H v T

[2009] QDC 362

[2009] QDC 362

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2724 of 2007

H	Applicant
and
T	Respondent

BRISBANE

..DATE 14/10/2009

ORDER

CATCHWORDS:

Uniform Civil Procedure Rules r 229, r 230, r 231(2)

Proceeding for relief under Part 19 of the Property Law Act 1974 (adjustment of de facto partners' property rights) - order made ex parte for interrogatories to be delivered to respondent regarding his assertion that he had sold the principal asset and gambled away the proceeds in various places - number of interrogatories allowed to exceed 30 - liberty to respondent to apply in respect of costs order made against him

HIS HONOUR:  The Court has made orders in terms of the initialled draft which provides as follows:

1. that the application be heard ex parte;

1. that the applicant be granted leave to deliver interrogatories to the respondent in the terms of the draft filed 30 September 2009 attached to the application;

1. that the number of interrogatories may be greater than thirty (30);

1. that the respondent deliver to the applicant an answer to the interrogatories within twenty-one(21) days of service of the interrogatories;

1. that the respondent pay the applicant's costs of and incidental to this application;  and

1. that the respondent have liberty to apply for variation of any of the above orders within 7 days of such service.  

It's unusual in these times for interrogatories to be delivered or administered and, indeed, that is possible only with the Court's leave under rule 229.

Mr Messina, in support of the application, refers to Pacific Century Production Pty Ltd v. Netafim Australia Pty Ltd & Anor [2004] QSC 063 which contains a helpful discussion of some circumstances in which interrogatories (there delivered to a person who was not a party) may be delivered. Rule 229(1)(b) contemplates interrogatories for a purpose such as that.

The proceeding in which it is sought to interrogate the present respondent is an application for relief under Part 19 of the Property Law Act 1974.

The material before the Court goes to show that, after becoming aware of the application, the respondent sold the property where the parties had resided, thought to be the only asset of value in the joint asset pool.  He contends, according to the material, that he has not only sold the property but got rid of the entire proceeds of sale in gambling places.

The interrogatories proposed to be delivered are focused on establishing the truth of assertions along those lines to discover whether the funds have really gone.  It may be that the answers assist the applicant to assess whether or not she ought to proceed.  Rule 230(1)(b) is satisfied in this case.
Because of the number of sub-questions, it may be that the limit of 30 referred to in rule 229(2) is narrowly exceeded.  To the extent that this may be so, the Court should allow it.  In my assessment there is nothing burdensome about the task of answering these interrogatories.

The time in paragraph 5 of the order corresponds with what is said to be a common practice for purposes of rule 231(2)(a).  I think it represents a generaous allowance in the circumstances.

The application has been brought ex parte, which the Court has permitted in the circumstances, as contemplated in rule 230. The absence of the respondent raises a concern about the appropriateness of ordering him to pay the applicant's costs. It's likely that, if he had been served and attended today, he would have been ordered to pay the costs in the circumstances - which appear to reveal his acting in a deliberate way to defeat the application under Part 19.

I've required insertion in the order of ability in the respondent to apply to the Court within a short period should he wish to dispute the appropriateness of the orders made, the costs order in particular.

...

HIS HONOUR:  This is a comment in the matter of H v T.  Mr Messina is representing the firm of Hatzis Lawyers who commenced the proceeding.

Some consternation arose on my discovering on the file a notice of June 2008 to the effect that the firm of Carter Green now act for the applicant.  They appear to have taken no active role in it.

In the circumstances, the Court was prepared to proceed on the basis that Hatzis Lawyers are entitled to represent the applicant pursuant to an engagement by someone else.  Mr Messina has undertaken to look into that aspect.

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