Bondelmonte & Bondelmonte
[2018] FamCAFC 179
•18 September 2018
FAMILY COURT OF AUSTRALIA
| BONDELMONTE & BONDELMONTE AND ORS | [2018] FamCAFC 179 |
| FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Discovery – Inspection of documents – Where the appellant appeals orders as to the inspection of documents relating to proceedings in which freezing orders where sought – Where the appellant was not a party to those proceedings – Where the appellant seeks a variation of the primary judge’s orders to include additional documents – Where the findings of the primary judge found to be clear and encompassing documents relating to the freezing order against the appellant – However where the primary judge failed to include seven documents – Where these seven documents uncontentiously referred to the proceedings against the appellant – Where error found – Leave to appeal granted – Appeal allowed in part – Order refusing leave to inspect certain documents varied to add the documents erroneously excluded. |
| Family Law Act 1975 (Cth) s 79A |
| Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 |
| APPELLANT: | Ms LL Bondelmonte |
| FIRST RESPONDENT: | Ms Bondelmonte |
| SECOND RESPONDENT: | Mr V Bondelmonte |
| THIRD RESPONDENT: | Q Finances Pty Limited |
| FOURTH RESPONDENT: | KK Pty Ltd |
| FIFTH RESPONDENT: | D1 Pty Ltd |
| SIXTH RESPONDENT: | ABC Finances Pty Limited |
| FILE NUMBER: | SYC | 4839 | of | 2011 |
| APPEAL NUMBER: | EA | 5 | of | 2018 |
| DATE DELIVERED: | 18 September 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Aldridge JJ |
| HEARING DATE: | 13 August 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 November 2017 |
| LOWER COURT MNC: | [2017] FamCA 924 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lethbridge SC |
| SOLICITOR FOR THE APPELLANT: | Braddon Marx Lawyers |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Todd |
| SOLICITOR FOR THE SECOND RESPONDENT: | Braddon Marx Lawyers |
| SOLICITOR FOR THE THIRD, FOURTH, FIFTH AND SIXTH RESPONDENTS: | Brown Wright Stein Lawyers |
Orders
Leave to appeal the orders of Watts J made on 15 November 2017 is granted.
The appeal against Order 2 made by Watts J on 15 November 2017 is upheld and Order 2 is varied to include the following documents:
(a)Affidavit of Ms TT sworn 12 April 2016;
(b)Interlocutory Application for freezing orders against Ms LL Bondelmonte and ABC Finances Pty Limited dated 15 February 2016;
(c)Interlocutory Application by Mr V Bondelmonte and Ms LL Bondelmonte to set aside subpoena to ANZ and Notices to Produce dated 17 March 2016;
(d)Notice to Produce on Ms LL Bondelmonte dated 23 February 2016;
(e)Applicants’ Submissions for additional freezing orders dated 16 February 2016;
(f)Subpoena to ANZ dated 24 February 2016; and
(g)All documents produced to the Court pursuant to the subpoena on ANZ dated 24 February 2016.
The appellant file and serve submissions as to costs of the appeal, consisting of no more than five (5) pages, within 14 days of this order.
The first respondent file and serve submissions as to costs of the appeal, consisting of no more than five (5) pages, within 14 days of receipt of the appellant’s costs submissions.
That the third, fourth, fifth and sixth respondents file and serve submissions as to costs of the appeal, consisting of no more than five (5) pages, within 14 days of receipt of the appellant’s costs submissions.
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 and Ors 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 5 of 2018
File Number: SYC 4839 of 2011
| Ms LL Bondelmonte |
Appellant
And
| Ms Bondelmonte |
First Respondent
And
| Mr V Bondelmonte |
Second Respondent
And
| Q Finances Pty Limited |
Third Respondent
And
| KK Pty Ltd |
Fourth Respondent
And
| D1 Pty Ltd |
Fifth Respondent
And
| ABC Finances Pty Limited |
Sixth Respondent
REASONS FOR JUDGMENT
Ms LL Bondelmonte (“the appellant”) appeals against orders made by Watts J on 15 November 2017. The orders concern what documents relating to Federal Court of Australia proceedings … of 2015 and … of 2015 the first respondent, Ms Bondelmonte (“the wife”), can inspect.
The proceedings before the primary judge involved questions of inspection of documents relating to other parties. However, this appeal only concerns the orders so far as they concern documents relating to proceedings brought against the appellant, in which freezing orders were sought over the proceeds of sale of property owned by her.
By Order 2 made on 15 November 2017 his Honour ordered that the wife could not inspect five affidavits relating to those proceedings.
The appeal challenges that order, asserting that his Honour erred in failing to include several other documents in the order. The appellant seeks that this court vary Order 2 to include those additional documents.
The wife opposes the appeal. The second respondent did not participate in the appeal. The third, fourth, fifth and sixth respondents filed a Submitting Notice on 14 June 2018 that advised the Court that they did not wish to make submissions or appear in the appeal, save in respect to the question of costs.
Background
The orders under appeal arise from proceedings brought on 2 March 2016 pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) by the wife (“the wife’s s 79A application”) against her former husband, Mr Bondelmonte (“the husband”). The wife seeks to set aside part of the property settlement orders made by consent as between her and the husband in June 2014. The wife asserts that the orders should be set aside by reason of the husband’s failure to give full and frank disclosure of his income, assets and financial resources at the time she entered into the orders and thus contends that the orders for property settlement were improperly procured.
The genesis of the s 79A application lies in proceedings in the Federal Court of Australia (“the Federal Court proceedings”) between the husband and Mr V Bondelmonte (his brother and the second respondent in the appeal). The Federal Court proceedings were commenced by four companies (in liquidation) which had been associated with the parents of the husband and Mr V Bondelmonte. By way of further context, Mr V Bondelmonte is the husband of the appellant, and the four companies are the third to sixth respondents in the appeal.
In late 2016 judgment was delivered in the Federal Court proceedings.
The evidence before the Federal Court concerned a scheme implemented by the father of the husband and Mr V Bondelmonte which was continued after his death. The purpose of the scheme was said to evade or avoid liability to pay income tax and involved issues of whether the respondents had participated in the scheme. The Federal Court reasons set out the magnitude of the scheme and its reach.
After the proceedings in the Federal Court had completed, in February 2016 the appellant was subject to an application for freezing orders in relation to the proceeds of sale of property owned by her.
The appellant was not a party to the principal proceedings in the Federal Court.
Access to the Federal Court file
On 4 July 2016 the primary judge made an order for the Registrar of the Sydney Registry of the Family Court of Australia to request the Registrar of the Federal Court of Australia to make available to the Family Court the files in the proceedings … of 2015 and … of 2015. The files were produced.
On 29 November 2016 the appellant and the second to sixth respondents filed an amended Application in a Case raising various objections to the wife inspecting any of the documents in the file. Their solicitor swore an affidavit on 11 November 2016 in which she, in broad terms, identified the documents contained within the Federal Court file and to which various objections were related. Some of the documents in the court file related to the appellant and at paragraph 17 the solicitor referred to documents that relate to the application for freezing orders and lists five affidavits which she said were concerned with those proceedings.
Before his Honour it was argued that none of the documents relating to the application for freezing orders against the appellant was relevant to wife’s s 79A application in the Family Court. For the wife it was contended that those documents were relevant because, it was said at [39], the Federal Court reasons made it plain that the husband’s finances were interrelated with those of his family.
His Honour found:
40. I find that the wife has not demonstrated how seeing material relating to real property held by the [appellant] might be relevant to the wife’s s79A application.
No challenge was taken to his Honour’s conclusion that the appellant’s documents were not relevant to the wife’s s 79A application.
Thus his Honour ordered that the wife not be permitted to inspect the five affidavits to which the solicitor for the respondents referred in her affidavit at paragraph 17.
