Citation: Barletta v Saitaa [2019] NSWSC 1624
Court: Supreme Court of New South Wales
Date: 7 November 2019
Judge: Ward CJ in Eq
Background
The plaintiff commenced family provision proceedings in March 2019, claiming to be an eligible person as the de facto partner of the deceased. The three defendants, co-executors of the estate, are the deceased's two children (the first and second defendants) and a grandchild (the third defendant). A central dispute in the underlying proceedings concerned whether the plaintiff and the deceased were in a de facto relationship at the time of his death.
To test that claim, the defendants sought the plaintiff's Centrelink records, which they expected would show whether she had been receiving a single pension. Because statutory privacy provisions prevent Centrelink records being obtained through ordinary court processes, the defendants required the plaintiff to sign a Freedom of Information release form authorising production. The plaintiff did not sign the form, prompting the defendants to file a notice of motion in September 2019 seeking to stay or dismiss the proceedings.
By the time the motion came before Ward CJ in Eq, the first and second defendants had separated from the solicitor acting for the third defendant and retained new legal representation. The substantive dispute was resolved by agreement between the plaintiff and the third defendant, and the remaining issues were the appropriate restrictions on disclosure of the Centrelink records and who should bear the costs of the motion.
Legal Issues
- Whether any limitations should be placed on the third defendant's access to the plaintiff's Centrelink records once produced under the Freedom of Information process.
- Whether the third defendant should be permitted to disclose those records to the first and second defendants.
- Whether a costs order should be made in relation to the notice of motion, given the motion was resolved by agreement without a contested hearing.
Decision
Issue 1: Access to Centrelink records by the third defendant
The court accepted that the third defendant should be able to access the documents so that instructions could be obtained for the ongoing proceedings, including preparation of evidence. The plaintiff had already agreed to submit the Freedom of Information application for the requested period and to provide any documents received to the third defendant's legal representatives. The third defendant's legal representatives undertook to treat the documents as subject to the Harman undertaking (the obligation, arising from receiving documents through court processes, not to use them for purposes outside the litigation) (at [21]-[23]).
Issue 2: Disclosure to the first and second defendants
The court declined to restrict the third defendant from receiving the documents, but directed that she must not disclose them to the first and second defendants without a further court order, unless those defendants themselves provided a written undertaking to be bound by the Harman undertaking (at [24]-[25]). The court identified a potential difficulty: the third defendant holds duties as co-executor that involve consultation with the first and second defendants, and the plaintiff had legitimate concerns about the private nature of the records given the uncertain and shifting legal representation of the first and second defendants (at [24]).
Issue 3: Costs
The court noted that ordinarily, where an interlocutory application is resolved without a contested hearing, the court will not conduct a hypothetical trial to determine costs, referring to the well-established principles from Re The Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622 (at [29]). The court observed that criticism could be directed at both sides: the plaintiff was slow to engage with the Freedom of Information request, while the defendants had not complied with earlier directions for service of evidence and the first and second defendants had failed to appear on the motion despite not indicating they would abandon it (at [30]). Accordingly, the court reserved the question of costs rather than making any order in favour of either party (at [29]-[31]).
Orders Made
- The defendants' notice of motion filed 12 September 2019 is dismissed.
- The question of costs is reserved.
- The court notes the undertaking of the plaintiff's solicitor to provide all documents released under the Freedom of Information application (Centrelink records) to the third defendant's legal representatives.
- The court notes the undertaking of the third defendant's legal representatives to be bound as if the Harman undertaking applied to those documents.
- The third defendant is directed not to disclose the Centrelink documents to the first and second defendants without further court order, unless those defendants provide a written undertaking to be bound as if the documents were covered by the Harman undertaking.
- The first and second defendants are directed to file a notice of appearance within seven days.
Key Takeaways
- In family provision proceedings, Centrelink records cannot be obtained through ordinary compulsory court processes due to statutory privacy provisions; a plaintiff's signed Freedom of Information release form is required to authorise production of such records.
- Where a plaintiff's response to a request for a Freedom of Information release form provided information about benefits received but did not address the request for a signed authorisation, that response was found insufficient to satisfy the defendants' legitimate request (at [14]).
- The court balanced a defendant's ordinary right to access documents relevant to the proceedings against the plaintiff's privacy concerns by permitting access subject to the Harman undertaking, while imposing a specific direction against onward disclosure to co-defendants pending their own undertakings (at [24]-[25]).
- A party's duties as co-executor, which may involve consultation with other executors, can give rise to a potential difficulty warranting court-imposed limits on disclosure of sensitive documents obtained in litigation (at [24]).
- Costs of an interlocutory motion resolved by agreement are not ordinarily determined by a hypothetical contested hearing; where conduct on both sides was open to criticism, reservation of costs was the appropriate course (at [29]-[31]).
Legislation and Cases Referenced
Legislation
- Civil Procedure Act 2005 (NSW) s 56
- Practice Note SC Eq 7
- Uniform Civil Procedure Rules 2005 (NSW), r 7.10
Cases
- Baller Industries Pty Ltd v Mero Mero Leasing Pty Ltd [2019] NSWSC 1067
- El-Helou v Smith [2009] NSWSC 741
- Merkuloff v Yalisheff [2003] NSWSC 1183
- Re The Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6