DABIRI & KHADEM
[2020] FCCA 2643
•9 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DABIRI & KHADEM | [2020] FCCA 2643 |
| Catchwords: FAMILY LAW – Property – Application in a case – Where the Respondents to a Notice to dispute facts failed to reply – whether there was a lack of “advertising” by the Applicant – whether the Respondent should be able to file a Response to the Notice to Dispute facts after the due date. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.1.03(1), 1.06, 15.31 Uniform Civil Procedure Rules 1999 (Qld), rr.188, 189 |
| Cases cited: Medina v Electro Industry Group Queensland Limited [2019] QSC 63 Hanson Construction Materials P/L v Norlis & Ors[2010] QSC 34 |
| Applicant: | MS DABIRI |
| Respondent: | MR KHADEM |
| File Number: | BRC 5590 of 2018 |
| Judgment of: | Judge Middleton |
| Hearing date: | 9 September 2020 |
| Date of Last Submission: | 9 September 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 9 September 2020 |
REPREFSENTATION
| Counsel for the Applicant: | Mr Alexander |
| Solicitors for the Applicant: | Smart Legal Group |
| Counsel for the Respondent: | Mr Galloway |
| Solicitors for the Respondent: | AMG Law Firm |
ORDERS
That the application in a case filed on 8 September 2020 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Dabiri & Khadem is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 5590 of 2018
| MS DABIRI |
Applicant
And
| MR KHADEM |
Respondent
REASONS FOR JUDGMENT
Ex Tempore:
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
Background
This is an application in a case filed on 8 September 2020 by the respondent to the substantive proceedings (the respondent). The application seeks an order in these terms:
(1) Pursuant to Rule 1.06 of the Federal Circuit Court Rules:
(a) The respondent be excused from the requirement to notify of his dispute concerning facts within the time limit in Rule 15.31 or that time be enlarged to permit him to serve a Notice Disputing the Asserted Fact.
(b) Further or in the alternative, the respondent shall be granted leave under Rule 15.31 to withdraw the deemed admission made by the operation of subrule (2).
The applicant to the substantive proceedings (the applicant) seeks an order that the application in a case be dismissed.
The substantive proceedings were commenced by the applicant on 24 May 2018. The applicant in her affidavit filed 14 August 2018, at paragraph 58 made an allegation that the respondent owned real property in Iran and had in his possession and control Persian rugs, carpet frames, jewellery and a bank account with the sum of $125,000 held as the balance.
The respondent has ignored that allegation throughout these proceedings and makes no mention of the allegation, at all, in his trial affidavit filed 20 August 2020.
On 13 August 2020, the applicant’s solicitor sent four emails to the respondent’s lawyer at 7 pm and thereafter. In her affidavit filed 8 September 2020, the applicant’s solicitor sets out what was attached to each of those emails.
The third email sent at 7.02 pm contained 21 attachments, including the Notice to Admit Facts subject to this application. The admissions sought included admissions that the respondents owned the items which the applicant had listed in her affidavit of 14 August 2018. The respondent’s solicitor, in his affidavit filed 8 September 2020, says that he:
“Did not see the notice to admit facts until 7 September 2020 after he had received the applicant’s case outline on 4 September 2020.”
A Notice Disputing Facts is annexed to the respondent’s solicitor’s affidavit filed 8 September 2020.
MATERIAL
The applicant relied upon:
i)an application in a case filed on 8 September;
ii)the affidavit of Mr B filed 8 September 2020;
iii)the affidavit of Ms C filed 8 September 2020, and;
iv)a consolidation of Assets Schedule.
The respondent relied upon:
i)the affidavit of Ms C filed 8 September 2020.
ISSUE
The issue for determination is whether I should grant the relief sought by the respondent or dismiss the application in the case.
THE LAW
Rule 1.06 of the Federal Circuit Court Rules (“the Rules”) provides that I:
“may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time.”
The respondent relies upon that Rule in seeking his primary order. Division 15.5 of the Rules relates to Admissions. Rule 15.31(1) provides that:
“A party… may, by notice in accordance with the approved form, ask another party to admit, for the proceeding, the facts or documents specified in the notice.”
Rule 15.31(2) provides that:
“(2) If the other party does not, within 14 days, serve a notice on the first party disputing the fact or the authenticity of the document, the other party is taken to admit, for the proceeding only, the fact or the authenticity of the document.”
Rule 15.31(3) provides that:
“The other party may, with the Court's leave, withdraw an admission taken to have been made under subrule (2).”
It is this Rule that the respondent relies upon in seeking the alternative order set out in the application in a case.
In Medina v Electro Industry Group Queensland Limited [2019] QSC 63, Burns J, when considering an application for leave to withdraw an admission made these comments at paragraph 46:
“Rule 188 [of the] Uniform Civil Procedure Rules provides that a party may withdraw an admission in a pleading only with the court’s leave. Whilst the discretion conferred on the court by that rule is unfettered, it must be exercised judicially. In that regard, the decided cases are revealing of a range of factors that may need to be weighed by the court. They include the following:
(a) how and why the admission came to be made;
(b) the evidence surrounding the issue the subject of the admission;
(c) whether there is likely to be a real dispute about the evidence;
(d) whether there is delay in making the application for leave;
(e) whether any such delay is satisfactorily explained; and
(f) whether the other party will be prejudiced if leave is granted.”[1]
[1] See Hanson Construction Materials P/L v Norlis & Ors[2010] QSC 34, [16] per Margaret Wilson J, citing Ridolfi v Rigato Farms Pty Ltd[2001] 2 Qd R 455, Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738, [742] – [750] and Civil Procedure Queensland [188.1] p 8271 and, on appeal, Hanson Construction Materials Pty Ltd v Davey & Anor (2010) 79 ACSR 668, [15]-[16]. And see Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd[2012] QSC 314, [35]-39].
Rule 188 of the Uniform Civil Procedure Rules relates to admissions, generally. Rule 189 of the Uniform Civil Procedure Rules relates to Notice to Admit Facts and save for some inconsequential variations, that Rule is in the same terms as Rule 15.31 of the Federal Circuit Court Rules.
Rule 189 of the Uniform Civil Procedure Rules needs to be read in the context of Reg 5(1) of those Rules, which is these terms:
“The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.”
The Federal Circuit Court Rules has a similar Rule at Rule 1.03(1), which is in these terms:
“The object of these Rules is to assist the just, efficient and economical resolution of proceedings.”
It is seen that the objects of the Rules in both instances are of a very similar nature. In the matter of Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455, the Queensland Court of Appeal considered the provision of Rule 189.2. De Jersey CJ at paragraph 20 said this:
“There is no principle that admissions made, or deemed to have been made, may always be withdrawn “for the asking”, subject to payment of costs. The discretion is broad and unfettered, as exemplified by Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 and Equuscorp Pty Ltd v Orazio [1999] QSC 354.”
In that same case, McPherson JA said, at paragraph 27:
“Before permitting the admission to be withdrawn, the first step to be determined here was whether there was a genuine dispute about the defendant's liability in this action. Drawing on the analogy provided by another branch of the law, it is not enough for that purpose simply to assert that a dispute exists… Some proper basis must be laid for that assertion, which would ordinarily include an explanation of how the earlier admission came to be made and why it should now be permitted to be withdrawn.”
And the third member of the same court, Williams J said, at 31:
“Counsel for the appellant referred to the well-known passage in the judgment of Bowen L J in Cropper v Smith (1884) 26 Ch D 700 at 710 where he said that the court ought to correct errors or mistakes in procedure made by the parties so that the matter was determined in accordance with the rights of the parties. That statement, though made over one hundred years ago, is still relevant, and it encapsulates a principle which a Judge must always take into consideration in determining whether or not it is appropriate, for example, to allow a party to withdraw an admission. Essentially it is no more than a recognition that courts will, so far as possible, ensure that a party has a fair trial. But, for example, where the detriment or prejudice is self-induced, the party may not be entitled to relief.”
And at paragraph 32, continued:
“Certainly an admission flowing from the operation of Rule 189 should not be withdrawn merely for the asking. In my view a clear explanation on oath should be given as to how and why the admission came to be made and then detailed particulars given of the issue or issues which the party would raise at trial if the admission was withdrawn.”
DISCUSSION AND FINDINGS
The respondent’s solicitor, in his affidavit filed 8 September 2020 sets out how the deemed admission occurred. He says that he:
“did not view the notice to admit facts, because in the emails sent at 7 pm and following on 13 August 2020, he received 64 documents.”
Furthermore, he said:
“Those documents or almost all of them were in PDF thumbnails, unreadable until downloaded.”
It is a fact that those emails from the applicant’s solicitor attach many documents by way of disclosure pursuant to a client’s duty to disclose.
Clearly, the respondent, through his solicitor, has placed on oath a clear explanation as to how the deemed admission came to be made.
Unfortunately, the respondent has not, however, provided detailed particulars of the issue or issues which he would raise at trial if the admission was withdrawn. His solicitor has simply filed a Notice Disputing Facts.
Submissions made on behalf of the respondent were to the effect that:
“There had been no real service because the very significant document, the notice to admit facts, was hidden in a number of emails containing a large number of documents.”
The respondent’s solicitor takes issue with the manner in which the Notice to Admit was served and complains that it was buried in a large number of documents. He says that:
“Whether that was the intention or not [he] could not say. But that it ensured that [he] did not have timely notice.”
At the time the emails were sent, the parties were preparing their documents for trial. In my view, it is not satisfactory to say, “I did not see the notice to admit facts because there was a large number of documents forwarded.”
