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Bant & Clayton

Case [2016] FamCA 495 12 May 2016

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Family Law

Civil Procedure

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FAMILY COURT OF AUSTRALIA

CUO & MING AND ORS

[2016] FamCA 495

FAMILY LAW – PRACTICE AND PROCEDURE – Application for verification of pleadings – refused.

FAMILY LAW – PRACTICE AND PROCEDURE - Application by respondent to allegation of fraud to delay discovery and production of documents together with filing of affidavit material until the close of the applicant and interveners’ case – refused and directions made in limine subject to the respondent not being required to make disclosures or admissions contrary to her privilege against self-incrimination.

FAMILY LAW – PRACTICE AND PROCEDURE - Binding Financial Agreement – determination by way of construction of a term of the agreement in advance of the hearing.

Family Law Act 1975 (Cth) s 90DA Family Law Rules 2004 (Cth) r 10.13 and 10.14
Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37 Auscity Enterprises Pty Ltd v Kismet Ventures Pty Ltd [2015] 110 ACSR 119 Refrigerated Express Lines (A\asia) Pty Ltd v Australian Meat and Livestock Corp and Ors (1979) 42 FLR 204 Pyneboard Pty Ltd v Trade Practices Commission [1983] 152 CLR 328 Trade Practices Commission v Abbco Ice Works Pty Ltd & Others (1994) 123 ALR 503 The Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543
APPLICANT:	Ms Cuo

1st RESPONDENT:

Mr Ming

INTERVENERS:	Ms Zhou and Mr Ming Snr
FILE NUMBER:	MLC	8698	of		2013

DATE DELIVERED:

12 May 2016

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

28 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr S R O'Ryan QC with Dr J A Watson & R J May

SOLICITOR FOR THE APPLICANT:

Pearson Emerson Meyer Family Lawyers

COUNSEL FOR THE 1ST RESPONDENT:

Mr L Glick QC with
Mr G Holmes

SOLICITOR FOR THE 1ST RESPONDENT:

Schetzer Constantinou

COUNSEL FOR THE INTERVENERS:

Mr T D North SC with Mr D Sweeney & Ms Lisa Nichols

SOLICITOR FOR THE INTERVENERS:

Oakfair Lawyers

Orders

Orders 8 to 12 inclusive of the directions made by this Court on 25 January 2016, as have not been complied with, are vacated.
The interveners shall file and serve a response to the wife’s amended statement in reply on or before 19 May 2016.
The interveners shall respond to any requests for further and better particulars of their claim on or before 19 May 2016.
Each of the parties shall make full disclosure and discovery on or before 31 May 2016, in the wife’s case subject to any claim for privilege.
The interveners and husband shall file and serve their affidavits upon which they rely on or before 15 June 2016.
The wife shall file and serve her material on or before 15 July 2016, subject to any claim for privilege.
The parties shall file and serve a tender book containing copies of any documents they wish to tender (in the wife’s case subject to any claim to privilege), page numbered and indexed and provide five (5) copies, one for each of the parties’…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bant & Clayton

Details

AGLC: Bant & Clayton [2016] FamCA 495
Case: [2016] FamCA 495
Decision Date: 12 May 2016

CaseChat Overview and Summary

In the matter of Bant & Clayton, Benjamin J of the Family Court of Australia considered a dispute between the wife and the husband, with interveners also involved. The proceedings concerned various interlocutory applications and the determination of key dates relevant to a binding financial agreement.

The court was required to determine several legal issues, including whether to vacate certain prior directions, the timeline for parties to file and serve responses and affidavits, and the wife's application for verification of pleadings. Crucially, the court also had to determine the date of separation for the purposes of a binding financial agreement, and whether it was reasonable to engage multiple counsel for the parties.

Benjamin J vacated certain prior directions and set new timelines for the filing and service of documents by the wife, husband, and interveners. The wife's application for verification of pleadings was dismissed. The court granted the husband leave to seek a determination as to the date of separation under the financial agreement and subsequently determined that 7 June 2013 was the date of separation for that purpose. The court also certified that it was reasonable for all parties to engage senior and junior counsel, including multiple counsel for each party.

The court reserved the issue of costs in relation to the wife's objection to a subpoena and the costs of the interlocutory applications determined by these orders.

Orders

Orders of the court

Orders 8 to 12 inclusive of the directions made by this Court on 25 January 2016, as have not been complied with, are vacated.

The interveners shall file and serve a response to the wife’s amended statement in reply on or before 19 May 2016.

The interveners shall respond to any requests for further and better particulars of their claim on or before 19 May 2016.

Each of the parties shall make full disclosure and discovery on or before 31 May 2016, in the wife’s case subject to any claim for privilege.

The interveners and husband shall file and serve their affidavits upon which they rely on or before 15 June 2016.

The wife shall file and serve her material on or before 15 July 2016, subject to any claim for privilege.

The parties shall file and serve a tender book containing copies of any documents they wish to tender (in the wife’s case subject to any claim to privilege), page numbered and indexed and provide five (5) copies, one for each of the parties’ legal representatives, one for the witness and a spare copy for the Court, on or before 15 July 2016.

The issue of costs be and are reserved in relation to the wife’s 22 December 2015 notice of objection to the 21 December 2015 subpoena to W Lawyers listed for determination on 12 May 2016.

The costs of the parties’ interlocutory applications determined by these orders are reserved.

10.

The wife’s application for verification of pleadings filed on behalf of the husband and interveners pursuant to the directions made by this Court on 25 January 2016 is dismissed.

11.

Pursuant to Rule 10.13 of the Family Law Rules 2004 (Cth) the husband is given leave to seek a determination as to the date of separation within the meaning of recital G of the ‘Sections 90B and 90UC Binding Financial Agreement’ dated 14 October 2009.

12.

Pursuant to Rule 10.14 of the Family Law Rules 2004 (Cth) and the oral application referred to above this Court has decided that:-

The date 7 June 2013 is the date of separation for the purposes of construction of recital G of the ‘Sections 90B and 90UC Binding Financial Agreement’ dated 14 October 2009 and signed by the wife the husband.

IT IS CERTIFIED

13.

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage both senior counsel, junior counsel and counsel to attend, including multiple counsel for each of the wife, husband and interveners.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Bant & Clayton [2016] FamCA 495

Cases Citing This Decision

No citing cases yet.

Cases Cited

Fair Work Ombudsman v Hu [2017] FCA 1081
Citation 1 (Para 8)

…To that end senior counsel for the interveners referred me to Deane J in Refrigerated Express Lines (A\asia) Pty Ltd v Australian Meat and Livestock Corp and Ors (1979) 42 FLR 204 where at page 18, 486 the Court says:- … the basis of the present proceedings is alleged contravention and involvement in contravention of divisions of Pt, IV of the Act. The appl…
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37
Citation 2 (Para 6)

…I accept that the governing principles are as set out in by the High Court in Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37, and are as follows:- 46.The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context…
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21
Citation 3 (Para 18)

…which I referred earlier in these reasons from Abbco (supra) submitting that this reasoning was affirmed by the High Court in CFMEU v Boral Resources (2015) 320 ALR 448.…
Auscity Enterprises Pty Ltd v Kismet Ventures Pty Ltd [2015] NSWSC 100
Citation 4 (Para 15)

…senior counsel for the wife distinguished the decisions of White J in Pascoe v Divisional Security Group Pty Ltd (2007) 209 FLR 197 and Harrison J in Auscity Enterprises Pty Ltd v Kismet Ventures Pty Ltd (2015) 110 ACSR 119, saying that Pascoe concerned the penalty privilege wherein Auscity, as in these proceedings, concerned the self-incrimination privilege…
Pascoe v Divisional Security Group Pty Ltd [2007] NSWSC 211
Citation 5 (Para 4)

…submitted further that the circumstances of the wife were more akin to that approach adopted by White J in Pascoe v Divisional Security Group Pty Ltd (2007) 209 FLR 197.…
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49
Citation 6 (Para 17)

…terveners submitted that Abbco is sound authority for their propositions. He further relied upon The Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543 where Gleeson CJ, Gaudron, Gummow and Hayne JJ said:-[10] Today the privilege against exposure to penalties serves the purpose of ensuring that those…
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57
Citation 7 (Para 12)

…Earlier he said:-[8] … the two privileges were put upon the same footing. In that respect, it is consistent with what Deane J said in Refrigerated Express Lines (A/asia) Pty Ltd v. Australian Meat and Livestock Corporation (1979) 42 FLR 204 at 211 when he referred, in the singular, to "the right aga…
Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Live-Stock Corporation [1980] FCA 45
Citation 8 (Para 8)

…senior counsel for the interveners referred me to Deane J in Refrigerated Express Lines (A\asia) Pty Ltd v Australian Meat and Livestock Corp and Ors (1979) 42 FLR 204 where at page 18, 486 the Court says:- … the basis of the present proceedings is alleged contravention and involvement in contravention of divisions…
R v Associated Northern Collieries [1910] HCA 61
Citation 9 (Para 10)

…o Martin v. Treacher (1886) 16 QBD 507 ; Earl of Mexborough v. Whitwood Urban District Council (1897) 2 QB 111 ; R. v. Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738 . Indeed, in a civil action brought merely to establish a forfeiture or enforce a penalty the rule is that neither discovery nor i…
Spencer & Verity [2012] FamCAFC 210
Citation 10 (Para 1)

…This seems to be the process earlier adopted by the Full Court in Sanger & Sanger [2012] FamCAFC 210.…
Heimann v Commonwealth [1935] HCA 73
Citation 11 (Para 10)

…on the part of the Court of Chancery to lend the aid of its discovery proceedings to the common informer (see Mexborough) and Heimann v. Commonwealth [1935] HCA 73; (1935) 54 CLR 126, at p 130 " (1979) 42 FLR, at p 208 ).…
Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9
Citation 12 (Para 10)

…Senior counsel for the interveners said that approach was approved by the High Court in Pyneboard Pty Ltd v Trade Practices Commission [1983] 152 CLR 328 at page 335 to 336 where Mason ACJ, Wilson and Dawson JJ accepted and affirmed that approach saying:- It is well settled that "a party cannot be compelled to…
FCA 1208Trade Practices Commission v Abbco Ice Works Pty Ltd [1994] FCA 1279
Citation 13 (Para 11)

…Further in Trade Practices Commission v Abbco Ice Works Pty Ltd & Others (1994) 123 ALR 503 the Full Court of the Federal Court of Australia, comprised of Black CJ, Davies, Sheppard, Burchett and Gummow JJ, Burchett J delivered the primary judgment and Black CJ, Davies and Sheppard JJ agreed as did Gummow J, at least…
Martin v Treacher (1886) 16 QBD 507
Citation 14 (Para 10)

…alty, forfeiture, or ecclesiastical censure" to use the words of Bowen L.J. in Redfern v. Redfern (1891) P 139, at p 147. See also Martin v. Treacher (1886) 16 QBD 507 ; Earl of Mexborough v. Whitwood Urban District Council (1897) 2 QB 111 ; R. v. Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738 . Ind…
322 US 694 322 US 694
Citation 15 (Para 13)

…preme Court of the United States, it has been said to be a matter of "protecting individual civil liberties": United States v. White [1944] USSC 109; 322 US 694 (1944) at 700. [9] Page 533.…
Earl of Mexborough v Whitwood Urban District Council (1897) 2 QB 111
Citation 16 (Para 10)

…. in Redfern v. Redfern (1891) P 139, at p 147. See also Martin v. Treacher (1886) 16 QBD 507 ; Earl of Mexborough v. Whitwood Urban District Council (1897) 2 QB 111 ; R. v. Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738 . Indeed, in a civil action brought merely to establish a forfeiture or enfor…
(1910) 2 KB 59 (1910) 2 KB 59
Citation 17 (Para 10)

…brought merely to establish a forfeiture or enforce a penalty the rule is that neither discovery nor interrogatories will be allowed (In re A Debtor (1910) 2 KB 59, at p 66 ; Associated Northern Collieries (1910) 11 CLR, at p 747 ). See generally the discussion by Deane J. in Refrigerated Express Lines (Alasia)…

Legislation Cited

Family Law Rules 2004 (Cth) 10.13, 10.14
5 mentions (from Para 11)
Family Law Act 1975 (Cth) 90DA
2 mentions (from Para 7)
Competition and Consumer Act 2010 (Cth)
1 mention (from Para 9)
Trade Practices Act 1974 (Cth)
1 mention (from Para 9)