Bloomfield & Grainger & Anor (No 4)
[2017] FamCA 723
•19 September 2017
FAMILY COURT OF AUSTRALIA
| BLOOMFIELD & GRAINGER AND ANOR (NO. 4) | [2017] FamCA 723 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Where the First Respondent seeks an evidentiary ruling pursuant to s 192A Evidence Act 1995 (Cth) – Where the discretion is exercised in favour of not making the ruling at this time. |
| Bankruptcy Act 1966 (Cth) Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 3) [2009] FCA 1075 Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185 Southern Cross Airports v Commissioner of State Revenue [2011] NSWSC 349 Trusted Cloud Pty Ltd v Core Desktop Pty Ltd [2015] FCA 33 |
| APPLICANT: | Ms Bloomfield |
| 1st RESPONDENT: | Mr Grainger |
| 2nd RESPONDENT: | The Bankrupt Estate of Ms Grainger |
| FILE NUMBER: | BRC | 89 | of | 2014 |
| DATE DELIVERED: | 19 September 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 10 August 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Jones |
| SOLICITOR FOR THE APPLICANT: | Tucker & Cowen Solicitors |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Looney QC |
| SOLICITOR FOR THE 1ST RESPONDENT: | Morgan Conley Solicitors |
| FOR THE 2ND RESPONDENT: | No appearance |
IT IS ORDERED THAT
The Court declines to exercise the discretion to make a ruling pursuant to s 192A of the Evidence Act 1995 (Cth) in respect of the transcripts of examinations conducted pursuant to s 81 of the Bankruptcy Act1966 (Cth).
The costs of each party of and incidental to the appearance on 10 August 2017 are reserved to the trial Judge.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bloomfield & Grainger (No. 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 89 of 2014
| Ms Bloomfield |
Applicant
And
| Mr Grainger |
First Respondent
And
| The Bankrupt Estate of Ms Grainger |
Second Respondent
REASONS FOR JUDGMENT
By Amended Application in a Case filed 13 July 2017, the Applicant sought a number of orders in relation to a number of issues. As is apparent from the terms of the Order made on 10 August 2017, many of these issues were disposed of that day.
Further, the Applicant did not press her application for leave to rely on documents which were produced and marked MFI#5 and MFI#7 – MFI#30 (inclusive) in the Public Examination in the Matter of Ms Grainger (A Bankrupt)[1] but this issue is, as I understand it, likely to be one which will require determination at some stage before the substantive proceedings are finalised.
[1] BRG 361 of 2013.
In addition, the parties who appeared on 10 August 2017 agreed that certain aspects of the relief sought by the First Respondent in the Response to Application in a Case filed 26 July 2016 would not be pressed at the hearing, but would be adjourned for further consideration to a later date. That is, it was agreed that the First Respondent’s application for rulings about the admissibility of documents such as MFI#27, MFI#28, MFI#29, MFI#30[2] and that described as a structure diagram[3] produced for and in the Public Examination referred to above would wait for another day.
[2]Which included those described as emails from the Second Respondent produced to her public examination conducted pursuant to s 81 of the Bankruptcy Act 1966 (Cth) on 6 and 7 August 2013.
[3]Said to be found at p 547 of Exhibit DRWT-1 of the affidavit of Mr G sworn 24 December 2013.
The consequence of the combination of the above is that the only issues currently requiring determination are whether to accede to the First Respondent’s request for a ruling pursuant to s 192A of the Evidence Act1995 (Cth) in respect of the admissibility of the transcripts of various examinations conducted pursuant to s 81 of the Bankruptcy Act 1996 (Cth)[4] and, if so, the terms of such ruling.
[4]Described as being at pp 43-248 of Exhibit DRWT-1 to the affidavit of Mr G, sworn 24 December 2013.
Given that s 192A provides the Court with a discretion as to whether to make a ruling about the admissibility or use of evidence proposed to be adduced before such evidence is adduced in proceedings, it is necessary to canvass, briefly, the relevant factual circumstances within which the discretion falls to be exercised in this case.
Brief summary of relevant factual circumstances
On 16 September 2011, the Applicant obtained judgment against Mrs Grainger in the amount of $2,100,000.00 plus interest. At this time, Mrs Grainger was the registered owner of real property at Suburb B. The Suburb B property secured borrowings, in an amount of about $2.6 million, from Suncorp Bank. These borrowings were also secured by a guarantee and indemnity given by, amongst others, the First Respondent.
On 15 August 2012, Mrs Grainger’s application to the High Court for special leave to appeal the September 2011 determination was dismissed.
On or about 14 October 2012, a Bankruptcy Notice was served on Mrs Grainger in respect of the judgment debt of $2,100,000.00 plus interest.
On or about 24 October 2012, the First Respondent instructed solicitors to prepare a Financial Agreement between himself and Mrs Grainger, which agreement would facilitate the transfer of the Suburb B property from her to him. On 29 October 2012, a valuation of the Suburb B property obtained by the First Respondent valued the property at $2,250,000.00.
On 1 November 2012, the First Respondent and Mrs Grainger entered into a Financial Agreement pursuant to s 90C (“Financial agreements during marriage”) of the Family Law Act1975 (Cth). The terms of the Financial Agreement included that Mrs Grainger transfer the Suburb B property to the First Respondent and that he accept the existing liability to Suncorp.
On 28 November 2012, the Applicant caused a Creditor’s Petition to be filed in the Federal Circuit Court. This Petition was served on Mrs Grainger on or about 12 December 2012. On or about 7 January 2013, Mrs Grainger filed a Debtor’s Petition and was made bankrupt.
On 6 and 7 August 2013, a public examination into the bankruptcy of Mrs Grainger, pursuant to s 81 of the Bankruptcy Act 1966 (Cth), was conducted.
