Deane and Tennant (No 2)

[2020] FamCA 616

FAMILY COURT OF AUSTRALIA

DEANE & TENNANT (NO. 2) [2020] FamCA 616

FAMILY LAW – PROPERTY – Interim orders pending October 2020 trial

Family Law Act 1975 (Cth)

APPLICANT: Ms Deane

RESPONDENT: Mr Tennant

FILE NUMBER: BRC 7048 of 2017

DATE DELIVERED: 21 May 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 21 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hellewell

SOLICITOR FOR THE APPLICANT: Nita Stratton-Funk & Associates

SOLICITOR FOR THE RESPONDENT: Mr Hunter, Hunter Family Law

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Each party, via that party’s legal representatives, is at liberty to communicate to Mr L of M Company, via correspondence into which the other party’s legal representatives is copied, that information asserted to be relevant to Mr L’s undertaking of the updated valuation of the property situated at N Street, K Town in the State of New South Wales (“the K Town property”) and to provide to Mr L the following documentation to assist in that process:

   (a)a copy of the town planning application made to P City Council; and

   (b)a copy of all correspondence passing between P City Council, by its town planner, or any other employee, and the owner of the K Town property, whether personally or via any legal representative or town planner engaged by the owner, that is relevant to Council’s consideration on the town planning application;  and

   (c)a copy of the updated 2019 business records and the documentation relevant to all business ventures conducted from the K Town property.

2. The parties share equally in the costs of obtaining from Mr L of M Company an updated valuation report of the K Town property.

3. Order 7 of the Order made on 11 October 2017 is discharged and in lieu thereof:

   7.   The Applicant husband shall forthwith cause all funds received through the operation of the V Property and W Businesses, including any funds received by way of rental out of any premises on the K Town property via online rental sites or any other rental facility and any income or funds received from the disposition of any livestock currently run on the K Town property and all income from any source in respect of which he asserts or claims a business expense, to be paid immediately into the joint B Bank account (number …10).

4. Clause 11.b.ii. of the Order made on 11 October 2017 is amended such that it is in the following terms:

   11. The Applicant husband shall pay, or cause to be paid, the following from the joint B Bank Account (number …10):

   ….

   b.all business expenses incurred in the operation of the V Property and W Businesses, provided that:

   i.he shall provide the Respondent wife with a copy of each invoice within 24 hours of receipt of the same; and

   ii.save for invoices for amounts up to $250.00, he shall not pay any invoice within 14 days of its provision to the Respondent wife; and

   iii.      all payments shall be made by way of bank transfer.

5. The wife provide to the husband by written correspondence notice of the outcome of her application pursuant to the JobKeeper Payment Scheme within 48 hours’ notice of her receiving any information, however received, of the success or otherwise of that application.

6. The wife provide to the husband written notice of her receipt of any payment pursuant to the Jobkeeper Payment Scheme, and that such notice particularise the date upon which the payment was received or intended to be received, and details of the bank account into which that payment was to be made or received.

7. Upon the husband receiving notification from the wife of her receipt of payment under the JobKeeper Payment Scheme, together with a copy of the bank statement relevant to the first deposit under this Scheme, the operation of Order 11.e. of the Orders made on 11 October 2017 shall be suspended.

8. Upon the husband receiving from the wife written notification of the cessation of the JobKeeper Payment Scheme together with a copy of the bank statement relevant to the last deposit of funds the wife received pursuant to that Scheme, the operation of the 11.e. of the Orders made on 11 October 2017 shall resume pending the final hearing of the matter commencing on 19 October 2020.

9. The husband pay to the wife the amount of $2,000.00 owing to her pursuant to the operation of Order 11.e. of the Order made on 11 October 2017 for the period 21 April 2020 to 21 May 2020 within 48 hours’ of receipt of the estimated sum of $6,500.00 payable in relation to the harvest of fruit that has already occurred.

10. The husband provide to the wife a copy of the bank statement evidencing the receipt of the anticipated estimated sum of $6,500.00 referrable to the first fruit harvest and do so within 48 hours’ of receipt of those funds.

11. Clause 11.d. of the Order made on 11 October 2017 be amended such that it is in the following terms:

    11. The Applicant husband shall pay, or cause to be paid, the following from the joint B Bank Account (number …10):

    …

    d. to himself: the higher amount of the JobKeeper Payment or the amount of $500.00 per week, with the first payment to be made by no later than 4.00 pm on Friday, 13 October 2017.

