be disclosed
(1) No copy of a document, or information from a document, obtained by party A as a result of discovery by party B is to be disclosed or used otherwise than for the purposes of the conduct of the proceedings, except by leave of the court, unless the document has been received into evidence in open court. …
The plaintiffs accept that the documents which they seek to use for the purposes of obtaining an email address and phone number may fall within the operation of UCPR r 21.7.
Whether or not that be so, documents may be used in the way foreshadowed by the plaintiffs with the leave of the Court and in accordance with Hearne v Street, the Court may grant leave to a party to use such documents for a purpose other than that for which it was provided to the party in the original litigation.
In this matter, the plaintiffs seek to use documents which they obtained in the real property proceedings not for their own advantage but for the purposes of making further efforts to inform Ms Turnbull of these proceedings. That is, they seek to use a phone number and email address which they obtained as part of the earlier proceedings for the purposes of informing Ms Turnbull of these proceedings and giving her an opportunity to be heard and respond to the substantive application.
In circumstances in which:
1. Ms Turnbull's solicitor is not responding because of the Christmas break;
2. there has been no communication from Ms Turnbull or her solicitor even before the Christmas break about the proceeds of sale of Eralee;
3. Ms Turnbull lives in a remote property;
4. a process server has specifically refused to attempt personal service on her because of the events that led to the murder of Mr Turner;
5. Ms Turnbull must know that Eralee has been sold and she must know that no moneys have been paid to the plaintiffs in satisfaction of the settlement; and
6. she has given an undertaking to the Court in the real property proceedings,
I am satisfied that it is appropriate to release the judgment creditors from the implied undertakings that bound them in respect of the documents referred to in paragraph 30 of the affidavits of Ms Stops.
I grant leave to the judgment creditors to use those documents for the purposes of identifying email addresses and phone numbers through which they might make further attempts to inform Ms Turnbull of these proceedings.
I stand this matter over for hearing by the duty judge at 10am on 8 January 2021 or any other time as directed by the duty judge for that week.
[3]
Orders in Proceedings 2015/183692 which are extended
(6) The Judgment Debtor is not to dissipate any of the sale proceeds, or further dissipate any such proceeds, received with respect to the sale of the real property known as 'Eralee' being the land contained in folio 11/1017699 (the Sale Proceeds).
(7) The Judgment Debtor is not to dissipate any other sale proceeds, or further dissipate such proceeds, received, or receivable, with respect to any sale of any other real property (Other Sale Proceeds).
(8) The Judgment Debtor must not remove from Australia, or in any way dispose of, deal with or diminish the value of the Judgment Debtor's assets in Australia, held beneficially or otherwise, so that the collective net unencumbered value does not fall beneath $2,773,321.31.
(9) The First Respondent is not to transfer, deal with or expend any of the Sale Proceeds and Other Sale Proceedings, or further dissipate any such proceeds, that remain in any trust account or any other account used by the First Respondent.
(10) These orders are interim orders and will remain in place until further order of the Court.
[4]
Orders in Proceedings 2017/229368 which are extended
(6) The Judgment Debtor is not to dissipate any of the sale proceeds, or further dissipate any such proceeds, received with respect to the sale of the real property known as 'Eralee' being the land contained in folio 11/1017699 (the Sale Proceeds).
(7) The Judgment Debtor is not to dissipate any other sale proceeds, or further dissipate such proceeds, received, or receivable, with respect to any sale of any other real property (Other Sale Proceeds).
(8) The Judgment Debtor must not remove from Australia, or in any way dispose of, deal with or diminish the value of the Judgment Debtor's assets in Australia, held beneficially or otherwise, so that the collective net unencumbered value does not fall beneath $3,233,238.71.
(9) The First Respondent is not to transfer, deal with or expend any of the Sale Proceeds and Other Sale Proceedings, or further dissipate any such proceeds, that remain in any trust account or any other account used by the First Respondent.
(10) These orders are interim orders and will remain in place until further order of the Court.
[5]
Endnotes
Strange v Turnbull; McKenzie v Turnbull [2020] NSWSC 1923.
Strange v Turnbull; McKenzie v Turnbull [2020] NSWSC 1923 at [21], [22].
Harman v Secretary of State for the Home Department [1983] 1 AC 280; Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [96]‑[97], [109].
[2005] FCAFC 3; 218 ALR 283 at [31].
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: 06 January 2021