Bondelmonte and Bondelmonte

[2017] FamCA 1139

FAMILY COURT OF AUSTRALIA

BONDELMONTE & BONDELMONTE [2017] FamCA 1139

FAMILY LAW – PROCEDURAL – Application under the slip rule where the applicant alleges that the orders made do not properly reflect the intention expressed in the Reasons for Judgment – Where the applicant relies upon an error made by the applicant at the hearing – Where the applicant submits that the court should have been able to discern from an exhibit that was provided to the court, in inappropriate circumstances, that the wife should have been excluded from inspecting certain documents – Where no application was made by the applicant for leave to reopen the case – Where the applicant had about a year to prepare the case – Where no ground has been established for the operation of the slip rule – Where the application under the slip rule is dismissed – Where the applicant seeks leave to reopen the case in relation to one category of documents on the basis that the applicant had failed to inform the court of the existence of a Federal Court suppression order in relation to that category of documents – Where an order excluding the wife’s ability to inspect those documents is made – Where orders are made to facilitate a redaction of the electronic copy of the documents for that purpose

APPLICANT: Ms LL Bondelmonte

RESPONDENT: Ms  Bondelmonte

FILE NUMBER: SYC 4839 of 2011

DATE DELIVERED: 12 December 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 12 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lethbridge SC

SOLICITOR FOR THE APPLICANT: Braddon Marx Lawyers

SOLICITOR FOR THE RESPONDENT: Ms Bondelmonte in person

Orders

1. The Application in a Case filed by Ms LL Bondelmonte on 27 November 2017 be dismissed except, subject to any further leave the Federal Court might grant, the wife not inspect documents set out in a document entitled ‘Documents produced by ANZ Bank Group pursuant to the subpoena dated 24 February 2016’ which is annexure C to the applicant solicitor’s affidavit filed 27 November 2017.

2. I request the Docket Registrar to seal the current disc that contains documents sent to this Court from the Federal Court. The Docket Registrar is requested to make a copy of that disc that is to be sealed and inform the lawyer for Ms LL and Mr V Bondelmonte that that disc is available to be uplifted. The lawyer for Ms LL and Mr V Bondelmonte is then as soon as is practicable to create a copy of that disc with the material that I have ordered not be inspected by the wife redacted from that second disc. The discs are then to be marked so they are identified as a copy of the original disc and a disc from which documents have been redacted. Both discs are to be returned as soon as is practicable to the Docket Registrar in this matter. The Docket Registrar is then to place the original copied disc in the same sealed packet as the first disc and to inform the wife that the redacted disc is available for inspection.

3. The Docket Registrar is requested to monitor the implementation of these orders.

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 Bondelmonte & Bondelmonte (No. 3) 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 SYDNEY

FILE NUMBER: SYC          4839 of 2011

Ms LL Bondelmonte

Applicant

And

Ms Bondelmonte

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Ms LL Bondelmonte has filed an Application in a Case on 27 November 2017 in which she now seeks an order that the wife not inspect documents listed in this application at paragraphs 2(a)(i) to (vi).

2. The orders sought are in the following terms:

   2. That pursuant to Rule 17.02(e) and/or alternatively 17.02(f) of the Family Law Rules 2004, and consistent with the Reasons for Judgment delivered by Watts J on 15 November 2017:

   (a)paragraph 2 of the orders made by Watts J on 15 November 2017 be varied/amended/corrected to include the following documents:

   (i)Affidavit of [Ms YY] sworn 12 April 2016

   (ii)Interlocutory Application for freezing orders against [Ms LL Bondelmonte] and [ABC] Finances Pty Limited dated 15 February 2016

   (iii)Interlocutory Application by [Mr V Bondelmonte] and [Ms LL Bondelmonte] to set aside subpoena to ANZ and Notices to Produce dated 17 March 2016

   (iv)Notice to Produce on [Ms LL Bondelmonte] dated 23 February 2016

   (v)Applicants’ submissions for additional freezing orders dated 16 February 2016

   (vi)The documents listed at Appendix A produced by ANZ in answer to the Subpoena dated 23 February 2016

   [these documents are numbered 50, 54, 55, 56, 77 and 80 respectively in Exhibit 34[

   (b)in addition, or alternatively, that paragraph 1 of the orders made by Watts J on 15 November 2017 be varied/amended/corrected to include all documents produced by ANZ in answer to the subpoena dated 23 February 2016

3. By way of background, on 15 November 2017 reasons for judgment were delivered in relation to an application made by the wife to inspect documents in relation to proceedings involving the husband and his brother and his brother’s wife (Ms LL Bondelmonte), amongst others, in the Federal Court of Australia in proceedings SAD5 of 2015, which have been referred to in these proceedings as the SAD5 proceedings.  Orders were made on 15 November 2017 which generally allowed the wife to inspect documents produced by the Federal Court except the wife was not to inspect eight affidavits which were the subject of a Federal Court confidentiality order. These eight excluded affidavits are set out in order 1 of the orders of 15 November 2017. The orders further provided that the wife not to inspect five affidavits identified as being documents relevant to interlocutory proceedings involving Ms LL Bondelmonte.  Those documents are set out in order 2 of the orders made on 15 November 2017. Ms LL Bondelmonte now seeks an order which expands the list of documents excluded by order 2.

4. In support of her application, Ms LL Bondelmonte relies upon two affidavits of her solicitor, one sworn on 23 November 2017, the other sworn on 11 December 2017. 

5. The application that Ms LL Bondelmonte now makes is on a number of different bases. Firstly she makes an application under rule 17.02(f) the Family Law Rules (“FLR”) inviting the wife to consent to the orders sought. The wife does not do so.

6. Secondly she makes an application under the slip rule. Rule 17.02(e) FLR provides that:

   The court may at any time vary or set aside an order if:

   …

   (e) it does not reflect the intention of the court.

7. Thirdly, if the applicant is unsuccessful under the slip rule, in the alternative, the applicant seeks a new hearing in relation to the documents set out only in 2(a)(vi). The basis of that application for a new hearing for a variation of the order is founded on a disclosure now made to the court that the group of documents referred to in application 2(a)(vi), are documents which are the subject of a current suppression order in the Federal Court. 

8. The affidavit upon which the applicant relies in respect of the slip rule application, being the affidavit sworn by the applicant solicitor on 23 November 2017, sets out, at paragraph 15, the six further documents, consistent with the documents set out in her application, which Ms LL Bondelmonte does not want the wife to see. Senior counsel for Ms LL Bondelmonte submits that a proper basis for her slip rule application arises out of parts of my Reasons for Judgment of 15 November 2017. He referred to paragraphs 38 to 40 and also paragraph 105 and 106 which are as follows:

   38.    In [Ms NN’s] affidavit filed 14 November 2016 she states that [Ms LL Bondelmonte] is the respondent to an interlocutory application dated 15 February 2016 filed in the SAD5 proceedings which seeks orders in relation to property solely owned by her. [Ms NN] lists the following affidavits which she has identified as relating to the interlocutory application filed against [Ms LL Bondelmonte]:

   38.1The affidavit of [Mr GG] dated 11 February 2016;

   38.2The affidavit of [Mr JJ] dated 19 February 2016;

   38.3The affidavit of [Mr JJ] dated 17 March 2016;

   38.4The affidavit of [Mr MM] dated 22 March 2016; and

   38.5The affidavit of [Mr GG] dated 17 May 2016.

   39.    Counsel for the wife submitted that the documents relating to [Ms LL Bondelmonte] were relevant to the wife’s s 79A application because Gleeson J’s reasons made it apparent that the husband’s finances are interconnected with members of his family.

   40.    I find that the wife has not demonstrated how seeing material relating to real property held by the 2^nd applicant might be relevant to the wife’s s 79A application. 

   ….

   105.  Special circumstances exist to allow the wife to see the material on the SAD5 proceedings file, whether or not it was before Gleeson J apart from the affidavits referred to in the confidentiality orders and the documents produced in the interlocutory application involving [Ms LL Bondelmonte] .

   106.  Apart from the affidavits which are the subject of the confidentiality order and identified documents produced in the interlocutory application involving [Ms LL Bondelmonte], the application to set aside the orders of 4 July 2016 will be dismissed.

9. Also, relevant is Exhibit 34. The very unusual circumstances in which exhibit 34 came into existence are discussed in paragraph 10.9 of my reasons of 15 November 2017. The document Ms LL Bondelmonte now wants excluded are numbered 50, 54, 55, 56, 77 and 80 in Exhibit 34.

10. It is argued that Exhibit 34 was annexure A to the applicant’s solicitor’s first affidavit, that was sent to the court on 20 April 2017, pursuant to a direction made on 23 March 2017 and that that provides the basis or a foundation for a successful argument under the slip rule.

11. Senior counsel for Ms LL Bondelmonte asserts that these six documents were identified during the hearing on 27 October 2017. I find they were not. The documents identified on Ms LL Bondelmonte’s behalf during the hearing were those specified in paragraph [38] of the Reasons of 15 November 2017 and those documents were the subject of the order that was then made.

12. Exhibit 34 lists 80 documents. Senior counsel for Ms LL Bondelmonte asserts that I made a slip in not recognising that six of those documents fell within a category of documents that were not relevant to the current proceedings. There was absolutely no way of the court knowing that the documents numbered 50, 54, 55, 56, 77 and 80 of Exhibit 34 were also to be included in the order Ms LL Bondelmonte sought. It was patently impossible for any guess to be made by me in the Reasons of 15 November 2017 as to the relevance or otherwise of any of the documents in Exhibit 34. Because of the inappropriate way Exhibit 34 came into existence, no submissions were made about Exhibit 34.

13. A proper characterisation of what Ms LL Bondelmonte is seeking to do in this application is to reopen the concluded hearing of the matter which took place on 27 October 2017 and which was determined by way of publication of reasons and the making of orders on 15 November 2017, in order to lead fresh evidence and to make additional submissions. As I comment at paragraph [10.9] of my Reasons of 15 November 2017, when the asserted mistake was realised, no application was made to reopen the hearing. As I noted in paragraph [6] of my Reasons of 15 November 2017, Ms LL Bondelmonte had about one year to get her interim application prepared. Had Ms LL Bondelmonte made an application to reopen the hearing, she would have been put to the task of explaining why in the year she had to do so and particularly at the hearing before me on 27 October 2017, she had failed to rely on Exhibit 34 and more particularly, either by evidence or by way of submissions, point to the specific documents in the 80 documents listed in Exhibit 34 which she further wished excluded. The wife would have had the opportunity to consider whether she opposed the reopening of the case and if the case was reopened, to make any further submissions about those documents.

14. The orders that I made were based on the evidence and submissions made at the hearing before me on 27 October 2017. Those orders were in fact made in the terms then sought by Ms LL Bondelmonte. There is no slip in the orders that were made, and accordingly that part of the application will be dismissed.

15. In relation to the alternate application to reopen based on the fact that there is, we now know, an existing order of the Federal Court making confidential certain documents in respect of which I made orders, as we discussed during submissions, that’s a different issue. Annexure E to the applicant solicitor’s affidavit sworn 23 November 2017 contains a confidentiality order (Order 5 of Registrar Tesoriero dated 6 April 2016). The lawyer for the applicant sets out what documents are covered by the confidentiality order. They are the documents referred to at item 80 of Exhibit 34. Comity between courts dictates that I should entertain that application now that that information has been brought to the court’s attention. I shall make an order restricting the wife’s access to those documents. The wife has the ability to seek an order from the Federal Court to have that confidentiality order lifted if she believes that is important to her. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 12 December 2017.

Associate: 

Date:  7.2.18