Anton & Malitsa (No. 2) - [2009] FamCA 242

FAMILY COURT OF AUSTRALIA

ANTON & MALITSA (NO. 2)

[2009] FamCA 242

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – application refused

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Boyle v Ford Motor Co Limited [1992] 2 All ER 228
State of Queensland and Anor v JL Holdings Pty Ltd (1996-1997) 189 CLR 146
Sali v SPC Limited and Anor (1993) 116 ALR 625

APPLICANT:

MR ANTON

RESPONDENT:

MS MALITSA

FILE NUMBER:

DGF

928

2005

DATE DELIVERED:

30 March 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

30 MARCH 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR STRUM

SOLICITOR FOR THE APPLICANT:

TAUSSIG CHERRIE & ASSOCIATES

SOLICITOR FOR THE RESPONDENT:

MR LENNON, LENNON MAZZEO LAWYERS

ORDERS

That the application for the adjournment of the final hearing is refused.
That written reasons for judgment be provided as soon as practicable.

IT IS NOTED that publication of this judgment under the pseudonym Anton & Malitsa is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 928 of 2005

MR ANTON

Applicant

And

MS MALITSA

Respondent

REASONS FOR JUDGMENT

On 30 March 2009, the respondent wife applied for an adjournment of the final hearing of this matter. After hearing submissions from both sides and reading the respective applications and supporting material, I refused the application. At the time, I indicated I would later give reasons. These are those reasons.
Counsel for the wife indicated that this case was worrying and frustrating for the wife as well as the husband but importantly, she said that the wife wanted a fair and proper hearing. She said that matters that gave rise to the adjournment application were beyond the wife’s control.
This case began a number of years ago and the parties filed affidavit material in readiness for a final trial in 2006. For reasons that do not now matter, the trial did not proceed and it has taken this long for it to reach the final trial stage again.
I have managed this case during 2008 and specifically fixed it for trial. In addition to the preliminary hearing in which I canvassed with the parties the issues in dispute, I also made orders that the parties file their relevant material in readiness for trial.
I had a further hearing of the matter on 10 February 2009 at which time, a disclosure complaint was made by the wife and I made orders to enable the hearing to proceed.
The wife has not filed any further material in readiness for trial.
Counsel for the wife handed to me three authorities in support of the proposition that the wife was entitled to a fair and proper hearing. The first was Boyle v Ford Motor Co Limited [1992] 2 All ER 228. The headnote of that decision of Lord Donaldson of Lymington MR, Stocker and Farquharson LJJ is sufficient. It reads:
Although delay can impede justice and the court should therefore exercise rigorous control over applications to vacate hearing dates in civil action to ensure that there are no avoidable delays, the court should not rigidly adhere to a policy of refusing to postpone hearing dates but should examine each case on its own merits, since justice may also be impeded or defeated by partially prepared cases being presented to the court. Accordingly, if it is impossible to do justice if the date for hearing is maintained, then the date should not be maintained and the unavoidable delay involved in postponing the hearing date ought to be accepted. If that delay has arisen due to the failure by one or other of the parties or their legal advisors, appropriate orders for costs can and should be made if they have acted in concert in supporting applications for postponement of hearing dates.
In this case, the unavoidable delay of an adjournment is dramatic. It is impossible to concede a hearing now in less than five months and then only in circumstances where this case is given priority over other matters awaiting a hearing. Importantly, justice must apply to both sides. The husband is almost 77 years of age and it has been a considerable number of years since the parties separated. There is no doubt in my mind that the reference to a failure by one of the parties or their legal representatives be ordered to pay costs could apply here. However, whilst an appropriate order for costs in a civil case can ameliorate that position that is not necessarily so in a family law matter.
In Sali v SPC Limited and Anor (1993) 116 ALR 625, the High Court looked at the practice and procedure associated with an adjournment and said that courts were entitled to consider the effect of an adjournment on court resources as well as the interests of parties. I am very conscious of that in this case.
The third case provided to me by counsel for the wife was the State of Queensland and Anor v JL Holdings Pty Ltd (1996-1997) 189 CLR 146. That was a case involving the refusal by a Federal Court judge to allow the parties to a civil action to amend pleadings. Dawson, Gaudron and McHugh JJ said (at p 155):
Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the parties seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties.
This is not an application affected by case management nor is it a case in which the respondent is being shut out. For reasons to which I shall refer in a moment, the grounds of the application were articulated in an application supported by an affidavit. In due course, I will point to the fact that none of the grounds justify the delay in the proceedings. It is particularly important to note in this case that the wife filed her trial affidavit in 2006 at which stage, one would presume she should have been ready for trial. In addition, I have made it clear that I would permit her counsel to lead evidence to expand upon the trial affidavit filed in that period. Sadly, in this case, the wife has filed no hew material at all. There is no financial statement and in respect of that, I have indicated there is no logical reason why that could not have been updated.
In JL Holdings, Kirby J was more expansive than the other judges to whom I have just referred. His Honour set out a number of reasons why and adjournment is a balancing exercise involving not only the resources of the court, its rules and its management but also the need to consider justice for both parties. Kirby J said that courts now take into account the strain which litigation may place on the individuals involved. Whilst counsel for the wife indicated that it was her client’s desire to be out of the litigation and see its end, there is little in the affidavit filed by the wife that would indicate that that is so.
Bearing in mind the principles set out in the decisions to which I have referred, I now turn to the relevant application. The wife’s application was filed on 23 March 2009 seeking an adjournment of the trial date indefinitely and otherwise requiring orders that the husband comply with what might be described as discovery orders. The wife also sought orders for the appointment of adversarial witnesses.
The husband’s response was simply to seek the dismissal of the wife’s application for the adjournment.
There are four issues argued by the wife as to the basis for the adjournment. The first relates to the valuation of the property at V. The wife complains in her affidavit that the single expert witness did not provide the valuation to her until 12 March 2009 whereas it was apparently received by the husband’s lawyers on 2 March 2009. In his affidavit in reply, the husband was unable to shed any light on that disparity of time. The real issue however was that the valuers indicated that they were not building surveyors or engineers and therefore unable to provide a building report. This was under the heading of the condition of improvements in which it is clear that the house has significant cracks.
Notwithstanding the valuation was only received on 12 March 2009, no request was made to the valuer to explain what, if any, difference it would make to the valuation if there was some significant problem associated with the underlying cracking. Ms Colla on behalf of the wife was unable to assist me when I indicated that it was conceivable that if the valuer was cross-examined about the subject and indicated that some such report might make some difference to the value, I could adjourn the proceeding at that stage for that evidence to be obtained.
Accordingly, I reject as a basis for the adjournment the suggestion that the valuation as presented, disadvantages the wife or precludes her from proceeding with the case.
It is also to be noted that the wife’s application seeking final orders which has not been amended, sought the sale of all of the properties. I am now told that that will not be the wife’s position. Just what is the wife’s position remains to be seen.
The second issue relates to the report and valuation of the property at H. In respect of this property, the wife said she disputed the report and valuation provided by the single expert witness. In her affidavit, she said she was drafting a letter raising various queries. She noted that the solicitor for the husband had also raised queries about the valuation. The solicitors for the husband did write to the valuers requesting some details and received an answer. The valuer apparently took into account all of the matters raised by the husband. The valuer has not changed his opinion. I was told by counsel for the husband that the husband no longer challenges the H property valuation notwithstanding he is not particularly happy about it.
In relation to questions provided to the valuer, I have not been provided with anything other than an overview as set out in paragraph 17 of the affidavit of the wife. These are all matters that could be put to the expert in cross-examination. If the wife intended to call an adversarial witness, the provisions of Chapter 15 of the Rules would apply. It is to be noted that there has been no application made for such an expert and in particular, there is no evidence presented by the wife that would satisfy Rule 15.49(2). No evidence was presented about a substantial body of opinion which is contrary to the opinion of the single expert witness nor anything similar. The matters raised in paragraph 17 of the wife relate to issues which could quite easily be corrected by the cross-examination of the expert.
The third issue raised by the wife related to discovery and production of documents. In paragraph 20 of the affidavit of the wife, she said she had been “dissatisfied” with the discovery provided by the husband. She added that orders with respect to discovery were made in October 2005 and “a seemingly endless saga has ensued subsequently”. There was no evidence to justify that statement. Notwithstanding that I had been managing the case since 2008, no applications specifically relating to failure to comply with discovery had been canvassed with me such that I had had to intervene. On 10 February 2009, I made an order that if parties wished to see documents, they should send specific requests for those documents and to make documents available for inspection. In response to my order, the wife sent a letter to the solicitors for the husband setting out what documents she wished to see. In her affidavit, she said the husband failed to comply with the orders and “no documents” were produced until a letter was received from the wife’s solicitors on 5 March 2009 at which time, a small amount of documents were provided.
When I queried what documents were sought, I was referred to a letter dated 20 February 2009 from the wife’s solicitors to the husband’s solicitors. It is a closely typed letter which seeks 65 items. However, within those items, there are descriptions which would require the husband to provide information and details rather than documents.
Importantly, the letter sets out the various documents in categories.
The first category related to documents “not disclosed by the husband under August 23, 2006 order”. This particular item related to some letters and emails from 2004. Ms Colla was unable to point to the relevance of any of the items sought. Curiously, the items are quite specific in terms of author and recipient and date. Counsel for the husband asked whether the wife already had those documents. No positive answer was provided by counsel for the wife.
There is therefore no basis in respect of the first category to say that the husband has not complied with his obligations of disclosure.
The second category relates to documents “revealed” through other discovered documents made available on 4 February 2009. These documents are numbered 16 to 24 in the said letter. Ms Colla said that all of these related to the de-registration and re-registration of the company S Pty Ltd. They were matters associated with who was in control, and who paid the re-registration fee. The relevance was otherwise only about whether or not the husband should pay the costs of the re-registration. Having regard to the issue as so confined, there could be no suggestion of any relevance to the issues in dispute between the parties. Apart from that, the correspondence sought involved the company of which the wife has had an involvement. She could have sought access to those documents using the Corporations Law provisions.
Accordingly, I am unable to see any significance in those documents particularly as the wife’s affidavit for trial had been filed long after all of those issues had occurred in terms of time.
The third category of documents related to issues about which the husband had raised an objection. I am not surprised. Most of these relate to the husband’s present wife including copies of her taxation return. Counsel for the wife indicated to me that the relevance was that the husband’s new wife’s financial position was an “indirect resource” for the husband by virtue of his being married. It is important to note in this case that whilst the husband’s new wife’s position is certainly relevant from the purposes of any exercise under s 75(2) of the Act, it is not permissible to undertake an invasion of privacy without some substantial foundation. It is important to note in this case that the husband’s new wife is a witness in the proceedings. Just what relevance the position of that witness was around the time of the separation of these parties and shortly thereafter escapes me as it was neither set out in the wife’s material nor the subject of comment or argument.
