Bergman and Bergman (No. 3)

[2008] FamCA 433

FAMILY COURT OF AUSTRALIA

BERGMAN & BERGMAN (NO. 3) [2008 ] FamCA 433

FAMILY LAW – PRACTICE AND PROCEDURE – Interim Procedural Issues – Admissibility Of Annexed Documents to an Affidavit

APPLICANT: MR BERGMAN

RESPONDENT: MRS BERGMAN

POTENTIAL THIRD PARTY: MR SARINSSON

POTENTIAL FOURTH PARTY: MR PORTER

FILE NUMBER: MLF 5245 of 2003

DATE DELIVERED: 18 JUNE 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 18 JUNE 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR ST JOHN SC

SOLICITOR FOR THE APPLICANT: CAROLINE COUNSEL FAMILY LAWYERS

COUNSEL FOR THE RESPONDENT: MS JOHNS

SOLICITOR FOR THE RESPONDENT: MARSHALLS & DENT

THE POTENTIAL THIRD PARTY: IN PERSON

SOLICITOR FOR THE POTENTIAL THIRD PARTY : N / A

COUNSEL FOR THE POTENTIAL FOURTH PARTY: MS NIKOU SC

SOLICITOR FOR THE POTENTIAL FOURTH PARTY: CAREW COUNSEL PTY LTD

This application coming on before the Court AND UPON HEARING Mr St John, Senior Counsel with Mr Strum of counsel for the Case Guardian on behalf of the husband, Ms Johns for the wife and Ms Nikou, Senior Counsel appearing for Mr Porter and Mr Sarinsson in person

IT IS ORDERED:

1. THAT the undertaking given to the Court by Mr Porter on 30 May 2008 be extended until 4.15 p.m. on Thursday 19 June 2008.

2. THAT any written submissions in response to be filed on behalf of the Case Guardian be delivered by e-mail transmission to my associate on or before 10.00 a.m. on Monday 23 June 2008 with copies then to be made available to all other parties or interested persons.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 5245 of 2003

MR BERGMAN

Applicant

And

MRS BERGMAN

Respondent

And

MR SARINSSON
Potential Third Party

And

MR PORTER
Potential Fourth Party

EX TEMPORE REASONS FOR JUDGMENT

1. These are brief and extempore reasons delivered in the matter of Bergman and others without leaving the bench and during the commencement of submissions of Ms Nikou who appears for the potential fourth party, Mr Porter.

2. There is before the court an affidavit filed 29 May 2008 (court index document No.255) from Mr Porter.  Annexed to that affidavit are various documents comprising annexure "TP‑2".  The first of those documents is best identified by the number 22 on the top of the document.  It is a single page on which is recorded two email photocopied documents, the first dated 13 April 2005, the second the following day.  Both are identified as being without prejudice.  They are an email from the husband to Mr Porter, and then a response thereto.

3. The documents deal with the sale of shares in W Corporation.  They identify a potential price at which the shares may be available or otherwise the price at which they could be negotiated. 

4. On that same day, 14 April 2005, there was a further exchange of emails which are part of annexure “TP6” to that affidavit before the court.  There is no objection taken to that annexure where the emails are not classified as without prejudice and where there is no dollar value attached.

5. The husband's email clearly identifies that he is the seller of shares in W Corporation, and that the price has been advised to Mr Porter.  The thrust of the email is that it was for Mr Porter to accept or reject as he was the holder of the first rights of refusal.

6. With that background, the commercial nature of the transaction is clear, and in any event it is apparent from all of the documents comprising the admissible body of evidence in the matter. 

7. The issue the subject of this objection does seem very much to be the identification of a dollar figure.

8. I am of the view that at least for the purposes of this interim proceeding and determination I am not assisted by, but more particularly it is inappropriate to include that email identified as No. 22 as part of Exhibit “TP2”.  It is a document that "simply goes too far".   It ultimately does not assist me in the preliminary issue, and the subject and content of that email for the purposes of Ms Nikou's submissions are probably covered by the admitted content of the other annexure. 

9. Ultimately, my conclusion is that the without prejudice series of emails are both unhelpful and inadmissible, at least in the interim proceedings.  I carefully do not determine any proceeding beyond the interim proceeding.  I will disregard the content of that single page document in this proceeding.

10. The second issue is the documents best identified as pages 207 and 208, again of annexure “TP2”.  This is an email from Mr Porter which he identified as without prejudice and which he sent to both the husband and Sarinsson, and otherwise copied in various solicitors within the commercial dispute. 

11. This is a more recent email dated 15 January 2007.  It is perhaps of some limited relevance that it was addressed to the husband and not to the case guardian, and it highlights the allegation of the husband's ability to be involved and negotiate commercial matters, but not to be at court.  Nevertheless it is largely a commercial document looking to negotiate a sale or acquisition and a cash value.  In particular it highlights to the court that there had been some mediation to resolve issues, and at least parts of that email seemingly incorporate issues that were the subject of out of court, perhaps wholly prejudiced discussions. 

12. Again, the court has a very clear understanding of the commercial disputes, and there is an abundance of evidence otherwise throughout all of the affidavits highlighting that fact and the court can clearly be aware of proposals where the husband wishes to sell and Mr Porter may have and may continue to want to acquire. 

13. At this stage I am not determining any question of value.  I am not determining any dispute or property settlement.  I am involved in an interim application on largely procedural and jurisdictional issues.  For that purpose the actual detail and content of this exhibit is largely unhelpful. 

14. I simply propose to adopt the procedure of not reading or relying on the content of this annexure.  I am not removing same from the file.  I am wholly disregarding the document for these proceedings, given the nature and limited scope of these urgent interim proceedings.  I would express the preliminary view that the document is most probably legally offensive and should not be annexed and would largely be inadmissible in the due course.  However, as I am not looking at the document further, I refrain from ultimately arriving at that conclusion and removing the document.

15. I will have these brief reasons given on an extempore basis transcribed and placed on the court file and made available to all parties.  I will, however, specifically not hereafter read or consider either of those specific documents.

16. Finally, there was one other document the subject of objection.  That was that Mr St John took issue with the final two sentences of paragraph 82 of the document and annexure “TP22” thereto.  Ms Nikou has instructions to concede that issue and accordingly I have no regard to and will not read that letter of 8 May 2008 or rely on the affidavit in that regard.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:          
Date: 23 June 2008