Lamb v Sherman

An unusual factual nuance arises in this matter as the parties were once involved in a relationship with one another and the respondent is suing the appellant for defamation. The defamation action concerned two publications, one of which the appellant claimed had been obtained by the respondent in a separate family law proceeding. She argued that the allegations in the statement of claim in the defamation action which concerned that publication should be struck out because they involved the use of a letter to a mediator obtained in breach of an implied undertaking to only use those documents for the purposes of other proceedings in the Federal Circuit and Family Court. The Court of Appeal did not agree that the use of the letter and the information within it amounted to an abuse of process of the District Court.

McMurdo JA and Daubney and Boddice JJ

17 December 2021

At first instance the appellant had sought to have the entirety of the statement of claim struck out and for judgment in the proceeding, or alternatively, to have certain parts of the pleading struck out. She was unsuccessful in that endeavour. [1]. The scope of her appeal was limited to allegations about the second publication only. She contended that the respondent only became aware of the second publication when it was referred to in a letter written by his former wife’s solicitor to a mediator in their family law proceeding, a copy of which was sent to his solicitor. She argued that as such he was precluded from using it for any purpose unrelated to his family law litigation. [7].

Did the statement of claim breach an implied undertaking to the Federal Circuit Court to use documents and information only for the purposes of proceedings in the Family Court?

The appellant submitted that the respondent had misused the letter to the mediator in breach of the implied undertaking to the Federal Circuit Court in the family law proceeding (see Hearne v Street [2008] HCA 36; (2008) 235 CLR 125). [11]. The issue was that the respondent’s entire case about the second publication was based upon the contents of that letter.

At first instance the trial judge noted that the suggestion that the letter to the mediator was subject to the implied undertaking was unsupported by either a Court order or for that matter any statutory provision. [12], [15]. His considered view had been that any breach of the implied undertaking regardless of its seriousness could not affect a fair trial of a proceeding in the District Court. [14].

The Court of Appeal however was provided with additional documentation inclusive of a copy of a mediation agreement made between the respondent, his former wife, and the mediator. It was a term of that agreement that all things said or done during the mediation process would remain confidential. [16].

Whilst noting that s 10J Family Law Act 1975 (Cth) renders evidence of “anything said, or any admission made, by or in the company of … a family dispute resolution practitioner conducting family dispute resolution” inadmissible in any court, the Court held that that provision did not apply to make the letter to the mediator inadmissible given it only applies to evidence of something “said … in the company of” the mediator. Here, the letter was separate to the mediation conference itself. In addition, the Court observed that a copy of the letter to the mediator had been tendered to it without any objection. [18].

The Court held that an implied undertaking only applies to documents obtained under compulsion of court procedure, albeit that the compulsion may be a practical one: see King v AG Australia Holdings Ltd (2002) 121 FCR 480, 504; [2002] FCA 872, [75]. It was not the case in the present matter that the respondent’s former wife’s solicitor had been legally required to provide a copy of the letter to the respondent’s solicitor. Rather, the letter had been copied to his solicitor with a view to progressing her case in the mediation. As such, only a practical compulsion arose. [24].

The Court clarified that in the event the respondent had indeed breached the implied undertaking, that breach would be expected to concern the Federal Circuit and Family Court of Australia and it would be a matter about which his previous wife might complain. The respondent submitted that given the appellant was not a party to the family law proceeding it followed that she did not maintain any proper interest in preventing an alleged misuse of that court’s process. [25]. In the Court’s view, any resolution (if any) of whether the letter had been used in breach of an implied undertaking would ultimately be a matter for the Federal Circuit and Family Court of Australia.

Was the use, or proposed use, of the letter and the information within it an abuse of process?

The High Court has indicated that, albeit they are not so confined, abuses of procedure generally 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: see Rogers v The Queen (1994) 181 CLR 251, 286–287 per McHugh J.

In the Court’s view, even if the letter had been used in breach of the implied undertaking it was not an abuse of process of the proceedings in the District Court for defamation since it had not been demonstrated that it would bring the administration of justice into disrepute. [28]. Accordingly, the pleading based upon it was not struck out and the appeal was dismissed with costs. [29].

A Jarro