Freer and Freer and Ors

[2009] FamCA 427

FAMILY COURT OF AUSTRALIA

FREER & FREER AND ORS [2009] FamCA 427

FAMILY LAW – PROCEDURAL – Interim hearing

APPLICANT: Ms Freer

RESPONDENT: Mr Freer

TRUSTEE IN BANKRUPTCY: Mr Smith

INTERVENOR: Mr Rickards

FILE NUMBER: ADF 1629 of 2005

DATE DELIVERED: 28 April 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 28 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Neate

SOLICITOR FOR THE APPLICANT: Lynch Meyer

FOR THE RESPONDENT: No appearance

COUNSEL FOR THE OTHER PARTY: Mr G Gretsas

SOLICITOR FOR THE OTHER PARTY: Gretsas Chrzaszcz

FOR THE INTERVENOR: In person

Orders

1. That further consideration of the oral application for costs made by the wife and the trustee in bankruptcy be adjourned to the hearing on 17 June 2009.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1629 of 2005

MS FREER

Applicant

And

MR FREER

Respondent

And

MR SMITH

Trustee in Bankruptcy

And

MR RICKARDS

Intervenor

EX TEMPORE REASONS

1. This matter was last before me on 12 March 2009, when it was adjourned initially to today for a directions hearing, but also to further hearing dates in June.  I made orders on 12 March designed to ensure that all issues in dispute were made known and clarified and all relevant documents were filed, to ensure that the hearing in June took place and was not adjourned again.

2. Unfortunately today, for some unexplained reason, the husband has not appeared, either in person or by any legal representative.  That concerns me, because in fact the adjournment of the matter on 12 March 2009 arose out of the husband's counsel's submissions and orders that the husband's counsel then sought on behalf of the husband, which were not at that time contained in any application.

3. Mr Rickards, who has intervened in these proceedings and is now a party, appears in person.  He has indicated that he will take back to the husband's solicitor anything that occurs today.  That is helpful, but it does not alleviate my concern at the absence of the husband or any legal representative on his behalf.

4. There is at least one issue which I need to clarify with the husband arising out of what occurred on 12 March 2009 and orders made on that day, but that will not obviously be able to be attended to today.

5. That said, I have taken the opportunity to work through the order that I made on 12 March 2009 with those who have appeared today and I have also invited them to raise any further issues with me to make sure that every outstanding aspect of this matter is covered that can be covered.

6. Looking at the issues arising out of my order of 12 March 2009, the husband has filed an amended application in a case.  However, the initial application which was filed on 25 March 2009 was not correct in terms of at least one order that it sought; namely, an order in relation to costs.  It was inaccurate in terms of the party seeking the order for costs and the party against whom the order for costs was sought.  It seems that as a result of that error, a further amended application in a case has been filed, and that was done on 7 April 2009.  The husband's solicitor amended the wording of the orders sought by identifying the trustee as the third respondent.  However, that in itself has created confusion.  Mr Gretsas has rightly pointed out that in this case the wife is the applicant.  I know why there might have been confusion because this is an application by the husband, but that does not affect who the second and third respondents are, of course.  Even though this application in a case is an application by the husband, whereas the final orders application has the wife as the applicant, to repeat, Mr Smith is still the second respondent and Mr Rickards is still the third respondent.

7. The application therefore has been prepared incorrectly, in that it names as the second respondent Mr Rickards and as the third respondent Mr Smith.  That should be reversed.

8. It may seem a minor point but, given the history of this matter, the issues that are involved and the fact of having more than one respondent, this needs to be fixed up.  What that entails is a further amended application being filed by the husband where he identifies as the second respondent Mr Smith, the trustee, and as the third respondent Mr Rickards and then appropriately amends the order such that it is sought against the trustee.  Thus I propose to make an order that a further amended application in a case be filed by the husband.

9. Continuing with the orders that I made, I made an order that any affidavit to be filed in support of that application in a case by the husband be filed by 26 March 2009.  There has been no affidavit filed, and thus I assume that will be no further evidence presented by him by way of affidavit for the purposes of the hearing in June.