On 7 January 2014, the Applicant commenced proceedings in the Federal Circuit Court seeking an order that the November 2012 Financial Agreement be set aside on the basis that the First Respondent and Mrs Grainger entered into the Agreement for the purpose, or for purposes that included the purpose, of defrauding or defeating a creditor[5] or creditors.[6]
[5]Defined to include a person who could reasonably have been foreseen by the party entering into the Financial Agreement as being reasonably likely to become a creditor of the party: s. 90K(1A) Family Law Act1975 (Cth).
[6] s 90K(1)(aa)(i) Family Law Act1975 (Cth).
These proceedings have now been listed for trial before me, commencing on 19 February 2018.
Some of the Orders made on 10 August 2017 were designed to cause the files (including all documents produced under summonses) of the proceedings for Public Examination/s under the Bankruptcy Act 1966 (Cth), and the transcripts of the same, to be transferred from the Federal Circuit Court (in which the proceedings were, obviously, commenced) to this Court and, thereafter, to permit inspection, uplifting and copying of the same by the Applicant.
That the Applicant sought such orders certainly suggests she proposes to adduce some documents produced in, or aspects of the transcript of, the Public Examination proceedings under the Bankruptcy Act1966 (Cth) in the current proceedings to set aside the Agreement.
Advance ruling about the admissibility or use of the transcript/s?
Section 192A of the Evidence Act 1995 (Cth) is as follows:
Advance rulings and findings
Where a question arises in any proceedings, being a question about:
(a)the admissibility or use of evidence proposed to be adduced; or
(b)the operation of a provision of this Act or another law in relation to evidence proposed to be adduced; or
(c)the giving of leave, permission or direction under section 192;
the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.
It is clear from its terms that s 192A permits, but does not compel, advance rulings to be given about the admissibility or use of evidence proposed to be adduced in a proceeding.
Authority[7] seems to me to suggest that the matters to which consideration should be given in deciding whether to exercise the discretion afforded by s 192A in a particular case or at a particular time include:
a)whether giving the advance ruling is consistent with, promotes or enables efficient trial management;
b)whether there is a risk that assumptions have to be made about evidence proposed to be given at trial, which assumptions may prove not to be correct, given the way in which the case is, in fact, presented at trial;
c)whether there is a real benefit to be gained by making an advance ruling: that is, is it likely that time, effort and money might be saved if a ruling about the admissibility of the particular evidence is made now? Is it likely that unnecessary costs and/or delay may be avoided?;
d)whether, at the time the application is made for an advance ruling, the state of the preparedness of the case (whether by reference to the pleadings or the evidence already adduced or the procedural steps taken by parties) is such that the Court is able to discern the issues joined between the parties and, also, whether or not the evidence proposed to be adduced is likely to be relevant to such issues or not;
e)whether making an advance ruling in relation to the particular evidence is attended by the possibility of unfairness to a party;
f)whether there is a useful purpose in making the ruling sought: for example, an inability to discern the issues for determination at trial (because, for example, of the stage of the proceedings at the time the ruling is sought) or the absence of any indication or agreement about the evidence a party may propose to adduce, or the use to which a party may propose to put the evidence proposed to be adduced, may mitigate against the desirability of exercising the discretion to make an advance ruling;
g)whether giving an advance ruling at the time the same is sought is likely to achieve the efficient disposition of the final hearing because parties and their Counsel are put into the position of being able to prepare the case with greater certainty;
h)whether acceding to an application for an advance ruling could, in any way, give rise to the appearance that the trial judge is other than impartial vis-à-vis the parties.
[7]See, for example: Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 3) [2009] FCA 1075; Southern Cross Airports v Commissioner of State Revenue [2011] NSWSC 349 at [14]; Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185; Trusted Cloud Pty Ltd v Core Desktop Pty Ltd [2015] FCA 33.
In the present case, the pleadings have closed and the issues between the parties are clearly identified. Neither Counsel submitted that the provision of an advance ruling could, in any way, give rise to the appearance that I am other than impartial vis-à-vis the parties to these proceedings.
However, the parties are yet to file and serve their affidavit material and, given this, I consider there is a risk that assumptions have to be made about the evidence proposed to be given a trial, which assumptions may prove not to be correct once the evidence to be relied upon by each party is in fact filed and served.
Whilst the Applicant has, by seeking orders for the file of the Bankruptcy Act 1966 (Cth) proceedings to be made available for inspection and copying in these proceedings, demonstrated at first blush that she considers that the transcripts (and, presumably, at least some of the documents produced in and for the s 81 examination process) contain matters relevant to her case, she is yet to positively seek to adduce the contents of the same.
Further, whilst it very well may be that the issue of the admissibility of the contents of the s 81 transcripts will be one which will require determination at some stage before these proceedings are finalised (following the trial which I shall hear in February 2018), such determination is better undertaken, in my view, once the evidence to be relied on in the Applicant’s case is clear.
Whilst others may consider that a preliminary ruling may likely promote an efficient trial process, when considered in terms of the avoidance of unnecessary expense in preparations, additional costs and in the provision of certainty, I consider the more appropriate course is to defer consideration of the application for a preliminary ruling to at least after the Applicant’s affidavit evidence has been filed and served.
In arriving at this decision, in the exercise of the very wide discretion afforded by s 192A, I have also taken into account the submission by Counsel for the Applicant that there is a prospect of unfairness to the Applicant in the conduct of her case if an advance ruling is made about the admissibility of the s 81 transcripts.
For these short reasons then, I decline to accede to the First Respondent’s application, for an advance evidentiary ruling pursuant to s 192A of the Evidence Act 1995 (Cth), at this time.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 19 September 2017.
Associate:
Date: 19 September 2017
4
3