Giolla & Giolla (No 2)
[2024] FedCFamC1F 693
•15 October 2024
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 pseudonym Giolla & Giolla has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
Several competing applications in relation to the conduct of the trial of this proceeding are presently before me. To better understand them a little background is necessary. In June 2024 I fixed the trial of this proceeding so as to commence on 10 October and to run for four days on 10, 11, 14 and 15 October 2024. Prior to 10 October 2024 the second respondent (the wife's father) applied to adjourn the trial. His evidence in support of that application was scant to say the least. Through his counsel Mr Burnett, the second respondent said he had no evidence of –
(a)Country D laws concerning whether a Country D person is permitted to give evidence in Country D by video link for use in evidence in litigation in Australia; and
(b)arrangements of any description concerning the mechanics of obtaining evidence from witnesses in Country D who the second respondent intends to call as part of his case.
I adjourned this proceeding to 14 October 2024 to enable the second respondent to depose to the steps he envisaged taking to obtain video link evidence from witnesses in Country D. On behalf of the husband for whom Dr Ingleby appeared, he submitted that the husband opposed the grant of the adjournment sought. Dr Ingleby additionally sought orders dismissing the second respondent's response to the husband's initiating application for orders under section 79 of the Family Law Act. On behalf of the wife Mr Arnold of counsel supported the second respondent's adjournment application contending that any adjournment should be of not less than 14 days duration. Dr Ingleby argued that if the adjournment application were granted it should be on condition that the second respondent pays the husband's indemnity costs prior to the resumption of the case.
For the reasons that follow I am of the view that the trial must be adjourned as justice cannot be done in the manner espoused in Aon Risk Services Limited v Australian National University[1] by reason of the circumstances set out below –
(a)any application for indemnity costs must be argued and ruled on;
(b)it is not appropriate to dismiss the second respondent's response in this litigation and in order to do so would have the effect of foreclosing on his entitlement to contend for orders, the effect of which would restore him to funds he says were advanced as loans; and
(c)while the medical evidence on which the second respondent relied on this adjournment application fell short of certain observations in Dasreef Pty Limited & Hawchar,[2] the second respondent on a favourable view of the medical evidence is unable to presently travel to Australia to give evidence.
[1] (2020) 239 CLR 175.
[2] (2011) 243 CLR 588.
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".
Unlike the earlier loan agreement, the second loan agreement was said to be constituted partly verbally, partly in writing and partly by implication. It was said that the written component of the second loan agreement was in handwritten form, expressed in Country D language and signed after having been written by the husband. The wife's father asserted the existence of terms of the second loan agreement. Those terms allegedly included an agreement that the defendants would enter into a written agreement with the wife's father. One wonders whether such a plea represents an assertion of the existence of an agreement to agree, prima facie invalid at law.
It was further alleged that on 16 and 19 October 2023 a demand was made for the repayment of Country D currency of 30,000,000 and interest of a further 4,454,794.52. It was also alleged that the wife acknowledged liability for herself and also for the husband. Whether any such acknowledgment was binding on the husband remained to be debated. The husband deposed in his affidavit made 23 November 2023 that his legal advisors sought consent to the joinder of the wife's father as the second respondent to the proceeding in this court. The husband formally sought an order for the joinder in this proceeding of the wife's husband as the second respondent.
By application in a proceeding filed in this proceeding on 24 November 2023 the husband applied in this court for orders for the joinder of the wife's father as the second respondent. By December 2023 the wife's father had become the second respondent in this proceeding although the order or agreement incorporating him as the second respondent was not easily ascertained. On 20 December 2023 Mr Burnett appeared before a judicial registrar of this court on behalf of the wife's fathers for the second respondent. The second respondent was ordered to file his response and supporting affidavits.
On 12 June 2024 I fixed this proceeding for trial to commence on 10 October 2024. Mr Burnett appeared on that day for the second respondent.
On that day the second respondent was ordered to file his evidence on 16 September 2024 ahead of the trial to commence on 10 October 2024. The orders made on 12 June 2024 were all made by consent. This case had been transferred to my docket prior to 12 June 2024, namely on 29 February 2024, by consent. The case was entered in the Major Complex Financial Proceedings List on 4 June 2024. Despite my invitation for him to do so the second respondent did not apply to bifurcate this proceeding. To reiterate, the second respondent became a party to this proceeding in or about December 2013. This proceeding was fixed for trial by consent on 12 June 2024, the relevant commencement date for the trial being 10 October 2024.
The second respondent was ordered to file his trial affidavit by 16 September 2024. He filed his affidavit material late on 19 September. On 20 September 2024 the second respondent filed an application in a proceeding which I directed be returnable at 2.15pm on 25 September. In that application the second respondent sought among other things orders permitting himself and Ms J to give evidence by the video link. On 25 September 2024 I heard the application returnable that day. Dr Ingleby appeared for the husband, Mr Arnold appeared for the wife and Mr Burnett appeared for the wife's father. After hearing from all parties I dismissed the application as recorded in my reasons in Giolla & Giolla.[3]
[3] [2024] FedCFamC1F 654.
