Federal Court of Australia Testart v Testart [2022] FCA 1025 File number(s): VID 661 of 2021 Judgment of: O'CALLAGHAN J Date of judgment: 23 August 2022 Date of publication of reasons: 1 September 2022 Catchwords: PRACTICE AND PROCEDURE – application to be relieved from implied undertaking in Harman v Secretary of State for the Home Department [1983] 1 AC 280 – orders made Cases cited: Harman v Secretary of State for the Home Department [1983] 1 AC 280 Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283 Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 15 Date of hearing: 23 August 2022 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Ms RW Sweet Solicitor for the Respondent: Clayton Utz ORDERS VID 661 of 2021 BETWEEN: LISA JANE TESTART Applicant AND: PIERRE HENRI ANTOINE MARIE TESTART Respondent order made by: O'CALLAGHAN J DATE OF ORDER: 23 August 2022 THE COURT ORDERS THAT: 1. The applicant, the respondent and their respective legal advisers have leave to provide to the Australian Taxation Office all documents sworn or affirmed and filed in this proceeding and any annexures or exhibits to those documents. 2. Costs reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT Ex tempore (Revised from transcript) O'CALLAGHAN J: 1 This is an interlocutory application by the respondent, Mr Pierre Testart, that he be released from his implied "Harman" undertaking he has given to this court in relation to certain documents. See Harman v Secretary of State for the Home Department [1983] 1 AC 280. 2 The application was filed on 18 August 2022, and in it Mr Testart sought to be released from the implied undertaking in respect of documents listed in the schedule to it. Mr Testart also sought an order that the release be limited to the use of those documents for provision to "tax authorities" in respect of current or future assessments of any liability to pay amounts referrable to the superannuation guarantee charge in respect to his employment of the applicant, Ms Jane Testart. 3 When the matter was called on for hearing today, and in response to a written submission made by Ms Testart in relation to the application, it was agreed between the parties that it was appropriate in all the circumstances that the court make an order that both the applicant and the respondent and their legal advisors have leave to provide to the Australian Taxation Office all documents sworn or affirmed and filed in this court in this proceeding, and any annexures or exhibits to those documents. It is desirable that I should explain very briefly why the making of that order is in all the circumstances appropriate. 4 The applicant in this proceeding was the respondent's wife. She commenced working for the respondent, who is a barrister, on 1 July 2009, and continued to do so for a period of time. The parties married in 2010 after a period of co-habitation and separated on a final basis in May 2019. 5 In June 2019, Ms Testart, commenced a family law proceeding in the Federal Circuit Court of Australia, seeking interim and final property and spousal maintenance orders. The application for spousal maintenance was dismissed in October 2019 and the remainder of the proceeding was finalised by consent on 6 August 2020. 6 The applicant commenced this proceeding in late 2021. In it she alleges, among other things, that the respondent contravened s 45 of the Fair Work Act 2009 (Cth) by failing to pay her annual leave entitlements pursuant to the Legal Services Award 2020 and failing to make superannuation contributions on her behalf. It is further alleged that the respondent contravened ss 45 and 323 of the Fair Work Act by failing to pay wages to her between 2009 and 2016. 7 On 11 February 2022, the respondent filed an interlocutory application seeking summary dismissal of the proceeding on the grounds that this court lacks jurisdiction to hear it because it is a "matrimonial cause" within the meaning of s 4(1) of the Family Law Act 1975 (Cth). He also seeks judgment on the following grounds: (1) the applicant is prevented from bringing her claim by reason of the principles in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; (2) the claims are largely time-barred pursuant to s 544 of the Fair Work Act; and (3) it is otherwise vexatious and/or an abuse of process designed to harass the respondent. 8 On 11 February 2022, I made orders for the timetabling of the hearing of the proceeding, but those orders were subsequently vacated to allow the parties to make separate applications in the Federal Circuit and Family Court of Australia (the two courts having now merged) to be released from their respective Harman undertakings in order to allow disclosure of certain documents for specified purposes, including relevantly for use in this proceeding and for their provision to tax authorities. 9 On 30 June 2022, Judge Kirton of the Federal Circuit and Family Court of Australia (Division 2) made the following orders (among other orders): 1. The Applicant Wife (Wife) and the Respondent Husband (Husband), and their legal advisers, be relieved of the implied undertaking to this Court in Harman v Secretary of State for Home Department [1983] 1 AC 280 with respect to: (a) Any document sworn or affirmed and filed in this Court in this proceeding, being DGC 1773 of 2019 (Proceeding); (b) Any Orders made and Judgments delivered in the Proceeding, including these Reasons for Judgment; (c) Notices to admit facts and/or documents filed in the Proceeding and any response thereto, whether filed or otherwise; (d) Case summaries or outlines of case filed in the Proceeding; (e) The case summaries submitted to the Court by the Husband and the Wife for the Interim Defended Hearing of the Proceeding on 26 May 2020; and (f) Such of the documents in the Wife's Court Book submitted to the Court for the Final Hearing of the Proceeding on 6 August 2020 that are referred to in: (i) The Wife's Affidavits filed on 4 February 2020, 24 February 2020 and 3 August 2020; and (ii) The Notice to Admit Facts and Authenticity of Documents, filed by the Wife on 10 February 2020. (together, the Documents) 2. The relief from the implied Harman obligation referred to in Order 1 herein, is to be limited to the use of the Documents as follows: (a) In the Federal Court of Australia proceeding VID661 of 2021; and (b) For the provision to tax authorities concerning the Husband's tax affairs. 10 In order to be released from the implied undertaking, a party in the position of the respondent must show "special circumstances". The same, of course, is true of the applicant, who, as I say, at the commencement of this hearing made an oral application, consistent with what she said in her written submission, that she too be released from her undertaking, and that both she and her ex-husband be released from their undertaking in respect of all documents sworn and filed in this proceeding. The relevant principles are summarised in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 and Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283. That notion of special circumstances "does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes". See Liberty Funding at [31]. Further, "[t]he discretion is a broad one and all the circumstances of the case must be examined". Ibid. 11 In Springfield Nominees at 225, Wilcox J identified a number of considerations which may, depending upon the circumstances, be relevant to the exercise of the discretion, viz: (1) the nature of the document; (2) the circumstances under which the document came into existence; (3) the attitude of the author of the document and any prejudice the author may sustain; (4) whether the document pre-existed litigation or was created for that purpose and is therefore expected to enter the public domain; (5) the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information); (6) the circumstances in which the document came into the hands of the applicant; and (7) most importantly of all, the likely contribution of the document to achieving justice in the other proceeding. 12 I should say that that last consideration, that is to say the likelihood of a document contributing to achieving justice, is equally applicable to a circumstance in which the document is sought to be used for non-litigious purposes. In the end, the parties are to be taken to have agreed that it is appropriate, and also in the interests of justice, that each of them be granted leave to provide to the Australian Taxation Office all documents sworn of affirmed and filed in this proceeding, and any annexures or exhibits to those documents. In my view, the special circumstances have been made out for the reasons set out in the submissions of Ms RW Sweet, who appeared on behalf of the respondent, as follows: The Commissioner of Taxation has issued assessments to the Respondent for superannuation guarantee charge in respect of alleged earnings by the Applicant (Assessments). The Assessments total approximately $250,000. The Assessments relate to quarters ending 30 September 2009 to 30 June 2017. The period of the Assessments mirrors the period that the Applicant alleges in this proceeding that she was employed by the Respondent. The Respondent has lodged objections to the Assessments on the grounds set out in paragraphs [8] and [9] of the affidavit of Amber Agustin sworn 16 August 2022. (Objections) Pursuant to s14ZY of the Taxation Administration Act 1953 (Cth) the Commissioner is required to allow, allow in part or disallow each of the Objections. The Objections review process (Review) is currently paused, in order to allow the Initial Harman Applications to be determined. The Respondent has been informed by the Australian Taxation Office that the Review will resume on 31 August 2022, unless the pause is further extended by agreement of the Commissioner. The Respondent requires documents, including the affidavit dated 28 October 2021, to produce to the Commissioner in the context of the Review and the Commissioner's statutory duty to determine the Objections. The existence of the Review and the Assessments, closely overlapping as they do with factual and legal matters in the Fair Work Proceeding, form the requisite special circumstances which allow for the Court's board discretion to be exercised to release the Respondent from his implied undertaking in this proceeding. This is particularly so when the Assessments are in respect of amounts said to be salary and wages of the Applicant whilst an employee of the Respondent with such Assessments being issued subsequent to the finalisation of the parties' financial relationship in the Family Law Proceeding. Key issues in the Review process, which evidence the overlap of factual and legal matters in the Fair Work Proceeding, include the character of amounts paid to the Applicant by the Respondent while she was married to or engaged in a relationship with the Respondent, whether amounts received were "earned" and whether amounts were actually paid to the Applicant. 13 Further, I am unable to identify any prejudice, including prejudice to Ms Testart, that may ensue if the orders are to be made. And, as I say, when the matter was called on for hearing today, Ms Testart made the oral application effectively to be joined and to extend the breadth of the documents in respect of which the release is to be granted, and she did not suggest that in doing so any prejudice would flow to her. On the contrary, she consented to the making of the orders in the form that I propose to make. 14 I should say that I am also conscious of the fact, as Ms Sweet recognised at the case management hearing on 19 August 2022, and as Ms Testart has identified in her written submissions, that there may be some degree of overlap between the orders that I will make and the orders made by Judge Kirton, and that to some degree the order that I propose to make may be unnecessary. But in my view, no harm will come of that if that be the case. 15 Accordingly, I order that: (1) The applicant, the respondent and their respective legal advisers have leave to provide to the Australian Taxation Office all documents sworn or affirmed and filed in this proceeding and any annexures or exhibits to those documents. (2) Costs reserved. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan. Associate: Dated: 1 September 2022