Cook and Cook and Ors

[2007] FamCA 1258

FAMILY COURT OF AUSTRALIA

COOK & COOK AND ORS [2007] FamCA 1258

FAMILY LAW – PRACTICE AND PROCEDURE – Affidavits

Family Law Act 1975 (Cth)

WIFE: Mrs Cook

HUSBAND: Mr Cook

SECONDNAMED TO TWENTIETH NAMED RESPONDENTS

FILE NUMBER: MLF 1997 OF 2003

DATE DELIVERED: 11 October 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 11 October 2007

REPRESENTATION

COUNSEL FOR THE WIFE: Mr Dickson

SOLICITOR FOR THE WIFE: Marshalls & Dent

COUNSEL FOR THE HUSBAND AND THE 11^TH AND 13^TH RESPONDENTS: Mr Ackman QC with Ms MacMillan

SOLICITOR FOR THE HUSBAND AND THE 11^TH AND 13^TH RESPONDENTS: Kennedy Wisewoulds

COUNSEL FOR THE 2^ND AND 10^TH

RESPONDENTS,  Ms Bartal

SOLICITOR FOR THE 2^ND

RESPONDENT  Russell Kennedy

COUNSEL FOR THE 3^RD - 9^TH

(INCLUSIVE) AND 12^TH RESPONDENT                  Mr Gregory

SOLICITORS FOR THE 3^RD - 9^TH

(INCLUSIVE) AND 12^TH RESPONDENT                  Kenna Teasdale

COUNSEL FOR THE 10^TH AND 14^TH
- 20^TH NAMED (INCLUSIVE)
RESPONDENTS   Mr Wilson

SOLICITORS FOR THE 10^TH AND 14^TH
- 20^TH NAMED (INCLUSIVE)
RESPONDENTS  Madgwicks

ORDERS

1. THAT the hearing of the Form 2 application filed by the wife on 1 December 2006 and all of the responses thereto be fixed for hearing on Monday 15 October 2007 at 2.15 p.m. before Dessau J.

2. THAT on or before 5.00 p.m. Friday 12 October 2007 the wife’s legal practitioners specify the paragraphs of the various documents relied upon and as are listed in their document, Court Index No. 120, filed 9 October 2007.

3. THAT the legal practitioners for the husband likewise identify, as soon as practicable but before 10.00 a.m. Monday 15 October 2007, the particular paragraphs that they rely upon in their list of documents submitted to the Court.

4. THAT leave be granted to the solicitors for the husband to file the affidavit of Dr R and their summary of legal argument this day.

5. THAT the solicitors for the husband use their best endeavours to make, file and serve an affidavit of Mr O and/or Mr C.

6. THAT leave be granted to the husband’s solicitors to make, file and serve an updated affidavit of Mr Cook Snr and such affidavit be filed and served by 4.00 p.m. on 12 October 2007.

7. THAT the solicitors for the 10^th respondent make, file and serve an affidavit of Mr H on or before 4.00 p.m. Friday 12 October 2007 and by that time file their submissions of argument in support of that respondent and any other required response.

8. THAT leave be granted to the solicitor appearing for the 3^rd – 9^th respondents (inclusive) and the 12^th respondent to file this day their summary of legal argument.

9. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel, including senior counsel, and solicitors appearing as counsel.

IT IS NOTED

A.THAT the estimate of time given by all legal practitioners for the hearing of the current interim application is collectively less than one (1) day.

IT IS NOTED that publication of this judgment under the pseudonym Cook & Cook is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1997 OF 2003

MRS COOK  

APPLICANT

AND

MR COOK  

RESPONDENT

AND

OTHERS

REASONS FOR JUDGMENT

1. The matter of Cook is before me for a case management hearing and to set a specific hearing date next week for the current interim application that is outstanding and requires urgent determination.  For the purposes of these brief extempore reasons, I will not recite the names of all counsel and solicitors appearing, but they are included on the order that I will pronounce this day.

2. The primary application that is outstanding on a Form 2 is that filed on behalf of the wife on 1 December 2006 which seeks specific documents, records and information as are detailed therein from each and all of the various respondents.  I do not propose to further itemise that application as it can be read in full.

3. In response, each of the various respondents, save for the second respondent, have filed their response and material upon which they rely.  Dealing specifically with the second‑named respondent, S Pty Ltd, Ms Bartal, solicitor, appears today and confirms that there is on this interim issue an agreement in place with the applicant and in that context no orders are sought.

4. When the matter was previously before me on 4 September a solicitor announced an appearance both for the second‑named and the 10th‑named respondents.  That matter has been explained today as previously having been in error and those solicitors do not act for the 10th‑named respondent, and this day Mr Wilson of counsel, instructed by Madgwicks solicitors, has indicated that in addition to their appearances for the 14th‑20th respondents (inclusive) they now also act for the 10th‑named respondent and will in short time file a notice of address for service, a submission on interim legal issues and an affidavit from a deponent, Mr H.  I will give leave to permit those documents to be filed, but under a very tight schedule and I would propose by no later than 4.00 p.m. tomorrow, Friday, 12 October.

5. Returning to the applicant wife, their detailed summary of argument and list of documents are before the court. That list of documents incorporates 12 substantial affidavits, including financial statements, and I have indicated to Mr Dickson as counsel for the wife and he has accepted that it would be appropriate to more particularly identify the relevant paragraphs in affidavits, particularly in some of the earlier affidavits which will be relied upon. I do require that list of specific paragraphs for identified affidavits to be filed and served by 5.00 p.m. this Friday, 12 October.

6. Mr Dickson's careful estimate of hearing time is as to one hour for the presentation of his submission and argument and otherwise a reasonable but somewhat modest time in response to the other summaries of argument filed.  

7. Mr Ackman, who appears with Ms MacMillan, for the husband, has likewise estimated one hour would be appropriate to respond to the wife's arguments and present the husband's arguments to the court.  Mr Ackman additionally is instructed to appear on behalf of the 11th and 13th respondents, and their arguments will be encapsulated within that time frame.  I have given leave to instructing solicitors for the husband this day to file an affidavit of Dr R and also to file their summary of argument. 

8. The one additional matter that was raised by Mr Dickson is that the current affidavit before the court, document 64 on the court file, is an affidavit of the husband's father, Mr Cook Snr, and that was filed on 20 May 2005.  It is a short affidavit and to an extent the health issues have been updated recently by the preparation and now the filing of the affidavit of Dr R.  In reading the affidavit of Mr Cook Snr it is clear in paragraph 6 that he asserts to the court, as at the date of filing that affidavit, that "he is in control of [S Pty Ltd] and the trust and makes all major decisions".  Otherwise, I have carefully read that affidavit. 

9. I make no further comment, and particularly I make no finding upon any of the matters in that affidavit or any other factual matters in dispute.  They are matters that are reserved exclusively to the judge who will determine these interim issues. What has, however, been raised by Mr Dickson is that this affidavit is substantially out of date, at least in a timetable sense. 

10. It may be that the facts remain entirely accurate, but I have given Mr Ackman the opportunity to address this issue, and, as I understand his response and with his instructing solicitor in court, an updated affidavit of Mr Cook Snr can and will likely be filed this week.  That is a matter for solicitors and counsel, but I would understand it would be helpful to the court and may go to issues of inferences which have been raised by Mr Dickson, but in respect of which I make no further comment or finding.  Again that is a matter for the hearing judge.

11. Mr Gregory appears as solicitor for the third‑ninth (inclusive) and the 12th respondents.  His estimate of hearing time on the part of his counsel will be approximately 30 minutes plus some reasonable response time.  He seeks to file no further affidavit. 

12. Mr Wilson of counsel now appears for the 14th‑20th respondents (inclusive) and now also for the 10th respondent. I have already dealt with that last‑mentioned respondent and the documents that are to be filed and served by 4 pm tomorrow.  Again there is general acceptance from Mr Wilson that his time in responding to the issues will generally be in the vicinity of an hour or thereabouts.  What that carefully means is that this matter should be heard and determined within one day, excluding any extempore judgment then delivered. 

13. I have carefully taken all counsel to the issue of whether there any other interim applications now before the court or which will be filed, save for one issue upon which I will not elaborate and where there seems to be a level of financial discussion between the solicitors for the husband and wife arising out of the use of a motor vehicle. I leave that to one side. There are no other matters.  This one preliminary interlocutory issue over production and source of documents and content of documents and incorporating all of the issues raised in written submissions is the one matter that must be determined. 

14. Accordingly, I will allocate that matter to be heard and determined by a judge of this court next week.  I will shortly rise and confirm that hearing date, which I will include in the orders that will be prepared today and forwarded to all solicitors.  I will have my associate notify solicitors today of the hearing date.  I understand there are competing urgencies amongst counsel as to what days are available.  The priority of the court is to have this date fixed so that the matter will conclude next week; currently the options are Monday, Tuesday, Wednesday or Thursday. 

15. I would just conclude and have placed on the file these brief extempore reasons, on the overview of the request of Mr Dickson, being that he may, or may not, require the attendance and cross‑examination of Mr Cook Snr. That may depend upon the contents of the affidavit of Mr Cook Snr now to be filed, but certainly that is a matter that I do not make a judgment upon today. I record the issue having been raised and the hearing judge next week can determine perhaps as a preliminary point that issue, the form of the hearing as to the cross‑examination or otherwise of that witness, but it is clearly now recorded that application may be made and the attendance of Mr Cook Snr may be required, so his availability, as Mr Ackman has just indicated, will be a matter now on notice and attended to.

16. I record Mr Ackman's indications to the court, and again Mr Dickson has foreshadowed issues that he may raise, of and related to the sole exhibit to the husband's affidavit of 5 September 2007, being document 109 in the court index.  I specifically do not make any finding, indeed make no comment upon the document, other than that where I have earlier said that there may be a better scenario than relying on that exhibited letter from Mr C of the National Bank.  Perhaps, as Mr Ackman has said, all inquires will be made to find, locate and have an affidavit from Mr O filed. 

17. The issue of that exhibit is a matter that is fairly and squarely known to counsel.  It is likely to become a contentious matter.  I leave those issues to the hearing Judge and that is to receive as much attention and outcome as is practicable and available, and otherwise it will then await legal objection and legal ruling. 

I certify that the preceding paragraphs are a true copy of the reasons for judgment herein of The Honourable Justice Young

Associate

11 October 2007