It is in relation to this order that the appeal is brought.
What documents?
On 29 March 2017, the primary judge ordered that the solicitor for Mr V Bondelmonte and the appellant provide a list of documents which they contended were “with respect to Mr V Bondelmonte and [the appellant]”. The order was made in order that both parties to particularise the documents to which the application related and to identify which category of objection related to which document.
On 20 April 2017 the solicitor for the appellant and Mr V Bondelmonte responded to the order by providing a list of documents. The list is headed “First & Second Third Parties List of Affidavits to which access is opposed” and lists 17 affidavits under two headings. The first heading is “On the basis of relevance” under which 11 affidavits are listed. The second heading is “On the basis of confidentiality” and a further six affidavits are listed.
On 6 November 2017 (after the proceedings before the primary judge had concluded but while judgment was reserved) the solicitor for Mr V Bondelmonte and the appellant sent an email to the wife’s solicitor and to the primary judge’s associate.
The email says:
…
At the Hearing an email dated 20 April 2017 and its attachment were tendered to his Honour and marked as Exhibit No. 33. It has since come to our attention that the attachment handed to his Honour in Court may not in fact have been the actual attachment to the email dated 20 April 2017. As the copy handed to his Honour was the only copy on our physical file, we now cannot be sure whether or not the attachments are the same.
Accordingly, we now attach a copy of the actual attachment to the 20 April 2017 email and would be grateful if you could bring this document to his Honour’s attention. It may be the case that the attached document and the document handed to his Honour at the hearing are identical, but we cannot be sure.
(Emphasis in original)
The document attached to the 6 November 2017 email is patently not the same document as Exhibit 33. It is, according to its heading, expressed to be produced in response to his Honour’s 29 March 2017 order and said to be a list of documents that are “with respect to Mr V Bondelmonte and [the appellant]”. The list includes a total of 80 documents under the headings of “Pleadings”, “Affidavits”, “Interlocutory Applications”, “Notices”, “Submissions” and “Subpoenas”. The list that became Exhibit 33 made reference only to affidavits.
In the passage of the reasons in which the primary judge identified the documents to which he had regard he said:
10.9. Email from the lawyers for the 1st and 2nd applicants to the wife’s lawyers dated 20 April 2017 (Exhibit 33). This document describes the documents in the … proceedings that fall within the description by the 1st and 2nd applicants of documents “with respect to Mr V Bondelmonte and [the appellant]”. I am aware that on 6 November 2017 the solicitor for the 1st and 2nd applicants sent an email to my associate attempting to substitute another document for Exhibit 33. For identification purposes, I have marked that document Exhibit 34. No application has been made to reopen the hearing to adduce further evidence. Notwithstanding that procedural irregularity, I have considered the terms of the new list. The material contained within the substitute list does not advance the question as to which of those documents or which parts of them might be the subject of the Harman obligation. The importance of that is discussed below.
Before we turn to consider the arguments of the appellant in relation to the document and the subsequent orders of the primary judge, we note with some despair the conduct of litigation by email to a judge’s associate and, if proof be needed, the confusion that attended this course here is proof enough why it is unsatisfactory.
However the primary judge received the document and admitted it as evidence. No submission was made by the wife against the receipt of the document nor as to its contents and thus his Honour would have understood that it was uncontroversial.
The appellant argued that the primary judge would have understood that the document was in direct response to the order of 29 March 2016 and he ought to have included the additional seven documents in his order preventing the wife from inspecting them because they related to the interlocutory proceedings against the appellant. It was further argued that his Honour could have readily identified the documents relating to the application against the appellant from the dates of their creation or filing, the point being that these injunction proceedings post-dated the conclusion of the principal proceedings in the Federal Court.
Whatever his Honour might have understood from the document, his orders, as we have said, only restricted inspection of the five affidavits to which the solicitor referred in her affidavit sworn 11 November 2016 and to which reference was made inter alia in the document tendered in court and marked Exhibit 33.
The additional documents listed in Exhibit 34 were, adopting the numbers from the list:
50. Affidavit of Ms TT sworn 12 April 2016;
54. Interlocutory Application for freezing orders against [the appellant] and ABC Finances Pty Limited dated 15 February 2016;
55. Interlocutory Application by Mr V [Bondelmonte] and [the appellant] to set aside subpoena to ANZ and Notices to Produced dated 17 March 2016;
56. Notice to Produce on [the appellant] dated 23 February 2016;
77. Applicants’ Submissions for additional freezing orders dated 16 February 2016;
79. Subpoena to ANZ dated 24 February 2016; and
80. All documents produced to the Court pursuant to the Subpoena on ANZ dated 24 February 2016.
(As per the original)
The thrust of the appeal is relatively straightforward. It is contended that his Honour, having found at [40] that the documents relating to the interlocutory proceedings against the appellant were not relevant to the wife’s s 79A application, erred in not including these seven additional documents.
The wife contended that his Honour’s order limited to the five identified affidavits was not erroneous because it was to those affidavits that the solicitor’s affidavit of 11 November 2016 related and the appellant should, in effect, be restricted to the evidence of the solicitor.
In support of this contention it was submitted that in the hearing before the primary judge no argument was advanced as to why those additional documents should be excluded from inspection and it was argued that during the oral submissions, counsel for the appellant restricted the court’s consideration to only those five affidavits and, in effect, conceded that the list (which was Exhibit 33) had diminished weight.
Discussion
First, the list of documents referred to during the oral argument was that which became Exhibit 33 and it only identified the affidavits to which objection was taken, not other related documents. The documents which the appellant contends were omitted from his Honour’s order did not come before him until the conclusion of the evidence. However, we do not agree that counsel for the appellant abandoned objection to inspection of documents other than those referred to in the solicitor’s affidavit or listed in Exhibit 33.
Secondly, on a number of occasions during the submissions, the primary judge asked counsel for Mr V Bondelmonte and the appellant whether the case he was mounting in relation to the appellant went “beyond [the appellant’s] affidavit”[1] and in no instance did he agree with that proposition rather saying to his Honour that the case did not extend beyond “the application”.[2] The application first sought to set aside his Honour’s order of 4 July 2016. In the alternative, it sought to exclude the wife from having access to the following documents in relation to proceeding … 2015 pursuant to the orders of 4 July 2016:
[1] Transcript of 27 October 2017, page 10, line 29.
[2] Transcript of 27 October 2017, page 10, line 31.
a) all affidavits;
b) all genuine steps statements;
c) all indexes to the parties’ tender books:
d) all objections to evidence;
e) all narrative statement of fact and contentions and responses to narrative statements of facts and contentions;
f) all notices to produce;
g) all subpoenas;
h) all written submissions and outlines of submissions; and
i) all diagrams and notes.
In the further alternative the appellant sought to refuse the wife access to the following documents in relation to the proceeding… of 2015 pursuant to the orders of 4 July 2016:
a) the affidavit of Mr GG dated 14 January 2015;
b) the affidavit of Mr GG dated 15 January 2015;
c) the affidavit of Mr GG dated 28 January 2015;
d) the affidavit of Mr HH dated 28 January 2015;
e) the affidavit of Mr II dated 28 January 2015;
f) the affidavit of Mr II dated 29 January 2015;
g) the affidavit of Mr XX dated 29 January 2015;
h) two affidavits of Mr II dated 10 February 2015;
i) the affidavit of Mr YY dated 5 March 2015;
j) the affidavit of Mr YY dated 18 May 2015;
k) the affidavit of Mr JJ dated 20 May 2015;
l) the affidavit of Mr JJ dated 29 June 2015;
m) the affidavit of Mr YY dated 12 August 2015;
n) the affidavit of Mr JJ dated 13 August 2015;
o) the affidavit of Mr GG dated 11 February 2016;
p) the affidavit of Mr JJ dated 19 February 2016;
q) the affidavit of Mr JJ dated 17 March 2016;
r) the affidavit of Mr MM dated 22 March 2016; and
s) the affidavit of Mr GG dated 17 May 2016.
