Barrett and Winnie and Ors

[2015] FamCA 139

FAMILY COURT OF AUSTRALIA

BARRETT & WINNIE & ORS [2015] FamCA 139

FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant has not complied with previous orders for the filing of material – Where the applicant’s solicitor filed an Application in a Case seeking an adjournment on medical grounds – Where the respondents oppose an adjournment – Where it is unclear whether the husband may be unaware of the detail of what has been occurring in this case – Where orders are made for the applicant husband to be personally served with a copy of these orders and reasons for judgment as well as previous orders

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

APPLICANT: Mr Barrett

FIRST RESPONDENT: Ms Winnie

SECOND RESPONDENT: Mr Winnie

THIRD RESPONDENT: B Pty Ltd as trustee for the Winnie Family Trust

FOURTH RESPONDENT: Ms C Winnie

FIFTH RESPONDENT: D Pty Ltd

SIXTH RESPONDENT: E Pty Ltd

FILE NUMBER: BRC 13257 of 2007

DATE DELIVERED: 9 March 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 9 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McDougall

SOLICITOR FOR THE APPLICANT: H Petersen Solicitors

COUNSEL FOR THE FIRST TO SIXTH RESPONDENTS: Mr Hackett

SOLICITOR FOR THE FIRST TO SIXTH RESPONDENTS: J Solicitors

Orders

IT IS ORDERED THAT:

1. The First Respondent is to effect personal service upon the Applicant at his residential address at F Street, Suburb G and his email address …, of the following:

a.            the Order made on 8 December 2014;

b.           the Reasons for Judgment delivered on 8 December 2014;

c.            the affidavit of Mr H filed on 6 March 2015;

d.           the affidavit of Mr Winnie filed by leave today;

e.            the Order made today; and

f.            the Reasons for Judgment delivered today.

1. Within twenty-one (21) days of service being effected upon the Applicant, the Applicant shall file and serve:

a.            all of the documents identified in paragraph 2 of the Order made on

8 December 2014;

b.           an affidavit in compliance with paragraph 4 of the Order made
        on 8 December 2014;

c.            an affidavit confirming his understanding of the relevant chronological      

history of the matter in terms of orders and directions made for the filing of material or other steps to be taken since 8 December 2014;

d.           explaining, by giving reasons, his non-compliance with any and each          

order or direction, or his failure to perform any step in consequence of       
        such order or direction; and

e.            confirming that he has read the Reasons for Judgment delivered on

8 December 2014.

1. In default of the Applicant complying with paragraph 2 of these Orders, the First Respondent shall file an affidavit as to service of the documents identified in paragraph 1 of these Orders upon the Applicant and identifying the Applicant’s non-compliance with these Orders.

1. Upon the filing of that affidavit, the Court shall proceed to dismissal of the further amended application as against the Second to Sixth Respondents by an Order to that effect made in chambers.

1. As a condition of any grant of leave to amend, and in any event, the Respondents

   are to be paid $5,800 being the costs thrown away by the adjournment of today’s

   proceedings, with the determination of who as between the Applicant and his

   solicitor is to pay that sum to be reserved to any further hearing fixed for the

   purpose of dealing with the application and in the event that the matter is

   determined based upon the Applicant’s non-compliance, then the Applicant shall

   be responsible for those costs.

1. The proceedings be adjourned before the Registrar to a date to be fixed at the Family Court of Australia, Brisbane Registry.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Barrett & Winnie & Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 13257 of 2007

Mr Barrett

Applicant

And

Ms Winnie

First Respondent

And

Mr Winnie
Second Respondent

And

B Pty Ltd
Third Respondent

And

Ms C Winnie
Fourth Respondent

And

D Pty Ltd
Fifth Respondent

And

E Pty Ltd
Sixth Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant and first respondent commenced cohabitation in 1989, married in 1991 and separated on a final basis in October 2005. Their divorce was declared final on 23 December 2006. There is one adult child of the relationship namely Ms I, born in 1995.  Those brief facts highlight the length of time that has elapsed between the parties’ final separation and divorce and these proceedings.