The same category of documents also sought copies of communications between the husband and the tenants of a property which is the subject of the proceedings. What the “communications” were was not clear from the letter but counsel for the wife indicated that it related to letters about rental. In this case, I was told in a management hearing in 2008 that the wife would argue that the husband had not collected rental at a market level and therefore, the wife would be asserting there had been a wastage. As I indicated to counsel for the wife and she agreed, the wife’s opinion about what was the appropriate level of rental was not admissible and no evidence had otherwise been presented to suggest what an otherwise appropriate level of rental was. Provision had been made in my earlier orders for the wife to pursue this evidence through the single expert. It appears it was not done.
There was no indication from the wife that she proposed to call any expert evidence in respect of that issue.
The fourth category relates to documents previously requested but not provided.
There were six items listed some of which were inappropriately phrased but others quite clear. Ms Colla indicated that all the wife wanted to do was to “check” what the husband had done with the money. This was particularly so in relation to documents that he had lodged with Centrelink from 2003 until now. In my view, that is not only irrelevant but it is an inappropriate use of the discovery process. There is no basis in my view for the wife to simply “check” on what the husband was doing without some foundation to indicate that there was a justification for so checking.
The next category of documents related to those that were required for the period subsequent to 4 February 2009 and in that category, there were 29 documents sought. Counsel for the wife conceded that they had not been previously pursued because the wife only became aware of them after 4 February 2009. As to what they referred to, it was hard to follow the wife’s argument.
Mr Strum on behalf of the husband indicated that he was not able to understand what evidence it was that the wife wanted to lead so it was difficult to know what relevance many of these documents would fulfil. In a very comprehensive letter in reply to the letter from the solicitor for the wife, the solicitor for the husband on 5 March 2009 made available a number of documents which Mr Strum said could have been objected to. Those included documents in relation to the husband’s new wife.
Importantly, in relation to many of the documents in the categories to which I have referred, the solicitor for the husband responded as follows:
Our client has disclosed all financial documents in his possession including, inter alia, all correspondence with the late Mr [P];
…
our client denies that he has any outstanding obligation to make disclosure pursuant to the orders made on 23 August 2006;
…
documents falling within the categories detailed in your list have been disclosed and previously inspected by your client.
The solicitor for the husband’s letter said that in so far as the documents that had been inspected required a further inspection, they were available. Furthermore, the solicitor for the husband wrote:
If your client wishes to make undertake (sic) further investigation (as foreshadowed in the penultimate paragraph of your letter), this letter may be used as evidence of our client’s consent to your client seeking leave to issue subpoenae for the production of documents.
Notwithstanding the letter was written on 5 March 2009 in which the husband was indicating no objections to the wife issuing subpoenae, nothing was done until subpoenae were filed and issued by the Court on 25 March 2009. On that day five subpoenae were issued.
Copies of the subpoenae were not delivered to the solicitor for the husband until 27 March 2009 at 2.30pm. No explanation was given for the delay.
The subpoenae were issued to the husband’s former solicitor relating to costs paid to him. Mr Strum pointed to the fact that the husband had indicated no payment had been made to those solicitors and in fact he was in dispute with them.
The accountants who had acted for the company of both the husband and wife also received a subpoena. The subpoena is so wide-ranging and without specific dates that it would be difficult to envisage an accountant knowing exactly what documents to produce. The relevance of that material is yet to be argued but it is hard to see how it fits within the case as presented by the wife in her affidavit filed in 2006.
A third subpoena was issued to the new wife of the husband. Documents were not necessarily sought but details were. Having regard to the fact that at that stage, the husband had filed an affidavit by his wife, it was hard to see the justification for what was vaguely pursued in the subpoena.

The next subpoena related to the tenants of the B property. No date was set out in the subpoena as to the period to be covered by the relevant documents sought. As Mr Strum pointed out, these tenants had been in the property since 1997.
The fifth subpoena was addressed to the Commonwealth Bank and it sought nine ATM transaction documents from 2003 totalling a sum of just over $4000. What documents the bank would have in respect of those sums and their relevance to any issue now in dispute between the parties is at best modest. As Ms Colla conceded, the sum is modest in relation to the total pool of assets but if it was to be used as an “add-back” point, the issue had not been raised with the husband as to what had happened to the money notwithstanding the wife had obviously been aware of the details about the documents for some time.
Rule 13.01 of the Family Law Rules 2004 reads:
Each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner.
There are two issues that arise out of that Rule. The first is the requirement for proper disclosure in relation to information “relevant” to the case. I can see very limited relevance to the case of the documents pursued by the wife. Importantly however, the second issue is that disclosure must be undertaken in a timely manner. Having regard to the fact that these proceedings were commenced a number of years ago and the parties were ready for trial in 2006, it is totally inappropriate for documents to be pursued at the 11^th hour. That is particularly so in circumstances where the case had been before the Court on a number of occasions for management purposes and the dispute which has now been raised and more importantly, raised in the letter dated 20 February 2009. In addition, having regard to the nature of the response by the solicitors for the husband by their letter of 5 Mach 2009, it would seem that the husband has been cooperative in relation to disclosure.
I am satisfied that there is no justification at this point in time to say that the matter should be adjourned because disclosure has not been undertaken.
The next issue relates to taxation returns.
In her affidavit, the wife pointed to the fact that in their letter dated 5 March 2009, the solicitors for the husband were pursuing her income tax returns for the years ended 30 June 2006, 2007 and 2008. The wife said she had not lodged those returns but had now made an appointment with her accountant and that that appointment was on 7 April 2009. Having regard to the fact that the matter was listed for preparation for trial in 2008 and again in February 2009 for case management purposes, the wife’s delay in endeavouring to have the matter of her finances in order for trial escapes me particularly having regard to the longevity of the delay since 2006. In trying to understand why that has occurred, the best the wife could say was:
In the course of preparing and collating the necessary material for my Trial Affidavit, I have continued to work full-time, run a household and attempt to address the seemingly endless issues that have arisen out of the litigation. The matter has been before the court on a number of occasions and I seem to be involved in daily communications with my lawyers, which is both costly and time consuming…
Simply stated, I have not had sufficient time, given the problems with the adherence to the timetable and Orders made by the Honourable Justice Cronin on 3 November 2008 and do not believe that I am in anyway prepared for a Trial in this matter for the reasons contained in this affidavit.
I very much sympathise with the wife’s problem of running a household and continuing to work full-time. Most litigants race that problem. The seemingly endless issues that have arisen out of the litigation however escape me. The wife did not set out what activities she had been involved in since 2006. That is particularly so having regard to the fact that the same firm of solicitors was acting for her during that period of time and are still acting for her.
I have indicated that there is no reason why a financial statement could not be updated which will cover much of the taxation return issue.
Importantly having regard to the wife’s statement about the “seemingly endless issues” is the fact that no reference has been made by the wife to the fact that she was the executor and sole beneficiary of her late mother’s estate. According to Mr Strum on behalf of the husband, his client became aware of the death of the wife’s mother and obtained details through a probate search. Ironically enough, no details had been provided by the wife or her solicitors subsequent to the death of the wife’s mother but it transpires that the probate search discloses that the wife received $475,000. To make matters more difficult, the wife’s present lawyers applied for probate on her behalf and acted for her throughout.
I am not satisfied that the matters pursued by the wife in her application are matters that would have a substantial impact upon the outcome of the proceedings. That is particularly so in cases where the issues are modest as they are here.
Specific orders in this case were made for the preparation for trial and the same issues that are now being raised by the wife could have been raised at any time over the past two years. To use the words of Mr Strum on behalf of the husband, there is no “Plan B”. The wife was not in a position to indicate when it would be likely that she would be in a position to proceed nor is there any indication as to what it is that she would be able to present to the Court if she got all of the information that she wanted to obtain.
Counsel for the wife stressed that it was the wife who wanted to see this information more so than the lawyers from their forensic perspective. Whilst I understand the emotional attachment, it is important to note that the same principles apply to both litigants who are represented and those who are not. It is important therefore for the wife to be able to point to the relevance of all of the material that she wished to present. Having said that, the important point to make is that s 55 of the Evidence Act1995 (Cth) says:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
In this case, I am not satisfied that any of the desires of the wife to have access to this information could be admissible evidence that could rationally affect the factual bases that are required to be the foundation of a property case.
Section 55 of the Evidence Act goes on to say that evidence is not to be taken to be irrelevant only because it relates to the credibility of a witness. In this case however, the wife did not point to any issue that might have had a significant impact upon the credibility of the husband.
For all of those reasons, it is appropriate that the matter proceed and I refuse the wife’s application.
Accordingly, the application of the wife filed 23 March 2009 and the response of the husband filed 27 March 2009 are dismissed.

I certify that the preceding Fifty Eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin.

Associate:

Date: 2 April 2009