Darmody and Sinton (No.2)

[2019] FCCA 1996

FEDERAL CIRCUIT COURT OF AUSTRALIA

DARMODY & SINTON (No.2) [2019] FCCA 1996

Catchwords:
FAMILY LAW – Property – interim proceedings – Where the wife’s Application in a Case was dismissed.

Applicant: MS DARMODY

Respondent: MR SINTON

File Number: MLC 12526 of 2016

Judgment of: Judge Small

Hearing date: 21 June 2019

Date of Last Submission: 21 June 2019

Delivered at: Melbourne

Delivered on: 21 June 2019

REPRESENTATION

Solicitors for the Applicant: Mr Byrne

Counsel for the Respondent: Mr Salamanca

Solicitors for the Respondent: Stephen Farmer and Associates

ORDERS

1. The Application in a Case filed on 8 May is dismissed.

2. The Respondent’s costs of the Application in a Case are reserved to trial, and the Respondent shall file a document setting out those costs in detail within seven days.

3. The Applicant be and is hereby restrained from filing any further Application in a Case seeking discovery in these proceedings without the leave of the Court.

IT IS NOTED that publication of this judgment under the pseudonym Darmody & Sinton (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 12526 of 2016

MS DARMODY

Applicant

And

MR SINTON

Respondent

REASONS FOR JUDGMENT

1. 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.

2. The matter of Darmody & Sinton comes before me today for the hearing of an Application in a Case filed by the Applicant in these proceedings, Ms Darmody.  The Application in a Case, actually filed and signed by the solicitor for the Applicant, seeks particulars of disclosure which have been discovered. 

3. Those orders have been made in previous orders made in 2017 and 2018.  This is the third Application in a Case that the Applicant has brought in relation to discovery.  On the last occasion, the solicitor for the Applicant, who has, I think, always appeared for her, was unaware of the parties’ legal obligation for full and frank disclosure and thought that he needed a Court order to require disclosure of certain documents.

4. That is not the case, full and frank disclosure being an obligation on all litigants in property proceedings in this Court.  I have declined to make the orders sought in paragraphs 1(a) and (b) of the Application in a Case on the grounds that those orders are already covered in previous orders.  The Applicant’s solicitor has said that he no longer seeks the orders set out in paragraph 2.  Paragraph 3 refers to a mediation date being adjourned or stayed to a date after the Respondent has complied with any orders that might be made for compliance.

5. Mr Byrne, the solicitor for the Applicant, was unaware that it was a compulsory matter that the parties attend some sort of alternative dispute resolution before the Court can make a final order at trial. I will, therefore, make an order that the parties attend a Conciliation Conference, and I assume that if there has been incomplete disclosure, that will be a matter for the presiding Registrar.

6. The other orders sought by the applicant are in relation to trusts and trust corporations in which the Applicant clearly believes the Respondent has interests. 

7. While the specific question of trusts and trust corporations might not have been covered in previous orders, it certainly has been previously ordered that the Respondent disclose “any entity in which the Respondent holds an interest, whether legal or equitable”, and that would be covered by those two previous orders. In those circumstances, I am dismissing the Application.

8. I think it is a misconceived Application. The question of whether a party has complied with discovery is a question for trial, and that has been explained to Mr Byrne on multiple occasions.

9. In those circumstances, having dismissed this Application as misconceived, Mr Salamanca, for the Respondent, has sought his costs of this Application, and he has sought them on the basis that this Application should never have been made. There is some force in that argument in that, as I have found, the substantive parts that can be gleaned from that Application are already covered by previous orders made in 2017 and 2018.

10. The Applicant’s counsel says that he objects to a costs order being made because the Respondent has not complied. 

11. I have explained to him, again, that that is a matter for trial.  It is not a matter for an Application in a Case in this Court. Unfortunately and regrettably, I am going to make an order for costs. I am going to say that the Respondent’s costs of the Application in a Case filed on 8 May 2019 are reserved to trial.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 24 July 2019