Ding and Ding

[2017] FamCA 211

FAMILY COURT OF AUSTRALIA

DING & DING [2017] FamCA 211

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Case management – Further delay – Order for costs not sufficient to compensate for delay – Where the applicant wife to adjourn the final hearing – Short adjournment granted due to lateness of filing – Where the applicant wife’s application is based on her desire to call expert witnesses – Where the wife’s applications to rely on expert witnesses have been refused on two previous occasions – Where the parties had leave to seek further procedural orders and the wife had the right to interrogate the husband under Part 13 and failed to do so

Family Law Act 1975 (Cth)

Aon Risk Services Australia Limited v the Australian National University (2009) 239 CLR 175

APPLICANT: Ms Ding

RESPONDENT: Mr Ding

FILE NUMBER: ADC 4389 of 2012

DATE DELIVERED: 3 April 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Cronin J

HEARING DATE: 3 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McQuade

SOLICITOR FOR THE APPLICANT: Jaak Oks Lawyers

COUNSEL FOR THE RESPONDENT: Ms Pyke QC

SOLICITOR FOR THE RESPONDENT: Harry Alevizos

Orders

1. The proceedings are adjourned for final hearing to 2.15 pm on Tuesday 4 April 2017.

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 Ding & Ding 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 ADELAIDE

FILE NUMBER: ADC 4389 of 2012

Ms Ding

Applicant

And

Mr Ding

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application for the adjournment of a trial that is opposed by the respondent.  Parenting and property proceedings were issued in 2012, but now only property is extant.  There have been delays in this case, but no criticism is made by the husband of the wife in respect of the final listing.  One issue that delayed the matter in some respect was civil action in the District Court of South Australia.  The final hearing was listed before me, and the respondent husband is ready to proceed, but the applicant wife it not.  She now therefore seeks to adjourn the trial.  The basis of the application to adjourn was that she wanted to call a Mr S who is an employment consultant about the income that the husband could earn, and to call a Mr T who is said to be a forensic accountant, as I understand it, in relation to the value of the business. 

2. In relation to the issue of the business itself it seems that in 2010 what looks to me like a share restructuring arrangement meant that the husband’s 50 per cent of the share-holdings became one per cent.  The parties then separated in 2012, and the wife now asserts that when the marriage was in trouble the husband moved assets beyond her reach.  There is some support for the wife’s position, because since that time the husband’s one per cent was also transferred to his sister, and he now concedes that it should be included in the assets for division. 

3. The dilemma in this particular application comes from the way in which the parties have conducted the litigation itself.  On 1 September 2016, Austin J ordered that the wife file and serve by 9 September 2016 any Application in a Case she desired to seek interim relief, including the appointment of a single expert witness, to value alleged property interests of the parties.  His Honour also ordered that the wife file an Amended Initiating Application by 14 September 2016.  On 9 September 2016, the wife filed that foreshadowed application, which included seeking an order “that the parties at the husband’s initial cost obtain valuations from a single expert witness in relation to a number of properties” but specifically the one that is relevant for my purposes, the Ding Proprietary Limited. 

4. On 23 September 2016, his Honour heard that application. He then ordered that the wife have leave to issue a subpoena to Ding Proprietary Limited but also that the wife has the right to interrogate the husband under Part 13 of the Family Law Rules. It is not entirely clear to me what the intention of his Honour was. One might assume that it was directed to the issue of the share-holding in the business. It has been conceded by counsel for the wife that no interrogation has taken place. It seems to also be asserted that, notwithstanding a subpoena has been issued to the business, it has not been complied with comprehensively.

5. His Honour, on 23 September 2016, went on to also order that the parties agree in respect of single expert witnesses in relation to two real properties.  No other order for single expert witnesses was made, bearing in mind what I have just said about the nature of the wife’s application.  His Honour then ordered that each party have liberty to relist the matter before him on seven days’ notice for further procedural orders.  Looking at the file, that does not seem to have been a right or an entitlement exercised by either party. 

6. His Honour then ordered the Application in a Case to which I have referred filed on 9 September 2016 was dismissed.  His Honour also ordered the substantive proceedings be adjourned to 25 November 2016. 

7. As part of his Honour’s orders there was a specific order that the wife file an Amended Initiating Application, and she was to do that by 4 November 2016. 

8. Having looked at the file this morning, I note that that was not done until 23 November 2016.  That was two days before the next return date before his Honour on 25 November 2016.  On that occasion both parties were represented by counsel. 

9. On 23 November 2016, the wife’s application, which was part of the Amended Initiating Application again sought that expert witness valuation be obtained in relation to, inter alia, the Ding Proprietary Limited. 

10. On 25 November 2016, his Honour made an order that the application for interim relief set out by the wife, as I have just mentioned, was dismissed.  It is interesting to note that order was made by consent of both parties. 

11. His Honour then ordered, and again this was by consent, that the matter be adjourned to 6 February 2017 for further procedural directions, and again his Honour was to take control of the matter. 

12. Attached to the order were a number of notations.  Although both parties seem to have been tardy, his Honour rather deftly dealt with the matter by saying that both parties were in some way responsible for things not being done. 

13. The matter then came back before his Honour on 6 February 2017.  His Honour then granted leave to the wife to issue a subpoena to Ding Proprietary Limited, and he set a time limit for that to be done.  Why that was necessary is not clear to me, particularly having regard to the fact that that same order was made only some weeks before. 

14. The matter then came before his Honour on 22 March 2017, and his Honour set the matter down for trial for hearing before me today for a period of two days. 

15. His Honour then said that by Wednesday, 29 March 2017 both parties were to file the affidavit material and updated financial circumstances they intended to rely upon for the purposes of a trial. 

16. It seems common ground that neither party complied with the strict letter of that order.  That is one of the problems that is now giving rise to the adjournment application.  That same order of 22 March 2017 has a notation attached to it which reads as follows: 

    The wife’s oral application to either appoint an employment consultant and forensic accountant as single expert witnesses or alternatively call such witnesses as adversarial experts in her case is refused. 

17. His Honour then went on to say that he would give reasons later.  To the extent that it is common ground that that is an order, I will treat it as such.  I note that in respect of the order as such there was an appeal lodged, but no stay has been granted.  I queried the right of the parties to deal with that by way of appeal as to whether it is a decree and whether it alters substantive rights. 

18. In summary this is the third time the wife has effectively sought the appointment of a single expert witness.  This time the issue would necessitate an adjournment of the trial.  The issues are therefore two-fold. 

19. First there is the lateness of the filing.  In my view, that simply justifies a delayed start and not a wholesale adjournment of the proceedings.  The length of time that the parties have had at least from September last year contemplate the nature of their litigation needs no further comment from me. 

20. The second issue relates to experts and evidence.  Apart from the fact that the parties have had that same ample opportunity to call this evidence, there are very important things that could have been determined through the testing of the evidence by way of interrogatories, as his Honour has provided.  That was not done.  I note that in paragraph 56(xi) of the wife’s trial affidavit there is a simple recitation of the historical statement as to what has occurred in relation to the share-holdings.  The following paragraphs, 57 and 58, seem to be assertions, and counsel for the wife concedes there may be some admissibility problems in relation to those. 

21. In my view, there is not sufficient basis to adjourn the trial, having regard to such matters as costs, further delays, where there is no clear indication as to what impact, if any, this new evidence will have.  There is some support for this approach that can be taken from the High Court’s view in Aon Risk Services Australia Limited v the Australian National University (2009) 239 CLR 175. In that particular case, the High Court was examining a specific issue which was rule-based, but their Honours were reflecting on principles of case management by courts. They specifically referred to the Australian Law Reforms Commission report in 2000 relating to how courts had become much more active in monitoring and managing the conduct and progress of cases as a result of trying to deal with matters expeditiously.

22. In that case, their Honours went on to say that the purposes in the rules cannot be ignored. The Court Procedures Rules, which are the rules of the Australian Capital Territory, have a remarkable similarity to the Family Law Rules and in particular Chapter 1, which sets out that the purpose of the court in relation to litigation, is the timely disposal of proceedings at an affordable cost. The plurality went on to say at paragraph 98:

    Of course, a just resolution of proceedings remains the paramount purposes of r 21;  but what is a “just resolution” is to be understood in light of the purposes and objectives stated.  Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings.  This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account.  …

23. The rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point of the proceedings on payment of costs. Those words resonate in this particular case. The parties have had ample opportunity. They have had the opportunity in this case in respect of the wife to interrogate specifically on the issue of what seems to be the foundation for her application for relief under s 106B of the Family Law Act 1975 (Cth). But more importantly she has on two occasions sought to call this evidence and on both occasions been rebuffed.

24. In my view, it is inappropriate for it to be done at this stage at huge expense, not just to the parties, but also to the court.  On that basis the application to adjourn the trial is refused.  Having regard to what I said about the delay that is obviously a matter that arises as a result of the late filing by the parties, it seems to me that at least 24 hours should be given for the wife to gather her evidence in relation to the material that she wants to raise, and I propose to adjourn the matter to 2.15 pm tomorrow afternoon to commence. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 April 2017.

Associate: 

Date:  7 April 2017