Cheung & Cheung and Ors

[2007] FamCA 1033

FAMILY COURT OF AUSTRALIA

CHEUNG & CHEUNG AND ORS [2007] FamCA 1033

FAMILY LAW – Disclosure – previous disclosure provided – inadequate evidence of failure to properly disclose – application dismissed

APPLICANT: MRS CHEUNG

1ST RESPONDENT: MR CHEUNG

2ND RESPONDENT: C CHEUNG

3RD RESPONDENT: Y CHEUNG

FILE NUMBER: BRF 1286 of 2006

DATE DELIVERED: 7 September 2007

PLACE DELIVERED: In Chambers, Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 31 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lethbridge of Senior Counsel

SOLICITOR FOR THE APPLICANT: Jones Mitchell Lawyers

SOLICITOR FOR THE 1ST RESPONDENT: Mr Cooper, Charles Cooper Lawyers

2ND RESPONDENT: No appearance

3RD RESPONDENT: No appearance

Orders

1. That paragraph 3 of the Wife’s application filed on 27 July 2007 be dismissed.

2. That within 21 days, each of the Second and Third Respondents make available to the Wife for inspection and copying the following documents which are in his or her possession, power or control:

   (a)Statements and passbooks for all bank accounts in their respective names, whether held in Australia or Taiwan or elsewhere for the period 8 January 2003 to the present;

   (b)Individual tax returns for the years 1989 to 2007 inclusive;

   (c)All loan agreements between them and the Husband and/or the Wife or any entity in which the Husband or the Wife have, or have had, an interest; and

   (d)Passports for each of the Second and Third Respondents for the period 1989 to the present date.

3. That costs be reserved.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Jordan delivered this day will for all publication and reporting purposes be referred to as Cheung & Cheung.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 1286 of 2006

MRS CHEUNG

Applicant

And

MR CHEUNG

1st Respondent

And

C CHEUNG

2nd Respondent

And

Y CHEUNG

3rd Respondent

REASONS FOR JUDGMENT

1. In her application filed on 27 July 2007, the Wife seeks orders for disclosure against the Husband (paragraph 3) and the Second and Third Respondents (paragraph 4).

2. The matter was before me on 31 July 2007 and the consideration of those matters was reserved to enable counsel for the Wife and the solicitor for the Husband to provide written submissions.

3. I have now received and considered the written submissions forwarded to the Court.

4. I propose to deal with the matter in broad compass.

5. It is submitted on behalf of the Wife that the documents sought fall into a number of categories, in that they are either documents which are within the possession, custody or control of the Husband and/or the Second and Third Respondents or, alternatively, if they are in the possession, custody or control of third parties such as banks, they are the types of documents available to respondents on request.  It is further submitted that, in relation to documents falling into the latter category and others not disclosed to date, the Husband has failed to discharge an onus upon him to set out details of the attempts made by him to obtain such documents.

6. In the submissions on behalf of the respondent Husband, the solicitor refers to the contents of his client’s affidavit filed on 31 July 2007 and, in particular, paragraph 17 thereof, which evidence addresses the individual matters raised by the Wife in paragraph 3 of her application.

7. Again, in broad terms, it is submitted on behalf of the Husband that the documents in question are in many cases so old that the originals would have been brought into existence in relation to individual matters between ten and eighteen years ago, and that they have not been retained over that period of time and/or that they have been destroyed and/or that it is highly unlikely that such records would be retained by the relevant third parties or the solicitors acting on their behalf.  Alternatively, it is argued that the Husband has previously sworn in his affidavit to the effect that he has provided such documentation or that he does not have possession, custody or control of such documents and/or that the documents sought are the internal working documents of third party institutions, to which the Husband has no entitlement to seek copies.

8. In the main, the submissions of the solicitor for the Husband are supported by, or consistent with, his sworn testimony as it appears in his affidavit of 31 July.  In those circumstances, I accept in broad terms the thrust of the submissions made by counsel for the Husband.  His sworn testimony on individual propositions and documents is in answer to rather broad and sweeping assertions by the Wife to the effect that the Husband should have, or should be able to obtain, the documents in question.  Again, I accept the broad proposition that, in the absence of evidence to the contrary, the Court does not ordinarily go behind the sworn testimony of a party on issues of disclosure.

9. In all the circumstances, I feel unable to make the orders sought by the Wife.

10. In relation to the orders sought against the Second and Third Respondents, I note that I have been previously satisfied that the Second and Third Respondents were served with copies of these proceedings and have had notice of the various Court events in relation to these matters.  I observe that they have chosen not to file any material and chosen not to appoint anyone to appear on their behalf.

11. I am satisfied, on a prima facie basis, on the strength of the material filed by the Wife, that the documents sought are relevant to the matters in issue between the parties and, prima facie, should be in the possession, custody or control of the Second and Third Respondents or readily obtainable by them.  The Second and Third Respondents have not appeared to oppose the making of the orders sought against them and I therefore make orders in terms of paragraph 4 of the application.

12. The solicitor for the Husband has sought orders for costs of and incidental to this application for disclosure filed by the Wife.  The Wife has been unsuccessful in her application and, ordinarily, costs would be likely to follow the event in such interlocutory applications.  However, in this matter, there are many outstanding issues of credit in relation to past discovery and the assertions of each of the parties in relation to such matters.  Further, there are significant assertions of impropriety levelled by each party against the other and I take the view that it would be more appropriate to determine the question of costs of and incidental to this interlocutory application in the context of a full hearing, when all issues of credit and compliance with obligations to fully disclose can be examined.  In the circumstances, I propose to reserve the costs of and incidental to this application to the trial.

13. Accordingly, it is ordered:

    1.That paragraph 3 of the Wife’s application filed on 27 July 2007 be dismissed.

    2.That within 21 days, each of the Second and Third Respondents make available to the Wife for inspection and copying the following documents which are in his or her possession, power or control:

    (a)Statements and passbooks for all bank accounts in their respective names, whether held in Australia or Taiwan or elsewhere for the period 8 January 2003 to the present;

    (b)Individual tax returns for the years 1989 to 2007 inclusive;

    (c)All loan agreements between them and the Husband and/or the Wife or any entity in which the Husband or the Wife have, or have had, an interest; and

    (d)Passports for each of the Second and Third Respondents for the period 1989 to the present date.

    3.That costs be reserved.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan.

Associate: 

Date: