Giolla & Giolla (No 2)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Giolla & Giolla (No 2) [2024] FedCFamC1F 693

File number MLC 12444 of 2023
Judgment of WILSON J
Date of judgment 15 October 2024
Catchwords FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – practice and procedure – adjournment application by the second respondent on day one of trial – second respondent allegedly unable to travel from Country D due to medical condition – adjournment application granted.  
Legislation  Family Law Act 1975 s 79
Cases cited

Aon Risk Services Limited v Australian National University (2020) 239 CLR 175

Dasreef Pty Limited & Hawchar [2011] 243 CLR 588

Eva Pty Ltd & Charles Davis Ltd [1982] VR 515

Flash Lighting Company Ltd & Australia Kunqian International Energy Co Pty Ltd [2018] VSC 821

Giolla & Giolla [2024] FedCFamC1F 654

Liu & Option Funds Management Limited [2022] FCA 444.

Motorola Solutions Inc & Hytera Communications Corporation Ltd [2020] FCA 539

Motorola Solutions Inc & Hytera Communications Corporation Ltd [2020] FCA 987

Division Division 1 First Instance
Number of paragraphs 37
Date of last submission 14 October 2024
Date of hearing 14 October 2024
Place Melbourne
Counsel for the applicant Dr R. Ingleby
Solicitor for the applicant Pearsons Lawyers
Counsel for the first respondent Mr C. Arnold
Solicitor for the first respondent Kennedy Partners
Counsel for the second respondent Mr A. Burnett
Solicitor for the second respondent Petersen Westbrook Cameron

ORDERS

MLC 12444 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN

MR GIOLLA

Applicant
AND

MS GIOLLA

First Respondent

MR B GIOLLA

Second Respondent

ORDER MADE BY

WILSON J

DATE OF ORDER

15 OCTOBER 2024

THE COURT ORDERS THAT –

1.The application to adjourn the trial is granted.

2.The further hearing of this matter is fixed for directions on 25 October 2024 at 10.00am with a view to refixing it for the resumption of the trial part heard.

3.All parties must confer by no later than midday on Friday, 18 October 2024 to ascertain the availability of the C Centre to conduct the giving of evidence by videolink in the period up to and including in the period to 15 February 2025.

4.Any application for costs must be filed by 4.00 pm on 24 October 2024.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a…

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Details
Case
[2024] FedCFamC1F 693
Decision Date

CaseChat Overview and Summary

The case of Giolla & Giolla (No 2) involves a complex family law dispute, where the husband sought orders under the Family Law Act. The proceedings include claims for the alteration of interests in various assets, including real property, shares, and interests in a trust. The wife's father, who was named as the second respondent, was alleged to have loaned the husband and wife significant sums of money. The husband sought an anti-suit injunction to prevent the second respondent from continuing with a separate proceeding in the Supreme Court of Victoria. The second respondent, citing a medical condition, applied for an adjournment on the first day of the trial, which was heard by Wilson J in the Federal Circuit and Family Court of Australia.

The legal issues before the court were whether the trial should be adjourned due to the second respondent's inability to travel to Australia and, if so, what the appropriate date for resuming the trial should be. The court considered the procedural fairness and the implications of the second respondent's absence on the trial. Wilson J noted the lack of detailed evidence regarding the second respondent's medical condition and the lack of a chain of logic linking the alleged condition to the inability to travel. The court also considered the implications of adjourning the case indefinitely and the potential unfairness of forcing the second respondent to participate in the trial before another judge.

Wilson J concluded that the application for an adjournment should be granted but found that the proposed date of October 2025 was too long. Instead, the court ordered that the trial be adjourned to February 2025. The court directed the parties to confer and secure a booking with the relevant video conferencing centre by 18 October 2024. The further hearing of the matter was fixed for 25 October 2024 to refix the trial date. The court also set deadlines for any applications for costs.

The orders of the court were as follows: the application to adjourn the trial was granted; the further hearing of the matter was fixed for directions on 25 October 2024; all parties were directed to ascertain the availability of the video conferencing centre by 18 October 2024; and any application for costs must be filed by 4:00 pm on 24 October 2024.

Orders

Orders of the court

MLC 12444 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN

MR GIOLLA

Applicant

AND

MS GIOLLA

First Respondent

MR B GIOLLA

Second Respondent

ORDER MADE BY

WILSON J

DATE OF ORDER

15 OCTOBER 2024

THE COURT ORDERS THAT –

1. The application to adjourn the trial is granted.

2. The further hearing of this matter is fixed for directions on 25 October 2024 at 10.00am with a view to refixing it for the resumption of the trial part heard.

3. All parties must confer by no later than midday on Friday, 18 October 2024 to ascertain the availability of the C Centre to conduct the giving of evidence by videolink in the period up to and including in the period to 15 February 2025.