12. By no later than 19 June 2020, the legal representatives for the parties undertake inspection of the documents relevant to the issues in dispute in the proceedings.

13. Save in respect of the relief in respect of which the decision was reserved and as provided for in this Order, the Application in a Case filed 17 April 2020 (and sealed on 20 April 2020) and the Response to the Application in a Case filed 1 May 2020 are dismissed.

14. The costs of and incidental to the Application in a Case filed 17 April 2020 (and sealed on 20 April 2020) are reserved.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Deane & Tennant has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7048 of 2017

Ms Deane

Applicant

And

Mr Tennant

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The costs of the updated valuation of the K Town property

1. I have before me an application in relation to the manner by which the costs of an updated valuation of real property situated at K Town is to be met. 

2. Ms Deane contends, via submissions made by Ms Hellewell on her behalf, that the appropriate order is one that would see the business operated from the K Town property meet the costs of the updated valuation, as was the case in relation to the original valuation. 

3. Mr Tennant, via submissions made on his behalf by Mr Hunter, contends, in essence, that the business simply does not have available to it the funds to meet such cost and that, instead, the parties themselves should personally contribute equally to the costs of the updated valuation. 

4. There is no evidence before me to establish the likely costs of the updated valuation to be conducted by Mr L. 

5. As I remarked to the legal representatives during the course of hearing their submissions about this issue, I am left, therefore, without an appreciation of the likely quantum of the costs – although I note the submissions made by Mr Hunter to the effect that the original valuation was prepared at a cost of about $10,000.00 and that he hoped that the update to be embarked upon, in preparation for the October 2020 final hearing of the matter, would be less than that, given that it was, in essence, an update.

6. In noting that submission, I also note, however, the submissions made on behalf of the parties in relation to the updated information to be provided to Mr L and the contention made by Mr Hunter on behalf of Mr Tennant that, in essence, things have substantially changed in a manner that is relevant to Mr L’s updated valuation – so, perhaps, there will be additional cost and it will not be as cheap as everyone hopes.  Time will tell.

7. I have had regard to the balance sheet of The V Property to which I was taken by Ms Hellewell in her submissions and which may be found at page 45 of 76 of the affidavit of Mr Tennant, filed 1 May 2020.  Reference to that page certainly suggests the existence of $24,358.47 in a bank account of that business.  It was submitted by Ms Hellewell that those funds represent a source from which the business could be called upon to meet, at least upfront (although her submission was not framed in that manner) the updating costs.

8. I note, though, that in submissions made by Mr Hunter, I was taken to the following page – page 46 of 76 – where various debtors of the business are summarised; it is asserted that there are, at present, total debts standing at $83,269.89.  Included in those debts are amounts said to be payable to the Australian Taxation Office in an amount of $21,234.50; on instructions, Mr Hunter informed me that such sum was likely to be required to be paid in July of this year. 

9. In essence, the submissions made by Mr Hunter were that the business simply does not have available funds to meet the costs of the updated valuation because, in order to continue to operate, it needs appropriately to put to one side funds available to it in order to meet known debts.

10. I accept that the current circumstances in which the businesses that are the subject of this application (and no doubt businesses all around Australia) currently operate are extremely difficult.  The nature of the business – being the production of fruit and also a venue hire business – seem highly likely (particularly the latter) to have been significantly affected by the restraints imposed upon businesses in Australia as a result of the COVID-19 pandemic.

11. On balance, it seems to me that it would be inappropriate to make any order that would have the risk of causing the business currently operated on the K Town property to become insolvent.  I certainly would not be heard to say that it would be appropriate for any taxpayer to defer the payment of taxation that is due to the Australian Taxation Office in order to meet the expense of a valuation that has been necessitated by litigation between parties in a personal sense or capacity.  Consequently, whilst I appreciate it may well cause difficulty for each of the parties personally, I am persuaded that it is appropriate to make an order that each of them contribute to the costs of the updated valuation and that they do so equally.

12. I also note, in arriving at this decision that, in October 2020, it is always open to either party to contend that the appropriate course would be for the Court to be persuaded to make an adjustment, or to take into account in a particular way, or to accord particular weight, to a particular contribution – the contribution by each of them equally to the unknown costs of the updated report could well be the subject of such a submission depending on, of course, the extent of the evidence about the parties’ financial situations at trial and the findings then made. 

13. For those short reasons then, I decline to make an order requiring the costs of the updated valuation of the K Town property to be borne by the business; instead I consider it appropriate to make an order that the parties share equally in the costs of obtaining, from Mr L of M Company, an updated valuation of the K Town property.

Deposit of all business income into the joint B Bank Account

1. I have before me, as part of this application, an application on behalf of Ms Deane that I make an order requiring Mr Tennant to “deposit all business income (V Property and W Businesses) including any online rental sites income since October 2016 to date into the joint B Bank account ending in …10 within seven days”. 

2. Such application is made in the context of the existing order that I made on 11 October 2017 that required Mr Tennant to forthwith cause all funds received through the operation of The V Property and W Businesses to be paid into the joint B Bank account of the same number, the account ending in …10.

3. There is evidence before the Court that certainly establishes that, in relation to payments made by Q Pty Ltd in the period after that order was made, such payments were made into a B Bank account held in only the name of Mr Tennant and were not deposited into the account ending in the number …10.  So it certainly appears that that occurred, at least for a period of time.

4. Mr Tennant has given some evidence - relied on at the hearing of this interim application - as to the reasoning that underpinned that decision and his asserted beliefs in relation to Ms Deane’s ability to access and read the contents of that bank account in the same way as was provided for in order 8 of the orders I made in October 2017.  It was submitted by Mr Hunter, in essence, that despite Mr Tennant’s actions, there is not made out, on the evidence, that the same resulted in any appropriate dissipation of funds received by the business. 

5. Whether that is ultimately the case or not is, it seems to me, something that I cannot determine on an interim basis.  I suspect that, at the final hearing of the matter, that may occupy some time, given Mr Tennant’s personal account and the clear evidence it provides of his personal receipt of funds in relation to the fruit business. 

6. Whilst I certainly understand, given the contents of those bank documents, the submissions made by Ms Hellewell in relation to an order requiring Mr Tennant now to deposit into the account (as he was required by the existing order to do) income that had been received since October 2016 including during the period established by the bank statements, I am not necessarily persuaded, on an interim basis, that there is a source from which those funds can be paid.  Rather, it certainly seems appropriate that, at the final hearing of the matter, Mr Tennant is required to account for his receipt and dissipation of those funds. I am confident that any adjustment which may follow as a consequence of the manner in which he approached compliance with order 7 of the October 2017 orders can be made at that time.

7. I am, though, persuaded that it is appropriate to amend order 7 of the orders made in October 2017 in their operation from today forward.  I will, in fact discharge order 7 and in its place make the following order.

8. My clear intention in amending the orders as I have is to ensure that, between now and the hearing in October 2020, the funds sourced from the operation of any aspect of a business relying upon the K Town property are deposited into the account in respect of which Ms Deane has “read-only” access so as to attempt to ensure that this issue about deposited funds into other accounts is brought to an end.  For those short reasons, the orders will be as I have outlined.

Appointment of an Auditor

1. I have before me, as part of the application today, an application on behalf of Ms Deane for the appointment of an auditor: Mr R of S Accounting.  I do not intend to read into the record the order sought.  It is as particularised in the relevant Application in a Case.

2. It was submitted, on behalf of Ms Deane, by Ms Hellewell that I would be persuaded that it is appropriate in this case to make such an order for the undertaking of an audit by Mr R because of: the number of bank accounts it is asserted that are held by the parties or the businesses operated from the K Town property; the conduct of Mr Tennant, despite the existence of orders, in causing funds from the fruit business part of the enterprise to be placed into a personal account in his own name (to which I have already made reference in disposing of another aspect of the application); and the difficulty, it is submitted, for Ms Deane in tracing transfers between various accounts.

3. In opposing the making of orders sought on behalf of Ms Deane, Mr Hunter submitted, in essence, that the business simply does not have the funds to pay the costs of such an exercise; that it is something that is open to Ms Deane in the presentation of her case to undertake and, therefore, it is not something the Court would be persuaded to order on a joint basis; that documents have been provided; and that, given the evidence of Mr T before the Court in relation to his valuation of the business, there is unlikely to be any impact upon the same from the results of such an auditing exercise.

4. It is relevant, I think, to note that I have before me no evidence to tell me the likely cost (or even the hourly cost) associated with the appointment of Mr R as an auditor to undertake what is, in essence, a tracing exercise. 

5. I am not persuaded that it is an appropriate order to make. 

6. It is, of course, open to Ms Deane in the presentation of her case to engage such a person to undertake such an exercise; no doubt, if it is successful and is productive of the demonstration of the misapplication of significant funds, then it would also be open to her to seek that the costs of such an exercise be shifted to Mr Tennant personally.

7. However, I am not persuaded that it is appropriate, in the absence of information about the likely cost of the same and also in the absence of information which enables me to undertake even a rough form of cost/benefit analysis of the likely benefits versus the likely costs of the exercise, to make an order appointing Mr R, in essence, as a joint expert witness and ordering that the costs of his engagement (unknown) be paid from the joint business bank account.

8. For those short reasons, I decline to make an order appointing Mr R as an auditor. 

9. It seems to me that it also follows that the orders sought that would require Mr Tennant to comply with any requests made by Mr R fall away; as does, it seems to me, the order that was predicated upon the existence of an audit and which would otherwise have sought to place upon the proposed auditor the power to require the repayment of funds depending upon that person’s assessment. 

10. Given my conclusion to decline to make the order appointing an auditor as sought on behalf of Ms Deane, those other orders fall away.

Application to discharge order requiring notification of payments

1. I have before me Mr Tennant’s application for the discharge of order 11(b)(ii) of the order I made on 11 October 2017.  During the course of discourse with the legal representatives, I provided them with the opportunity to be heard in relation to a proposal to vary – rather than discharge – that order to permit the payment out by Mr Tennant of amounts no greater than a specified amount, rather than the carte blanche discharge of order 11(b)(ii).

2. The submissions ultimately made by the legal representatives on behalf of Ms Deane and Mr Tennant accepted, in essence, speaking broadly, the sense of a provision that would set a monetary amount.  They differed as to the quantum of that: Mr Hunter on behalf of Mr Tennant took up the suggestion I made, prior to hearing from Ms Hellewell, of a figure of $500.00; Ms Hellewell on behalf of Ms Deane proffered the figure of $250.00 rather than $500.00.

3. Ms Hellewell also made submissions to the effect that the Court would be persuaded that it is appropriate, in the circumstances of this case, to require that the payment by Mr Tennant of any invoice paid between now and the trial in October 2020 be made by way of bank transfer rather than by way of cash payment so as to ensure the ability for her client to more easily trace such payment; also noting Mr Tennant’s prior actions in causing funds to be paid into an account held in his own name rather than the joint account, despite the existence of orders which required him to take that course of action.

1. I am persuaded that it is appropriate to amend the terms of the order I made on 11 October 2017 and to amend order 11(b)(ii) to provide that Mr Tennant have the ability to pay invoices for amounts up to the sum of $250.00, but also to impose upon him, in relation to any payments of invoices to be made from the joint account (being payments for business expenses incurred in the operation of V Property and W Businesses), the requirement that such payments be made by way of bank transfer - for the period from the date of today’s order and the trial in October 2020.

2. I have done so because of Mr Tennant’s past actions. 

3. I also take into account and accept as more likely than not that it is unlikely for there to be many such payments, given the current world circumstances and the circumstances within which the businesses on the K Town property will likely operate between now and the trial in October 2020; and also because of my concern to attempt to start to, perhaps, minimise those issues in dispute between the parties at trial. 

4. Payments by way of bank transfer will, it seems to me, at least eliminate any arguments and contentions about the identity of the recipients of the same and, perhaps, also assist in providing the opportunity for appropriate inquiries to be made about the services invoiced.

5. For those short reasons then, I will make an order in such terms.

Application for the discharge of order requiring payment of weekly amount to the wife

1. I have before me, as part of the interim application listed for hearing today, an application by Mr Tennant for the discharge of order 11(e) of the orders I made on 11 October 2017.  That order currently requires that he pay, or cause to be paid from the joint B Bank account (ending in …10) to Ms Deane the sum of $500.00 per week. 

2. It was submitted on behalf of Mr Tennant by Mr Hunter that, in essence, such are the state of the finances of the businesses operated from the K Town property that it is appropriate to discharge that order.

3. It was also submitted on behalf of Mr Tennant that: it may be possible for Ms Deane to successfully apply for the JobKeeper payment, which he himself has applied for and which, it seems, he has either received or is about to receive; and that, if that were the course taken and she was successful in her application, she would have available to her funds from that source and, therefore, it would also be appropriate then to discharge order 11(e).

4. In opposing that course, Ms Hellewell for Ms Deane submitted, in essence, that there are likely to be available to the business, through the upcoming receipt of funds from the fruit production aspect of it, monies to be able to permit Mr Tennant to continue to make the payments he is required to make by order 11(e) of the October 2017 orders.  Ms Hellewell submitted that, save for those funds, her client does not have any funds available to her for her own support; she relies upon the receipt of the $500.00 per week ordered to be paid in order to meet her necessary expenses.

5. It was also submitted (by way of broad summary of the submissions made by Ms Hellewell) that, whilst there is contained in Mr Tennant’s affidavit a table outlining the existing and soon-to-be debtors of the business, there are some difficulties from her client’s perspective in relation to the substantiation of the amounts particularised in that table; she also made submissions, really, touching upon the timing of any payments that may be required to be paid between now and the hearing in October 2020.

6. Mr Hunter, in response to queries I made of him prior to the lunch adjournment, informs that there has already been one harvest of fruit and that it is likely that there would be a payment received, perhaps, in about six weeks from now or, perhaps, six weeks from some weeks ago: Mr Tennant expected to receive in the vicinity of $6,500.00 by way of payment for that product.

7. Included in the table of expenses to be met by the business is a cost of about $8,000.00, which I am told refers to the costs associated with fixing or replacing the gearbox of the harvester used to harvest the product.  Mr Hunter informed on instructions that, once that task is undertaken, Mr Tennant expected to undertake another harvest of product – perhaps in about June – and would expect to receive payments for that product in about six weeks thereafter.

8. I was also informed by Mr Hunter, on instructions from Mr Tennant, that he expected that the harvest for the 2020 year would broadly equate to that which was achieved in 2019: the tonnage in 2019 was about 10 tonne of fruit, which resulted in the receipt of about $42,000.00 (rounded figures).

9. Therefore, it would appear that, on the assumption that the funds held by the business of about just a little over $20,000.00 would enable the $8,000.00 to be spent to fix the harvester that, therefore, the second harvest would, more likely than not, occur between now and the trial; therefore, it could be expected that the business would receive funds of about $42,000.00 in relation to the fruit aspect of the business operated on the K Town property.

10. As Mr Hunter rightly also submitted on behalf of Mr Tennant, though, there are likely to be some expenses not yet particularised in the table that is included in the affidavit. There are also some expenses associated with certain farm activities not carried out last year: for example, fertilising, that it appears Mr Tennant would like to undertake, if possible, and some tree pruning which Mr Hunter is instructed alone has an associated cost of about $25,000.00 to $30,000.00.

11. In essence, Mr Hunter’s submissions on behalf of Mr Tennant were, in effect, that, even taking into account the anticipated receipt of about $42,000.00 between now and the trial in October 2020, the position for the business remained the same in that it was asserted that it was not possible, given its cash flow, for it to hold sufficient funds to enable Mr Tennant to be able to pay the funds ordered to be paid to Ms Deane in accordance with order 11(e) of the October 2017 orders.

12. I have decided, in the exercise of discretion, that I am not persuaded that it is appropriate to discharge order 11(e); nor is it appropriate in the circumstances to relieve Mr Tennant of the obligation of ensuring that the business pays to Ms Deane the sum of $500.00 per week. I have arrived at that conclusion by predominantly placing weight upon the submission made by Ms Hellewell to the effect that, absent the receipt of that money, Ms Deane would not be in a position to support herself.

13. I have taken into account the submissions made by Mr Hunter in relation to the asserted support Ms Deane receives from a person who is asserted to be her partner.  That does not, it seems to me, obviate the importance of ensuring that Ms Deane, a person in her own right, is afforded – from a business that was previously operated by both of these parties on the K Town property – the receipt of income from it between now and the trial in October 2020. 

14. However, it also seems to me to be appropriate, given that I have accorded particular weight to Ms Deane’s incapacity herself to support herself, to require her to provide to Mr Tennant, in writing, within 48 hours of receipt of any knowledge that her application for JobSeeker payment has been successful; that she provide him with written notice of that fact and that, upon there being the provision of such information of the eligibility for the receipt of the payment,  steps can start to be taken to relieve the business of the obligation to pay the $500.00 per week to Ms Deane.

