29/10/2014

Big Brother might be able to access the court file in proceedings in which you are involved even though BB is not a party to the proceedings.  If you've got something to hide then the court may not be the place for you.

The Commissioner of Taxation was recently released from an implied obligation not to make use of documents obtained from a court file to proceedings in which he was not a party.

The case involved Family Court proceedings between Mr and Ms Darling which were dismissed by consent in December 2010. The dismissal occurred after the Australian Tax Office ("the ATO") commenced an audit of the husband's affairs in 2009.

The ATO made requests to examine the court file and later to photocopy documents within that file. The ATO did not give notice of its request to either party, nor did the registry staff. ATO officers were granted access to inspect and copy the file on two occasions.

Copies of some of the documents were made by the ATO after the proceedings were dismissed.

In July 2012, the ATO asked the Court if it could be released from its implied obligation not to use documents obtained from the file for a purpose not related to the proceedings.

Initially the Family Court dismissed the application by the Commissioner and found that the implied obligation was binding on him. On appeal the Full Family Court released the Commissioner from the implied obligation.

The Court stated that the primary consideration was whether or not granting the relief sought would discourage litigants from making full and frank disclosure in Family Court proceedings noting that there is already a disincentive as the Court can and does refer matters to government agencies for investigation.

The Court ultimately held that the parties ought to have already been aware that the information in their evidence may end up in the hand of investigating agencies and inspection of court files by the ATO would not be a further disincentive.

The Court stated that they did not condone the conduct of the ATO officers who obtained access to the file using their coercive powers which arguably amounted to a contempt of court. The Court advised that they would overlook the conduct of the ATO in gaining access as they did not seek to use the documents without first approaching the Court for leave.

The Court was also critical of the conduct of registry staff who made decisions about access to court files without notice to the parties. The Court found that notice ought to be given to the parties to allow them to be heard as to whether the requesting party had a “proper interest” and also whether the party should be released from the implied obligation.

So be aware – if you go to court everything that is on the file can be accessed by government.  

For further information regarding this article, please call Townsends Business & Corporate Lawyers on (02) 8296 6222.