FEDERAL COURT OF AUSTRALIA

DOQ17 v Australian Financial Security Authority (No 3) [2019] FCA 1488

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the first, second, third, fifth and seventh respondents’ costs as agreed or assessed.

3.    The fourth respondent is to advise the Associate to Justice Perry and, by email, the Applicant as to whether the fourth respondent intends to press an application for indemnity costs on or before 4pm on Friday, 13 September 2019.

4.    In the event that the fourth respondent does not press the application referred to in order 3 above, the applicant is to pay the fourth respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This matter has a long and complex history. The applicant, DOQ17 (Ms DOQ), seeks relief consequential on the disclosure of her name and identity in April 2012 by the Australian Financial Security Authority (AFSA), Mr Madden, Ms Czinner, and Ms Nash, the first to fourth respondents respectively, in attaching orders made by the Family Court on 19 August 2011 (the Family Court Orders) to a contract for the sale of land in the State of New South Wales (the property). The property was the former matrimonial home of which the applicant was part owner. Additional complaints are made against Ms Nash on the grounds that she published a “blog” on the ARITA website on 23 August 2011 (Exhibit A1 (Ex A1) at 230) and two continuing legal education papers, each of which also disclosed the applicant’s identity. By the Further Amended Statement of Claim (FASOC), Ms DOQ alleges that the disclosure of her identity by these acts contravened a pseudonym direction made under s 121 of the Family Law Act 1975 (Cth) (the Family Law Act) and breached various duties allegedly owed to her. Ms DOQ seeks damages based on various alleged causes of action for mental injury and distress.

2    AFSA (formerly known as the Insolvency Trustee Service of Australia (ITSA)) is an executive agency within the meaning of Part 9 of the Public Service Act 1999 (Cth). Its functions include supporting the Official Trustee in Bankruptcy in performing its statutory functions. Mr Madden and Ms Czinner were employees of AFSA at the relevant time. They were appointed as the statutory trustees for the sale of the property pursuant to s 66G of the Conveyancing Act 1919 (NSW) by the Family Court Orders. Ms Nash was at all relevant times a legal practitioner entitled to practice under the Legal Profession Act 2004 (NSW). She was instructed to act on behalf of the Official Trustee in Bankruptcy and, by extension, on behalf of Mr Madden and Ms Czinner in their capacity as the statutory trustees for sale.

3    The applicant’s claims against the other respondents also relate to the disclosure of the applicant’s identity as part of the contract for sale. The fifth respondent, the Registrar-General of New South Wales, recorded the Family Court Orders vesting the property in the trustees for sale on the Register pursuant to s 86 of the Real Property Act 1900 (NSW) (RPA). The seventh respondent, Savice Pty Ltd trading as LJ Hooker Picton (LJ Hooker Picton), distributed the contract to which the Family Court Orders were attached to prospective buyers. I note that the proceedings were discontinued as against the then sixth defendant, the Australian Restructuring Insolvency and Turnaround Association (ARITA), on 14 February 2017, before the matter was transferred to this Court from the District Court.

4    For the reasons set out below, none of the claims have merit and the proceeding must be dismissed.

5    I should also make it clear at the outset that the applicant’s pleadings, affidavit evidence, and submissions were replete with scandalous allegations of serious misconduct and sinister motives against the respondents, their legal representatives, third parties such as the Commonwealth, and judicial officers. These were unfounded, irrelevant and ought not to have been made, as I said in my reasons in DOQ17 v Australian Financial Security Authority [2018] FCA 561 (DOQ (No 1)) at [35] with respect to allegations of a similar nature. As such, I have disregarded them.

6    Finally, I note that the applicant is referred to by a pseudonym in this proceeding given that her substantive complaint relates to her identification in various documents as a party to the Family Court proceedings.

2.    THE APPLICATIONS FOR AN ADJOURNMENT

2.1    Background to the applications

7    By a letter dated 10 August 2018, the applicant requested that the hearing listed on 13 and 14 September 2018 be adjourned. On the same day, the Court Registry sent an email to the parties confirming receipt of the applicant’s letter and noting that “it would not be proper for her Honour to adjudicate on the substantive matter until a ruling is made on the disqualification application. This means that her Honour is not presently able to address your application that the hearing be adjourned.”

8    On 11 August 2018, the applicant sent an email again requesting an adjournment. On 13 August 2018, the Registry sent an email to the applicant and copied to the other parties noting that “at this stage no application for an adjournment has been filed. In the event that you wish to press for an adjournment, it will be necessary for you to file an application together with an affidavit or affidavits which explain why the adjournment is sought, and the likely period of any such adjournment.”

9    On 23 August 2018, I published my reasons for dismissing the applicant’s disqualification application: DOQ17 v Australian Financial Security Authority (No 2) [2018] FCA 1270.

10    On 3 September 2018, the applicant filed an application for an adjournment as follows:

Adjournment of the matter which is listed for hearing on 13 & 14 September, 2018 as the Federal Court and the Respondents have been served with an Application for Removal filed in the High Court on 23 August, 2018 which is still to be determined by that Court. The Application is made under s 78B Judiciary Act 1903 and 8.2 of the Federal Court Rules.

The Application for Removal filed in the High Court was made under s 40 of the Judiciary Act 1903 so that all matters in controversy between the parties could be dealt with in accordance with s 32 of the Judiciary Act 1903.

The First Respondent is an executive agency of the Commonwealth Attorney-General’s Department and in accordance with s 75V of the Commonwealth of Australia Constitution Act the High Court has original jurisdiction of the matter.

(quoted without alteration)

11    On 4 September 2018, the Registry emailed the parties as follows:

Her Honour has conditionally accepted the [adjournment] application for filing despite the failure to comply with the rules requiring any such application to be accompanied by an affidavit in support. However, her Honour has made orders requiring an affidavit [to] be filed if the application is sought to be pressed. Any such affidavit is to address the following matters:

·    any documents filed by the applicant in the High Court in support of the removal application;

·     any correspondence from or orders made by the High Court in relation to the removal application;

·     the applicant’s reasons for seeking to have the matter removed to the High Court;

·     the reasons for the applicant’s delay in seeking to have the matter removed to the High Court; and

·     any matters that the applicant wishes to give in evidence in support of the application for an adjournment.

…

12    As noted in that email, I made orders on 4 September 2018 requiring the applicant to file and serve an affidavit in support of the adjournment application by midday on 6 September 2018, and setting the adjournment application down for hearing on 7 September 2018.

13    On 6 September 2018, the applicant filed an affidavit sworn on 5 September 2018 in support of the application for an adjournment, to which was attached a letter dated 5 September 2018 from the applicant to the Court and the parties.

14    The application for an adjournment was heard on 7 September 2018. I refused the application at the hearing and, while I gave a broad indication of my reasons at the time, I stated that I would give my reasons in my decision on the substantive application itself. I set out my detailed reasons below.

2.2    The bases upon which an adjournment was sought

15    While the applicant did not file separate written submissions in support of her application for an adjournment, I treated her letter dated 10 August 2018 as a submission. The letter set out the following seven reasons for an adjournment (at pp. 1-2):

1. There has been no resolution to my letter of 30 April, 2018 which Judge Perry determined to be an application for disqualification.

2. My letter of 30 April, 2018 was sent in response to Judge Perry’s Judgment on an Interlocutory Application filed on 6 February, 2018 wherein Her Honour showed bias, prejudice and discriminated against me, an unrepresented litigant and claimed that I was a liar.

3. If and when Judge Perry hands down her decision as to whether she will disqualify herself, I will file an Appeal and as an unrepresented litigant, I will not be able to deal with preparing an Appeal as well as for a trial.

4. I endeavoured to have the matter moved on by writing to the Chief Justice … but again he would not interfere because of my right to appeal.

5. The parties also have not complied with the timetabling orders made by Judge Perry on 26 April, 2018 which has made my case preparation more difficult.

6. The solicitors for the First, Second, Third, Fourth and Seventh Respondents have also, though being served in accordance with order 9 of the orders made on 26 April, 2018, informed me that they refuse to call those persons to give evidence despite the fact that Judge Perry on 26 April, 2018 stated “So if you or any of the respondents wish to cross-examine any witness ....” and “or each other, then notice has to be given of that, in advance, by this date”. (p11 transcript)

7. The proposed Ninth Respondents’ solicitors and counsel are rattling the tin for payment of their costs and are probably in the process of preparing a costs assessment.

16    The applicant’s letter dated 5 September 2018 also set out a number of grounds for the adjournment sought, namely:

(1)    the proceedings should be adjourned because on 23 August 2018, the applicant applied for the case to be removed to the High Court under s 40 of the Judiciary Act 1903 (Cth) (at p. 1);

(2)    the first to third, fourth and seventh respondents have “refused” to call various witnesses for cross-examination by the applicant; the first to third and seventh respondents wish to cross-examine the applicant; the first to third and seventh respondents failed to file their Notice of Dispute; and the hearing of the application for the adjournment was listed at short notice, which prejudices the applicant as she lives in Victoria (at pp. 2-3);

(3)    the matter was left in limbo for four months pending the decision on the applicant’s disqualification application (at p. 2);

(4)    the applicant referred to “comments” allegedly made by Mr Craddock, counsel for the fourth respondent, “that the Federal Court does not exercise appellate jurisdiction with respect to the outcome of the process leading to the outcome of proceedings before the Family Court”, as “evidence in support of my application for adjournment” (at p. 3);

(5)    the applicant faced difficulties, as an unrepresented litigant with no legal qualifications, in keeping up with the many documents to be prepared (at p. 4); and

(6)    the respondents were unable “to agree on most issues”, and their “continued denial of issues” meant the matter could not be resolved in two days of hearing (at p. 3).

17    The applicant requested a further two months to prepare for trial (at p. 4).

18    The respondents filed short outlines of submissions in opposition to the application for an adjournment. By an email dated 5.27pm on 6 September 2018, the applicant provided short submissions in response to the fifth respondent’s outline of submissions. In these submissions, the applicant submitted that while the hearing dates were set down with her consent, she was unaware of the volume of work involved in producing the notices to admit facts, reviewing the documents in the tender bundle, and so on, referring again to her status as an unrepresented litigant. The applicant also stated that the application for an adjournment “is based on many other issues as outlined in documents forwarded to the parties and to the Court today”.

2.3    The applicant’s submissions at the hearing

19    In support of her application for the adjournment the applicant relied upon her affidavit sworn on 5 September 2018 and the bundle of documents attached to the applicant’s affidavit filed in the High Court and sworn on 20 August 2018.

20    The applicant submitted that the reasons for which the adjournment was sought were outlined in the documents provided by her to the Court, which I have summarised above. Importantly, she explained that she had put the issues in an email dated 6 September 2018, and that these were the “more important ones that I would like you to deal with” (T3.32-33). In that email, the applicant “reiterate[d] some important issues raised in my Application and Affidavit” as follows:

1. As indicated in my letter to the Court dated 5 September 2018, it is not possible for me to be at Court on Friday, whatever time. I will have to appear by telephone, and will be available tomorrow morning …

2. I require the Court's direction as to whether I am able to cross-examine witnesses (which I first raised by letter to the Court on 10 August 2018) and is referred to in my letter of 5 September as well as my Affidavit in support of the Adjournment Application. If I am to cross-examine witnesses, which I requested to do in accordance with Justice Perry’s orders, it should be noted that I have had no time to prepare for such an undertaking, and as an unrepresented litigant with no legal qualifications, this will require some thought.

3. I note a major delay in the proceedings was due to Justice Perry taking nearly four (4) months to make a decision on the disqualification application.

4. Ebsworths for Respondents 1, 2, 3 & 7 have sent me (and I am not sure if the other parties have received a copy) their Notice to Dispute. The document has not been filed in the Court, been stamped and served upon me. As such, I cannot be sure that this document will be the same copy that all the parties hold or that Ebsworths intend to include in the Court Book. I would like Justice Perry to make a determination on this issue.

5. I would also refer to point 5 of my letter of 5 September, where Mr Craddock states “that the Federal Court does not exercise appellate jurisdiction with respect to the outcome of the process leading to the outcome of proceedings before the Family Court”. If what Mr Craddock states is correct, I would like Justice Perry to make a determination so that the matter can be dealt with in the appropriate court.

6. If possible, I would like Justice Perry to finally determine, by asking Counsel for Respondents 1, 2, 3 & 7 whether they are indeed instructed, and have been instructed by the Commonwealth Attorney-General’s Department.

21    I will deal with these issues in turn save for the first which was merely a note to the Court.

22    In relation to the second issue, the applicant explained that she had fallen behind in her preparation for the hearing because she did not know whether she could cross-examine the respondents’ witnesses. The applicant referred to an order made at a case management hearing on 26 April 2018 that “[o]n or before 4.00 pm on 28 June 2018, any party who requires the deponent of a filed and served affidavit to attend for cross-examination at hearing, is to notify the party who served the affidavit, in writing, of that requirement.” The applicant explained that while her understanding at the case management hearing was that she would be able to cross-examine the respondents, she had been informed by the respondents’ solicitors that she could not, and sought clarification from the Court.

23    I explained to the applicant that whether a party can be cross-examined depends upon whether they give evidence. I further explained that if the respondents chose not to rely on the evidence of any witnesses, the applicant might invite the Court more readily to draw adverse inferences from the failure of a person to give evidence. Counsel for each of the respondents did not take issue with this explanation.

24    Turning to the third issue, the applicant submitted that the matter had been “in limbo” because of delay in the disqualification decision. However, at the hearing of the disqualification application, I had explained that all parties should proceed on the basis that the trial date would remain in place. As it was not appropriate for me to make rulings on case management issues while I decided the issue of disqualification, the Registry had assisted with these issues in the meantime so as not to jeopardise the parties’ preparation. It should have been clear to all parties that even if I had disqualified myself, another Judge might then have been able to hear the matter. Accordingly, the delay alleged by the applicant does not warrant an adjournment.

25    The fourth issue relates to the failure by the first to third and seventh respondents to file their notice of dispute as a consequence of which the applicant submitted that the first to third and seventh respondents were taken to have admitted all the facts in the notice to admit facts (applicant’s letter dated 5 September 2018). The applicant sought additional time to understand the impact of this on the respondents’ defences, and how these admissions assisted her case. Ms Amato, counsel for the first to third and seventh respondents, however, correctly submitted that r 22.02 of the Federal Court Rules 2011 (Cth) (FCR) requires a notice of dispute to be served only, and not filed. Here, the notice of dispute was served within the 14 day period required by the FCR. It follows that no admissions flowed from the failure by the first to third and seventh respondents to file their notice of dispute, and this is not a reason for granting the adjournment.

26    In relation to the fifth issue, the applicant submitted that the Family Court file was “where … everything started” and should be able to be used as evidence. The applicant contended that if this Court does not have appellate jurisdiction in proceedings before the Family Court, I should transfer the proceedings to the correct Court. As I later explain, the arguments that this Court has jurisdiction to entertain an appeal from the Family Court or entertain a collateral attack upon the Family Court judgment are misconceived. The submission that this proceeding should be transferred to another court to hear an appeal from the Family Court is equally misconceived not least because this proceeding invokes the original jurisdiction of the Federal Court. As such, these arguments could not provide a basis for an adjournment of the hearing.

27    Finally with respect to the sixth issue, the applicant submitted that there were issues pertaining to “the first respondent and [who’s] instructing them and whether that conflicts with things that have been happening in the case, and that was my reason for referring it to the High Court” (T3.18-20). The applicant asked me to make inquiries of counsel for the first to third and seventh respondents to determine whether the Commonwealth Attorney-General was instructing her. The applicant appeared to contend that there was an inconsistency between the Commonwealth Attorney-General instructing Ms Amato when the Commonwealth Attorney-General had declined to intervene under s 78A of the Judiciary Act 1903 (Cth). However, as Ms Amato submitted, this issue was irrelevant to the issues arising at the trial.

28    In addition to issues 2 to 6 identified above, it is convenient also to deal with the removal application to the High Court. As counsel for the first to third and seventh respondents submitted, the fact of a removal application does not, without more, provide a sufficient ground for an adjournment, and the application in any event was brought very late: see Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 (“Luck (FCAFC)”) at [12] (the Court).

29    At the substantive hearing of the application on 13 September 2018, the applicant made further applications for an adjournment because of the large bundle of authorities filed late by the first to third and seventh respondents. As I explained at the hearing, any prejudice arising from this could be dealt with by allowing the applicant to respond to this material in written submissions after the hearing, and if need be, by a subsequent oral hearing.

