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Lamb v Sherman QCA 290
SUPREME COURT OF QUEENSLAND
Lamb v Sherman  QCA 290
Appeal No 10433 of 2021
Court of Appeal
General Civil Appeal
District Court at Brisbane –  QDC 192 (Porter QC DCJ)
17 December 2021
8 November 2021
McMurdo JA and Daubney and Boddice JJ
Appeal is dismissed with costs.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKE OUT – UNDERTAKINGS AND USE OF DOCUMENTS – where the appellant is a defendant in defamation proceedings – where the appellant applied to strike out parts of an amended statement of claim – where there was a question whether the statement of claim breached an implied undertaking to the Federal Circuit Court to use documents and information only for the purposes of proceedings in the Family Court – whether the use of those documents was an abuse of the process of the District Court
Family Law Act 1975 (Cth), s 10G , s 10J
Bourns Inc v Raychem Corporation [No 3]  1 All ER 908, considered
Central Queensland Cement Pty Ltd v Hardy  2 Qd R 509, considered
Hearne v Street (2008) 235 CLR 125;  HCA 36, cited
King v AG Australia Holdings Ltd (2002) 121 FCR 480;  FCA 872, cited
Rogers v The Queen (1994) 181 CLR 251;  HCA 42, cited
Victoria International Container Terminal Ltd v Lunt (2021) 95 ALJR 363;  HCA 11, cited
A M Nelson for the appellant
N H Ferrett QC, with J R Moxon, for the respondent
Gorval Lynch for the appellant
Romans and Romans Lawyers for the respondent
- McMURDO JA: The respondent to this appeal, Mr Sherman, is suing the appellant, Ms Lamb, in the District Court, claiming damages for defamation. The case has been set down for trial for several days of hearing. Ms Lamb applied to have the statement of claim struck out and for judgment in the proceeding, or alternatively, to have certain parts of the pleading struck out. Her application was dismissed and she was ordered to pay the costs of it. She appeals against that judgment.
- The parties were, for a while, in a relationship which ended not long before the two publications which are the subject of this proceeding. Mr Sherman complains about two publications each made after that relationship had ended.
- In the first of the publications, Ms Lamb made a complaint to the New South Wales Police, that Mr Sherman engaged in conduct by which he stalked and harassed her. In the other publication, Ms Lamb is alleged to have said to a solicitor, who was acting for Mr Sherman’s former wife in family law proceedings, that Mr Sherman had acted towards Ms Lamb in a coercive and controlling manner and that she had made that complaint to the New South Wales Police. Mr Sherman pleads that her complaint to police defamed him, by imputations that he is petty, vengeful, dishonest and the kind of person who engages in domestic violence.
- He does not allege that her complaint to the police was republished. In her pleading, Ms Lamb admits that she made an oral complaint to a police officer in New South Wales about Mr Sherman, although she does not admit saying the words which his pleading alleges.
- In her pleading, Ms Lamb does not admit the second publication because she says that she is not able to recall the words that she used when the solicitor rang her.
- Mr Sherman pleads that the second publication had adverse consequences for him in his litigation with his former wife. He says that the publication caused her to change her position, from that which she had expressed in her initiating application filed in the Federal Circuit Court, where she had said that there was no risk of any abuse, neglect or family violence from Mr Sherman. He pleads that as a result of Ms Lamb’s communication to the solicitor, his former wife became concerned about the welfare of the children of the marriage, and resistant to what he says were appropriate orders about the children.
- In this appeal, Ms Lamb’s case is limited to the second publication. She no longer asks that the entire proceeding be struck out. Her case now is that Mr Sherman learnt of the second publication in circumstances in which he was precluded from using it for any purpose other than in his family law litigation. Mr Sherman learnt of the second publication by it being referred to in a letter written by Ms Sherman’s solicitor to a mediator in the family law proceeding, a copy of which was sent to Mr Sherman’s solicitor. An extract of that letter is pleaded in the amended statement of claim. Only since the matter was before the primary judge, have Ms Lamb’s lawyers obtained a copy of it. Mr Sherman had refused to provide a copy to her.