I gave all parties liberty to bring before me whatever application they wanted thereafter to ventilate. However, I told the parties that the trial would start on 10 October 2024, a Thursday or I would deal with an adjournment application based on proper evidence. On 7 October 2024 the second respondent filed an application in a proceeding seeking orders for the adjournment of the trial. He relied on various affidavits to support that adjournment application namely –
(a)the affidavit of Dr K made 7 October 2024; and
(b)the affidavit of his solicitor Nathan Hugh Holt also made 7 October 2024.
In essence on that occasion the second respondent pressed his adjournment application initially seeking the adjournment of the trial to a date not earlier than October 2025.
Mr Burnett appeared again for the second respondent. Dr Ingleby opposed the application arguing –
(a)the medical evidence was defective and could not support the application to adjourn;
(b)principles espoused in Aon Risk Services Australia Limited & Australian National University[4] do not permit a last-minute application of the sort now made in circumstances where his client had geared up for the trial to start at 10.00am on 10 October 2024 and other cases had been sequenced on the expectation that this case would run; and
(c)no proposal was put forward about taking evidence in Country L even assuming it was permissible for evidence to be adduced in Country D for use in a court in Australia.
[4] (2009) 239 CLR 175.
For the wife Mr Arnold supported in broad terms the adjournment application brought by his client's father. Mr Burnett conceded that no evidence was before me by which I could be persuaded that arrangements were in place for the taking of evidence in Country L as proposed. Mr Burnett did not come with a single authority to support his client's application. In the upshot I did not adjourn the proceeding but instead ordered –
(a)authorities on which Mr Burnett relied to be filed and served by 2.15pm on 10 October;
(b)by noon on 11 October, that is to say the next day, the second respondent was to file and serve any affidavit in support of his application for certain witnesses to adduce their evidence by video link from Country L; and
(c)I reserved costs listing the case to resume on 14 October 2024, one of the days previously fixed for the trial.
Despite that tight timetable further evidence was in fact provided by Dr K and by Mr Holt the latter about the availability of video facilities at the C Centre. Mr Burnett also relied on decisions –
(a)of Robson J in Flash Lighting Company Ltd v Australia Kunqian International Energy Co Pty Ltd;[5]
(b)of Perram J in Motorola Solutions Inc v Hytera Communications Corporation Ltd;[6]
(c)of Perram J in Motorola Solutions Inc v Hytera Communications Corporation Ltd;[7] and
(d)of Wigney J in Liu v Option Funds Management Limited.[8]
[5] [2018] VSC 821.
[6] [2020] FCA 539.
[7] [2020] FCA 987.
[8] [2022] FCA 444.
He provided those authorities in accordance with my earlier orders.
In debate on 14 October 2024 Dr Ingleby submitted that the report of Dr K ought to have been a single expert report under the Federal Circuit and Family Court of Australia (Family Law) Rules. He submitted that the information in Dr K's 10 October 2024 affidavit did not comply with the stipulations in r 7.01 of the rules. In addition Dr Ingleby submitted that the logic of the conclusions expressed was not underpinned by the chain of reasoning required of an expert as set out in Dasreef Pty Ltd v Hawchar.[9] Further, he submitted that as information was given by Dr K about the alleged medical symptom suffered by the second respondent preventing him from flying, Dr Ingleby submitted that many assertions by Dr K were not supported by admissible and probative medical opinion. He said the current medical evidence was inadmissible.
[9] (2011) 243 CLR 588.
Dr Ingleby submitted that on the relevant chronology of events, the second respondent's medical ailments have not just emerged within recent weeks but must have been known by the second respondent from as early as the joinder or the date on which he consented to the trial commencing on 10 October 2024. He said this adjournment application was made so late as to be laughable.
So far as the proposal for video conferencing in Country L was concerned, Dr Ingleby submitted that no firm arrangements had been made so I could have no faith that arrangements could be readily made or complied with by the second respondent. He submitted that it was grossly unfair to drive his client from the advantage of a fixed trial date by specious assertions of an inability to travel. Dr Ingleby placed heavy reliance on the fact that the wife's father's medical evidence and the complaints allegedly associated therewith had not just materialised of late and they must have been apparent when the second respondent consented to the trial of the proceeding being fixed for commencement on 10 October 2024. He submitted that if travelling complications were real and not merely apparent, then those should have been raised long before now, there is merit in those points, in my view.
Dr Ingleby submitted that it is relevant to the second respondent's contention to know the quantum of the funds that were involved in the alleged loans. He said the spreadsheet on which the wife's father relies is not in an admissible form. Dr Ingleby said r 15.19 of the rules allowed me to dismiss the second respondent's case in this proceeding. He also submitted that no concrete proposal was advanced for the evidence in Country L to be given. Dr Ingleby was critical of Mr B Giolla's assertion that Dr K said he had read the relevant expert witness rules, yet he, Dr K does not speak English. In a somewhat theatrical submission Dr Ingleby said the second respondent by his conduct treats this court as a convenience store, exhibiting contemptuous disregard for court rules which Aon[10] in the High Court said should not be tolerated. He also submitted that a party to a proceeding must turn up on the date fixed at trial.
[10] (2020) 239 CLR 175.
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.
There remains the question of costs of the adjournment. Dr Ingleby foreshadowed an application for orders for indemnity costs. If he wishes to pursue such an application he must file an application in a proceeding by 4.00 pm on 24 October 2024 so that I can make orders and directions in that application on 25 October 2024.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the extempore reasons for judgment of the Honourable Justice Wilson. Associate:
Dated: 18 October 2024
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