2.4    The reasons why the applications for an adjournment were dismissed

30    As counsel for the first to third and seventh respondents submitted, the power of the Court to grant an adjournment is discretionary, to be exercised having regard to the objectives in s 37M of the Federal Court Act 1976 (Cth): Luck (FCAFC) at [42] (the Court). In Luck (FCAFC), the Court noted:

44. In Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, the plurality of the High Court recognised four matters which should, in the circumstances of that particular case, have been taken into account by the Court when exercising its discretion whether to grant an adjournment so as to allow substantial amendments to be made to the statement of claim. Those factors were: the explanation for the adjournment sought (at [108]), the parties’ choices to date in the litigation (and the consequences of those choices) (at [112]), the detriment to other parties, and the detriment to other litigants in the Court (at [114]).

31    The respondents submitted that, applying these principles, the Court should refuse the application for an adjournment. I agree. First, for the reasons set out above, the applicant has not identified a sufficient reason to warrant the grant of an adjournment. Secondly, the applicant has had more than a sufficient opportunity to formulate and finalise her application and to prepare for the hearing. While, as an aspect of the court’s duty to ensure that a trial is fair, the court must ensure that unrepresented litigants do not suffer disadvantage from exercising the recognised right to be self-represented, “the court’s duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties”: Hamod v New South Wales [2011] NSWCA 375 at [310] (emphasis added) (cited with approval in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37] (Robertson J, with whose reasons Allsop CJ and Mortimer J agreed)). As Tracey J observed in Luck v University of Southern Queensland [2008] FCA 1582 at [9]:

Although the Court will, normally, be sympathetic to the predicament of an unrepresented litigant faced with the need to prepare legal submissions, the Court is also bound to have regard to the interests of respondents when determining whether or not to accede to further requests for time for preparation.

32    Thirdly, under s 37M of the Federal Court of Australia Act 1976 (Cth), the FCR must be applied in a way that best promotes the overarching purpose of facilitating the just resolution of disputes, relevantly, “as quickly, inexpensively and efficiently as possible”. Obligations are also imposed directly upon the parties to a civil proceeding to conduct the proceeding in a way that is consistent with this overarching purpose by s 37N. To accede to a further adjournment in all of the circumstances set out above would not, in my view, promote the overarching purpose.

33    Accordingly, I refused the applicant’s applications for an adjournment.

3.    EVIDENCE

3.1    The applicant’s evidence

34    The applicant relied first upon her affidavit sworn on 26 February 2018. This was read subject to relevance, save for paragraphs [91], [4], [66] and [71]. However, the applicant’s affidavit dealt almost exclusively with her concerns as to the conduct of her matrimonial property proceedings and proceedings before the Federal Circuit Court (the FCC), neither of which were the subject of an appeal and this Court has no jurisdiction to revisit those proceedings or judgments. As such, the affidavit was not to this extent relevant. I also explained at the hearing with respect to the applicant’s summaries of documents at paragraphs [56], [60], [62] and [66] of this affidavit that ultimately I would read the documents themselves and not simply rely upon the summaries. The applicant was briefly cross-examined (as I later explain).

35    The applicant also relied upon the eight volume tender bundle (TB), which was received in evidence as Exhibit A1 on the basis that the parties would take the Court to the material within those volumes which they contended was relevant and explain its relevance (T69.22-71.2). The receipt of Exhibit A1 was subject to a ruling excluding the document reproduced at pp. 1695-1696 on the ground that the document was subject to legal professional privilege being internal advice within the Australian Government Solicitor (as was apparent from the letter to the Registrar objecting to the document being inspected: Ex A1 at 1723) (T66.7-10). I note that it would appear that this document was inadvertently disclosed to the applicant and that there was nothing to indicate any intention to waive privilege over the document.

36    The applicant also sought orders that the Court receive the whole of the Family Court file into evidence. This was in effect an application under r 30.25 of the FCR. It was apparent from the applicant’s submissions that she sought to put the file into evidence in order to enable this Court to undertake an inquiry into the conduct of those proceedings. However, as I had already ruled in the course of the trial that no such inquiry could be undertaken in the context of these proceedings, I refused the tender (T77.33).

37    Furthermore, the applicant complained that while the first, second and third respondents had relied upon an affidavit of their solicitor, Mr Olson, in support of their application for summary dismissal in the District Court, they had advised that they did not intend to rely upon the affidavit at trial and that Mr Olson was therefore not a witness at trial who the applicant could require for cross-examination (see e.g. Applicant’s final submissions in response to the respondents’ final submissions at p. 3). However, it is a matter for the respondents to determine how they wish to run their case and whether or not they wish to call evidence from Mr Olson or any other witness.

38    Finally the applicant sought to rely upon medical evidence. The tender of the reports of Ms Angela Parasher and Dr Margaret Uebergang was refused on the ground that they were plainly inadmissible for reasons given at the hearing (T89.1-25, T92.25-33 respectively). The reports of Dr Brian Crickitt dated 7 November 2009 and 20 May 2013 were, however, received in evidence (Court Book (CB) tabs 27 and 33). The reports of Dr Ben Teoh dated 7 February 2010, 15 March 2010, 20 February 2011, 19 February 2013, 5 March 2013, 12 March 2014 and 19 March 2018 were also received in evidence (CB tabs 28-32, 34 and 38 respectively) subject to a limitation under s 136 of the Evidence Act 1995 (Cth) that any passages in those reports set out under the heading “History” are not to be taken as evidence of their truth (T94.18-24, 95.17-19).

3.2    Evidence relied upon by the respondents

39    None of the respondents ultimately relied upon the evidence of any witnesses. In this regard, I note that, while initially included in the Court Book, the Registrar-General did not seek to read the affidavits of Mr Stephen Prent dated 13 and 19 April 2018 respectively (T102.19). As such, I have had no regard to these affidavits.

4.    BACKGROUND

4.1    The Family Court proceedings leading to the orders for sale of the matrimonial home

40    The applicant relied among other things on the documentary record in Exhibit A1 which was arranged in chronological order. As Ms Nash points out in her closing submissions dated 28 September 2018 (R4CS), that record commences with the applicant’s letter to the then ITSA in which she accuses ITSA of harassing her with the caveat lodged over the former matrimonial home having pushed her “to [her] limits” (Ex A1 at 3). It is clear from the strong language used in the letter that the applicant was extremely upset and angry with ITSA, an accountant, the Australian Taxation Office, the Law Society of NSW, and a solicitor. It is also fair to say that more than 10 years later the applicant remains very emotional about events arising out of her divorce and her former husband’s bankruptcy and the disclosure of her identity in relation to the Family Court Orders. This has unfortunately translated into a determination by her to pursue multiple avenues of possible redress which were, at least insofar as these proceedings are concerned, misconceived from the outset for the reasons I develop below.

41    As earlier explained, this proceeding is intimately connected with the Family Court proceedings, the background to which is summarised in the reasons of Johnston J in that proceeding: Debrossard & Official Trustee in Bankruptcy [2011] FamCA 648 on 19 August 2011 (Debrossard (FamCA) [2011]).

42    On 12 July 2007 the applicant, Ms DOQ, filed an application for final orders in the Family Court seeking in effect that she become the sole owner of the former matrimonial home as she said was agreed between her and her husband at the time of divorce (Debrossard (FamCA) [2011] at [47]). Consent orders were made in December 2007 by the Family Court as between the applicant and her former husband (the husband) in relation to the parties’ property. The effect of those orders was that the husband was to transfer his interest in the former matrimonial home to the applicant (Debrossard (FamCA) [2011] at [49]).

43    However, on 12 April 2007 the husband had been declared bankrupt and a sequestration order was made against him by the (then) Federal Magistrates Court (Debrossard (FamCA) [2011] at [44] and [66]). As such, as at 26 September 2006, being the date of the first act of bankruptcy by the husband, all of the husband’s property had vested in the Official Trustee in Bankruptcy (the Official Trustee) by operation of ss 58(1) and 116 of the Bankruptcy Act 1966 (Cth) (Debrossard (FamCA) [2011] at [6] and [44]). The substantial unsecured creditor in the bankruptcy was the Deputy Commissioner of Taxation (Debrossard (FamCA) [2011] at [67]). Furthermore, the applicant had been notified of her husband’s bankruptcy by the then ITSA on 21 June 2007 (Debrossard (FamCA) [2011] at [46]).

44    On 1 March 2010, the Official Trustee filed an application in the Family Court seeking to have the consent orders set aside and lodged a caveat in respect of the property on 11 March 2010 (Debrossard (FamCA) [2011] at [58]-[59]). Ms DOQ filed a response to that application on 26 March 2010 (Debrossard (FamCA) [2011] at [60]). The Official Trustee claimed that it had not been given notice of the application which Ms DOQ and the husband had made which had culminated in the consent orders. This was denied by the applicant. She claimed that on 26 June 2007 she notified the Official Trustee in writing that the matrimonial home had been “given to [her]” in the divorce settlement and sought orders that the consent orders be reinstated (as explained in Debrossard & Official Trustee in Bankruptcy [2016] FamCAFC 217 (Debrossard (FamCAFC) [2016]) at [6]-[8]).

45    On 10 May 2010, Johnston J ordered that the consent orders be set aside on the basis that when they were made, the husband’s property had vested in the Official Trustee and no notice of the proceedings had been given to the Official Trustee (Debrossard (FamCA) [2011] at [61]). Subsequently, on 19 August 2011 his Honour made the Family Court Orders appointing Ms Czinner and Mr Madden, employees of the then ITSA, as trustees for sale of the property, and vesting the property in them as trustees for that purpose. The Family Court Orders further provided that Ms DOQ would receive 60 per cent of the proceeds of sale and that the balance would be paid to the Official Trustee of the husband’s bankrupt estate. Johnston J also dismissed a claim by the wife against the Official Trustee for compensation on the ground that there was no basis in law for any such order (Debrossard (FamCA) [2011] at [109]).

46    When Johnston J published the written reasons for judgment, the names of the parties were removed and a pseudonym assigned in their place. In this regard, at the end of the Family Court Orders was stated:

IT IS NOTED that publication of this judgment under the pseudonym Debrossard & Official Trustee in Bankruptcy is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

(the Pseudonym Notation).

47    An application for an extension of time within which to appeal the Family Court Orders filed on 9 September 2016 was dismissed by the Family Court in Debrossard (FamCAFC) [2016]. In so holding, Ainslie-Wallace J found that the applicant’s reasons for the delay in bringing the appeal were “wholly inadequate”: Debrossard (FamCAFC) [2016] at [14]. Her Honour also found that the appeal would have been futile in any event because the property had been sold on 31 July 2012, the proceeds disbursed with 40% of the net proceeds being paid to the Official Trustee, and the husband’s estate was without funds with the moneys received having been paid in satisfaction of the husband’s creditors: Debrossard (FamCAFC) [2016] at [13]-[14].

4.2    The contract for sale

48    In exercising the power to sell the property conferred on the trustees by the Family Court Orders, the trustees prepared a contract of sale for the property and, on 25 September 2011, lodged request no. AG546219V (the Request) with the Registrar-General, Land and Property Information (Ex A1 at 231). The text of the Request read:

THE APPOINTMENT OF TRUSTEES FOR SALE PURSUANT TO FAMILY COURT ORDERS MADE 19 AUGUST 2011, AN ORIGINAL OF WHICH IS ATTACHED HERETO.

49    On or about 17 October 2011, the Request, including a copy of the un-redacted Family Court Orders, was uploaded onto the public register of the NSW Registrar-General’s Department and was available to the public upon payment of a fee (notice to admit upon the fifth respondent at [1]; admitted in the fifth respondent’s notice of dispute at [1]). Significantly for reasons which are later apparent, the copy of the Family Court Orders attached to the Request did not include the Pseudonym Notation (Ex A1 at 235).

50    In or around October 2011, Ms Czinner and Mr Madden instructed the ITSA’s solicitor, Ms Nash, to prepare a contract for the sale of the property. On 25 October 2011, Ms Nash wrote to the applicant enclosing a copy of the draft contract (Ex A1, 238-250). The Family Court Orders were not attached to the draft contract.

51    As the applicant contends, it is not in dispute that Ms Nash attached, or caused to be attached, the Family Court Orders to the contract for sale given to prospective purchasers between 3-26 May 2012 and ultimately that the contract for sale executed by the trustees for sale and provided to the purchasers also attached the un-redacted Family Court Orders. However, AFSA, Ms Czinner and Mr Madden deny giving specific instructions to Ms Nash to attach a copy of the Family Court Orders to the contract of sale contrary to the applicant’s case (cf FASOC at [1]). The correspondence which I summarise below is consistent with the position taken by AFSA, Ms Czinner, and Mr Madden but only prior to 3 May 2011 and I accept that they did not give those instructions before that date: see further at [57] and [107] below.

52    On 5 January 2012, Ms Czinner signed an Agency Agreement with LJ Hooker Picton for the sale of the property. LJ Hooker Picton received a copy of the contract for sale from Ms Nash which was to be distributed to interested purchasers by it.

53    In a letter dated 2 May 2012 from the applicant to LJ Hooker Picton, the applicant wrote complaining that:

On Saturday, 28 April, 2012 I mentioned to you that I believed the Contract for Sale prepared for the sale of my home was a breach of my privacy. I have sought legal advice and it would appear that the Contract breaches S121 of the Family Law Act.

I have been advised to write to you and request that you recall each and every contract for sale that you have handed out in regard to the sale and/or proposed auction of my property.

Please contact me if you are unable to comply with my request.

(Ex A1 at 310)

54    I infer from this correspondence that at some time between January and 28 April 2012, it had come to the applicant’s attention that the Family Court Orders were attached to the contract for sale. No contracts for sale however had been issued at this stage with the Family Court Orders attached (Ex A1 at 309).

55    On 30 April 2012, LJ Hooker Picton raised the issue with Ms Nash who advised that the Family Court Orders were required to be attached to the contract for sale (Ex A1 at 309). Acting upon that advice, LJ Hooker Picton issued four contracts. On 2 May 2012, LJ Hooker Picton wrote to AFSA notifying them of the applicant’s complaint, the advice received from Ms Nash, its actions based upon that advice, and seeking written instructions (Ex A1 at 309; CB vol 2 at 508).

56    In response to a request for advice by AFSA on 2 May 2012, Ms Nash advised by letter dated 3 May 2012 that it remained her view that there was a statutory obligation upon the trustees for sale to disclose the Family Court Orders which was imposed by Part 4 of the Conveyancing (Sale of Land) Regulation 2010 (NSW). In so advising, Ms Nash explained:

Our view [is] that the Trustees for Sale must disclose the legal basis upon which they are conveying title and make full disclosure to a prospective purchaser. A prospective purchaser is entitled to check the order to ensure that the sale process complies with the order and more importantly that the vendor has power to convey good title. The disclosure goes to the title to the land and it remains our view that the legislation requires the disclosure as it is a positive statutory obligation to comply and cannot be ignored.

There is often tension between bankruptcy and family law but this is neither. It is a conveyance ordered by the Family Court to be under Part IV of the Conveyancing Act, 1919 (NSW). Order 2 of the Family Court orders make this clear. Whilst the Family Law Act deals with non-publication, this is not a publication but a compliance with Conveyancing Act Regulations and disclosure requirements under s52A of the Conveyancing Act which requires the Trustee for Sale to make full disclosure. …

The orders only deal with the sale of the property and distribution of the proceeds of sale.

The Family Court having made the order for sale would expect that the Trustees for Sale comply with the Conveyancing Act and Regulations. Order 2 of the orders clearly contemplate a sale as if it is a sale under Part IV of the Conveyancing Act, 1919 (NSW). Clearly the Family Court contemplated the sale be governed by the Conveyancing Act, 1919 (NSW) by order 2.

It remains our view that the orders are necessary to be disclosed. The Conveyancing Regulations cannot be contracted out of and must be complied with by the Trustees for Sale.

(Ex A1 at 315; CB vol 2 at 511-12)

57    On the same day, Ms Czinner emailed Ms Nash stating that “Given that the orders were attached to the Request and therefore publicly available, we rely on your advice to attach the Court Orders to the contract” (Ex A1 at 311).

58    On 16 May 2012, Ms Nash wrote to LJ Hooker Picton enclosing the contract for sale to which the Family Court Orders were attached, for the auction on 26 May 2012 (Ex A1 at 325, 326 and 377).

59    On 17 May 2012, Mr Freedman of Milne, Berry, Berger, Freedman Solicitors (MBBF Solicitors) on behalf of the applicant wrote to Ms Nash advising of his client’s concerns that the attachment of the Family Court Orders to the contract for sale is a breach of s 121 of the Family Law Act and seeking an opportunity to discuss the matter (Ex A1 at 425; CB vol 2 at 497). On 24 May 2012, Ms Nash replied to MBBF Solicitors advising that it remained the view of her firm that the orders are necessary to be disclosed by virtue of the Conveyancing Regulations and apologising if the applicant had been unnecessarily upset by the procedure (Ex A1 at 427; CB vol 2 at 499). (I note that Ms Nash accepted that there was an error in line 8 on page 2 of the letter in that the word “Regulation” should have been “Schedule” (Final Submissions for the Fourth Respondent (Nash) dated 28 September 2018 at [18])). MBBF Solicitors replied on 24 May 2012 advising that, having received advice from counsel, they were satisfied that the attachment of the Family Court Orders to the Contract for Sale is a breach of s 121 of the Family Law Act and that the applicant “is extremely distressed at her privacy being violated by the Orders forming part of the Contract for Sale and no doubt having been provided to various potential purchasers” (Ex A1 at 430; CB vol 2 at 503). The letter referred to an earlier conversation between Ms Nash and MBBF Solicitors, sought written confirmation that instructions had been provided to the agent conducting the sale to remove immediately all copies of the Family Court Orders, and advised that in the absence of such confirmation, the applicant would consider making an urgent application for injunctive relief.

60    On 25 May 2012, Ms Nash wrote to LJ Hooker Picton referring to an earlier conversation on the same day and stating that:

We have sought advice from a Senior Family Law practitioner and Counsel with respect to the inclusion of the Family Court orders attached to the auction Contracts. We have been advised that the Family Law orders attached to the Contract are not a publication in the sense to which publication is referred to in s121 of the Family Law Act. The sale of this property by the Trustees for Sale is being carried out in performance of a Court order and any prospective purchaser is entitled to view these orders as in our view goes to title which must be disclosed.

Accordingly you are instructed to leave the auction Contracts as sent to you under cover of our letter dated 16 May 2012. …

(Ex A1 at 432; CB vol 2 at 506)

61    A copy of the letter sent to the applicant’s solicitor on 24 May 2012 was enclosed.

62    Subsequently, on 28 May 2012, Ms Nash wrote again to MBBF Solicitors by letter in which she stated that:

We refer to your letter of 24 May 2012 which came to my attention after completion of conferences. We have also sought advice from Counsel and an experienced Senior Family Law practitioner as we obviously have concerns about the assertions made. The advice has necessarily been given orally. All advice is that this is not “publication” as intended under s121 of the Family Law Act. It is a necessary carrying into effect of the orders made by the Family Court.

(Ex A1 at 435)

63    Ms Nash also requested a mediation between the applicant and her solicitors under the Civil Dispute Resolution Act 2011 (Cth) and suggested that it might be best by way of side-stepping any potential conflict, for another solicitor to assume carriage of the matter in her stead (CB vol 2 at 516).

64    On 29 May 2012, Ms Czinner in her capacity as joint trustee for sale gave written instructions to Ms Nash to remove the Family Court Orders from the contracts for sale, while also not admitting any breach of s 121 of the Family Law Act (Ex A1 at 446; CB vol 2 at 529). The Trustees did not however agree to a change of solicitors because the matter had become a conveyancing matter and “such change will lead to an increase in legal fees yet serve no purpose” (ibid).

65    On 29 May 2012, Ms Nash wrote to MBBF Solicitors advising that “[i]n an effort to reach mutual agreement we propose to forward the enclosed redacted orders to the real estate agent to be included in the Contract for Sale of Land” (CB vol 2 at 531; issue 18, applicant’s Statement of Issues (applicant’s SOI)). The letter also sought advice from the applicant as to whether she agreed to an offer made on the property which was below the reserve price, and other matters. There is no evidence of any response to that letter.

66    The contract for sale with the purchasers was signed on 19 June 2012 (Ex A2), with the property being transferred to them by the trustees for sale on 31 July 2012. Despite the instructions from Ms Czinner, the un-redacted Family Court Orders were attached to the final contract signed by the purchasers and the Trustees for sale (Ex A2; issue 22, applicant’s SOI). In this regard, Ms Nash’s solicitors admitted that:

It now seems that some error may have occurred at the fourth respondent’s office because the vendor counterpart, signed by the second and third respondents, and which has been stamped for duty, does attach unredacted orders. That contract would have been received by the purchasers. Thus, if that is how events unfolded, the purchasers obtained copies of the unredacted Orders.

(Final Submissions for the Fourth Respondent (Nash) dated 28 September 2018 at [24])

4.3    Non-litigious avenues of complaint pursued by the applicant

67    Among other avenues pursued by the applicant, the applicant made a complaint against Sally Nash and Co Solicitors under the Privacy Act 1988 (Cth) (the Privacy Act). By a letter dated 18 July 2012, the delegate of the Australian Information Commissioner referred to s 41(1)(a) of the Privacy Act which gives the Information Commissioner the discretion not to investigate a complaint if satisfied that the act or practice complained about is not an interference with privacy as defined in the Privacy Act (Ex A1 at 513). The delegate further advised that she did not consider that there had been an interference with the applicant’s privacy on the ground that it appeared that the disclosure was required by law and permitted under National Privacy Principle 2.1(g), and invited the applicant to comment before a final decision was made. The evidence does not suggest that any comment was made in response by the applicant.

68    A complaint by the applicant made on 5 October 2012 of unsatisfactory professional conduct or professional misconduct against Ms Nash was also dismissed on 18 October 2012 by the NSW Legal Services Commissioner. In his letter advising that the complaint had been dismissed and explaining his reasons, the Commissioner referred among other things to the “obvious, careful reasoning” applied by Ms Nash before deciding to attach the Family Court Orders to the contract for sale (Ex A1 at 599; see also at 633). I note in this regard that while Ms Nash said in correspondence with the Legal Services Commissioner on 3 August 2012 that the exchanged contract had redacted orders (CB vol 2 at 540), she accepted that that was in error: see above at [66]. Further in a letter to the Legal Services Commissioner on 17 September 2012, Ms Nash identified an article that had apparently been the subject of a complaint by the applicant as having been written for the purposes of a continuing legal education seminar given to senior insolvency practitioners earlier that year (CB vol 2 at 543; see also the paper at CB vol 2, 561 at 563 and 564). A further paper entitled “Continuing Legal Education – Update on Bankruptcy” which identifies the Family Court proceedings using the applicant’s name appears in the Court Book at 567-8 and is plainly directed to a professional audience, as is the so-called “blog” published on the ARITA website about which the applicant also complained (CB vol 2 at 551).

69    One of the papers referring to the applicant by name in connection with her family law matter had been published on Ms Nash’s business website. That was removed on 30 January 2013 upon the matter being followed up by Ms Cathy Rainsford, Acting Assistant Secretary, Family Law Branch, Attorney-General’s Department, in a telephone call with Ms Nash in connection with a complaint by the applicant (see the file note of the conversation between Ms Rainsford and Ms Nash at Ex A1 at 660; see also the earlier correspondence in relation to the complaint relevantly at Ex A1 at 651 and 656). The file note was on its face a contemporaneous business record of the telephone call and I have no reason to doubt the accuracy of the matters which it records. Ms Rainsford also explained in the course of the telephone call that she had no concerns about the Family Court Orders having been attached to the contracts of sale in relation to s 121 of the Family Law Act. The file note further records that Ms Nash was surprised to hear that there was a still a reference to the applicant’s case without a pseudonym in a paper on her website as she thought that she had removed them all in the previous year.

70    The applicant also wrote to the Commonwealth Director of Public Prosecutions (the CDPP) on 17 December 2012, requesting the CDPP to investigate alleged breaches of her privacy contrary to s 121 of the Family Law Act comprising the attachment of the Family Court Orders to the contract for sale of the matrimonial home and the publication by Ms Nash on the internet of a document disclosing the applicant’s name as a party to Family Court proceedings (Ex A1 at 642). This followed a letter of complaint among others to the Family Court, to which the Deputy Chief Justice had explained in response that the Family Court lacks criminal jurisdiction and that any criminal proceedings would require the written consent of the CDPP under s 121(8) of the Family Law Act (Ex A1 at 642-644). On 7 January 2013, the CDPP replied to the applicant advising that any alleged breach of s 121 may be referred to the Australian Federal Police (AFP) for investigation and a decision would be made by the CDPP only upon the completion of any investigation of the matter by the AFP (Ex A1 at 648). The AFP, however, had earlier advised by email on 26 September 2012 that it was unable to investigate the complaint due to “competing operational resourcing responsibilities” (Ex A1 at 595). Nor is there any evidence to suggest that a complaint made by the applicant to the NSW Police was investigated by them (Ex A1 at 679).

71    By a letter dated 21 April 2015, the CDPP declined a further request by the applicant on 4 January 2015 for the CDPP to investigate the alleged breaches of s 121(1) of the Family Law Act (Ex A1 at 970). In the body of the letter the CDPP reiterated its earlier advice that it was not an investigative agency and would only prosecute or consent to a prosecution on receipt of a brief of evidence and upon being satisfied that a prosecution would accord with the Prosecution Policy of the Commonwealth. It also advised that the documents provided by the applicant did not constitute a brief of evidence and did not contain admissible evidence, the material was not sufficient to enable the CDPP to assess if there was sufficient evidence to warrant a prosecution, and in any event, it would not appear to be in the public interest to prosecute.

72    On 2 December 2014, the applicant also made a complaint to ARITA of which Ms Nash was a member, that an article by her published on its website disclosed the applicant’s name and not the pseudonym given to the matter by the Family Court (Ex A1 at 890). As a result ARITA amended the article entitled “Family Law Divide – 40% to the Creditors” on its website “in accordance with [the] requirements of the court order” (Ex A1 at 899). However, by an email on 6 January 2015, ARITA advised that it was not appropriate for it to consider matters that have been dealt with by the courts, and sought confirmation from the applicant that the matter detailed in her email had previously been raised in, and dismissed by, the FCC (Ex A1 at 927). Following further correspondence from the applicant, ARITA advised by email on 8 January 2015 that no further action would be taken (Ex A1 at 939).

73    The applicant also lodged a request with the Registrar-General that the Family Court Orders be removed from the Register on 24 February 2016. That request was acceded to on 13 March 2016.

74    Finally, I agree with the submission by Ms Nash’s counsel that the contemporaneous documents which I have summarised above do not suggest anything otherwise than a diligent attempt by Ms Nash to ensure that the applicant’s concerns were dealt with efficiently and I would add fairly, professionally, in good faith, and on the basis of her understanding of the applicable legal requirements relating to the proper disclosure of matters relevant to establishing good title to sell the property (R4CS at [22]). In this regard, I would also emphasise that there is no evidence that Ms Nash gained any personal, professional, or financial benefit from attaching the un-redacted Family Court Orders to the contract for sale or from referring to the applicant and the husband by name when citing the Family Court judgment in the continuing legal education papers and “blog”, and there is no basis at all in the evidence for drawing any inference to that effect: cf applicant’s SOI at [54]-[56]; and e.g. Applicant’s final (ie, closing) submissions in response to final submissions of the fourth respondent (Nash) (ACS (in response to R4CS) at [11]). Equally there is no basis on which to infer that Ms Nash’s intention “all along was to attach the Applicant’s Family Court Orders to the Contract for Sale …”: cf ACS (in response to R4CS) at [21].

4.4    Summary dismissal of the claim in the FCC for alleged contraventions of s 121, Family Law Act (Debrossard & Carey [2014] FCCA 2915 and [2015] FCCA 2739)

75    On 8 September 2014, the applicant filed an “Application - Contravention” in the FCC alleging that Ms Czinner and Mr Madden, as trustees for the sale of the former matrimonial home, and “Ms Norman” (which is plainly a reference to Ms Nash), the solicitor acting for the Official Trustee, contravened what was described by the applicant as “Publication Order S 121(9)(g) FLA” (Debrossard & Carey [2014] FCCA 2915 (Debrossard (FCC) [2014])). Specifically, the FCC explained with respect to the application that:

12. The first count relates to all three of the Respondents and claims that on an unspecified date in April 2012:

The respondents attached a copy of the Family Court Orders to a Contract for Sale disclosing parties and file number of Family Court proceedings.

13. The second count relates only to Ms Norman and claims that on 23 March 2012 at [omitted], Sydney:

Ms Norman, Solicitor, prepared a paper for a conference at [omitted] Annual Conference and subsequently published this paper online – available at http;//www.[omitted] which is accessible to the public.

(quoted without alteration)

76    The FCC held that the application must be summarily dismissed under s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (the FCCA Act) for the reasons that:

(1)    the wording attached to the judgment assigning a pseudonym to the judgment was clearly not an order of the Family Court and could not be enforced by way of contravention proceedings (at [17]-[20]); and

(2)    while it is an offence to contravene s 121 of the Family Law Act, s 121(8) provides that a prosecution can be commenced only with the written consent of the Director of Public Prosecutions, of which there was no evidence (at [21]-[23]).

77    Further and in any event, Judge Scarlett held that:

24. In any event, I note that in Prentice & Bellas [[2012] FamCA 108; (2012) 47 Fam LR 262], Murphy J observed at [44] that the Family Court did not have the power to give consideration to the prosecution of individuals alleged by an applicant to have breached s.121 of the Act, saying:

This court has itself no prosecutorial power in the sense spoken of.

25. The same comment could be made of this Court.

78    The FCC therefore concluded that “… it is abundantly clear that the Applicant has no reasonable prospect of successfully prosecuting her contravention application against the Respondents. The Application is incompetent and will be summarily dismissed” (at [26]).

79    An application for indemnity costs in the FCC referred to above was successful on the ground that the case brought by the applicant was “clearly a hopeless case as the Court had no jurisdiction to make the orders sought” and that the applicant had persisted with “such a meritless case” until its “inevitable” summary dismissal: Debrossard & Carey [2015] FCCA 2739 at [20]-[22] (Judge Scarlett).

80    There was no application for leave to appeal either decision of the FCC.

4.5    Institution of the present proceedings in the District Court of New South Wales and the application for summary dismissal

81    The present proceedings were commenced in April 2015 in the District Court of New South Wales. The proceedings as originally pleaded are conveniently summarised by Ward JA and Sackville AJA on an application for leave to appeal by the applicant in D v Australian Financial Security Authority [2017] NSWCA 50 (D v AFS (NSWCA)) as follows:

6. The District Court proceedings arise out of the circumstances in which, following the applicant’s divorce and the bankruptcy of her former husband, the applicant’s former matrimonial home was sold pursuant to a statutory trust for sale.

7. The applicant’s complaint is that a copy of Family Court orders (made on 19 August 2011), setting aside earlier consent orders by which her former husband’s interest in the matrimonial home had been transferred in its entirety to her and vesting the property in the second and third respondents on a statutory trust for sale, was attached to the contract for sale of the property and distributed to prospective purchasers without the redaction of her name and other identifying information (including the file number of the Family Court proceedings).

8. The applicant initially brought proceedings only against AFSA (the first respondent in the current proceedings) the two trustees employed by it (the second and third respondents) and the solicitor who acted for AFSA on the sale (the fourth respondent).

9. The causes of action raised against those parties were identified by Taylor SC DCJ, when ruling in May 2016 on a summary dismissal application brought by them (see [14] below), as being for: breach of publication order; breach of s 121 of the Family Law Act 1975 (Cth); breach of the Privacy Act 1988 (Cth) (the Privacy Act); negligence; breach of confidence; breach of privacy; defamation; and breach of statutory duty arising from a breach of s 121 of the Family Law Act (see [11] of his Honour’s reasons).

82    Ward JA and Sackville AJA in D v AFS (NSWCA) summarised the outcome of the summary dismissal application before Taylor SC DCJ as follows:

Summary dismissal judgment – 16 May 2016

14. Before the applicant’s subpoena application was heard, Taylor SC DCJ heard and dismissed a summary dismissal application brought by the then defendants to the proceedings (the first four respondents).

15. In so doing, his Honour nevertheless struck out [4] of the amended statement of claim (which contained an allegation of “breach of the Publication Order under Section 121 of the Family Law Act, which are criminal acts and offences against Commonwealth legislation”), pursuant to r 14.28(1) of the UCPR. His Honour treated other references to breach of a publication order as being “in the context of notification by the plaintiff of facts alleged to be relevant to a cause of action other than breach of a publication order” and did not strike out those references.

