Cook and Cook (No 2)

[2010] FamCA 756

FAMILY COURT OF AUSTRALIA

COOK & COOK (NO. 2) [2010] FamCA 756

FAMILY LAW – PROCEDURE – Re-opening of case pending judgment and after conclusion of evidence – Interim orders – Adjourned for further hearing

APPLICANT: MS COOK

RESPONDENT: MR COOK

FILE NUMBER: MLF 1997 of 2003

DATE DELIVERED: 10 AUGUST 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 10 AUGUST 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J.W. St. JOHN SC

SOLICITOR FOR THE APPLICANT: MARSHALLS & DENT

COUNSEL FOR THE RESPONDENT: Mr R.J. SPICER

SOLICITOR FOR THE RESPONDENT: KENNEDY PARTNERS

Orders

IT IS ORDERED:

1. THAT the husband’s application in a case to adduce further evidence filed 8 July 2010 be adjourned and listed for hearing before Young J on Monday 30 August 2010 at 10.00 a.m.

2. THAT the wife be granted leave to reopen her evidence in the case otherwise concluded on 29 July 2009 so as to call evidence as to each of the following events:

   (a)the sale of shares in Y Investments Pty Ltd and NTC Pty Ltd by the husband, including particulars of the sale, the consideration received and the manner in which the proceeds have been dealt with;  and

   (b)the quantum of monies paid by the husband to BDO in satisfaction of the costs of the single expert witness Mr F.

3. THAT on or before 4.00 p.m. Friday 20 August 2010 the husband make, file and serve:

   (a)any further application to adduce further evidence upon which he intends to rely;  and

   (b)his affidavit in support thereof.

4. THAT on or before 4.00 p.m. Thursday 26 August 2010 the wife make, file and serve:

   (a)any further application upon which she intends to rely; and

   (b)her affidavit in support thereof including her response to the affidavit filed by the husband.

5. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties (and to include the discussions between the Bench and Bar Table at the conclusion of such judgment).

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Senior Counsel for the wife and Counsel for the wife.

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

MS COOK    

Applicant

And

MR COOK

Respondent

REASONS FOR JUDGMENT

1. The matter of Cook is again before the court on a re-opening of case application and on continuing matters that are said to have arisen or that should be considered by the court subsequent to the conclusion of the defended hearing in July of last year. 

2. Mr St. John of Senior Counsel appears for the wife; Mr Spicer of counsel appears for the husband.  Both parties and instructing solicitors are in court. 

3. This mention has already taken the better part of three hours and these ex tempore reasons are delivered in short form and without leaving the bench and touching upon certain of the issues only that have been raised in submissions this morning. 

4. By application filed 8 July 2010 the husband sought leave be granted to enable him to re-open his case and adduce evidence as to the changes and developments in his financial and security position since the trial has concluded and arising out of the failure of the XC project during that period.  In addition the husband seeks such further or other orders as the court may deem appropriate.  In support of that application the husband filed an affidavit on 8 July 2010, and subsequently, undated written submissions were received by the court as drawn by his solicitor.  I have read those submissions as I have read his affidavit. 

5. The wife filed her application in a case on 30 July 2010 and sought various orders of an injunctive nature, further disclosure and otherwise for leave to adduce evidence in accordance with paragraph 4 of that application.  The wife filed an affidavit on 30 July 2010 and I have read that substantial affidavit.  The wife has filed submissions prepared by her Senior Counsel and I have read those three pages of submissions which are directed to the issue of the reopening of the husband’s case. 

6. Over the past three hours I have had submissions and various responses from counsel on the significant and substantial issues that remain before the court. By way of background, and it is known to all of the parties involved in this case, a judgment pursuant to section 79 of the Family Law Act1975 (Cth) has not yet been written and delivered. There have been various ex tempore judgments delivered by me which are on the file subsequent to the conclusion of the evidence in this matter in July of last year. I traverse none of those judgments or issues at this stage. These brief ex tempore reasons are limited exclusively to the husband’s current application to reopen his case and to paragraph 4 of the wife’s application for her to reopen her evidence as to clearly identified issues.

7. For presentation of their detailed argument Mr Spicer requests a period of approximately one hour to deliver his submissions in support of his client’s application.  Mr St. John requests up to three hours in response including dealing with legal issues.  I cannot be part‑heard today as I have three matters listed for tomorrow.  All understand that an adjournment is necessary.

8. In continuing discussions with Counsel I have determined that I will list the reopening of the applications in a case on Monday, 30 August, for submissions.  What I intend to do now is to make clear the issues that are then before the court and to provide leave within a very structured timetable for the husband to file by 20 August and the wife to respond by 26 August to any additional matters arising out of paragraph 4 of the wife’s current application before the court. 

9. For clarity, I emphasise that the injunctive orders sought on behalf of the wife in paragraph 1 of her application now before the court and for ongoing discovery of documents, disclosure or inspection of documents, are matters that are not dealt with in these ex tempore reasons for judgment and which remain before the court this day and are separate and distinct from the matters covered in these reasons for judgment.  There are substantial issues before the court.  I have not ruled on the husband’s leave application and that will be the first matter dealt with on 30 August by submissions. 

10. I propose today to accept into evidence, and this is with the consent of the parties, the fact of the death of the husband’s father in July of this year.  That is accepting only of the fact and the date of the death.  Any other legal, financial, estate planning or commercial consequence thereof remains a matter in dispute between the parties as to its relevance and as to its acceptance, and these matters will be the subject of further submissions and evidence at a later hearing date. 

11. I propose to make an order today in the terms of paragraph 4 of the wife’s application.  I will not vary the order but will simply recite that which is requested by the wife and, of significance, not opposed by the husband. 

12. I, however, leave to the husband the right by 20 August 2010 to file any application arising out of that order or the leave given now, without opposition, to the wife on each of the three grounds identified therein. 

13. The issues in this case are not simply that of leave to reopen the case of one or both of the parties on specified grounds or otherwise generally.  The financial and property impact, implications of re-opening and the commercial and legal consequences thereof are matters for consideration by the court hereafter upon proper material filed.  Within the context of these brief extemporary reasons, I acknowledge that there are already written submissions limited to the three pages, as was requested, dealing with the various contentious issues. 

14. Mr Spicer has been at some length to identify that in subparagraph 6.4 of the submissions filed on behalf of his client, not only the XC project has been raised and the substantial financial impact said to be relevant thereafter, but also the death of his client’s father is said to substantially affect findings that I, as the trial judge, should have to make in any final judgment.  I merely identify and do not further comment upon those submissions.  This issue can be raised and decided upon at another time.

15. The case management orders that I intend to make are limited to the husband putting before this court any further application or affidavit that is appropriately and prudently drawn to reflect all matters that he regards as both germane to issues on hand and relevant and helpful to the court. 

16. The wife, then by 26 August 2010 may respond as she is so advised on any and all matters of likewise relevance and of assistance to the court. 

17. I will pronounce orders that deal with these limited and specific matters and then after lunch resume the remaining issues. 

18. I take the opportunity to emphasise in these ex tempore reasons that the financial impact of all of the years of litigation in this court and the costs of litigation and the commercial consequences of financial and property transactions, as are known in evidence to the court and of subsequent events as known to the court, are all understood and the court would like nothing better in the interests of justice and of the parties to be able to give a judgment and finish the matter. However, it may be that it can do so only when the relevant facts, such as they may be, are all known and the parties’ current applications are dealt with. A primary obligation of the Court is to be able to identify the net pool of assets of the parties so that a just and equitable s 79 order can be pronounced. That remains a live issue.

MR ST. JOHN:   Just a general matter of clarification.  In terms of the order your Honour proposes to make pursuant to paragraph 4 as sought ­ ­ ­

HIS HONOUR:   Yes. 

MR ST. JOHN:   In the light of the admission of the evidence that your Honour has ­ ­ ­

HIS HONOUR:   Yes. 

MR ST. JOHN:   ­ ­ ­ now made, I do not seek an order in terms of 4A, simply in terms of 4B and C. 

HIS HONOUR:   I understood that, Mr St. John.  I wonder, though, in fairness in terms of any – any response, I take it that what you’re doing is withdrawing subparagraph A. 

MR ST. JOHN:   Yes. 

HIS HONOUR:   But in terms of the overall fairness of any response should I not make the order with A there? 

MR ST. JOHN:   Your Honour shouldn’t. 

HIS HONOUR:   Should not? 

MR ST. JOHN:   No, because my friend seems to be saying there’s some hidden reason or gives him some – some opening to adduce further evidence.  If he wants to call evidence that the father hasn’t died ­ ­ ­

HIS HONOUR:   No, no that clearly ­ ­ ­

MR ST. JOHN:   ­ ­ ­ which in light of his submission ­ ­ ­

HIS HONOUR:   ­ ­ ­ is not – but that clearly is not the issue. 

MR ST. JOHN:   Yes.  If he seeks leave to – to pursue the financial consequences of the death, that is the wider ramifications to the estate, that’s a matter for separate application.  So I – I certainly do not seek 4A. 

HIS HONOUR:   I’ll have those comments included within the reasons so I think it balances both Mr St. John’s submissions and my response.  I have, in any event, and will by orders provide to the husband the opportunity within the strict timeframe of 20 August of responding to paragraph 4 and seeking such additional orders as can be justified and as are proper.  So there would be no direct consequence to the husband whether the order is made in terms identically of 4A or not made.  Mr Spicer, do you have any agreement that A can be deleted? 

MR SPICER:   Your Honour, bearing in mind the breadth of the proposed – your Honour’s proposed orders, I have no objection to 4A being deleted. 

HIS HONOUR:   All right.  Well, that will also be incorporated within the reasons for judgment.

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

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Associate: