Breno & Breno
[2023] FedCFamC1F 1047
•8 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Breno & Breno [2023] FedCFamC1F 1047
File number(s): SYC 2724 of 2021 Judgment of: HARPER J Date of judgment: 8 December 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – Where subpoena was issued to Chief Commissioner of State Revenue NSW in June 2023 – Where no Notice of Objection to the subpoena has been filed – Where Chief Commissioner of State Revenue NSW prohibited by statutory provisions from producing the documents without consent and authorisation of the respondents – Where the respondents have not provided their consent – Orders made for the respondents to provide their consent and authorisation to the Chief Commissioner of State Revenue NSW so that they may comply with the subpoena.
FAMILY LAW – PRACTICE AND PROCEDURE – Where wife sought orders restraining the executor of the husband’s late brother’s estate from dealing with the funds of the estate – Where such an order would be futile – Where wife sought orders for extensive disclosure and the joinder of additional parties – Wife ordered to particularise her claim against the husband, the respondents and the proposed additional parties – Where the questions of disclosure and joinder may be revisited following the refinement of the relief sought by the wife.
Legislation: Federal Circuit and Family Court of Australia Act2021 (Cth) s 69
Taxation Administration Act 1996 (NSW)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 4 December 2023 Place: Sydney Counsel for the Applicant and Second to Fourth Respondents: Mr Dura SC Solicitor for the Applicant and Second to Fourth Respondents: Diamond Conway Lawyers Counsel for the First Respondent: Mr Bell Solicitor for the First Respondent: Petkovic & Todd ORDERS
SYC 2724 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BRENO
Applicant
AND: MR BRENO
First Respondent
MR B BRENO
Second Respondent
MS C BRENO
Third Respondent
D PTY LTD AS TRUSTEE FOR THE D SUPERANNUATION FUND
Fourth Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
8 DECEMBER 2023
THE COURT ORDERS THAT:
1.Within 48 hours of the date of these orders, the Applicant Husband (“husband”) and the Second, Third and Fourth Respondents shall do all acts and things and sign all necessary documents, including letters in the terms of the drafts comprising Annexure “A” to the Respondent Wife’s (“wife’s”) Further Amened Application in a Proceeding sealed on 30 October 2023, to provide consent and authorisation to the NSW Chief Commissioner of State Revenue to comply with the subpoena issued on 14 June 2023.
2.The name of the Fourth Respondent be amended to “D Pty Ltd as trustee for the D Superannuation Fund”.
3.By consent:
(a)The wife sign and send any necessary correspondence for the engagement of Mr E as an expert within 14 days of the date of these orders;
(b)By no later than 4.00 pm on 21 December 2023, pursuant to r 6.24(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) the husband and the other respondents provide answers to all Specific Questions served by the wife pursuant to the Rules.
4.By no later than 4.00 pm on 31 January 2024, the wife:
(a)serve upon the husband, the other respondents and any proposed respondents, a proposed Further Amended Response and Points of Claim specifying the relief claimed against the husband, each respondent and any proposed respondents and the allegations which she contends will support such relief;
(b)file and serve any Application in a Proceeding and affidavit in support seeking leave to amend or add further parties to the proceedings, with such application to be returnable for mention at 9.30 am on 7 February 2024.
5.The proceedings are stood over to 9.30 am on 7 February 2024 for mention.
6.No further interlocutory applications are to be filed by the husband or the wife without first obtaining leave of the Court to do so.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Breno & Breno has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION
These are property proceedings between Mr Breno the applicant husband (“the husband”) and Ms Breno the respondent wife (“the wife”). The second and third respondents are the parents of the husband. The fourth respondent is an associated company.
The spouse parties married in 1962 and separated in 2020. The exact size of the asset pool is yet to be determined but there is no dispute it is very large comprising numerous items of real property. For the purposes of this judgment it is unnecessary to set out further background factual matters.
The husband commenced the proceedings on 15 April 2021. The parties were allocated five days for a final hearing between 14 August and 18 August 2023. However those dates were ultimately vacated because the parties were unable to ready themselves for final hearing in compliance with detailed directions made for that purpose.
The wife then filed a Further Amended Application in a Proceeding on 30 October 2023 (“the application”) which was listed for interim hearing on 2 November 2023. This listing was vacated. The application and the husband’s Amended Response to an Application in a Proceeding filed 17 November 2023 (“the response”) were relisted and the hearing took place on 4 December 2023.
The wife's application sought wide ranging relief including a number of injunctions, orders concerning valuation of properties located in Country F, issues concerning a subpoena served upon Revenue NSW, litigation funding and orders concerning disclosure. The husband sought orders restraining the wife from issuing further subpoenas, for interim sale of property, and litigation funding.
After some negotiation on 4 December 2023 the parties resolved a number of issues and orders were made by consent. Ultimately, by reason of the resolved issues, the husband did not press proposed orders 1 to 7, 9 and 10 of the response. Eventually it was also agreed that proposed order 8 in the response could be made by consent with the addition of the words “within 14 days of the date of these orders”. I will make an order broadly in those terms. It was further agreed that proposed order 21 in the application could be made with the words “within 21 days of service” to be replaced with “by no later than 4.00 pm on 21 December 2023”, I will make an order in broadly those terms.
However not all issues were resolved by agreement. The remaining issues are as follows.
Subpoena to Revenue NSW
The wife caused a subpoena to be issued by this Court on 14 June 2023 addressed to the Chief Commissioner of State Revenue NSW. The subpoena seeks production of a number of documents by companies known as G Pty Ltd and H Pty Ltd and/or K Company and a number of identified properties. These companies are trustees and their directors are the husband and his parents, the second and third respondents.
Neither the recipient nor any party filed an objection to this subpoena. However, Revenue NSW responded with a letter dated 23 June 2023, which became Exhibit B, in which reference was made to the provisions of the Taxation Administration Act 1996 (NSW). There was no dispute that these provisions relieve a “tax officer” from disclosing or producing in any court “any information obtained under or in relation to the administration of a taxation law”, unless, relevantly, the person to whom the information relates gives consent. Accordingly the position of Revenue NSW disclosed in the letter was that compliance with the subpoena will be undertaken if consent is provided by G Pty Ltd as the trustee of G Unit Trust, H Pty Ltd and/or K Company and the owners of identified properties.
As part of her relief the wife seeks an order that the husband and other relevant respondents sign the necessary documents to provide the consents required by the Chief Commissioner of State Revenue NSW to enable compliance with the subpoena.
This order is resisted. The basis of the resistance is said to be that the wife has failed to establish the relevance of the material sought by the subpoena. The husband contended that the wife has issued more than 55 subpoenas in the course of these proceedings to persons and entities associated with the husband or his parents. He gave evidence that he has given extensive disclosure already.
The Court is presented with an unusual situation. The subpoena was issued by this Court on 14 June 2023 and the Chief Commissioner of State Revenue NSW responded by letter on 23 June 2023. There is no evidence of any further activity in relation to the subpoena since then. There have been no Notices of Objection filed, nor any application to set the subpoena aside. There is no evidence to suggest that the Chief Commissioner of State Revenue NSW now contends the subpoena is stale. However, the existing respondents resist providing the consents required by the Chief Commissioner, on the basis that they have already made extensive disclosure.
In my view, s 69 of the Federal Circuit and Family Court of Australia Act2021 (Cth) empowers this Court to make practice and procedure directions which include an order to provide the necessary consents sought by the Chief Commissioner. I do not accept the respondents have demonstrated any convincing reason to resist providing the necessary consents. I propose to make an order broadly in terms of proposed order 1 of the application.
Estate of the late Mr J
The wife’s proposed order 9 seeks to restrain the husband from diminishing the estate of his late brother Mr J. There was no dispute that the husband is the sole residuary beneficiary. However, there was also no dispute that the executor is not the husband, but his son. There was no evidence of the nature of the assets and liabilities of the state. It is entirely possible that the executor needs to use the estate’s assets to discharge the estate’s liabilities and there is no arguable basis put forward by the wife to somehow fetter or control the executor’s powers to administer the estate by imposing an injunction on the sole residuary beneficiary.
The order as formulated by the wife is futile in my view and should not be made.
Disclosure and Additional Parties
Attached to the application is an annexure (Annexure B) which sets out some 64 categories of documents in respect of which the wife claims an order for disclosure pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
There is no doubt that disclosure has been a constant source of complaint throughout these proceedings. The wife points to a letter dated the 23 May 2023 where the categories now sought in the annexure to the application were requested. The respondents argued that the scope of the proposed order for disclosure is onerous and too wide, in the absence of any specific relief sought by the wife to which disclosure can be related. The wife conceded that a more refined pleading would enable issues of disclosure to be more closely refined.
I consider it preferable for the wife to refine her relief by way of points of claim before making any further orders about disclosure.
The wife also sought orders adding G Pty Ltd and H Pty Ltd as parties. This may be necessary. However, she also conceded that the addition of these parties could be left to a later date after further disclosure has taken place.
In my view the preferable course is to order the wife to refine her pleading and relief before revisiting the issues of the addition of parties and disclosure. The respondents’ duty of disclosure is confined by relevance. At present, the wife’s approach to the litigation seeks wide ranging disclosure relating to numerous entities without the discipline of precisely formulated allegations and proposed relief against those parties.
I note that the wife sought an amendment to the name of the existing fourth respondent. I will allow this amendment.
There have been a plethora of interlocutory applications in these proceedings which have mired their progress in substantial delay. I will make an order requiring the husband and the wife to obtain leave before any further such applications can be filed.
The parties also pressed for fresh hearing dates. This of course would be desirable but having squandered the opportunity to utilise earlier hearing dates the parties have also lost priority. The Court will revisit the allocation of hearing dates when the parties have completed the necessary interlocutory steps.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 8 December 2023
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