The applicant’s solicitor in her affidavit filed on 8 September 2020 provides evidence in the following terms:
“Mr B informed me that in the emails that I had sent to him I was missing the valuation for a property in Iran. I informed him that my client had only one property in Iran, which had been disclosed through the proceedings. And I provided him with those updated valuations. The valuations that I provided to Mr B was in the same emailing I attached the NTA.”
The respondent’s solicitor makes no mention of that telephone call in his affidavit filed on 8 September 2020. Counsel for the applicant submits that I should infer that the respondent’s solicitor had, indeed, seen the Notice to Admit or, perhaps, in the alternative, that it is yet another example of the indifference the respondent has had through the proceedings.
On 28 May 2019, the applicant brought an application in a case seeking an order inter alia that the respondent disclose pertinent financial information including a contract for the purchase of an Iranian property.
On 21 June 2019, the respondent filed an affidavit where in effect, he said, “It was too burdensome to provide disclosure because it was too difficult to obtain information from Iran.”
On 10 June 2020, the applicant brought an application in a case seeking a valuation. And I made certain orders relating to that application.
During the proceedings on 10 June 2020 I addressed the respondent’s solicitor and said this:
“It seems as though your client might have, according to the evidence that I have seen thus far, been a little bit mischievous in Iran and has obtained an order that is quite detrimental for the wife in this matter. It seems that there is a way in which that could be rectified together. That is, they can do something together and make sure that the wife is not adversely affected by that order.
In the event that a subsequent application is brought before this court for certain things to happen and there is evidence to support it, your client is, certainly, looking at some costs orders. It is quite apparent to me that your client is failing to disclose relevant information in accordance with his duty under the Rules. And it seems to me that the applicant is being put to a significant cost as a result.”
The issue relating to the respondent’s property in Iran, and various other chattels, has been live since the applicant made an allegation in her affidavit filed 14 August 2018. Over two years has passed since that allegation was made and, to date, the respondent has not addressed an allegation. Instead, he has simply ignored it.
In those circumstances, it is not surprising that the applicant served the Notice to Admit Facts on the respondent.
Counsel for the respondent submitted that, “Without advertising the Notice to Admit, the respondent was put a disadvantage.” I understood from counsel that what he was really submitting is that the applicant should have made it clear that a Notice to Admit was being served and if the respondent failed to file their Notice Disputing Facts, the applicant would rely on certain admissions.
The Notice to Admit Facts does not require service. It is a significant document in the sense that a failure to respond to it may have dire consequences for the other party. The question is whether the service of the Notice to Admit Facts was sufficient in circumstances where it formed part of a large bundle of documents?
Having regard to the allegations in this case and the fact that the respondent has been on notice for over two years that the wife asserts that he holds property in Iran and other chattels in his possession, I am satisfied that he and his solicitor should have been alert to the possibility of such Notice being served. In those circumstances, I am not prepared to make the primary order sought by the respondent.
It was argued on behalf of the respondent’s counsel that there would be a significant detriment that would fall to the respondent and a significant injustice would occur if I did not give leave to withdraw the admissions.
It is the fact that those admissions would see the property pool having a total of approximately 1,638,469 rather than a net pool totalling approximately -153,727( on the husband’s case).
The end result, if I accept the admissions, would be that the applicant wife may receive, at least, all of the identified and properly valued assets, as the other property would be deemed to be in the respondent’s possession.
In exercising my discretion, I am satisfied that I should have regard to the respondent’s conduct throughout these proceedings. He has avoided full disclosure throughout the entirety of the proceedings and now seeks to complain that by not effectively addressing the wife’s allegations regarding assets in his possession and control, he will be put at a disadvantage and an injustice may occur.
Had the respondent properly addressed the allegations in a timely fashion, he would not be in the position that he now faces. That is, I am satisfied that the detriment or prejudice he may suffer is self-induced.
It is quite clear that the respondent has no capacity to pay the wife’s costs in the event I decide to grant leave to withdraw the admissions and, in my view, I would then have to make orders that the respondent file and serve an affidavit containing evidence relating to the allegations within a certain timeframe. If I were to do that, the matter would need to be adjourned and there would be substantial costs thrown away, as a result.
In exercising my discretion, I must have regard to the prejudice that would be suffered by the applicant if I were to grant leave. She would suffer significant prejudice and be put to significant additional costs. As I said earlier, the respondent, as at the time of writing this judgment on the first day of trial, has not provided any evidence in relation to the issues subject to the admission.
That is, if I were to grant leave to withdraw the admission, I am not satisfied that the Court would ever receive evidence from the respondent relating to the property alleged to be in his possession and control. The respondent’s silence in relation to this issue leads me to wonder whether there is a genuine dispute.
And furthermore, the fact that the respondent has not sworn any evidence as to any detailed particulars relating to the evidence he would have produced at trial, noting that his trial affidavit contains no information or denial in relation to this issue, all lead me to the view that the respondent considers it appropriate to simply ignore the assertion in the hope it goes away.
For these reasons, I must dismiss the application in a case.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Middleton.
Associate
Date: 21 September 2020
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