10. The fact that there is no affidavit filed obviously obviates the need for any response by either the trustee or the wife.  However, the trustee has filed an affidavit, and that was filed on 6 April 2009.  That is not an affidavit which supports any particular application or response.  It was an affidavit which was flagged by Mr Gretsas on behalf of the trustee and the need for it arose out of a notice to produce filed by the husband, which was responded to by both the wife and the trustee and now has been further responded to, and which I will come to in a moment.

11. No objection was made on 12 March 2009 to the filing of that further affidavit by the trustee, and I proceed on the basis that there is still no objection to that affidavit being part of the evidence before me in this case.  Mr Rickards has indicated that he has no objection to it, and of course the husband is not here.

12. Next, in the order of 12 March 2009, I adjourned the oral applications for costs made on behalf of each of the respondents.  I indicated that I would not have time to deal with those applications today, and I propose to make an order further adjourning those applications to the hearing in June.

13. That deals with the issues arising out of the orders that I made on 12 March 2009.  Separate to that, at that hearing on 12 March Mr Gretsas flagged that he proposed to file an amended response on behalf of his client.  He indicated that he would advise the other side of the orders that his client proposed to seek in that response.  That has been done and Mr Gretsas tells me there has been no comment made by the husband in particular in relation to the proposed orders sought, and Mr Gretsas proposes to file that amended response in the next day or so.

14. In relation to the notices to produce which I referred to earlier, dealing firstly with the trustee's position, Mr Gretsas indicated that he wanted his client to further consider whether there were any other documents that were required to be produced pursuant to that notice.  Indeed, there are some documents which have been located by Mr Gretsas, and he has produced those documents today and they have been marked “MFI 5”.  Mr Gretsas has indicated, though - and I note this - that his client objects to those documents being inspected, on the ground of legal professional privilege.

15. There were also some documents produced by Mr Gretsas on behalf of his client on 12 March 2009 and which were marked “MFI 4”.  Mr Gretsas's client claimed legal professional privilege in relation to those documents and opposed any inspection of them.  At the time, Mr Wells QC, who appeared for the husband, indicated that he did not immediately seek an order for inspection and that he would like to consider the submission of Mr Gretsas as to the basis for the claim for legal professional privilege.

16. I mention that because that was an issue that I needed to clarify today, but I cannot, obviously, because the husband is not present.  However, Mr Gretsas says he has not been contacted by the husband's solicitors wanting to take that issue any further, and I will proceed on the basis that those documents have been produced, and the claim for legal professional privilege stands, and there is no application for inspection of those documents.

17. It was flagged on the last occasion by Mr Berman for the wife that he may want to cross‑examine the husband on the adjourned hearing.  He was to give consideration to the topics of that cross‑examination and he indicated he would have his solicitor advise the husband's solicitor of those topics as soon as he had clarified the same.

18. Mr Neate, who appears today for the wife, tells me that he is unaware of what Mr Berman's position is in relation to that.  He is not aware that any advice has been given of any topics of cross‑examination.  In the circumstances I do not propose to make any order about it, and I simply propose to note - and I do this now - that by Friday 22 May 2009 Mr Berman and/or his solicitor will advise the husband's instructing solicitors, and of course all other parties, of the topics of the proposed cross‑examination of the husband at the hearing in June.

19. Mr Gretsas has raised today whether there is a need for Mr Rickards to be cross‑examined.  I do not recall that that was an issue mentioned on 12 March 2009 and Mr Neate certainly has not raised that from his client's point of view.  I simply note that if there is any suggestion that Mr Rickards will be required for cross‑examination he will be given ample notice of that and advised of the topics of cross‑examination.

20. Further in relation to the notice to produce, Mr Neate has advised me that further documents have been located by the wife's solicitors and copies of those documents have been produced direct to the husband's solicitor.  Mr Neate has indicated that, if necessary, they will be produced formally to the court, but there has been no request for that at this stage by the husband.

21. The adjourned hearing is of course set for June.  There have been written submissions filed.  Mr Gretsas has raised the need for further submissions, and I am happy to make a notation about that to the effect that if any party seeks to amplify or expand or amend the written submissions already filed, they should be filed and served by Wednesday 10 June 2009.

I certify that the preceding 21 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland J on 28 April 2009

Associate