15. So that there is no period of time where Ms Deane is left without funds, though, it does not seem appropriate to me for the payment to cease immediately upon Ms Deane being told of her eligibility.  Rather, it seems to me to be appropriate that the payment cease once she has received any payment she is entitled to receive pursuant to the implementation of the JobKeeper Scheme.

16. It also is appropriate, in my view, that, upon the cessation of the JobKeeper Scheme, the operation of order 11 resume as it was pending the trial of the matter.  At this stage, the government’s information, at least as I understand it, is to the effect that it is the intention to bring about the cessation of the JobKeeper Scheme in, I think, about September of this year – although, perhaps, that intention will be the subject of further consideration. No one will know that until any particular announcement is made by the government.

17. I consider it appropriate, therefore, that, whilst I decline to discharge completely order 11(e), I make further orders that will themselves be linked to Ms Deane’s requirement to provide Mr Tennant with information about the success or otherwise of her application under the JobKeeper Scheme and her receipt of the first payment to her under that Scheme. 

18. In that way, I have done what I consider to be my best to meet the balance that exists as between these parties pending the final hearing in October 2020.

Payment of unpaid weekly payments

1. In relation to the unpaid four payments of $500.00 referable for the period from 21 April to 21 May 2020 and balancing Mr Hunter’s submissions on behalf of Mr Tennant about the cash flow impost, it seems appropriate to me to require that that unpaid (but owing) amount of $2,000.00 be paid by Mr Tennant to Ms Deane within 48 hours of receipt of the estimated sum of $6,500.00 payable in relation to the harvest of fruit that has already occurred.  In that way, Ms Deane can look forward to receiving that unpaid but owing money within a few weeks, on the information conveyed on instructions.

2. Given the issues in this matter about disclosure, it is also appropriate that I make a particular order requiring Mr Tennant to provide to Ms Deane a copy of the bank statement evidencing the receipt of the anticipated estimated $6,500.00 referable to that first fruit harvest and that he do so within, say, 48 hours of the receipt of those funds. In that way I can be sure that a type of evidentiary link is maintained:  that is, that it is clear that the funds were received on a particular date and they were paid out on a particular date in accordance with my order today.  Perhaps this will prevent that from becoming another issue for trial.

Application to amend to take up JobKeeper payment

1. I presumed the amendment as sought would simply be to take up the JobKeeper payment, to permit the $750.00 to be paid to Mr Tennant; it is not intended for there to be a further payment of $500.00.

Disclosure of documents

1. I am not at all minded to make such a broad order as sought, given the history of this matter and the contentions.  I consider that making a broad order that says “the respondent provide the applicant with all disclosure for all things” is just inviting further, never-ending, interlocutory applications – especially given I have competing assertions between the parties: on Ms Deane’s case, she has not been provided with disclosure that she says is appropriate pursuant to the Rules; on Mr Tennant’s case, he says, “I have provided sufficient disclosure and I have provided it on multiple occasions.”

2. I think it appropriate to deal with the issues about illegibility in the manner I have already raised with the legal representatives: namely, for there to be a formal inspection, so that the documents in respect of which there are illegibility or legibility issues are produced to a particular place and made available for inspection.

3. Whilst I will make an order that the parties undertake a process of inspection, I would like to think that the legal representatives are able to arrange that process; I am not going to be prescriptive and order this to be on a particular date at a particular time – for reasons which include that I do not have any details about where and how the process could take place in the current circumstances; how long it would take, etcetera.

4. I certainly express my expectation that, to at least begin to get around this issue of asserted disclosure issues, inspection take place – at least to try and deal with legibility issue.

Costs reserved

1. Each party has been successful in relation to some aspects of the application and cross-application and unsuccessful in some.  There have also been some amendments that I have suggested and asked the parties to deal with and these they have, helpfully through their legal representatives, been able to address.

2. Some aspects of the applications for costs – such as whether it was, in fact, necessary to do a particular thing and its impact upon the overall proceedings – are matters that can more appropriately be considered once I am in a position to hear the parties, consider their evidence, see them cross-examined and make whatever findings of fact I ultimately make about the myriad of issues that no doubt will be in dispute in this particular matter.

3. Just so that it is clear and there is no misunderstanding, Ms Deane’s application for an order for costs that relates specifically to the subpoena issue is taken up, as it were, in the reserved costs order that I will make.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 21 May 2020.

Associate:     

Date:              21 May 2020