- The letter is revealing, in that the author also wrote that Mr Sherman’s former wife had herself been subjected to domestic violence in her relationship with Mr Sherman, which had given her a concern that her children may be exposed to domestic violence whilst in his care. The author further wrote that her client described her relationship with Mr Sherman as coercive and controlling at times. When the letter is seen in full, it appears to be a substantial impediment to Mr Sherman’s pleaded case that Ms Sherman’s opinion of him was changed by what Ms Lamb had said about him. That point, however, is for the trial judge, because there is no longer any application to strike out the claim as having no prospects of success.
- That part of the application which was made to the District Court judge, and which is pressed here by Ms Lamb, is that the pleading of the second publication was a breach of an implied undertaking to the Federal Circuit Court in the family law proceeding, because it involved the use of a document and information derived from it that were supplied by Ms Sherman in that proceeding under compulsion. Such an implied undertaking was explained in the judgment of the High Court in Hearne v Street, where Hayne, Heydon and Crennan JJ said:
“Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits”.
- Before the primary judge, the argument for Ms Lamb identified four allegations in the amended statement of claim which were said to have been pleaded in breach of that implied undertaking. They were the pleaded allegations that:
- Mr Sherman’s former wife had not suggested family violence when she filed her initiating application in the Federal Circuit Court;
- the fact of the second publication could be inferred from the letter from the wife’s solicitor to the mediator;
- the second publication caused Ms Sherman’s solicitor to communicate concerns about domestic violence by Mr Sherman to the author of a Family Report for the family law proceeding;
- in consequence of the second publication, Ms Sherman had changed her position to allege a risk to the children from his abuse, neglect or family violence.
- The primary judge considered each of those parts to Ms Lamb’s argument. In this Court, however, Ms Lamb’s case is focussed upon the misuse of the letter to the mediator as a breach of the implied undertaking, from which it is said that Mr Sherman’s entire case about the second publication was derived.
- The primary judge said this about the letter to the mediator:
“ … It is said that the letter written to [the mediator] was subject to the implied undertaking. I was referred to no Court order, nor statutory provision, which would sustain that conclusion in respect of [the mediator’s] involvement in this specific case on the specific day that the letter was sent. [Counsel for Mr Sherman] inventively submitted that the letter to the mediator would have come to the plaintiff in this case, because of an ethical obligation on the solicitor for Ms Sherman to copy communications with the mediator to the plaintiff’s solicitors. It is far from clear to me what the source of such an obligation would be other than professional courtesy. It might be something [the mediator] would just have expected. It might be an ordinary practice.
 It seems to me doubtful that copying someone in on correspondence is compelled by ethical rules in the context of this letter to [the mediator] (presumably Rule 22.5 of the Australian Solicitors Conduct Rules 2012 would be relied upon), but even if so, that obligation arises from a statutory ethical obligation dehors the proceedings and it does not, in my view, amount to compulsion by a rule of Court or a specific order of the Court. The allegation that paragraph 16A involves a breach of the implied undertaking, by misuse of information obtained in the course of the Family Court proceedings of the kind protected by the implied undertaking, is rejected.”
- Although his Honour held that there had been no breach of the implied undertaking, he went on to consider whether, had there been a breach, it would have been appropriate to give judgment for Ms Lamb or to strike out the relevant paragraphs of the pleading. On that question, his Honour extensively quoted from the joint judgment (Kiefel CJ, Gageler, Keane and Gordon JJ) in Victoria International Container Terminal Limited v Lunt.
- His Honour considered that any breach of the implied undertaking in this case, however serious, could not affect a fair trial of a proceeding in the District Court. His Honour said that it was not the District Court’s “business to punish people for their breach [of the implied undertaking]”, which was “a matter for the Court in question.” In that respect, his Honour also said:
“ I should add that Miller v Scorey  1 WLR 1122 was cited to me. I accept that, in a case where it is evident that the implied undertaking has been breached in the making of the key allegations in another proceeding, that can amount to an abuse of process of this Court, and it could lead to the making of orders, even quite serious orders. It would be pretty unlikely, however, that a Court would do that without giving the defaulting party an opportunity to get relief from the implied undertaking from the Court where it arose.”
- The first question in this appeal is whether the letter to the mediator was the subject of an implied undertaking that the letter or any the information conveyed by it, was not used for any purpose other than the mediation or, more widely, the family law proceeding. The primary judge reasoned that it was not subject to such an undertaking, because the provision of a copy of that letter to Mr Sherman’s lawyers was not compelled by a rule of Court or an order of the Court.
- In that respect, his Honour did not have all of the evidence which this Court has. With the agreement of Mr Sherman’s counsel, three documents were tendered in this Court. One is a copy of the letter itself. Another is a copy of a mediation agreement made between the parties and the mediator. It was a term of that agreement that the parties, their legal representatives and the mediator would keep confidential all things said or done during the mediation process. The third document is a copy of an order made in the family law proceeding on 3 March 2020. The parties were there ordered to attend upon a person for the purposes of his preparing a family report, and within 28 days from the provision of that report, to attend either a dispute resolution conference or a mediation “to discuss settlement of all matters on a final basis”. It was ordered that if the parties went to mediation, the mediator would be Ms Michelle May AM QC, who became the mediator and to whom the subject letter was written.
- By s 10J of the Family Law Act 1975 (Cth), “[e]vidence of anything said, or any admission made, by or in the company of … a family dispute resolution practitioner conducting family dispute resolution … is not admissible … in any court (whether or not exercising federal jurisdiction)”. By s 10G of the Act, a family dispute resolution practitioner is defined to include a person who is accredited as a family dispute resolution practitioner under the Accreditation Rules. Counsel for Mr Sherman submit that it is not proved that Ms May was so accredited. As to that point, Ms May’s accreditation by the Australian Institute of Family Law Arbitrators and Mediators is recited in the mediation agreement, and, as I have said, she was identified as the mediator by the order of March 2020. It may be safely inferred that s 10J applied to this mediation.
- However, s 10J does not appear to make the letter to the mediator inadmissible, because s 10J applies to evidence of something “said … in the company of” the mediator, which appears to refer to the mediation conference itself. And as noted, a copy of the letter to the mediator was tendered in this Court without objection.
- Although the mediation occurred by an order of the Federal Circuit Court, there was no order that such a letter be provided, and nor was the lawyer for Ms Sherman obliged by an order to provide a copy of her letter to Mr Sherman’s solicitor.
- The argument for Ms Lamb, however, is that the proposed use of the letter in the present case is a use for a collateral or improper purpose which requires the District Court’s intervention, even if the copy of the letter was not provided to his lawyers under compulsion. The argument seeks support from the judgment of McPherson J in Central Queensland Cement Pty Ltd v Hardy, who referred to a general principle that a document delivered for one purpose may not be used for another purpose. The context in which that was said needs to be understood. In that case, a party delivered to the other party a documentary witness statement, pursuant to Practice Direction No 4 of 1987, and also pursuant to an order of a judge. The complaint which was made was that the witness statement was improperly provided to the media, the controversy in that case being the subject of considerable public interest. McPherson J observed that it was well settled that a party who inspects a document which has been discovered and produced does so under an implied undertaking or obligation that the document will not be used for a collateral or ulterior purpose, citing Nicol v Brisbane City Council and Harman v Home Office. He regarded the undertaking as applying equally to the provision of a witness statement which had been provided pursuant to an order and under the Practice Direction.
- There is more support for Ms Lamb’s argument in the English case of Bourns Inc v Raychem Corporation [No 3], in a passage which was cited in the passage from the joint judgment in Hearne v Street which I have set out earlier. The point discussed in Bourns was whether the implied undertaking applied to documents provided by a party in the course of the taxation of its costs to be paid by the other party. Although such documents were not provided by a process of discovery, it was held that there was effectively a compulsion for the provision of the documents, where practically speaking, the documents had to be provided in order to have the party’s costs fairly assessed. Laddie J there said:
“There is no doubt that the disclosure of documents for the purpose of a taxation is not a process of discovery. As Hobhouse J pointed out in Pamplin v Express Newspapers Ltd  2 All ER 185 at 190,  1 WLR 689 at 696 the taxing master does not have power to order discovery to be given. The documents only need to be supplied to him. He cannot force the payee to pass them on to the payer. But the reason for this should be borne in mind. In taxations, most of the documents produced by the payee are ones to which privilege will attach. It is because, as a generality, the documents, and particularly the most important ones, are likely to be highly confidential, that they are not automatically passed on to the payer. Therefore an obligation to give general discovery subject to the right to withhold privileged material would be an exercise of limited value. In fact, in most cases, as Hobhouse J pointed out in Pamplin's case, taxation takes place without any of the payee's internal documents being considered by the payer. But taxation inter partes arising out of civil litigation is essentially adversarial. One party is claiming money from another and the taxing master must, if requested, hold a hearing and decide issues of fact. He can call for evidence and has the power to examine witnesses. The documents produced by the payee are kept out of the fray because of their highly sensitive nature. But when called upon by the payer to hand them over, and that request is indorsed by the master, the payee must elect between complying with the request or withdrawing reliance on them. In effect, the master makes the payee an offer he cannot refuse. In my view, to say that compliance with the request is voluntary in those circumstances is misconceived. On the same hypothesis, it could be said that discovery given by a plaintiff in an action is voluntary since he could always avoid the necessity for doing so by abandoning his claims. In my view, any payee attempting to enforce an order for costs in his favour by embarking on a taxation is compelled to produce his documents to the taxing master and, where the payer demands a view of them, is effectively compelled to produce to him as well. Although the handover is not automatic, it is, no less, a compulsory disclosure of private documents for the purpose of the taxation. All the considerations which make it appropriate to imply an undertaking not to make collateral use of discovery documents apply equally strongly to collateral use of documents produced on taxation. To adopt the language of the Prudential case, by virtue of the circumstances under which the payer obtains the documents in the course of taxation, a legal obligation is imposed on him by operation of law not to make collateral use of them. … In the circumstances it is not strictly necessary to decide what the position would have been had Bourns volunteered the documents to Raychem’s lawyers in anticipation of such a request. However in my view, that would have made no difference. They would still have been produced for the limited purpose of the taxation ·and subject to restraint against collateral use.”
On appeal in that case, Aldous LJ said:
“If the taxing master had ordered the documents to be disclosed to Raychem then there could be no doubt that the disclosure would have been subject to the implied undertaking. True, there was no such order, but the disclosure was made in circumstances where the documents were requested, they were directly relevant to an issue and natural justice meant that an order for production was necessary. In the circumstances it would be right for the court to imply an undertaking even though Bourns disclosed the documents without an order being made. In my judgment where a party to taxation discloses to a payer documents for the purpose of the taxation which are relevant to an issue and therefore should in the interests of justice be disclosed, an implied undertaking arises so that the documents can only be used for the purposes of those proceedings. That happened in this case: therefore the documents were disclosed subject to that undertaking.”
- Bourns was cited in Hearne v Street, in the passage quoted above, as a case where a party to litigation was compelled otherwise than by reason of a rule of court or a specific order of the court. Contrary to the argument of Ms Lamb, the implied undertaking will apply only where documents or information are disclosed under compulsion.
- The requirement for compulsion appears also from the judgment of Moore J, in King v AG Australia Holdings Ltd, from which Ms Lamb’s argument also sought support. In that case, the implied undertaking was held to apply to witness statements, which a party had been required to provide as a condition of its being able to call the witnesses.
- In the present case, it is not demonstrated that there was a legal obligation upon Ms Sherman’s solicitor to provide a copy of this letter to Mr Sherman’s solicitor. However the letter was written to the mediator, and copied to Mr Sherman’s solicitor, in order to promote Ms Sherman’s case in the mediation, for the purpose of achieving what she considered would be an acceptable outcome. In a practical sense, Ms Sherman was required to put those facts to the mediator, and to inform Mr Sherman that she had done so. There was a practical compulsion of the kind in Bourns. The better view appears to be that Mr Sherman came under the implied undertaking not to use the letter, or the information within it for a collateral purpose. However, as I am about to explain, it is unnecessary to resolve that question here and it is preferrable not to do so.
- If Mr Sherman has breached the implied undertaking, that is a breach which would be expected to concern what is now the Federal Circuit and Family Court of Australia, and it would be a breach of which Ms Sherman might complain. At the hearing here, there was an indication that the lawyers for Mr Sherman might return to that court, to seek an order which declared that his use of the letter would not be a breach of the implied undertaking. Indeed, whilst judgment was reserved, his lawyers applied to relist the appeal for further argument and evidence, suggesting that there had been a development of significance in that court. The representatives for Ms Lamb opposed a further hearing of the appeal, and the case was not relisted. If there has been some consideration by that court of the question, Ms Lamb has not been a participant. But that is Mr Sherman’s point, which is that Ms Lamb, as someone who is not a party to family law the proceeding, has no proper interest in preventing what she says is a misuse of that court’s process.
- On the way which Ms Lamb’s case is argued, the question is whether the use of this letter, and the information within it, involves an abuse of the process of the District Court. In Rogers v The Queen, McHugh J said:
“Inherent in every court of justice is the power to prevent its procedures being abused. Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process. In Walton v. Gardiner, Mason CJ, Deane and Dawson JJ said that the jurisdiction to stay proceedings that are an abuse of process “extends to all those cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.”
- Similarly, in a passage quoted by the primary judge from the judgment of the plurality in Victoria International Container Terminal Ltd v Lunt, it was said:
“ The fundamental responsibility of a court is to do justice between the parties to the matters that come before it. In the performance of that function, the doing of justice may require the court to protect the due administration of justice by protecting itself from abuse of its processes. The power to stay, or summarily dismiss, proceedings because one party has abused the processes of the court is concerned to prevent injustice, and that power is properly exercised where the conduct of the moving party is such that the abuse of process on its part may prevent or stultify the fair and just determination of a matter.”
- The use, or proposed use, of this letter and the information within it could be said to be an abuse of process, if at all, only on the basis that it would bring the administration of justice into disrepute. In my conclusion, it is not demonstrated that it would do so. Saying nothing about the underlying merits of Mr Sherman’s case, in my opinion his use of the letter could not be said to prevent or stultify the fair and just determination of this case in the District Court.
- It follows that the primary judge was correct, for the second reason which he gave, to dismiss Ms Lamb’s application. I would order that the appeal be dismissed with costs.
- DAUBNEY J: I agree with McMurdo JA.
- BODDICE J: I agree with McMurdo JA.
Sherman v Lamb  QDC 192 (Judgment).
Amended statement of claim paragraph 23.
 HCA 36, (2008) 235 CLR 125.
(2008) 235 CLR 125 at 154-155 .
Judgment at .
 HCA 11; 95 ALJR 363 at -.
Judgment at .
 2 Qd R 509.
 2 Qd R 509 at 511.
 Qd R 371, 377.
 1 AC 280, 304.
 1 All ER 908.
 1 All ER 908 at 916.
 3 All ER 154 at 170.
(2002) 121 FCR 480 at 504;  FCA 872 at .
(1994) 181 CLR 251 at 286-287.
 HCA 11; (2021) 95 ALJR 363 at 368-369 .
- Published Case Name:
Lamb v Sherman
- Shortened Case Name:
Lamb v Sherman
 QCA 290
McMurdo JA, Daubney J, Boddice J
17 Dec 2021
- Selected for Reporting: