Elgin and Elgin (No 2)

[2012] FamCA 1158

FAMILY COURT OF AUSTRALIA

ELGIN & ELGIN (NO. 2) [2012] FamCA 1158

FAMILY LAW – PRACTICE AND PROCEDURE – Ex Tempore – Adjournment application – Where the application is dismissed.

Family Law Act 1975 (Cth)

Aon Risk Services Australia Limited v ANU (2009) 239 CLR 175

APPLICANT: Ms Elgin

RESPONDENT: Mr Elgin

FILE NUMBER: BRC 2909 of 2010

DATE DELIVERED: 18 July 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 18 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr North SC
with Mr Sweeney

SOLICITOR FOR THE APPLICANT: Glezer Lanteri

COUNSEL FOR THE RESPONDENT: Mr Hamwood

SOLICITOR FOR THE RESPONDENT: Reaburn Solicitors

Orders

1. Application dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2909 of 2010

Ms Elgin

Applicant

And

Ms Elgin

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The parties in these property division proceedings were married for just short of 50 years.  They married, as did many people of their generation, when they were 21 and 20 years old.  They had relatively little in the way of assets at that time but for good doses of youthful energy and drive and dreams of their lives ahead.  Their marriage produced three children, all of whom are now adults rapidly approaching their middle age.  During the early years of their marriage, the husband toiled energetically as a self-employed man in the EF products business.  Simultaneously, the wife toiled energetically, parenting their three children, in the employ of others and also in self-employment.

2. In the later years of their marriage, the EF products business was sold, then the husband transferred his energies successfully to property development.  By the end of their 50 years together, a good fortune has been amassed.  Their very long marriage, however, was unable to be sustained and separation occurred in 2009.  Proceedings for property division were commenced by the wife in this Court in March of 2010.

3. On 16 January 2012, the parties, after months of protracted attempts to reach agreement with respect to the progression of the matter further towards trial through the obtaining of expert valuation evidence in respect of their multitude of assets, consented to directions being made appointing Ms CCC, an accountant, and certain real property valuers to prepare single experts’ reports of valuation for the parties.  Given the assets concerned and the number and style of entities that those assets were owned and controlled through, the process of valuation by those experts was always going to be time-consuming and require an enormous amount of well-directed, cooperative effort by the parties and their legal representatives to be finalised.

4. That said, on 27 January 2012, the parties, through their legal representatives, appeared before the Registrar again.  The matter was then listed for mention before the case management Judge of this registry on 3 February 2012 for the allocation of trial dates.  On 3 February 2012, Murphy J listed the final hearing of the matter for trial over three days commencing at 10 am today, the 18th day of July 2012.  Murphy J’s orders of that day bear the notation that the parties certified, relevantly, that the matter was, in all respects, ready for the final hearing.

5. I am informed today by Senior Counsel for the wife that his instructing solicitor instructs that the certification proffered by the legal representatives at that callover was such that such readiness was actually conditioned on the parties’ compliance with the obligations imposed on them by the 16 January consent directions.  I am not in a position to reject such an assertion.  Notwithstanding the listing for trial, problems began to emerge soon thereafter in respect of the preparation by the agreed single experts of their reports when, I am satisfied, the husband refused to comply with the obligations he had consented to be imposed upon him by the 16 January directions of the Registrar.

6. Accordingly, little progress was made in readying the matter for trial, even though it was already listed for such trial.  On 18 April 2012, I heard an Application in a Case that was brought by the wife in the duty list in this Court.  Her application had been filed over a month before that hearing date.  It was an application for what I would describe as fairly stringent orders that the husband forthwith comply with the obligations he consented to in the 16 January directions.

7. On the day of that duty list hearing, the husband sought, in a Response that was filed by leave that day, orders substantially varying the consent directions of 16 January, including for the appointment of a different single expert, and for the preparation of real property valuations to be left until a time as close as possible to the trial date as could be accommodated, so as to more accurately reflect value of the relevant property in a timely way in respect to the trial.  I note that no application was made by the husband that day to vacate the trial dates already fixed.

8. In deciding that application in a case completely in favour of the wife, I was satisfied that the husband had no reasonable grounds for his non-compliance with the 16 January directions and that there was no sound basis for varying them.  I was actually moved by concern that the husband’s actions and inactions between 16 January 2012 and 18 April – some three months in total – were motivated by a determination to delay the proper preparation of the matter for trial.  I was so satisfied in that regard that I made an order that he pay the wife’s costs of and incidental to the Application in a Case and I even noted at the foot of those orders that should the trial judge be satisfied that the husband refused or neglected to cooperate with the single experts in respect of the preparation and provision of their reports, then consideration should be given to hearing the wife’s application on an undefended basis.

9. Again, I repeat, that day, no submission was made on behalf of the husband that the matter could not, in the circumstances, be made ready for trial on the then-listed trial dates.  No application was made on the husband’s behalf for vacation of the existing trial dates. 

10. At 10.00 am this morning, Wednesday, 18 July 2012, when my Court Officer called the matter on, counsel for the husband made an application not previously foreshadowed to the Court for the trial to be adjourned.  An affidavit of the husband’s solicitor, principally exhibiting a large volume of written correspondence between the various parties, the single experts, the husband’s own personal accountant and the husband’s own usual solicitor was filed by leave in support of the application for the adjournment.

11. It is the case that the report of the single expert, Ms CCC, was only finalised and first made available to the parties yesterday, Tuesday, 17 July 2012.  In summary, Ms CCC, in what is a very long and detailed report of several hundred pages, opines that the net assets of the group of entities owned and controlled by the parties are worth about $38 million.

12. Counsel for the husband asserts that, on his instructions, the report includes incorrect assumptions and mistakes in respect of a number of matters, and that the husband now wishes to obtain his own expert assistance in respect of the matters raised in the report with a view to potentially making an application pursuant to the Rules to put his own adversarial expert evidence before the Court.  Further, counsel for the husband asserts that some of those false assumptions or mistakes – perhaps, ones that are included in the most critical of the assumptions or mistakes that are made by Ms CCC, on the husband’s submission – are based around a deficient expert report obtained from a real property valuer with respect to what I shall call “[Town IJ] development land”.

13. The husband’s counsel asserts that the husband should be entitled, as a matter of justice, to remedy or to seek to remedy the deficiency in that report.  Counsel for the husband submits that, as a matter of natural justice, the husband is now entitled to go and seek his own expert assistance in respect of the matter and to have the matter adjourned for up to 28 days so that he can also attend to having fresh financial statements prepared in respect of the entity in which he holds his interest in the Town IJ development for the financial year ended 30 June 2012.

14. Counsel for the husband submits that the fault for the provision of the late report lies with Ms CCC and the real property valuer and not with the husband, and that the husband therefore ought not be prejudiced by the lateness of these reports.  Counsel for the husband relies on a report – what I call a report – a three-page document prepared by Mr HY, an accountant in the practice of VX Accountants at Brisbane, dated today, addressed to counsel’s instructing solicitor, in which a number of points are raised as matters of concern in respect of the report of Ms CCC by Mr HY.

15. I note, as I did in discussion from bench to bar, as I was reading through the report, that there is little in that report that takes me by any surprise, having had regard to the matters that have already been identified to me by counsel for the husband during the course of the application to this point in time, as issues arising in Ms CCC’s report. 

16. The wife opposes the adjournment application.  Senior counsel for the wife points to evidence that he submits supports findings that much of the cause of the delay in having the report of Ms CCC prepared lies at the feet of the husband.

17. On the evidence that I have read, I consider that there is some merit in that submission.  I point, for example, to the fact that on 18 April 2012, my first order was that the husband or his solicitors shall forthwith sign the retainer agreement forwarded to the husband’s solicitors by DM Accountants on or about 21 February 2012.  The evidence satisfies me that, for several weeks – indeed, over a month or it might have even been, from memory, up to two months after that order – Ms CCC was still seeking, by insistence, the husband’s signature on such retainer.  I do not know from the evidence that is before me, even to this day, whether it was ever signed.

18. Senior counsel for the wife points to the fact that the report of the valuer that the husband asserts is deficient was actually made available to the parties on 22 June – that is, the report of the real property valuer, I mean – and that the husband has actually been in a position to take steps, as he might have been appropriately advised, in respect of remedying any deficiencies observed in that report for the nearly four weeks that have elapsed in the meantime.  Again, I find that there is merit in that submission.

19. Senior counsel points out that when Ms CCC raised issues of concern about that report, the evidence establishes that, at a teleconference between the parties’ legal representatives that took place on 12 July which was put in place specifically for the purpose of discussing issues of concern arising as a result of these matters of alleged deficiency in the report of the real property valuer and other associated matters, the parties effectively agreed to a course for dealing with the issue that was proposed by Ms CCC.  I am satisfied on the evidence of the transcript of that telephone conversation that that is a fair submission.

20. It is the fact that now Ms CCC actually embarked upon that course that was proposed by her and agreed in that teleconference that leads her to the position in respect of the valuation of the parties’ interest in the Town IJ development that the husband now complains of.  Senior counsel for the wife submits that, having elected to proceed to the trial with that being the course proposed, in a way that I called “informed election”, it is the wife who now suffers prejudice at the commencement of the trial if the husband is to be able to resile from such a position.

21. Counsel for the husband submits that, notwithstanding what occurred in the teleconference on 12 July, that the husband is not bound by such an agreed course and that he is nevertheless entitled to seek an adjournment now to go and obtain his own advice and to seek, potentially, his own adversarial expert evidence before the Court. 

22. Active case management of the matters by the Courts is now considered, not only as directed to the resolution of the disputes that exist between the parties to proceedings before the Court, but also as directed towards the achievement of a just but timely and cost-effective resolution of a dispute.  That is, of course, a worthy goal.

23. There are interests other than just the interests of each party to the proceedings that must be considered when case management is being undertaken.  The Court must consider the need to avoid disruptions to its lists.  The Court must consider, particularly, the inconvenience to the Court and, even more particularly, the prejudice to the interests of other litigants when disruptions to proper case management of its lists are being proposed.  I attribute the recognition of those principles to Gummow, Hayne, Crennan, Kiefel and Bell JJ of the High Court, found to be pronounced at paragraph 93 on page 211 in their decision in the case of Aon Risk Services Australia Limited v ANU (2009) 239 CLR 175.

24. Apart from the Court’s management of its list being disrupted and the interests of many other litigants awaiting trial in this Court being prejudiced, the wife herself will be prejudiced greatly if the matter is adjourned.  Firstly, of course, she would suffer significantly further costs, not just thrown away by today, but also by the additional costs that would have to be incurred, I determine, in respect of further valuations, further advice from experts and the like.  That prejudice could, no doubt, of course, be partially remedied, at least, to some degree, by a costs order.

25. However, notwithstanding the fact that counsel for the husband submits that the matter should be adjourned for up to 28 days, it is a simple fact that the matter, given the state of the lists in this Court and the way in which the Court’s trial diary is managed, could not be relisted before the beginning of next year in any realistic sense.  The wife would be kept out of her just and equitable property division for another six months at least, not to mention the time within which a judgment might be reserved after the trial concludes.  She would suffer prejudice, I accept, as submitted by senior counsel for her, for which costs could be no compensation, particularly in respect of the anxiety and stress of continued involvement in litigation of this type at the end of 50 years of marriage and in the twilight of her life.

26. On the other hand, the husband, I am satisfied, as I have said, is very much directly involved and responsible for the lateness of the report being provided by Ms CCC.  To the extent that he is not responsible for the lateness of the report of the real property valuer and the impact that that has had in the process, I am satisfied that he has at least been in a position for the last few weeks to take steps to remedy that.

27. I am satisfied that he is in a position where any prejudice that is caused to him can now be addressed by his cross-examination of that real property valuer and by the considered consideration of his experienced counsel of the single expert, Ms CCC’s report.  No doubt, his counsel now has the benefit of the assistance of the expert, Mr HY, who has come into the matter and has already provided a three-page document of critique or assistance to the husband and his legal team.

28. I also consider that by granting any leave requested by the husband for him to call further evidence that deals with the matters of concern and the granting of any leave requested by him to put further material and instructions to Ms CCC the prejudice that he currently faces as asserted by his counsel will be remedied to such an extent that, on balance, in the interests of justice, the adjournment application should be refused and the trial proceed.  Accordingly, the husband’s application for an adjournment is refused and we shall proceed with the trial.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 18 July 2012.

Associate: 

Date:  10 February 2014