2. On 19 November 2007 the applicant commenced property settlement proceedings within the meaning of Part VIII of the Family Law Act 1975 (Cth) (“the Act”). By an Amended Application filed on 28 April 2008 the applicant joined the second respondent, Mr Winnie, together with the third respondent, B Pty Ltd as trustee for the Winnie Family Trust, to the proceedings. By a Further Amended Application filed on 18 March 2010 the applicant also joined the fourth to sixth respondents to the proceedings.

3. The second respondent, Mr Winnie, and the fourth respondent, Ms C Winnie, are the first respondent’s children from a previous relationship.  I note that Mr Winnie is also the principal of J Solicitors who have carriage of this matter on behalf of all the respondents.  Put simply, the third, fifth and sixth respondents to the proceedings are companies or trusts in which it is asserted that one or more of the first, second or fourth respondents have an interest.

4. The applicant seeks property settlement orders against the first respondent but the case advanced as against the other respondents is difficult to discern from the pleadings or assertions made to date. 

5. By an Application in a Case filed as long ago as 20 April 2010 the respondents applied for an order under r 10.12 of the Family Law Rules 2004 (Cth) (“the Rules”) seeking the dismissal of the applicant’s application for final property orders. It is not entirely clear to me what became of that application in terms of the Court listing it for hearing save that on 19 November 2013 Registrar Stoneham made orders by consent which provided, inter alia, for the parties to give notice to the Court as to the listing of any pending application in a case for hearing by 24 January 2014. It was further ordered that if neither the applicant nor respondents to any Application in a Case sought the listing of such application then it would be dismissed. The respondents subsequently gave notice requiring the listing of their Application in a Case for summary dismissal.

6. On 31 January 2014 Registrar Stoneham made directions and orders in chambers for the filing of various trial materials in preparation for the hearing of the respondents’ Application in a Case to be heard on a date to be fixed.  In particular, paragraphs 2 and 3 of those orders read as follows:

   2.That the applicant/husband file and serve any [amended] Response to Application in a case and have leave to rely on the Statement of Facts and Contentions (delivered by him on 7 December 2010 and filed 23 December 2010) or alternately deliver and file an Amended Statement of Facts and Contentions, on or before 4:00pm 28 February 2014 and in the event the applicant does not deliver and file an Amended Statement by that date, no further Statement may be filed without the leave of the court.

   3.That the second to sixth respondents on or before 4:00pm on 31 March 2014 serve any Request for Further and Better Particulars of the Statement of Facts and Contentions relied upon by the applicant which they seek, to which the applicant will respond by filing and serving an Affidavit within 21 days of service annexing a copy of the Request AND the second to sixth respondents deliver a Statement of Grounds for Dismissal of Application no later than 4:00pm 9 May 2014.

   (Original emphasis)

7. The applicant did not in fact file any response to the Application in a Case or an amended statement of facts or contentions. Thus it is that the most recent Statement of Facts or Contentions filed by the applicant was filed as long ago as 23 December 2010. 

8. On 3 March 2014 Registrar Stoneham made orders that the respondents’ application for summary dismissal be listed for a one day hearing before Bell J on 10 June 2014.  That hearing was subsequently vacated due to Bell J’s ill health.

9. On 12 May 2014 an affidavit was filed on behalf of the second respondent annexing copies of his request for further and better particulars in relation to the Statement of Facts and Contentions filed by the applicant on 23 December 2010. This request was served upon the applicant by facsimile further to the orders of Registrar Stoneham made on 31 January 2014.  At paragraph 2 of his affidavit Mr Winnie deposes that this request was wrongly dated 18 December 2012.  Mr Winnie annexes a facsimile transmission slip that is dated 31 March 2014.

10. Mr Winnie there deposes in that affidavit that he had then received no response from the applicant as to his request for further and better particulars and it does not seem to be in dispute that as of today no such response has been provided.  Consequently the respondents’ summary of argument headed “Statement of Grounds for Dismissal of Application”, also filed 12 May 2014, responds to the Applicant’s Statement of Facts and Contentions filed 23 December 2010.  This issue was discussed at some length when the matter came before me for mention on 14 October 2014 when Mr H appeared for the applicant. 

11. On 14 October 2014 I made orders including an order that the applicant file and serve a summary of argument and list of documents by 24 November 2014; that the respondents file and serve a list of documents upon which they intend to rely at the hearing on 8 December 2014 by 24 November 2014; that the hearing be listed for 8 December 2014; and that the applicant file a Notice of Address for Service by 14 October 2014 in circumstances where no formal notice for address for service had been filed. I note in passing that at the mention before me on 14 October 2014 the solicitor for the husband indicated some intention to bring some cross-applications including an application for what is described as a Hogan Order but no such applications have been filed.