Hence it is clear that the application sought to restrict the wife’s access to documents beyond those listed in the affidavit sworn on 11 November 2016.
Finally it was argued by the wife that the primary judge had afforded the appellant a number of opportunities in which to identify the documents which related to the appellant and contended that this was done in the affidavit of the solicitor of 11 November 2016 and “Exhibit 34 was in fact the document provided in answer to the orders made by his Honour [on 29] March 2017”.[3]
[3] Transcript extract of 13 August 2018, page 5, line 20.
We have some difficulty with this submission. First, in as much as the submission is relevant to the appellant’s compliance with the order of 29 March 2017, as we understand the evidence, the document which became Exhibit 34 was that which was attached to the email of the appellant’s solicitor on 6 November 2017 to which his Honour referred in [10.9]. It is in this document that the appellant contends that all of the documents relevant to the injunction sought against the appellant was listed. A reading of the list of exhibits makes that plain.
However it is unnecessary to disentangle the detail of this submission because the thrust of the wife’s opposition to the appeal is this: that the appellant, notwithstanding having been given opportunities to do so, failed to clearly identify the documents during the trial and despite the primary judge at [40] concluding that the wife could not inspect the “material relating to real property held by the [appellant]”, the appellant therefore should be bound to the affidavits identified in the solicitor’s affidavit and cannot now assert error in his Honour’s failure to include all of the relevant documents.
As we have said, the hearing was attended by considerable confusion as to the identification of documents and the articulation of the basis for objecting to their being inspected. That confusion permeated the identification of the “material” relating to the injunction proceedings against the appellant and it is perhaps little wonder that his Honour failed to include all of the relevant documents.
Nevertheless his Honour’s finding at [40] was clear and encompassed all of the documents relating to the application for freezing orders against the appellant. In making the challenged order he failed to include seven documents which were uncontentiously referable to the proceedings against the appellant and thus we find his Honour erred.
Leave to appeal
It was conceded that the challenged orders were interlocutory and thus leave to appeal is necessary. Leave was not initially sought although at the commencement of the appeal hearing the appellant was permitted to file an application seeking that leave.
The test as to whether leave to appeal should be granted requires the court to be satisfied in two respects; first that the decision in question is attended with sufficient doubt to warrant the grant of leave and secondly that a substantial injustice will result from a refusal of leave to appeal (Medlow & Medlow (2016) FLC 93-692 (“Medlow”) at [57]). However in appropriate cases, it being a test or a guideline, it will give way to the particular interests of justice in that case (Medlow at [55]). This is such a case.
The wife opposed leave being granted, saying that the appellant had not identified any “harm which would befall her arising from the Orders as they currently stand” and it was further contended that the orders made thus far only relate to inspection of documents.
Patently whether or not harm might “befall” the appellant is not comprehended in the test for the granting of leave nor might we suggest, is the suggestion that the effect of his Honour’s orders is merely to permit inspection of the documents not otherwise made with no question of admissibility being considered thus far.
His Honour’s determination in relation to this class of documents was that they were not relevant to the wife’s s 79A application, to permit inspection of irrelevant documents would be inconsistent with his findings and a material invasion of the appellant’s privacy although we consider that the orders could have been amended pursuant to the “slip rule”, that course did not find favour with the primary judge. In these circumstances the only available avenue to address the situation was by the exercise of appellate power.
Thus we will grant leave to appeal.
Costs
At the conclusion of the appeal we sought submissions from the parties as to the costs of the appeal. Given certain complexities we will make orders for the provision of written submissions as to costs of the appeal.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 18 September 2018
Associate:
Date: 18 September 2018
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