4. Any application for costs must be filed by 4.00 pm on 24 October 2024.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

I adjourn the further hearing of the trial of this proceeding for directions marked part heard on 25 February 2025. RELEVANT BACKGROUND This proceeding was commenced on 26 October 2023 when the husband sought orders under s 79 of the Family Law Act. The property in respect of which orders for the alteration of interests were sought included real property in Australia, shares, interest in a trust, cash at bank and other assets. The wife's response filed 15 December 2023 to the husband's initiating application put forward the wife's proposals in respect of real property in Suburb E, Suburb F, Suburb G, and Suburb H, Victoria, as well as interests in a trust plus certain motor vehicles. The husband amended his initiating application on 18 December 2023 to which the wife filed a response on 20 February 2024. Those amendments related to an anti-suit injunction to restrain the second respondent from further conducting proceeding S ECI ... in the Commercial Court of the Supreme Court of Victoria and other relief. The husband relied on a further amended initiating application filed 2 September 2024 in which substantial amendments were sought. The wife relied on her further amended response filed 16 September 2024 which described the wife as the first respondent. That was by reason of the amended initiating application in which the wife's father was named as the second respondent. In his response filed 20 September 2024 the second respondent sought orders compelling the husband and wife to pay him Country D currency of 30 million plus interest said to be owing pursuant to a loan agreement made 30 January 2022. The anti-suit injunction application made in proceeding S ECI … related to a proceeding in the in Supreme Court of Victoria commenced in late 2023 in which the wife's father as plaintiff sued the husband and wife seeking recovery Country D currency of the sum of 30 million, plus interest and costs. The wife's father's contentions were set out in his statement of claim drawn by Mr Burnett of counsel dated 10 December 2023. In it the wife's father asserted that on 14 March 2008 the wife's father agreed to lend the husband and wife funds to invest in real property with such sums to be repaid on demand. The loan agreement was said to have been constituted by discussions between the wife's father of the one part and the husband and wife of the other part in early 2008. No terms of the alleged loan agreement were alleged especially those in relation to repayment obligations on the putative borrowers, the events of default and the consequences of any such default. The wife's father asserted that "pursuant to the loan agreement" (yet no terms were alleged), between 14 March 2008 and 4 September 2019 the wife's father advanced to "the defendants and their associates" a total of various amounts of foreign currency equating in aggregate to AUD$6,731,180.46. In the Supreme Court proceeding a further loan agreement was alleged, it being allegedly made on 30 January 2020. That agreement was called "the second loan agreement".

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Mr Arnold's primary position was to support the adjournment application. He relied on a form of consent given by the husband to the giving of video conference evidence, such consent being recently given in mid-September 2024. He submitted that the wife and the second respondent were not in the same camp.[11] He said that if the trial is adjourned it should not resume earlier than 14 days.[11] Eva Pty Ltd & Charles Davis Ltd [1982] VR 515.CONSIDERATION It cannot be disputed that consent orders were made in June 2024 fixing this case for trial in October this year. The wife's father consented to the trial date. If his current medical conditions were apparent in June 2024 then he must have known that travelling to Australia was likely to cause him medical complications. That said, it is a dramatic step to summarily dismiss a party's claim even by reason of non-appearance in circumstances where an explanation for the litigant's absence is given, howsoever bereft of detail. I agree that Dr K's most recent affidavit offered very little by way of probative admissible evidence of the second respondent's medical condition as a basis for the conclusion expressed that the second respondent cannot travel by air to Australia. The evidence on point is weak. It also suffers from the evidentiary vices identified in Dasreef Pty Ltd v Hawchar[12] by reason of there being no chain of logic of the facts that lead to the conclusion purportedly expressed. Precisely why the wife's father's medical condition prevented him from travel was not said. Nor was the date October 2025 as a resumption date identified by Dr K maintainable on his other evidence. That was little more than an ambit claim. Yet the fact also remains that the second respondent did not present himself for trial on 10 October 2024. Whether he did that deliberately I was unable to say. It seems that he can travel to Country L. The case cannot be adjourned indefinitely, and an adjourned date of October 2025 is absurdly long.[12] [2011] 243 CLR 588. By the second respondent’s failure to appear Dr Ingleby is correct in submitting that the wife's father has obtained his adjournment because the case was fixed before me with a specific number of days in mind. My diary is otherwise full. Even if the second respondent were able to travel I cannot accommodate this trial now. Is it just for me to force him on now before another judge? I have no present information about judicial capacity so I cannot say. Adjourning to June or October 2025 will not be ordered. I have in mind February 2025. That is four months from now. Arrangements can be made in the intervening period to lock in dates for video conferencing in February 2025 with the C Centre. Without knowing when that organisation can accommodate this case it is premature to fix a date for the resumption of trial. I direct all parties to confer by not later than midday on Friday, 18 October 2024 to ascertain the availability of the C Centre to conduct the giving of evidence by videolink in the period up to and including 15 February 2025. The parties are directed to secure such a booking. I have in mind to adjourn the trial to that date. However, I will conduct a directions hearing of the matter on 25 October with a view to refixing the trial. Having read and considered all authorities provided by Mr Burnett, none binding on me provides a solution to this application. It may be that no issue emerges about Country D nationals giving evidence in Country L for use in Australian litigation. If an objection is raised, I will deal with it.