16. As to the second cause of action identified by his Honour (for breach of s 121 of the Family Law Act), his Honour noted that the applicant did not, in her submissions, adopt this cause of action (see [33]). His Honour stated that no statutory cause of action for damages arising from a breach of s 121 was created under the Family Law Act ([34]). He then said:

In circumstances where it is not at all clear that the statement of claim plead a statutory cause of action and where the plaintiff does not rely on it, I do not propose to make orders for judgment on, or the striking out of, such a cause of action.

17. For similar reasons, his Honour did not make any order for judgment, nor did he strike out, any claim based on a statutory cause of action under the Privacy Act ([40]).

18. As to the defamation claim, his Honour was not prepared to allow any such claim to proceed – on the basis that no imputations had been pleaded, as required by r 14.30(2) of the UCPR. His Honour noted that the only reference to defamation in the pleading was on the first page of the amended statement of claim under the heading “TYPE OF CLAIM”. His Honour made clear that the striking out of that reference from the amended statement of claim was not intended to preclude the applicant from seeking to leave to amend her claim, if she could identify any defamatory imputations alleged to have been published by the defendants (at [58]).

(quoted without alteration)

83    No application for leave to appeal from the summary dismissal judgment was made by any of the parties. In this regard, contrary to the applicant’s submissions, the dismissal in part of the application for summary dismissal did not prevent the respondents from making submissions at trial on those issues which remained live: Applicant’s final submissions to the respondents’ final submissions at p. 64 [1]. Taylor DCJ’s decision was interlocutory only. It was limited to deciding what, if any, of the alleged causes of action raised by the applicant had sufficient prospects of success to warrant them proceeding to trial and did not decide that “there was a contravention of s 121 for the purpose of a civil cause of action”: cf Applicant’s written outline of submissions dated 10 September 2018 at [16]. As such, it was open to the respondents to make the same or additional submissions at the trial in support of their respective defences to the applicant’s claims.

84    On 12 August 2016, Sidis ADCJ dismissed an application to amend the applicant’s claims to include, among other things, an action in defamation. Ward JA and Sackville AJA summarised that application in the District Court as follows:

The Second Impugned Decision

27. After the dismissal of the applicant’s application for leave to issue the subpoena, the applicant prepared an amended statement of claim, naming three further parties as defendants – The New South Wales Government, Land & Property Information (more accurately, the Registrar-General) (as fifth defendant); Australian Restructuring Insolvency & Turnaround Association (as sixth defendant); and Savice Pty Limited trading as LJ Hooker, Picton (as seventh defendant) – and amending the defamation claim.

…

33. In essence, the AFSA’s objection to the re-pleaded defamation claim ([17]) was twofold: first, as to the defamatory capacity of the publication of Family Court orders (the material particularised at A-F of the proposed further amended statement of claim) and, second, on the basis of a limitation issue, in that the affidavit particularised at [17](f) was an affidavit sworn on 18 November 2014 by the fourth respondent and filed in the Federal Circuit Court for a hearing on 1 December 2014, well outside the limitation period of one year for defamation actions, and that it was protected by absolute privilege on the basis that it was prepared for the purpose of Court proceedings.

34. The Registrar-General made submissions to the effect that, to the extent that the claim for damages extended to a cause of action in defamation based on an alleged breach of s 121 of the Family Law Act, leave should be refused (on the basis outlined by Taylor SC DCJ in his Honour’s May 2016 decision – namely that: the notation on the orders was not an order (at [30]); a cause of action for damages for breach of a Family Court order could not be maintained in the District Court (at [31]); and under the Family Law Act there was no entitlement to damages arising from a breach of s 121 (at [34]). It was submitted that s 121 of that Act did not apply to the Registrar General on the facts of the case; that no imputations had been pleaded as required under r 14.30(2) of the UCPR in respect of the defamation claims and that the claim for breach of the Privacy Act could not be maintained in the District Court (referring to Taylor SC DCJ’s reasons at [36]).

35. Sidis ADCJ gave brief reasons in the course of the hearing as to the basis on which she proposed to make the orders that were made. Her Honour noted that the applicant was not pressing [12] of the proposed further amended statement of claim. Her Honour expressed the view that [17] of the proposed pleading was not sustainable. Her Honour ordered, relevantly, that:

1.   I grant leave [to] the plaintiff to file [a] further amended statement of claim on the following basis:

(a)   paragraph 17 of the proposed amendment is not allowed for the reason that the majority of the claims made are statute barred and the remainder are not reasonably sustainable

(b)   paragraph 12 is not pressed by the plaintiff;

(c)   the claims made against the 4th and 5th defendants will be limited to claims in negligence only.

36. The reference in order 1(c) to the fourth and fifth defendants appears to be in error. The transcript makes clear that her Honour was limiting the leave granted for the joinder to the proceedings of the Registrar General (the fifth defendant) and the Australian Restructuring Insolvency & Turnaround Association (the sixth defendant) “on the basis that the matters pleaded are read only in the context of claims in negligence against them and not in breach of the statutes referred to in those pleadings”. Her Honour also ordered that costs of the motion be costs in the cause.

4.6    The application for leave to appeal to the New South Wales Court of Appeal

85    The Court of Appeal refused leave to appeal from the decision of Sidis ADCJ given on 12 August 2016 on the following grounds:

69. Leave to appeal from the second impugned decision should also be refused. Again, no issue of principle or public importance is raised. The pleading, especially in relation to the defamation claims sought to be made against the respective respondents, suffers from the defects to which the respondents have pointed in that the defamatory imputations are not properly identified. That alone is sufficient to dispose of the complaint as to the refusal to allow the proposed [17] of the further amended statement of claim.

70. As to the restriction of the claims against the Registrar-General other than in relation to negligence, again there has been no error shown in the exercise of her Honour’s discretion, as a matter of case management, to confine the amendment to claims that were at least arguable on their face and within jurisdiction of the District Court (as opposed to the claims in respect of which the Registrar-General asserted there was no jurisdiction or could not – for reasons earlier identified by Taylor SC DCJ – be maintained).

71. In the circumstances, it is difficult to avoid the conclusion that the applicant would be well-advised to seek legal advice in the formulation of the claims that she seeks to advance against the respective respondents. In the meantime, no basis has been shown to warrant appellate intervention in what has become a pleading stoush.

5.    THE ISSUES

5.1    A threshold issue: to what extent does the applicant’s Statement of Issues raise issues legitimately within the scope of the litigation

86    The respondents filed a Statement of Issues which were agreed between them (respondents’ SOI) (CB vol 2 at 733). While the applicant sought to raise a significant number of additional issues in her SOI, she did not disagree with the proposition that the issues raised in the respondents’ SOI properly fell to be determined in the proceeding. This is subject to the caveat that the findings made on some issues may (and in fact did) render certain other issues moot.

87    The applicant also filed a separate SOI (CB vol 2 at 713). The applicant’s SOI purported to raise some 88 issues, some of which overlapped in whole or in part with those identified in the respondents’ SOI. In this regard, the respondents did not therefore object to the following issues identified in the applicant’s SOI: issues 14, 16, 17, 18, 21, 22, 24, 55, 56, 62, 63, and 64.

88    However, the remaining issues identified in the applicant’s SOI were misconceived. In effect, the applicant sought to turn the litigation into a broad-ranging inquiry into the conduct of this and earlier litigation and into other issues which were irrelevant. This included an attempt by the applicant to mount a collateral challenge to decisions in other courts from which no appeal or application for leave to appeal had been instituted. For example, in the ACS (in response to R4CS), the applicant asserted that:

6. … The Applicant states yet again, that she has never colluded with her ex-husband or any person to defeat the Official Trustee or any other person. The lies and failure to state the truth in the District Court and now Federal Court proceedings is an indication of what the Fourth Respondent in conjunction with the First Respondent and their Counsel … is capable of. Johnston J was sucked into the vortex of what was presented to him by these persons, accepted what they said as truth without evidence in support. …

(See also e.g. ACS (in response to R4CS) at [8]-[9])

89    Leaving aside the scandalous and unfounded nature of such allegations against the respondents and their legal counsel, it clear that the applicant vehemently disagrees with the findings by the Family Court. So much may be accepted. However, this Court is not able to undertake what is in substance a collateral attack on those decisions acting effectively as a de facto court of appeal. Specifically this Court lacks jurisdiction to entertain an appeal from the Family Court and the current proceedings are not an appeal from the FCC decision. Furthermore, as I held in DOQ (No 1) with respect to the attempt to amend to raise a collateral challenge to the FCC decision:

66. However, as the respondents submit, if issue was taken with the conduct of the matter before the FCC, the proper avenue of challenge was by way of an appeal from the FCC decision. The attempt now to challenge that decision collaterally in separate proceedings would constitute an abuse of process on the basis that it would undermine the principle of finality, namely, that it is not only in the interests of the parties, but also of the state that there be an end to litigation. As for example, Gleeson CJ, Gummow, Hayne and Heydon JJ held in D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 (D’Orta):

34. A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding.

67. As their Honours continued at [35], the principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system - a system which the applicant did not seek to engage with respect to the FCC’s alleged breach of procedural fairness.

90    In this regard, the applicant’s submission that she did not appeal the Family Court proceedings within time because she lacked the funds to engage legal representation is irrelevant (ACS (in response to R4CS) at [2]). The finality principle applies irrespective of whether or not a person has legal representation and, contrary to the applicant’s submission, would apply equally if the matter were “referred to the High Court” (ACS (in response to R4CS) at [3]). It is also notable that the applicant was not deterred from seeking to mount a collateral challenge to the decision of Johnston J in this proceeding despite being unrepresented.

91    Bearing these matters in mind, I rejected the following issues identified in the applicant’s SOI as matters which the Court could or should decide in order to resolve the proceeding for the following specific reasons.

(1)    Issues 1 to 13, 43, 58, 65-66 invite this Court in effect to undertake an inquiry into the handling by the Family Court of the consent orders and challenge findings by the Family Court and the conduct of counsel for the respondents. This Court has no jurisdiction to entertain an appeal from, or otherwise to undertake a review of, the Family Court judgment as the applicant seeks to do.

(2)    Issues 19, 20, 23 and 25 are not raised on the applicant’s pleadings or articulated as a part of any cause of action. These issues illustrate how the applicant has conflated those matters giving rise to a cause of action with issues which form part of a broad-ranging enquiry which the applicant seeks to have this Court undertake about the conduct of other proceedings in other courts.

(3)    Issues 26-31 allege that the legal representatives for the parties misled the District Court as to the removal or redaction of the Family Court Orders from the contract for sale and thereby seeks to mount an impermissible collateral attack on the District Court decision.

(4)    As this is not an appeal from the FCC decision, issues 32-35 are misconceived although issue 32 can in any event be disposed of by the fact that the first, second, third and seventh respondents no longer contend that the FCC judgement gave rise to an issue estoppel.

(5)    Issues 33, 34, 35 and 40 simply do not arise on the pleadings.

(6)    Nor is vicarious liability which is identified in issue 37 raised on the pleadings and, if it had been raised by the applicant’s pleadings, I accept the respondents’ submission that it is likely that they would have sought to lead evidence on the issue. As such, to permit the issue to be raised now would prejudice the respondents.

(7)    Issues 38 and 39 are beyond the scope of the pleadings. Furthermore, as counsel for Ms Nash submitted, the Model Litigant Principles constitute a direction made under s 55ZF of the Judiciary Act 1903 (Cth). Section 55ZG(2) of that Act makes it plain that a breach of a direction made under s 55ZF is not actionable.

(8)    The issue sought to be raised at paragraph 41 constitutes an attempt to raise again a part of the pleading which has already been struck out. In this regard I note that an accurate record of those parts of the pleadings which have been struck out or abandoned is contained in the table at CB748 which was attached to the opening submissions for the first, second, third and seventh respondents.

(9)    Issue 42 seeks to revisit the interlocutory decision in DOQ17 (No 1) refusing leave to further amend the statement of claim (save in one respect) and to join additional parties when no application for leave to appeal was filed.

(10)    Issues 44-46, 48 and 50 proceed on the assumption that the Registrar-General is subject to a requirement to upload the orders onto the Register. It is not suggested however by any party that the Registrar-General was under any such obligation. As such the issues sought to be raised by these paragraphs do not arise.

(11)    Issue 47 refers to a statement by solicitors. Again this issue seeks to turn the litigation into an enquiry into matters not relevant to establishing the elements of any of the causes of action alleged, as is also the case with issues 50 and 51.

(12)    Issue 49 alleges that the Registrar-General is misleading the Court in claiming that it had no knowledge of the notation on the Family Court Orders. The allegation is without any foundation in the evidence. To the contrary, it is plain on the face of the Request to the Registrar-General and attached Family Court Orders that the notation did not appear (Ex A1 at 232-235).

(13)    To the extent that the issues allege that the applicant has been defamed, the applicant’s pleadings were struck out in the District Court and leave to amend the statement of claim to plead a cause of action in defamation was refused in DOQ17 (No 1) (see in particular issues 54, 59, 60 and 61 against Ms Nash).

(14)    With respect to issue 57, no breach of the Harman principle has been pleaded. Nor in any event would a breach of that principle give rise to an action for damages.

(15)    Issue 67 makes allegations against the respondents and their legal representatives, alleging that they followed a systemic pattern of misleading the courts as to the truth of the matter. Again there is no basis for the making of these scandalous and embarrassing allegations, and it is not open in any event to the Court to entertain a collateral attack on earlier decisions.

(16)    Issues 68-72 question whether the Commonwealth Attorney-General’s Department “stand[s] as the real litigant behind the First, Second, Third and Seventh Respondents” despite advising that it would not intervene pursuant to s 78B of the Judiciary Act 1903 (Cth), a question which is plainly irrelevant. Furthermore, there is no reason why the Attorney-General could not legitimately maintain an interest in a matter where a constitutional issue is raised even if he did not intervene.

(17)    Issues 73-80 invite the Court to undertake an inquiry into communications between an officer of the Family Law Branch of the Attorney-General’s Department, the fourth respondent, and the applicant which are irrelevant to any cause of action.

(18)    Issue 79 invites the Court to consider whether the fourth respondent misled the NSW Legal Services Commission, a federal member of Parliament, the Commonwealth Attorney-General’s Department, and the FCC in relation to the uploading of the applicant’s Family Court documents onto AustLII. These allegations are irrelevant to any cause of action and invite the Court to embark upon an inquiry which is beyond the power of the Court to undertake.

(19)    Issues 81-83 invite the Court to review whether the applicant was discriminated against by the Chief Justice of the Family Court in relation to the question of whether the alleged breach of s 121 of the Family Law Act should be referred to the AFP. The issues sought to be raised are plainly irrelevant and would breach judicial immunity. Further, no cause of action in discrimination has been pleaded and there is no determination of a complaint made to the Australian Human Rights Commission which is a necessary precursor to bringing a proceeding in this Court.

(20)    Para 84 is relevant but admitted. As such it is not in issue.

(21)    Issues 85, 87 and 88 ask the Court to determine whether the AFP refused to investigate the applicant’s complaint that s 121 of the Family Law Act had been breached, whether the applicant is a victim of crime under the Civil Liability Act 2002 (NSW) (Civil Liability Act), and whether the Australian Information Commissioner is able to investigate complaints of a breach of s 121 of the Family Law Act. Effectively by these issues the applicant seeks advice from the Court. However, the Court has no jurisdiction to give an advisory opinion: see Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ).

(22)    Issue 86 asks this court to impose criminal penalties for a breach of s 121 of the Family Law Act, which this Court lacks jurisdiction to do.

92    I note that the applicant contended that if this Court is unable to deal with the issues which she seeks to raise, then she has been suing in the wrong court. However, any appeal against the Family Court or FCC decisions or application for leave to appeal would be substantially out of time and in many instances, the issues are not justiciable in any event. In reaching the view that these issues cannot properly be raised within these proceedings, I accept that the applicant feels aggrieved and upset. However, that does not render these matters justiciable.

93    The applicant also submitted at [17](d) on p. 6 of her final submissions in response to the respondents’ final submissions that one of the issues for determination is that “[t]his matter of what the public may have done with information obtained from the Applicant’s Family Court Orders and/or Judgment has not been determined and would be a further breach of s121 Family Law Act 1975 and would involve further litigation against any third party who may have misused that information” (emphasis in original). However, the Court has no jurisdiction to consider hypothetical issues. That notwithstanding, it is hoped that this judgment brings this lengthy and misconceived litigation to an end.

