Darbar and Batey and Anor

[2011] FamCA 97

FAMILY COURT OF AUSTRALIA

DARBAR & BATEY AND ANOR [2011] FamCA 97

FAMILY LAW - PRACTICE AND PROCEDURE – whether a party is compelled to answer a question or set of questions prior to the issues for trial hearing having been determined.

Family Law Rules 2004 – Rules 13.26(i); 13.28(2)(c)

APPLICANT: Mr Darbar

FIRST RESPONDENT: Ms Batey

SECOND RESPONDENT: Ms R

FILE NUMBER: SYF 3070 of 2006

DATE DELIVERED: 21 February 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rose J

HEARING DATE: 21 February 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Karras Partners
COUNSEL FOR THE FIRST RESPONDENT:	J Johnson
SOLICITOR FOR THE FIRST RESPONDENT	Sweeney Tiggemann
SOLICITOR FOR THE SECOND RESPONDENT:	Gayle Meredith & Associates

Orders

1. That the Order made 8 December 2010 by Registrar George requiring the applicant to respond to Annexure A  to the Affidavit of David James Sweeney sworn and filed 13 January 2011 is set aside.

2. That the first respondent cause to be filed and served a notice of discontinuance in relation to the orders sought by her in paragraphs 21 to 23 inclusive of her Amended Response filed 24 December 2010 by 4.00pm 21 February 2011.

3. That in relation to the issue of costs the following submissions and material be lodged with the Associate to Justice Rose by email and served simultaneously:

   (a)On behalf of the second respondent on or before 5.00pm 23 February 2011.

   (b)On behalf of the first respondent on or before 5.00pm 24 February 2011.

4. That the application to set aside the subpoenas issued by the Court at the request of the first respondent on 13 December 2010 is stood over for determination on Day 1 of the case management event before Justice Le Poer Trench on a date and time to be fixed.

5. That pending determination of the application referred to in Order 4 the second respondent is relieved from the obligation of producing any documents called upon by any of those subpoenas including M Pty Ltd.

NOTATION:

A.That by agreement the legal representatives for the second respondent and the first respondent will collate one bundle of relevant correspondence to be attached to the second respondent’s anticipated submissions.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYF3070 of 2006

MR DARBAR

Applicant

And

MS BATEY

First Respondent

And

MS R

Second Respondent

REASONS FOR JUDGMENT

1. By his Application in a Case filed 10 December 2010, orders were sought by the applicant by way of review of Registrar George’s Orders made on 8 December 2010.

2. The solicitor for the applicant informed me that the only order sought to be reviewed and, if successful, set aside, is the order made by the Registrar on 8 December 2010 compelling the applicant to reply in writing to the letter marked “A” annexed to the Affidavit of the first respondent’s solicitor, David James Sweeney sworn and filed on 13 January 2011.

3. The application is opposed by the first respondent.

4. It is submitted on behalf of the first respondent that the application should be stood over to an appropriate date at which time one would anticipate that the issues would be defined and consequently make it clear that an issue in the pending property settlement proceedings between the parties requires the applicant to comply with the question posed by annexure “A”.

5. I am not minded to accede to that application.  I will not make the order as sought for the following reasons.

6. Rule 13.26 provides that:

   “After a case has been allotted to a first day before a judge, a party to the proceedings may serve on another party a request to answer specific questions.”

7. The proposed case management event to which that rule refers has not yet occurred.

8. In addition, Rule 13.28(2)(a)-(c) inclusive sets out the matters to take into account for the purpose of exercising discretion as to whether or not a party should be compelled to answer specific questions that have been posed with the following criteria:

   “(c)     The specific questions which are relevant to an issue in the case.”

9. As yet, the issues have not been crystallised in these proceedings for the reason previously referred to.

10. That particular rule represents a codification of the common law approach to ordering particulars and/or what in other jurisdictions is referred to as interrogatories.

11. In the event that the application was adjourned, the matters which form the basis of it will remain the same and that is whether or not the orders made on the basis of a hearing de novo were open to be made on the evidence before the Court and having regard to the rules to which I have referred.

12. In my view, the answer is clearly that the appropriate rules are not engaged.

13. Day 1 has not yet occurred.

14. At that stage, there is no evidence of any substance that raises the question of the alleged forgery, let alone, whether it is an issue in the proceedings.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 21 February 2011.

Associate: 

Date:  25 February 2011