12. At the hearing on 8 December 2014 there was an attempt on behalf of the applicant to hand up some 400 pages of annexures to an affidavit which had been e-filed without the exhibits, on the preceding Friday, after 5.00 pm. 

13. In the event on 8 December 2014 counsel for the applicant sought an adjournment acknowledging that the case had not been adequately prepared.  For reasons then delivered I granted the adjournment but otherwise set some time limits for the filing of material and the like and the re-listing of the application.  In the result the application was adjourned to today’s date. 

14. As of today’s date there has been no compliance by the applicant with the filing of any of the material identified in paragraph 2 of the orders I made on 8 December 2014, nor has there been filing by the applicant of the affidavit identified in paragraph 4 of the orders I made on 8 December 2014.

15. What has occurred is that late on Friday last, an affidavit by Mr H was e-filed in the registry.  As is pointed out by Mr Hackett of counsel for the respondents, the affidavit is devoid of detail in terms of attempts to comply with the orders previously made and in particular the orders made on 8 December 2014. 

16. There cannot be any doubt that if all of what has occurred as briefly described, has occurred with the knowledge of the applicant then he has fundamentally failed to comply in numerous respects in numerous instances with orders and directions made by the Court.  There would in that context be little basis for the applicant to contend that the application for summary dismissal ought not proceed and indeed proceed to be heard and determined on an undefended basis, in effect, given that his counsel on the last occasion effectively acknowledged that there was no current answer in terms of a pleading or affidavit to the contentions by the respondents in support of the summary dismissal application.  On that occasion Mr Baston suggested that given an opportunity the applicant would be able to articulate a case but given the failure to file any material obviously that has not occurred.

17. The difficulty today which arises is that the affidavit of Mr H contains an elliptical reference in paragraph 20, to the husband’s state of knowledge. In paragraph 20, aside from asserting some difficulties in communication between Mr H and the applicant, he simply deposes:

    He [a reference to the husband] is aware of the tenor of the orders made by His Honour in December 2014 but he is not yet aware that these have not yet been complied with. I had recently by email discussed meeting with him in Brisbane but had to call off the meeting due to ill health.

18. Mr Hackett’s instructing solicitors did what they could in terms of attempting to clarify what the reference made to the husband’s state of awareness actually is.  No response has been forthcoming by Mr H to the reasonable request made by the solicitors for the respondents to clarify the husband’s state of knowledge.

19. As will be apparent from the background I have briefly discussed the question of the pleading of the applicant’s case has been an issue for a long time now starting with the filing of the application filed as long ago as 2010.

20. The obvious concern given in particular paragraph 20 of the affidavit referred to, but also including Mr H’s submissions made in the hearing in October, is that the husband may be unaware of the detail of what has been occurring in this case.  That is, he may be unaware of the orders that have been made to which I have briefly referred requiring him to do certain things if he wished to resist the application for summary dismissal and wished to pursue a case against the second to sixth respondents. 

21. In those circumstances it seems to me that there ought be self-executing orders which provide for the first respondent to be able to serve the applicant directly with notice and that if the applicant then fails within 21 days of service to act there be a self-executing order with respect to summary dismissal of the applicant’s application, at least so far as the second to sixth respondents are concerned. 

22. On the last occasion, that is, in the orders I made on 8 December 2014 I dealt with the question of costs which were agreed to be fixed in a sum and I would fix the same sum today with respect to the costs thrown away today. Mr McDougall who appears for the applicant on this occasion rightly conceded that an order for costs was irresistible.

23. I propose to fashion orders along the same lines as I made on 8 December so that in the event there is a further determination by the court, that is, if there is compliance by the applicant with the orders I have made today and if there is then a further hearing of the application for summary dismissal I will then determine on that date who as between the applicant and his solicitor ought bear the costs but that, like the orders I made on 8 December 2014, the payment of those costs will be a condition that has to be met for the grant of any leave to amend for that application to be considered.

24. I therefore for these reasons make these orders set out at the commencement of them.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 9 March 2015.

Associate:

Date: 9 March 2015