5.2    Overview of the applicant’s claims

94    The gravamen of the applicant’s complaints against the first, second, third and seventh respondents and the fourth respondent can be summarised as follows.

(1)    Between April 2012 and 26 May 2012, LJ Hooker Picton attached a copy of the orders made in the Family Court proceeding to the contract for the sale of the property or, in the case of AFSA, Ms Czinner and Mr Madden, instructed Ms Nash to do so.

(2)    The reasons for judgment of Johnston J in the Family Court proceedings, Debrossard (FamCA) [2011] contain certain statements critical of the applicant which were allegedly untrue, namely that:

(a)    the applicant had the knowledge and ability to thwart the interests of the Official Trustee by joining with the husband in having the property orders made by consent; and

(b)    the applicant was able to do this because of her long experience as a legal secretary.

          (the judgment information)

(3)    By attaching the un-redacted Family Court Orders to the contract for the sale of the property, AFSA, Ms Czinner, Mr Madden, Ms Nash and LJ Hooker Picton disclosed the name and file number for the Family Court proceeding in which the Family Court Orders were made. As a result, members of the public could use that information to search the internet and locate and read a copy of the judgment containing the judgment information.

(4)    By publishing a “blog” on the ARITA website and two continuing legal education papers, Ms Nash disclosed “the [applicant’s] name in Family Court proceedings” with the same consequence that the judgment information could be located on the internet (FASOC at [2], [3], [3A]).

95    As I later explain, the factual matters at (1) and (3) above were largely not in dispute while those alleged at (2) do not accurately reflect the findings made in Debrossard (FamCA) [2011]. As to (3), it was not suggested that the purchasers or prospective purchasers who were given a copy of the un-redacted orders with the contract for sale had in fact undertaken any such internet search and become appraised of the alleged judgment information as a result. Yet the way in which the applicant put her case treated disclosure of the name and file number of the Family Court proceeding as if it were disclosure of the judgment information.

96    By her pleadings, the applicant alleges that this conduct gave rise to the following causes of action against AFSA, Ms Czinner, Mr Madden, Ms Nash, and LJ Hooker Picton for which damages are sought for distress and mental injury:

(1)    breach of s 121 of the Family Law Act (the alleged s 121 breach) (see the respondents’ SOI, issues 5, 7 and 8 (issue 6 (estoppel) being no longer pressed by the first, second, third and seventh respondents); applicant’s SOI, issue 62);

(2)    breach of an equitable obligation of confidence owed to her by each of AFSA, Ms Czinner, Mr Madden, Ms Nash and LJ Hooker Picton (the alleged breach of confidence) (see the respondents’ SOI, issues 9-12);

(3)    breach of the Privacy Act and National Privacy Principles (NPP) 2 and 4 (the alleged Privacy Act breach) (see the respondents’ SOI, issues 15-17); and

(4)    breach of duty of care owed by AFSA, Ms Czinner, Mr Madden, Ms Nash and LJ Hooker Picton resulting in a recognised psychiatric illness (see the respondents’ SOI, issues 21-23; applicant’s SOI, issues 63 and 64).

97    As against the Registrar-General, the applicant seeks damages on the ground that the Registrar-General acted in breach of a duty of care owed to the applicant in uploading a copy of the un-redacted Family Court Orders onto the public register of the NSW Registrar-General’s Department on or about 17 October 2011.

98    Finally, as the respondents contend, it is necessary for the applicant to establish that damages are available for mental distress or psychiatric injury for breach of s 121 of the Family Law Act (respondents’ SOI, issue 8), in equity for breach of confidence (respondents’ SOI, issues 13 and 14), under s 93 of the Privacy Act (respondents’ SOI, issues 18-20), and/or under the Civil Liability Act (respondents’ SOI, issue 24).

5.3    Overview of the respondents’ submissions

99    The first to third and seventh respondents’ and the fourth respondent’s submissions in defence to the applicant’s claims may be summarised as follows.

(1)    With respect to the alleged s 121 breach:

(a)    Section 121 of the Family Law Act does not give rise to a private right of action in favour of the applicant against any of the respondents and instead is dealt with solely by criminal prosecution with the written consent of the CDPP. It follows that the answer to issues 5 and 8 of the respondents’ SOI and the applicant’s issue 62 is “no”. This is fatal to the case against the respondents on this ground (Closing submissions of the first, second, third and seventh respondents at [28]-[29]; see also Final submissions for the fourth respondent (Nash) at [10]).

(b)    In the alternative, even if a statutory duty were imposed on the first, second, third and seventh respondents, they have not breached the duty because they did not disseminate “to the public or to a section of the public … [an] account of [the] proceedings” within the meaning of s 121(1) of the Family Law Act (Closing submissions of the first, second, third and seventh respondents at [30]).

(2)    With respect to the alleged breach of confidence:

(a)    the judgment information lacks the quality of privacy or confidentiality essential to causes of action in breach of confidence (Closing submissions of the first, second, third and seventh respondents at [57]-[60]; see also R4CS at [7]-[9]);

(b)    in any event, the applicant has not articulated any basis for the contention that the information was communicated in circumstances importing an obligation of confidence (Closing submissions of the first, second, third and seventh respondents at [61]); and

(c)    the information was not “used” in any relevant sense (Closing submissions of the first, second, third and seventh respondents at [62]-[64]).

(3)    With respect to the alleged Privacy Act breach:

(a)    Part 8 of the Privacy Act does not create a right of action for a breach of a NPP but creates an entitlement to damages predicated on the existence of an action for breach of an obligation of confidence in respect of personal information for which relief may be obtained through legal proceedings (Closing submissions of the first, second, third and seventh respondents at [83] and [90]-[91]); and

(b)    even if the Family Court orders constituted “personal information” about the applicant within s 6 of the Privacy Act, AFSA, Ms Czinner and Mr Madden were not subject to NPP 2 and 4 (Closing submissions of the first, second, third and seventh respondents at [85]-[89]).

(4)    With respect to the alleged breach of a duty of care:

(a)    the Civil Liability Act is picked up and applied as federal law by virtue of s 79 of the Judiciary Act 1903 (Cth) (Closing submissions of the first, second, third and seventh respondents at [92]-[99]);

(b)    the applicant has failed to establish that any of the respondents ought to have foreseen that a person of “normal fortitude” might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care was not taken, within the meaning of s 32 of the Civil Liability Act and therefore that a duty of care was owed (Closing submissions of the first, second, third and seventh respondents at [97]-[107] and [110]); and

(c)    in any event, there is no evidence that the conduct of any of the respondents caused the applicant to suffer a generalised anxiety disorder or exacerbated the pre-existing disorder diagnosed by Dr Teoh in 2010 (Closing submissions of the first, second, third and seventh respondents at [111]-[112]);

(5)    The alleged breach of s 52 of the Trade Practices Act 1974 (Cth) against the fourth respondent, Ms Nash, must fail as she is a natural person.

(6)    Damages for mental distress or psychiatric injury are not an available remedy for breach of s 121 of the Family Law Act, in equity for breach of confidence, or under s 93 of the Privacy Act.

(7)    Nor has the applicant led any evidence as to severity of her injury so as to provide a basis on which to determine whether she meets the minimum threshold set by s 16 of the Civil Liability Act (Closing submissions of the first, second, third and seventh respondents at [122]-[123]).

100    As against the Registrar-General, the applicant’s claims are limited to a claim in negligence only (see above at [84]-[85]). The Registrar-General adopted the closing submissions of the first, second, third and seventh respondents at [92]-[112] (Registrar-General’s closing submissions at [12]) and made further submissions as to why no duty of care was owed in the circumstances of the applicant’s claims and having regard to the statutory powers given to, and the statutory duties imposed upon, the Registrar-General.

6.    FINDINGS ON FACTUAL ISSUES IDENTIFIED BY THE PARTIES

101    It is necessary first to address the factual matters in contention raised by the respondents’ SOI, namely, issues 1 to 4 inclusive of the applicant’s SOI.

102    Taking these issues in chronological order, the first question is:

3. Do the reasons for judgment of Justice Johnston - Debrossard v Official Trustee in Bankruptcy [2011] FAMCA 648 (TB [Ex A1] Folder 1, pages 210-229) - contain the following information at [98) and [110]:

(a)    That the Applicant had the knowledge and ability to “thwart the interests of the Official Trustee by joining with the husband in having the consent property orders made.” (TB Folder 1, page 225 at [110]).

(b)     That the Applicant was able to do this because of her “long experience as a legal secretary”. (TB Folder 1, page 222 at [98]).

(“the Judgment Information”)

[See FASOC at CB Tab 1, page 4 at [1] and [1A]; Defence of the First, Second and Third Respondents at CB Tab 2, page 190 at [3] and [4]; Amended Defence of the Fourth Respondent at CB Tab 3, pages 204-205 at [2] and [3]; Defence of the Seventh Respondent at CB Tab 5, pages 221-222 at [3] and [4]].

103    As is apparent from the passage earlier quoted from the reasons in Debrossard (FamCA) [2011], Johnston J found at [110] that Ms DOQ had “sought to thwart the interests of the Official Trustee by joining with the husband in having the consent property orders made …” Implicit in this, are findings by his Honour that:

(1)    Ms DOQ had known about the bankruptcy when the consent orders were sought in line with the finding at [46] that ITSA had notified Ms DOQ of the husband’s bankruptcy on 21 June 2007, some three weeks before Ms DOQ filed the application in the Family Court for her to be the sole owner of the home; and

(2)    she had sought deliberately to thwart the interests of the Official Trustee in the property by seeking the consent orders.

104    That finding was one among others which led Johnston J to find that the Court could have no confidence that Ms DOQ would be able to bring herself to do what would be required to bring the sale of the property to completion and, therefore, that if both Ms DOQ and the Official Trustee were given the power to arrange the sale of the property, it would be able to proceed to completion (Debrossard (FamCA) [2011] at [111]).

105    However, there is no express or implied finding by Johnston J to the effect that Ms DOQ was able to do this because of her experience as a legal secretary, lengthy or otherwise. Rather, Johnston J refers simply to the fact that Ms DOQ had “long experience as a secretary” at [98] of his reasons and does so only in the context of considering the matters to which the Court must have regard under s 75(2) of the Family Law Act in exercising its discretion to make orders under s 74 with respect to the maintenance of a party to the marriage where the other party is a bankrupt. Otherwise, the only point in his reasons which refers to Ms DOQ working as a legal secretary appears in the context of considering Ms DOQ’s and her former husband’s respective contributions to their former marriage, where his Honour observes simply that “[d]uring the early years of the marriage the wife was earning more as a legal secretary than the husband was earning as a clerk” (Debrossard (FamCA) [2011] at [87]).

106    The remaining issues raised by the respondents’ SOI relate to the question of who was responsible for attaching a copy of the Family Court Orders to the contract for the sale of the property and whether that amounted to disclosure of the judgment information, namely:

1. Between April 2012 and 26 May 2012, did the First, Second, or Third Respondent instruct the Fourth Respondent to attach a copy of the orders of Justice Johnston dated 19 August 2011 ("the Orders") (TB [Ex A1] Folder 1, pages 207-209) to a contract for the sale of land for [the] property at … in the State of New South Wales?

[See Applicant's Further Amended Statement of Claim (FASOC) at CB Tab 1, page 4 at [1]; Defence of the First, Second and Third Respondents at CB Tab 2, page 190 at [3(d)]; and Amended Defence of the Fourth Respondent at CB Tab 3, page 204 at [2]].

2. Between April 2012 and 26 May 2012, did the First, Second, Third, Fourth or Seventh Respondent attach a copy of the Orders to a contract for the sale of land for [the] property at … ?

[See FASOC at CB Tab 1, page 4 at [1]; Defence of the First, Second and Third Respondents at CB Tab 2, page 190 at [3(c) and (d)]; Amended Defence of the Fourth Respondent at CB Tab 3, page 204 at [2]; Defence of the Seventh Respondent at CB Tab 5, pages 221-222 at [3]].

…

4. Between April 2012 and 26 May 2012, did the First, Second, Third, Fourth, or Seventh Respondent disclose the Judgment Information to members of the public?

[See FASOC at CB Tab 1, page 4 at [1]; Defence of the First, Second and Third Respondents at CB Tab 2, page 190 at [3]; Amended Defence of the Fourth Respondent at CB Tab 3, pages 204-205 at [2(d) and (e)]; Defence of the Seventh Respondent at CB Tab 5, pages 221-222 at [3]].

(emphasis added)

107    First, with respect to issues [1] and [2] above, it is apparent that Ms Nash provided LJ Hooker Picton with a copy of the marketing contract for sale to be given to prospective purchasers to which a copy of the un-redacted orders was attached in January 2012 but that no contract for sale with the un-redacted orders attached was given to prospective purchasers prior to 2 May 2012 (see above at [54]-[55]). There is no evidence that Ms Nash was given specific instructions to attach the un-redacted orders to the contract by AFSA or the trustees for sale prior to 3 May 2012 (see above at [51]). Rather, I accept that Ms Nash did so because she formed the view that this was required in order to ensure compliance with the statutory obligations upon the trustees for sale imposed by Part 4 of the Conveyancing (Sale of Land) Regulations 2010 (NSW) (see above at [56]). As such, I infer that she acted on the basis that doing so was necessary to discharge her general instructions from AFSA and the trustees for sale to prepare the relevant documentation required to place the property on the market and for its auction and sale. However, on 3 May 2012, Ms Czinner in her capacity as joint trustee for sale instructed Ms Nash to attach a copy of the Family Court Orders to the contract in line with the written advice given by Ms Nash earlier that day: see above at [57].

108    Secondly and also with respect to issues [1] and [2] above, between 3 May 2012 and 26 May 2012 copies of the contract for sale were issued to, at most, four prospective purchasers with the un-redacted orders attached (see Ex A1 at 309 (email from LJ Hooker Picton dated 2 May 2012)).

109    Thirdly, with respect to issue [2], while initially in dispute, at the trial counsel for Ms Nash conceded on the basis of Exhibit A2 that Ms Nash had attached a copy of the un-redacted Family Court Orders to the contract for the sale of the property provided to the vendors. As such, Ms Nash accepted that it may be inferred that a copy of the un-redacted orders was also attached to the contract for sale provided to the purchasers because the contract signed by the vendors would have been the same as that exchanged with the purchasers (T199.35-200.33). However, it is not known how the un-redacted orders came to be attached to the contract for sale exchanged with the purchasers. It is clear from the correspondence to which I have already referred that on 29 May 2012 Ms Czinner in her capacity as joint trustee for sale instructed Ms Nash to remove the Family Court Orders from the contracts for sale and that Ms Nash had every intention of complying with those instructions: see above at [64]-[65]; cf applicant’s SOI at [14]. It follows that issue 17 of the applicant’s SOI must be answered “yes”: Ms Czinner did give those instructions. I also accept that Ms Nash in fact thought that she had complied with those instructions until the vendor’s original contract, Exhibit A2, was produced under subpoena at which point counsel for Ms Nash appropriately made the concession to which I have referred.

110    Fourthly, with respect to issue [4], aside from the purchasers and a small number of prospective purchasers, there is no evidence that any copies of the contract for sale with the un-redacted Family Court Orders were given to any members of the public. However, the un-redacted Family Court Orders would have been available on the title to the property kept by the Registrar-General for inspection by a member of the public who paid the necessary fee between 17 October 2011 when the orders were uploaded onto the Register and 13 March 2016 when the Orders were removed by the Registrar-General.

111    Finally, as I have earlier explained, the provision of the un-redacted Family Court Orders did not disclose the judgment information itself but only the names of Ms DOQ and the husband, together with the file number for the Family Court proceeding. It was only if a person in possession of that information undertook a search on the internet using the file number and thereby located and read the anonymised judgment that they would be able to make the connection between the judgment information and Ms DOQ. There is no evidence which suggests that any person in fact undertook any such search and made any such connection; nor is it open to this Court to speculate that this in fact occurred. It follows that the answer to issue 15 in the applicant’s SOI is “no”: there is no evidence that any of the first, second, third, fourth or seventh respondents disclosed “details of the Judgment in any way” to any other person. Nor is there any evidence of any such disclosure by the fifth respondent. It follows that there is no evidence which supports a central contention of fact underpinning the applicant’s claims.

7.    THE ALLEGED BREACH OF S 121, FAMILY LAW ACT

7.1    Relevant principles

112    It is not in issue that every court within Australia “must obey, and give full effect to, valid Australian legislation understood according to its terms”, as Ms DOQ submits, quoting from the reasons of Kirby J in Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63; (2001) 208 CLR 199 (Lenah Meats) at [159](1).

113    The relevant principles for determining whether an action may lie for breach of a statutory duty were summarised in the fourth respondent’s closing submissions (adopted by the first, second, third and seventh respondents in their closing submissions at [26]) and are well settled.

114    First, an action for breach of statutory duty is distinct from an action for common law negligence. As Brennan CJ explained in Pyrenees Shire Council v Day (1998) 192 CLR 330 at 342, “[t]he former is the creature of statute; the latter of the common law. However, the same set of circumstances may give rise to either cause of action.” To similar effect, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ stated in Northern Territory v Mengel (1995) 185 CLR 307 (Mengel) at 343-344 that “there is no action for breach of statutory duty unless the legislation confers a right on the injured person to have the duty performed. If no right is conferred, the general rule is that there is no liability in damages” (citations omitted).

115    Secondly, a statutory right of action may be created expressly or may arise by implication: O’Connor v S P Bray Ltd (1937) 56 CLR 464 (O’Connor) at 478 (Dixon J), 486-487 (Evatt and McTiernan JJ). The question is one of legislative intention. As Kitto J explained in Sovar v Henry Lane Pty Limited (1957) 116 CLR 397 (Sovar) at 405 with respect to determining whether such a right of action may be implied:

… the question whether a contravention of a statutory requirement of the kind in question here is actionable at the suit of a person injured thereby is one of statutory interpretation. The intention that such a private right shall exist is not … conjured up by judges to give effect to their own ideas of policy and then “imputed” to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation.

(citations omitted)

See also e.g. O’Rourke v Camden London Borough Council [1998] AC 188, 192-193 (HL); Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 424 (Brennan CJ, Dawson and Toohey JJ), 460-461 (McHugh and Gummow JJ); and Dennis v Brownlee (1963) 80 WN NSW 1239 (Dennis) at 1240 (Sugerman J (with whose reasons Else-Mitchell and Moffitt JJ agreed at 1242)).

116    In short, as Balkin and Davis explain in Law of Torts (LexisNexis Butterworths, 5th ed, 2013) at [16.19], “[t]he fundamental issue is simply whether the Act intended to give a right of action in tort. Everything else is subordinate to that.”

117    Thirdly, the cases in which such a right can be implied are rare. As Gummow J explained in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 (Crimmins), in highlighting the difficulties encountered in arguing that the Commonwealth Parliament has by implication created a cause of action for damages for breach of statutory duty:

157. … the appellant eschewed a claim for breach of statutory duty, founded in the provisions of the Stevedoring Industry Act 1956 (Cth) (the Authority Act). The appellant did not contend that, upon its proper construction, the Authority Act had conferred upon her husband a cause of action for the recovery of damages for breach by the Authority of duties imposed upon it by the legislation. Any such argument would have run into difficulties. First, the appellant pointed to no relevant statutory duty attended by a sanction for non-performance. Secondly, “there is no action for breach of statutory duty unless the legislation confers a right on the injured person to have the duty performed” [citing Mengel at 343-344] and, as Dixon J pointed out in O’Connor v S P Bray Ltd [(1937) 56 CLR 464 at 477-478], the legislation will rarely yield the necessary implication positively giving a civil remedy. Thirdly, as indicated by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd [(1995) 185 CLR 410 at 458], where the legislation is a law of the Commonwealth, and the question is one respecting the creation of new rights and liabilities to engage Ch III of the Constitution, it is to be expected that the Parliament will clearly state its will.

118    Finally, and in line with these principles, the types of situations in which an action has been found to exist for breach of a statutory duty are typically those in which specific and mandatory statutory duties have been imposed in order to provide for the safety and protection of a particular class. Thus the principal application of the tort has been in the area of industrial safety.

119    For example, in Sovar, on which the applicant and fourth respondent particularly relied, the employee’s right to bring an action for damages for breach of safety regulations by his employer (being the occupier of a factory) was conceded: Sovar at 399; see Applicant’s written outline of submissions dated 10 September 2018 at [10]. In that case, the object of the Act was to provide relevantly for the safety of persons employed in factories. The statutory obligation in question imposed a mandatory obligation upon the occupier of a factory to securely fence all dangerous parts of the machinery and to constantly maintain such fencing when the parts were in motion or use. The question was whether the occupier could rely upon a statutory defence to prosecution for an offence against the regulations in civil proceedings.

120    In accepting that the concession that the regulations gave rise to a statutory cause of action for damages was rightly made, McTiernan ACJ stated at 400 that:

The basis of an action of this kind may be explained by quoting a passage from the speech of Lord Kinnear in Butler (or Black) v Fife Coal Co. Ltd. [[1912] AC 149, 165, 166]. The passage relates to s. 49 of the Coal Mines Regulation Act, 1887 (U.K) and the rules under the section. The passage is as follows: “Now the object of the present statute is plain. It was intended to compel mine owners to make due provision for the safety of the men working in their mines, and the persons for whose benefit all these rules are to be enforced are the persons exposed to danger. But when a duty of this kind is imposed for the benefit of particular persons, there arises at common law a correlative right in those persons who may be injured by its contravention. …”

(See also Sovar at 416 (Windeyer J))

121    This is not to suggest that the circumstances in which a cause of action for breach of statutory duty may be implied are limited to those where the statutory duty is imposed to protect the safety of a particular class. For example, in O’Connor, a majority of the High Court held that a person injured for non-observance of a mandatory statutory obligation to provide safety gear for all lifts had a cause of action against the person responsible for the care, management and control of the lift. It was an offence for that regulation to be breached. In holding that this also gave rise to an action for breach of statutory duty, Evatt and McTiernan JJ at 486-487 held that:

… it is reasonably clear that the legislature was creating a duty, not only to the State, but to all persons who might lawfully be using the lift. Its paramount concern is that persons using the lift shall be protected from danger of the lift’s falling. We agree that cases of actions for breach of statutory duty cannot be confined to instances where the plaintiff belongs to some so-called “special class of the community” … Here the dominant consideration is prevention of danger to all persons brought into proximity to a specific peril which can easily be avoided if the regulation is observed.

122    However, while this was not a specific class ascertainable in advance, such as, for example, employees engaged in a particular type of work, nonetheless it was a class limited and defined by reference to the requirement that those to whom the duty was owed be brought into proximity with the specific peril guarded against by the statutory duty.

7.2    No cause of action in damages arises from a breach of s 121, Family Law Act

123    The applicant contended that an obligation of confidence “arises as a statutory duty under s121 Family Law Act 1975”: Applicant’s final submissions in response to the respondents’ final submissions at p. 17 [60].

124    As at the date on which the Family Court Orders were made, s 121 of the Family Law Act created an offence in the following terms:

(1)    A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:

(a)    a party to the proceedings;

…

is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.

…

(3)    Without limiting the generality of subsection (1), an account of proceedings, or of any part of proceedings, referred to in that subsection shall be taken to identify a person if:

(a)    it contains any particulars of:

(i)    the name, title, pseudonym or alias of the person;

…

being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires;

…

(5)    An offence against this section is an indictable offence.

(8)    Proceedings for an offence against this section shall not be commenced except by, or with the written consent of, the Director of Public Prosecutions.

125    Subject to amendments not presently relevant, s 121 remains in materially the same terms as at the present time.

126    Section 121(9) created exceptions from the offence as follows:

The preceding provisions of this section do not apply to or in relation to:

…

(e)    the publishing of any publication bona fide intended primarily for use by the members of any profession, being:

(i)    a separate volume or part of a series of law reports; or

(ii)    any other publication of a technical character; or

(f)    the publication or other dissemination of an account of proceedings or of any part of proceedings:

(i)    to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved; or

…

(ii)    to a person who is a student, in connection with the studies of that person; or

…

(emphasis added)

127    In my view, the proposition that s 121 of the Family Law Act was intended to create a civil cause of action for damages is without merit.

128    First, the provision does not in terms create any cause of action but only an offence. Any such cause of action must therefore be implied.

129    Secondly, s 121 defines with specificity the mode of enforcement, namely, criminal sanction by the CDPP or with its consent, strongly suggesting that it was not intended that the prohibition could be enforced in any other way: Dennis at 1240 (Sugerman J (with whose reasons Else-Mitchell and Moffitt JJ agreed)). The language leaves no room in my view for implying an intention by the Parliament to create a civil cause of action which would effectively circumvent those enforcement requirements and enable a private individual to enforce the prohibition in a civil proceeding.

130    Thirdly, s 121 imposes a prohibition which applies at large. It is not expressed in terms of a duty imposed upon the members of a particular class of persons such as an employer or occupier of a building. As such, the applicant cannot point to any relevant statutory duty attended by a sanction for non-performance, to adopt the words of Gummow J in Crimmins in the passage earlier cited.

131    Fourthly, as the fourth respondent submits, the fact of anonymisation of the parties to proceedings by the notation upon the orders in accordance with s 121 of the Family Law Act does not alter the character of the adverse findings in the Family Court proceedings so as to render them private or confidential for the purposes of any cause of action for damages or equitable compensation (R4CS at [39]; see further below at [172]-[173]). Moreover, insofar as s 121 falls to be construed against the law as it stood at the time of enactment (and today), no private right of action for damages for breach of privacy has been recognised by a superior court at common law or by statute despite the longstanding controversy as to whether such a right should be created. Nor does the carefully structured scheme for the protection of privacy under the Privacy Act (considered later in these reasons) create a private right of action directly actionable by a person who claims a breach of her or his privacy. The suggestion therefore that the Commonwealth Parliament in enacting s 121 intended by implication to create such a right is untenable. Not only is this contradicted by the specific scheme enacted by s 121 for the enforcement of the prohibition through criminal proceedings; there is no mention of any such intention in the extrinsic material. The Explanatory Memorandum to the bill repealing the old s 121 and substituting s 121 in its present terms refers only to the creation of a criminal offence: Explanatory Memorandum to the Family Law Amendment Bill 1983 (HR) (the 1983 Explanatory Memorandum), commentary to clause 72 at p. 34.

132    In the fifth place, notwithstanding the way in which the applicant put her case, the right which she asserts is ultimately not properly characterised as a right to privacy. Rather it is better understood as a right to keep confidential or private the existence of findings made against her in Family Court proceedings. This is important because the starting point at common law is that a primary objective of the administration of justice is to safeguard the public interest in open justice (commonly described as the principle of open justice): cf the assumption underpinning the applicant’s submissions at ACS (in response to R4CS) at [10]-[14]. As Hill J, for example, observed in SRD v Australian Securities Commission (1994) 52 FCR 187 at 189:

It will ordinarily be essential in order to maintain confidence in the integrity and independence of the Court that its proceedings be open to scrutiny by the general public and it will only be in exceptional cases where the interest of justice would override the ordinary requirement of open justice.

133    Similarly, Allsop CJ explained in Minister for Immigration and Border Protection v Egan [2018] FCA 1320 that:

4. The principle of open justice is one of the overarching principles in the administration of justice, in this Court and all others. It lies at the heart of the exercise of judicial power as part of the wider democratic process. The principle involves justice being seen to be done. A key part of this task is enabling accurate and fair public reports of proceedings. Open justice is not an absolute concept, unbending in its form. It must on occasion be balanced with other considerations, including but not limited to considerations such as the avoidance of prejudice in the administration of justice or the protection of victims.

134    As such, s 121 does not address a situation where, for example, “the relationship existing between the person enjoined and the person protected is one which is recognized by the common law as giving rise to a duty on the part of the former to take precautions for the safety of the latter”; nor is this a case where “the peril provided against [by the statute] is one of personal injury”: Sovar at 404-405 (Kitto J).

135    Significantly in this regard, s 121 was introduced together with s 97(1) of the Family Law Act which provided as a presumptive rule that all proceedings are to be heard in open court. As the 1983 Explanatory Memorandum explained (at p. 1), significant amendments to the Family Law Act to be made by the Bill included:

·     provision that proceedings under the Act be heard in open court;

·     replacement of the absolute prohibition on the publication of details of proceedings under the Act by a prohibition on the publication of details that identify individuals involved in those proceedings; …

136    As such, the primary purpose of these amendments was self-evidently to strike a balance between safeguarding the public interest in open justice on the one hand, and protecting the privacy of litigants and their families given the special nature of family law proceedings and the fact that they often involve children, on the other hand: see Sitwell v Sitwell [2014] FamCAFC 5 (Sitwell) at [33].

137    Equally, in qualifying the fundamental principle of open justice recognised by s 97(1), s 121 facilitates the administration of justice in the public interest in family law matters. Thus, not only does it protect by way of a prohibition the privacy of litigants and their families for their own benefit; it also ensures that evidence can be led on highly personal matters and which may affect the interests of minors without fear that the identity of the parties and their family would be disclosed save in the limited circumstances provided for by s 121(9). Absent such a protection, the fear of public disclosure might have a chilling effect upon the giving of evidence in such matters to the detriment of the proper administration of justice. That is a matter affecting the public interest as it bears upon the maintenance of public confidence in the courts exercising jurisdiction under the Family Law Act, and is not merely of concern to the litigants and their families who are directly affected.

138    Finally, while the question of whether s 121 gave rise to a cause of action in damages did not arise in Sitwell, that decision and the line of authority which it approved provide some support for the construction urged by the respondents in this case. In Sitwell, the Full Court of the Family Court dismissed an appeal against a decision refusing the grant of an injunction. The interlocutory injunction had been sought in property settlement proceedings in the Family Court by the wife against her estranged husband because she was concerned that he was about to publish information relevantly identifying the parties, a member of their family, and witnesses in the proceeding contrary to s 121 of the Family Law Act.

139    Relevantly for present purposes, there was no suggestion in that case that s 121 itself impliedly conferred power to grant an injunction restraining a disclosure contrary to the provision. To the contrary, it was not in issue that any power to do so would arise under s 114(3) of the Family Law Act as the primary judge had held (Sitwell at [14]). That section provides that the Family Court may grant an interlocutory injunction “in any case in which it appears to the court to be just or convenient to do so.”

140    Furthermore, the Full Court of the Family Court held (at [68]) that an injunction merely restating the effect of s 121 was “unnecessary and undesirable” and should only be granted in “special circumstances” such as where the material to be published would likely impact on the welfare or best interests of children or contains scandalous disparagement of courts or judicial officers which is likely to impair their authority. This was because Parliament intended that the criminal offence would provide the necessary protection against disclosure, a prosecution could be brought only with the written consent of the Attorney-General, and the Family Court had no jurisdiction to entertain any such prosecution: Sitwell at [35]. Thus, in a passage approved in Sitwell at [35] and [65], the Full Court of the Family Court held in Gibb & Gibb (1978) FLC 90-405 at 77,083 that:

It was not intended by Parliament that this court should enforce the provisions of sec. 121 relating to restriction of publication of evidence as sec. 121(4) [now s 121(8)] specifically provides that proceedings for any offence against the section should not be commenced except by, or with the written consent of, the Attorney-General, and, of course, any such prosecution could not be brought in the Family Court.

141    It follows for these reasons that the cause of action for damages for a breach of s 121 of the Family Law Act was devoid of merit and the applicant’s case to this extent must be dismissed. As the fourth respondent contends, “the recognition of a private right of action for damages for breach of s.121 would interfere with the balance that parliament struck in the drafting, and amending, of the Privacy Act 1988” and, I would add, the Family Law Act, which is “just the kind of legal incoherence that the High Court warned against in Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at 579-580 [50] …” (R4CS at [41]).

142    In so finding, I would emphasise that I do not suggest that the applicant established the elements necessary to found a breach of s 121 against any of the respondents. To the contrary, the respondents pointed to other difficulties confronting the applicant’s claim under s 121. These include whether the Family Court Orders constituted an “account” of the Family Court proceedings (see CFB18 v Reader Lawyers and Mediators [2018] FCA 611 at [1] (Colvin J)) and whether they were disseminated to “the public or a section of the public” (see e.g. Re W: Publication Application (1997) 137 FLR 205, 228-9 (Fogarty and Baker JJ)). Furthermore, even taken at its highest, the applicant’s case suffers from the fundamental difficulty that none of the respondents disseminated the adverse findings against the applicant which lie at the heart of her claim for damages. All that was disclosed was the applicant’s identity on the Family Court Orders. However, given that there is clearly no cause of action for damages created by s 121 of the Family Law Act, it is unnecessary to address these other issues further.

8.    THE ALLEGED BREACH OF THE PRIVACY ACT

8.1    The issues

143    The applicant alleges that AFSA, Mr Madden, Ms Czinner and Ms Nash were “subject to the provisions of the Privacy Act 1988 (Cth) and the National Privacy Principles which were in force at the time of the offences and the Defendants have breached those principles, namely NPP2 and NPP4” and that they are “subject to the Privacy Act 1988 Part VIII S89 & 90 and the Plaintiff in accordance with S93 may recover damages for the breach of privacy and confidence”: FASOC at [7] and [9] respectively (CB tab 1 at 9).

8.2    The claim for damages under the Privacy Act must be dismissed

8.2.1    The NPPs under the Privacy Act do not apply to the first, second, third and fourth respondents

144    By amendments to the Privacy Act commencing on 12 March 2014 (the 2014 amendments), the National Privacy Principles (NPPs) and Information Privacy Principles (IPPs) were replaced with the Australian Privacy Principles (APPs) for Australian Government agencies and organisations covered by the Privacy Act (collectively the APP entities). As the applicant alleges that AFSA, Mr Madden, Ms Czinner and Ms Nash breached NPP2 and NPP4 by attaching a copy of the Family Court Orders to the contract for sale in April 2012, these alleged breaches fall to be considered against the Privacy Act prior to the 2014 amendments. It will also be recalled that the paper published on Ms Nash’s business website was removed on 30 January 2013 and therefore also prior to the 2014 amendments (see above at [69]). Further, following a complaint by the applicant on 2 December 2014, ARITA amended the “blog” published by Ms Nash on its website so as to anonymise the reference to the applicant’s name (see above at [72]). However, while the un-anonymised reference to the applicant continued to be referred to in the paper published on the ARITA website after the 2014 amendments, there is no allegation in the FASOC of a breach of the APPs. Furthermore, the applicant contended that it was the Privacy Act in force as at 27 December 2011 which applied: Applicant’s final submissions in response to the respondents’ final submissions at p. 23 [87]. As such, I have considered the question of whether there were any breaches of the Privacy Act by reference to the Privacy Act prior to the 2014 amendments.

145    The Privacy Act provided a framework for the handling of “personal information” as defined in s 6 of the Act, namely:

personal information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

146    As at the relevant times, the Privacy Act distinguished between the principles applying to government agencies and those applying to the private sector.

147    Thus, on the one hand, s 16 applied to government agencies and provided that “[a]n agency shall not do an act, or engage in a practice, that breaches an Information Privacy Principle.” An “agency” was exhaustively defined in s 6 and included federal Ministers and Departments, a body or tribunal established under a Commonwealth enactment, and persons holding an office established under a Commonwealth enactment.

148    On the other hand, with respect to private organisations, s 16A of the Privacy Act relevantly provided that:

(1)    An organisation must not do an act, or engage in a practice, that breaches an approved privacy code that binds the organisation.

(2)    To the extent (if any) that an organisation is not bound by an approved privacy code, the organisation must not do an act, or engage in a practice, that breaches a National Privacy Principle.

149    There is no allegation of any breach of an approved privacy code and no suggestion that any such code applied to any of the respondents. Only the NPPs earlier referred to are said to have been breached. As such, only the prohibition in s 16A(2) is potentially engaged.

150    The NPPs referred to in s 16A were set out in Schedule 3 to the Act. NPP 2 concerned the use and disclosure of personal information, while NPP 4 concerned the measures which an organisation must implement in order to ensure the security and, if necessary, the de-identification of personal information.

151    The first, second and third respondents accepted that the first respondent, AFSA, is an executive agency within the meaning of s 65 of the Public Service Act 1999 (Cth), and that the second and third respondents were employees of AFSA at the relevant time and are sued in that capacity (see the FASOC under the heading “at all material times” and the Defence of the First, Second and Third Respondents at [1](c)). The first, second and third respondents therefore accepted that AFSA is an agency within the meaning of paragraph (d) of the definition of “agency” in s 6 of the Privacy Act, being “a body established or appointed by the Governor-General, or by a Minister, otherwise than by or under a Commonwealth enactment”. (I note in this regard that the Closing submissions of the first, second, third and seventh respondents at [87] erroneously refer to s 6(c) but quote the text of paragraph (d).) That being so, as the first, second and third respondents submit, AFSA and its employees were not subject to NPP 2 and 4 or indeed to any of the NPPs, but rather were bound by the IPPs. The requirements imposed by the NPPs and the IPPs were materially different as the first, second and third respondents also submit. It follows that the claim that the first, second and third respondents acted in breach of NPP 2 and NPP 4 must fail because those principles simply did not apply to them.

8.2.2    There is no private cause of action for breach of the Privacy Act and NPPs in any event

152    Further and in any event, the fact that there is no private cause of action for breach of an NPP is a complete answer to the claim for damages for breaches of the NPP, including against the fourth respondent, Ms Nash, as well as the first, second and third respondents. As Stone J explained in Day v Lynn [2003] FCA 879 in helpfully summarising the position:

50. The jurisdiction of this Court in relation to breaches of the Privacy Act is limited. The scheme of the Privacy Act is for complaints about such breaches to be made to the Privacy Commissioner who will investigate the complaint and make a determination; ss 36 and 52. Determinations of the Privacy Commission are not binding or conclusive between any of the parties to determination; s 52(1B) but there is provision in s 55A for certain persons to seek to enforce a determination in this Court or in the [then] Federal Magistrates Court. There is however no provision in the Privacy Act for a breach of the Privacy Principles to be directly actionable in this Court; Ibarcena v Templar [1999] FCA 900 at [8]-[9] per Finn J. See also Gao v Federal Privacy Commissioner [2001] FCA 1683, at [10] per Ryan J; upheld by the Full Court in Gao v Federal Privacy Commissioner [2002] FCAFC 128. The principles were also accepted by Goldberg J in Gao v Federal Privacy Commissioner [2002] FCA 823, at [22]-[23].

153    Rather, the mechanism for redress for an interference with the privacy of an individual in breach of the Privacy Act is by way of a complaint under s 36 of the Privacy Act to the Information Commissioner in accordance with Part V. Where that results in a determination by the Information Commissioner, the determination may be enforced in a court under s 55A of the Privacy Act where the court is satisfied that the respondent has engaged in an interference with the complainant’s privacy. In the case of an agency, an act or practice engaged in by an agency constituted an interference with the privacy of an individual only if (relevantly) the act or practice of the agency breached an IPP in relation to personal information relating to the individual (see ss 13(a) and 13F, Privacy Act). In the case of an organisation, an act or practice constituted an interference with the privacy of an individual only if (relevantly) the act or practice of the organisation breached a NPP in relation to personal information relating to the individual (see ss 13A(1)(b) and 13F, Privacy Act). I note that there is no suggestion that there has been a determination by the Information Commissioner in this case (see above at [67]) and no application for enforcement of any such determination is made in this proceeding.

154    I also note for completeness that in March 2014, the Privacy Act was amended so as to provide for the making of orders by the Federal Court and the Federal Circuit Court to compensate a person for loss or damage, including injury to the person’s feelings or humiliation: see ss 25 and 25A of the Privacy Act. However, an order for compensation may be made under those provisions only after the Court, on an application by the Information Commissioner, has made a civil penalty order under s 82(3) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) against the entity for a contravention of a civil penalty provision (or the entity has been found guilty of an offence against Part IIIA dealing with privacy of information relating to credit reporting) and the loss or damage (or likely loss or damage) resulted from the contravention. Manifestly, even if Ms DOQ’s case is taken at its highest and it is assumed that the allegations by her could amount to contraventions of the civil penalty provisions, she cannot satisfy these statutory requirements.

8.2.3    The applicant’s reliance on ss 89 and 93 of the Privacy Act is misplaced

155    Finally, with respect to the applicant’s reliance upon Part VIII of the Privacy Act, s 93 relevantly provided for the recovery of damages for a breach of confidence in the following terms:

(1)    A confider may recover damages from a confidant in respect of a breach of an obligation of confidence with respect to personal information.

(2)    Subsection (1) does not limit or restrict any other right that the confider has to relief in respect of the breach.

156    The right to recover damages under s 93 is, however, subject to an applicant satisfying the requirements in s 90. That section provided that:

(1)    This Part applies where a person (in this Part called a confidant) is subject to an obligation of confidence to another person (in this Part called a confider) in respect of personal information, whether the information relates to the confider or to a third person, being an obligation in respect of a breach of which relief may be obtained (whether in the exercise of a discretion or not) in legal proceedings.

(2)    This Part does not apply where a criminal penalty only may be imposed in respect of the breach.

157    An obligation of confidence was in turn defined in s 89 to mean an obligation of confidence “to which an agency or a Commonwealth officer is subject, however the obligation arose”, or which arises under the law of the Australian Capital Territory or Norfolk Island by virtue of s 89. As such, contrary to the assumption in the applicant’s case, Part VIII does not create any cause of action for damages for breach of a privacy principle. Rather, it creates an entitlement to damages which is predicated upon the existence of an obligation of confidence which is enforceable through the courts. As the Full Court (Wilcox, Foster and Carr JJ) held in Austen v Civil Aviation Authority (1994) 50 FCR 272 at 277-278:

Although s 93 of the Privacy Act provides for a confider to recover damages from a confidant in respect of a breach of an obligation of confidence with respect to personal information, s 90 limits the operation of Pt VIII (in which s 93 appears) to obligations of confidence in respect of a breach of which relief may be obtained in legal proceedings …

It would appear that a deliberate decision was made by Parliament not to give a right of action in tort for breach of a privacy principle: see The Law Reform Commission Report No 22, Vol 2, par 1085 and ss 105-110 in the draft Bill forming Appendix A to that volume which, so far as is relevant, is in substantially identical terms to ss 89-94 of the Privacy Act as enacted; also the Explanatory Memorandum for the Privacy Bill pars 201, 203 and 205. Instead the provisions of Pt VIII of the Privacy Act can be seen as extending the remedies available in equity for breach of an obligation of confidence.

(emphasis added)    

158    It follows, therefore, that as the applicant has not established the elements of the alleged breach of confidence in equity for the reasons set out below, no damages are available under s 93 of the Privacy Act.

9.    THE CLAIM FOR DAMAGES FOR BREACH OF CONFIDENCE

9.1    Relevant principles

159    As Beazley P (Macfarlan and Emmett JJA agreeing) explained in Marshall v Prescott [2015] NSWCA 110 (Marshall):

51. It is a well-established principle that a person who “receives information in confidence shall not take unfair advantage of it”: Seager v Copydex Ltd [1967] 2 All ER 415 at 417 per Lord Denning MR. The prohibition is on disclosure, because that would destroy the information’s confidentiality, as well as on use of the confidential information. As Lord Denning MR added, at 417, “use” must not be made of information “to the prejudice of him who gave it without obtaining his consent”.

160    Megarry J listed three requirements for an action in breach of confidence in Coco v A N Clark (Engineers) Ltd [1969] RPC 41 (Coco), namely:

(1)    the information had to have the necessary quality of confidence;

(2)    the information must have been imparted in circumstances importing an obligation of confidence; and

(3)    there must be an unauthorised use of the information to the detriment of the party communicating it in confidence.

161    Megarry J’s formulation has been cited with approval in Commonwealth v John Fairfax & Sons Limited (1980) 147 CLR 39 at 51, and Lenah Meats at [30] (Gleeson CJ), and Marshall at [53].

162    Turning to the first element identified by Megarry J, Gummow J in Smith Kline & French Laboratories (Aust) Limited v Secretary, Department of Community Services and Health (1990) 22 FCR 73 at 87 explained that the first element identified in Coco in fact comprises two elements, namely:

(i) the plaintiff must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question, and must be able to show that; (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge); …

163    This passage was approved by Barrett JA in Streetscape Projects (Australia) Pty Ltd v City of Sydney [2013] NSWCA 2; (2013) 85 NSWLR 196 (Streetscape Projects), who noted with respect to Coco:

158. Implicit in the statement of principle are two propositions of particular relevance to this appeal: first, that particular information is specifically identified; and, second, that the confidential nature of the identified information is established.

159. The need for specificity in the identification of the information said to be confidential in respect of which relief is sought comes from the fact that the court must make an assessment of the quality of that information, that is, whether it is in truth of a confidential nature. An aspect of that inquiry may turn on whether the whole or some part has become the subject of general disclosure or notoriety. Precise delineation of the subject matter is accordingly essential. The task of a plaintiff, in this respect, is, in the words of Gummow J in Smith Kline & French Laboratories (Australia) Ltd v Department of Community Services and Health … at 87, “to identify with specificity, and not merely in global terms, that which is said to be the information in question”.

164    Furthermore, personal information, as opposed to trade secrets, may have the necessary quality of confidence. As Barrett JA observed in Streetscape Projects:

160. The confidential quality of information does not depend on its being in the nature of a trade secret. As Campbell JA pointed out in Del Casale v Artedomus (Aust) Pty Ltd [[2007] NSWCA 172] at [103], referring to what was said by Megarry J in Coco … at 47:

“On Megarry J’s account, the information is ‘of a confidential nature’ if it is not ‘public property and public knowledge’, or if it is ‘constructed solely from materials in the public domain’, to which ‘the skill and ingenuity of the human brain’ has been applied. This is a fairly undemanding test.’”

(citations omitted)

165    However, as his Honour then explained (in a passage also quoted with approval in Marshall at [55]):

162. The fact that information that was confidential when obtained has later entered the public domain means that its confidential quality is lost. In Attorney-General v Guardian Newspapers Ltd (No 2) [[1990] 1 AC 109], Lord Goff explained (at 282) that “public domain”, for these purposes, means “no more than that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential”.

166    Turning to the second element identified in Coco, it is no longer necessary to establish a relationship of confidence between an applicant and respondent if the information is clearly private although in such a case, it is necessary to consider the circumstances in which the information was obtained in order to determine whether an obligation of confidence is owed (as the first, second, third and seventh respondents submit). As, for example, Gleeson CJ explained in Lenah Meats at [34], equity may impose obligations of confidentiality even though there is no imparting of information in circumstances of trust and confidence. His Honour referred by way of illustration to Laws J in Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 at 807; [1995] 4 All ER 473 at 476 who said:

If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would, in my judgment, as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it. In such a case, the law would protect what might reasonably be called a right of privacy, although the name accorded to the cause of action would be breach of confidence. It is, of course, elementary that, in all such cases, a defence based on the public interest would be available.

167    By way of contrast, Gleeson CJ held that the fact that in that case the acts of slaughtering possums filmed without permission took place on private property did not demonstrate that the acts were private in any relevant sense (Lenah Meats at [35]).

168    Finally, as to Megarry J’s third element, being the unauthorised use of the confidential information, the applicant’s testimony in cross-examination that the judgment information was false was emphatic: see also e.g. FASOC at p. 4 [1A]; Applicant’s final submissions in response to the respondents’ final submissions at pp. 18 [64] and 31 [6]. However, the first, second, third and seventh respondents submit that the publication of false information does not constitute a “use” of the confidential information unless the falsity is a confection based on confidential (and therefore true) information. This proposition receives support from the decision of Brereton J in AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395; [2011] Aust Torts Reports 82-077 (AMI Australia) in which his Honour relevantly held that:

24. In the present case, the position is complicated by the circumstance that AMI contends that what Fairfax proposes to publish is, at least in part, false. This raises an issue as to the relationship between confidentiality and accuracy: the question is whether the dissemination of “misinformation” in a field to which, if the information were accurate, obligations of confidentiality would apply, can be restrained as a breach of confidence. In my view, the answer depends upon whether the dissemination can be characterised as a “use” of confidential information. If what is disseminated is derived from information obtained in confidence, then it will be a “use” of that information, even if such use involves misinterpretation or misrepresentation of it. But merely to publish untrue statements on subject matter that, if true, would be protected by confidentiality, does not of itself involve a “use” of confidential information. The confection of falsehoods about another, albeit in respect of subject matter otherwise within the field of confidentiality, is not of itself a breach of confidence. But if the confection makes use of information obtained in confidence, it will be nonetheless a use of confidential information, and will not be deprived of that character by its inaccuracy.

25. Accordingly, publication of false imputations about matters to which confidence would attach if they were true is not a breach of confidence, unless it can be characterised as a use of confidential information. …

9.2    The claim for breach of confidence must be dismissed

169    As the respondents contend, the applicant’s claim for breach of confidence fails with respect to each element of the cause of action.

170    In line with the approach outlined in the authorities, the starting point is to identify with specificity the allegedly confidential information. It appears that the applicant claims that the confidential information in question constitutes:

(1)    the applicant’s name coupled with the Family Court file number which appear on the un-redacted Family Court Orders; and

(2)    the judgment information, being the alleged findings of Johnston J that she had the knowledge and ability to “thwart the interests of the Official Trustee by joining with the husband in having the consent property orders made” and was able to do this because of her “long experience as a secretary”: Debrossard (FamCA) [2011] at [110] and [98] respectively.

171    The Family Court file number was always in the public domain as it appears on the anonymised version of the decision by Johnston J in the Family Court. With respect to the applicant’s name, as Ms Amato submitted for the first to third and seventh respondents, “it would be stretching the fabric of the law of confidentiality to say that one’s name without more could be confidential. It would have to be … combined with some other information that was confidential, and in this case it isn’t” (T166.31-34). Rather, as Ms Amato also submitted, at the time that her clients allegedly used the information by attaching the un-redacted orders to the contract for sale, the orders had already been uploaded onto the Register on 17 October 2011: see above at [49]. The copy of the contract containing the orders was not received by LJ Hooker Picton until, at the earliest, 1 January 2012 (see the Sales Inspection Report and Auction Exclusive Selling Agency Agreement signed by the agent and dated 5 January 2012, Ex A1 at 266-268). Nor was a copy of the contract containing the un-redacted Family Court Orders distributed to any prospective purchasers until, again at the earliest, 2 May 2012. It follows that by the time that the first to third and seventh respondents came into possession of the information contained in the orders, the information lacked the necessary quality of confidence on any view: see above at [162]-[165]. Contrary to the applicant’s submissions, the fact that the information was available only on payment of a fee does not detract from the fact that it was publicly available: Applicant’s final submissions in response to the respondents’ final submissions at p. 14 [48].

172    As to the judgment information (even putting aside the inaccuracies in the applicant’s description of it (see above at [103]-[105])), the applicant’s allegation that the information was disclosed in breach of confidence fails at every step. First, as Ms Nash submits, the applicant’s former husband’s bankruptcy is a necessarily a public matter. As Ms Nash further submits:

8. That the applicant acted in concert with her former husband to defeat his creditors is a fact found by Johnston J for the purpose of determining the form of orders facilitating the sale of the property and any role that the applicant might have in the execution of those orders. It is a finding that has not been appealed. It is a finding that this Court has no power to set aside or modify.

9. The application of s.121 [of the Family Law Act] to the second fact is accidental. Ordinarily, such facts found in the course of determining the disposition of a bankrupt’s estate are subject to the open justice principle. They are decided in open court and published without anonymisation. In this case, the settlement agreement between the applicant and her former husband brought into question the rights of the creditors within the jurisdiction of the Family Court to determine the disposition of assets of the marriage. Thus, the fact of the acting in concert finding became subject to s.121. If the causes of action in breach of confidence and, if it exists, breach of privacy apply to the acting in concert it must be the case that all findings in relation to attempts to defeat creditors in the course of bankruptcy proceedings must be kept secret. Obviously, such a proposition provides its own answer.

173    It follows that the judgment information lacks the necessary quality of confidence essential to the cause of action for breach of confidence. As Ms Nash submits, the untenable nature of the applicant’s argument, with respect, is apparent from the fact that if it were correct, it would follow as a matter of logic that similar findings by courts other than those exercising jurisdiction with respect to matrimonial causes must also be confidential in character.

174    Secondly, the applicant has failed to articulate any basis for the contention that the judgment information itself was communicated to the first, second, third, fourth, or seventh respondents, let alone that it was communicated in circumstances importing an obligation of confidence.

175    Thirdly, nor in any event could attaching a copy of the un-redacted Family Court Orders to the contract for sale constitute a use of the judgment information. Furthermore, there is no evidence to suggest that the respondents, any prospective purchaser, or any other person used the alleged confidential information contained in the Family Court Orders to access the judgment of Johnston J in Debrossard (FamCA) [2011] and discover the judgment information.

176    Fourthly, if, as the applicant contends, the judgment information is false, disclosure of that information could not constitute a “use” in any relevant sense, applying the approach of Brereton J in AMI Australia (see above at [168]).

177    Finally, even if all of these hurdles were overcome, there is no evidence that the applicant suffered a detriment compensable by an award of damages: see further the deficiencies in the medical evidence explained at [200]-[203] below.

178    It follows that the applicant’s contention that the judgment information was disclosed in breach of confidence is, with respect, untenable.

10.    THE ALLEGED BREACHES OF DUTY OF CARE

10.1    Application of the Civil Liability Act as surrogate federal law by operation of s 79, Judiciary Act 1903 (Cth)

179    Among other things, the Civil Liability Act limits the circumstances in which a duty of care may arise to take steps not to cause mental harm, and renders more stringent the tests for determining whether a duty of care has been breached and whether any such breach has caused personal injury. As the Civil Liability Act is a law of New South Wales, the Act does not apply to the present proceeding in federal jurisdiction of its own force. Rather, as the respondents contend, the Act is picked up and applied as a surrogate law of the Commonwealth in the exercise of federal jurisdiction by this Court by operation of s 79(1) of the Judiciary Act 1903 (Cth): see generally Rizeq v Western Australia [2017] HCA 23; (2017) 262 CLR 1 at [63] (Bell, Gageler, Keane, Nettle and Gordon JJ). In line with these principles, Charlesworth J held in Okwume v Commonwealth [2016] FCA 1252 with respect to a claim for damages for breach of duty of care:

272. This matter involves the exercise of federal jurisdiction within the meaning of s 79 of the Judiciary Act. Section 79 operates to pick up, as a surrogate law of the Commonwealth, the Civil Liability Act 1936 (SA) (the SA Civil Liability Act): see generally, Mok v Director of Public Prosecutions (NSW) (2016) 330 ALR 201 at [36] and [84] (Gordon J). The alleged tort having occurred in South Australia, I am satisfied that the SA Civil Liability Act is applicable: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503.

180    On this basis her Honour held that ss 34 and 35 of the Civil Liability Act 1936 (SA) (which set out the circumstances in which liability in negligence may arise and the burden of proof) applied. (I note that there was no challenge to those aspects of this decision on the appeal to the Full Court, which dismissed the claim in negligence: Commonwealth v Okwume [2018] FCAFC 69; (2018) 263 FCR 604.)

181    The applicant, however, submits that she is a victim of crime as defined in Div 1 of Part 5 of the Victims Rights and Support Act 2013 (NSW) (the Victims Rights Act) and that this is excluded from the operation of the Civil Liability Act by s 3B of the Civil Liability Act (see e.g. Applicant’s final submissions in response to the respondents’ final submissions at pp. 25 [103] and 27 [109]). The submission is misconceived. Section 3B(1)(h) provides that the Civil Liability Act does not apply in whole in respect of “civil liability for financial assistance for economic loss under the Victims Rights and Support Act 2013”. That exclusion has no application to this case for the simple reason that the applicant is not seeking financial assistance for economic loss under the Victims Rights Act.

10.2    Preconditions to the existence of a duty of care imposed by s 32(1), Civil Liability Act

182    No liability arises as a consequence of negligence absent the existence of a duty of care owed to the injured person at law. As Lord Esher MR explained in Le Lievre v Gould [1893] 1 QB 491 at 497, “[a] man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them.”

183    The applicant alleges that all of the respondents owed her duties of care which each of them breached as a result of which she suffered a “recognised psychiatric illness”. As the respondents contended, that claim engages ss 31 and 32 of the Civil Liability Act (as applied by s 79 of the Judiciary Act 1903 (Cth)) in a manner which I will shortly explain. Those sections provide as follows:

31. Pure mental harm – liability only for recognised psychiatric illness

There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness.

32. Mental harm – duty of care

(1)    A person (“the defendant”) does not owe a duty of care to another person (“the plaintiff”) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

(2)    For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following:

    (a)    whether or not the mental harm was suffered as the result of a sudden shock,

    (b)    whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril,

    (c)    the nature of the relationship between the plaintiff and any person killed, injured or put in peril,

    (d)    whether or not there was a pre-existing relationship between the plaintiff and the defendant.

(3)    For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff.

(4)    This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.

(emphasis added)

184    In determining what loss or injury should have been foreseen, the Court is concerned with conduct involving an unreasonable risk of harm. The applicant relied on Commonwealth v Introvigne (1982) 150 CLR 258 at 267 where Mason J observed that “the decision of this Court in Wyong Shire Council v Shirt (1980) 146 CLR 40, at pp 44-49 establishes that a risk of injury is foreseeable, so long as it is not far-fetched or fanciful, notwithstanding that it is more probable than not that it will not occur” (Applicant’s final submissions in response to the respondents’ final submissions at pp. 24-25 [97]). However, as the Registrar-General submitted, the bar has since been raised by the enactment of s 5B of the Civil Liability Act which provides relevantly that “[a] person is not negligent in failing to take precautions against a risk of harm unless … (b) the risk was not insignificant” (emphasis added).

185    Section 32 also raises the bar for establishing a duty of care by imposing restrictions upon the circumstances in which a person owes a duty of care to another with respect to “mental harm”: Wicks v State Rail Authority of New South Wales [2010] HCA 22; (2010) 241 CLR 60 (Wicks) at [26] (the Court); Optus Administration Pty Limited v Glenn Wright [2017] NSWCA 21; (2017) 94 NSWLR 229 (Optus Administration) at [30] (Basten JA (with whose reasons Hoeben JA agreed)). “Mental harm” is defined in s 27 of Part 3 of the Act to mean “impairment of a person’s mental condition”. “Pure mental harm” in turn means “mental harm other than consequential mental harm”, the latter being “mental harm that is a consequence of a personal injury of any other kind” (emphasis added). There is no suggestion here by the applicant that she suffered personal injury other than by reason of an impairment of her mental condition. Nor is it suggested that the mental harm alleged is a consequence of another kind of personal injury. As such, she seeks damages for pure mental harm.

186    The High Court in Wicks explained (at [22]) that s 32(1) of the Civil Liability Act “provides that a duty is not to be found unless a condition is satisfied” (emphasis in the original). That condition has three elements. Specifically, in order to establish the existence of a duty of care, the applicant must establish that each of the first to fifth and seventh respondents respectively ought to have foreseen, namely, (1) that “a person of normal fortitude” might (2) “in the circumstances of the case” suffer (3) “a recognised psychiatric illness”, if reasonable care were not taken: Optus Administration at [36] (Basten JA). As to the second of these elements, the Court in Wicks explained that:

23. … Section 32(2) identifies four kinds of circumstance to which regard should be had: … But s 32 does not prescribe any particular consequence as following from the presence or absence of any or all of those circumstances.

187    The composite criteria in s 32(1) mean that it is necessary to identify with care the nature of the risk which the respondents should have foreseen might give rise to mental harm: Optus Administration at [69] (Basten JA) (Hoeben JA agreeing at [100]).

188    The nature of the task to be undertaken in assessing whether the criteria in s 32(1) are met can be illustrated by reference to the following passage in Wicks, the issue in that case being whether State Rail owed a duty to take reasonable care not to cause mental harm to the appellants who each came to the scene of a rail accident as a “rescuer”:

33. … the question of duty of care is a question of law. To resolve this question would require consideration of whether it was reasonably foreseeable that a rescuer attending a train accident of the kind that might result from State Rail's negligence (in which there might be many serious casualties and much destruction of property) might suffer recognisable psychiatric injury as a result of his experiences at the scene. Or to put the same question another way, was it reasonably foreseeable that sights of the kind a rescuer might see, sounds of the kind a rescuer might hear, tasks of the kind a rescuer might have to undertake to try to ease the suffering of others and take them to safety, would be, in combination, such as might cause a person of normal fortitude to develop a recognised psychiatric illness? The question of foreseeability is to be posed in these terms because it must be judged before the accident happened.

(citations omitted)

189    As a further example, in Optus Administration, which involved a claim for damages for PTSD by a trainee, Mr Wright, as a consequence of another trainee deciding to attempt to kill him during the course of a training session, Basten JA held that:

67. In order to identify a duty owed by Optus directly to the plaintiff, it was necessary to make the following findings:

(a)    it was reasonably foreseeable that Optus’ staff or persons undergoing training on Optus’ premises, being persons of normal fortitude, might encounter other staff or trainees exhibiting aberrant behaviour of such severity as to cause a recognised psychiatric illness, absent the infliction of another injury;

(b)    that being foreseeable, reasonable care required that Optus give instruction and training to all staff that, if such behaviour were encountered, they should not approach the person, should instruct a superior as to their observations, and not allow other staff members to approach the person, until police arrived.

190    As to the identification of a “person of normal fortitude”, the first to third and seventh respondents in their closing submissions (at [107]) summarised a number of examples from the authorities which I adopt:

c. In Tomisevic v Menzies Wagga Southern Pty Ltd, [2005] NSWCA 178, Beazley JA (Mason P and Pearlman AJA agreeing) held that it was not reasonably foreseeable that a person of normal fortitude employed as a cleaner in a police station, would suffer a recognisable psychiatric illness as a result of being splashed in the face by water contaminated by faeces.

d. In Crump v Equine Nutrition Systems Pty Ltd t/as Horsepower, [2006] NSWSC 512, the plaintiffs claimed damages for psychiatric harm arising out of the death of their horse following its consumption of contaminated feed purchased from the defendant. Hoeben J determined that it was not reasonably foreseeable that a horse owner of normal fortitude would develop a psychiatric injury in the circumstances of this case.

e. In King v Philcox (2015) 320 ALR 398, the High Court confirmed that it was reasonably foreseeable that a person of normal fortitude whose brother died in a car accident might suffer a recognized psychiatric injury.

191    The decision in Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 (Tame) provides a further example. In Tame, the High Court held by majority that it is not a separate precondition to liability for a negligently inflicted psychiatric injury at common law that a person of “normal fortitude” might have suffered psychiatric injury (leaving aside cases of prior knowledge of a particular susceptibility) (Tame at [16] (Gleeson CJ), [61]-[62] (Gaudron J), [197] and [199]-[203] (Gummow and Kirby JJ)). The overarching test was reasonable foreseeability. Nonetheless, while the case preceded the enactment of s 32 of the Civil Liability which reversed Tame on this point, the majority accepted that that concept remained valid and relevant (Tame at [16] (Gleeson CJ); see also [62] (Gaudron J), [199] (Gummow and Kirby JJ)). Applying these principles, the majority rejected the claim that it was reasonably foreseeable that Ms Tame would suffer psychiatric injury from the negligent preparation of an accident report by a police officer which inaccurately recorded her blood alcohol level. As Gummow and Kirby JJ held (Gaudron J agreeing in obiter at [63]):

232. No case in negligence can be made out against the respondent in respect of the conduct of Acting Sergeant Beardsley. This is because a reasonable person in Acting Sergeant Beardsley's position would not have foreseen that his conduct in carelessly completing the Traffic Collision Report involved a risk of causing a recognisable psychiatric illness to the appellant. It may be conceded that it was reasonably foreseeable that such carelessness may cause surprise, distress or anger, particularly as the report was likely to be distributed to the appellant's insurer and could be accessed, for a fee, by members of the public. However, it also was reasonably foreseeable (a) that an erroneous recording of the appellant's blood alcohol level, once detected, would promptly be rectified, given the obvious nature of an error which attributed to both drivers precisely the same blood alcohol content and (b) that, if pressed, the Police Service would offer a formal apology in respect of any such error, as subsequently occurred here.

223. But it was not reasonably foreseeable that a person in the position of Mrs Tame would sustain a recognisable psychiatric illness from a clerical error which she was told was a mistake that had been rectified and in respect of which she received a formal apology. The appellant's reaction was extreme and idiosyncratic. The risk of such a reaction was far-fetched or fanciful and … was not one which the law of negligence required a reasonable person to avoid.

(citations omitted; see also Tame at [23] and [29] (Gleeson CJ))

10.3    Causation provisions of the Civil Liability Act

192    The Civil Liability Act also imposes certain conditions which must be met in order to prove that negligence caused particular harm. Specifically, s 5D provides that:

(1) A determination that negligence caused particular harm comprises the following elements:

    (a) that the negligence was a necessary condition of the occurrence of the harm (“factual causation”), and

    (b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (“scope of liability”).