Jess & Jess (No 16)
[2025] FedCFamC1F 139
•4 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jess & Jess (No 16) [2025] FedCFamC1F 139
File number MLF 3444 of 2006 Judgment of WILSON J Date of judgment 4 March 2025 Catchwords FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – PRACTICE AND PROCEDURE – adjournment application by all parties – proceeding fixed for one month duration – application dismissed. Legislation Federal Circuit and Family Court of Australia Act2021
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Barnes & Addy (1874) LR 9 Ch App 244
Division Division 1 First Instance Number of paragraphs 24 Date of last submissions 28 February and 4 March 2025 Date of hearing 28 February and 4 March 2025 Place Melbourne Counsel for the applicant Mr G. Dickson KC with Dr P. Turner Solicitor for the applicant Kenna Teasdale Lawyers Counsel for the represented third parties Mr M. Kearney SC Solicitor for the represented third parties Taussig Cherrie Fildes Counsel for the interveners Ms N. Papaleo Solicitor for the interveners Lander & Rogers ORDERS
MLF 3444 of 2006 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MS JESS
Applicant
AND MR J AS LEGAL REPRESENTATIVE FOR MR JESS SNR (DECEASED)
First Respondent
MR JESS JNR & ORS (THE REPRESENTED THIRD PARTIES)
Second to 29th Respondents
MR K & MR L AS TRUSTEES OF THE BANKRUPT ESTATE OF MR JESS SNR
Interveners
ORDER MADE BY
WILSON J
DATE OF ORDER
4 MARCH 2025
THE COURT ORDERS THAT –
1.I dismiss the applicant’s application in a proceeding dated 26 February 2025.
2.I direct the first weekly directions hearing to be conducted at 10.00am on Wednesday 12 March 2025 and weekly thereafter in accordance with these reasons.
3.I direct the first iteration of the timetable referred to in these reasons to be filed and served by 4.00pm on Thursday 6 March 2025.
4.Costs are reserved.
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 Jess & Jess has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
On 31 May 2024 the trial of this proceeding was fixed to commence on 2 June 2025. When the proceeding was fixed for trial, all parties enthusiastically embraced the notion that –
(a)the fixture was over a year hence; and
(b)with application and focus by all parties, starting the trial on the fixed date was entirely achievable.
On several occasions thereafter, during directions hearings I asked the representatives for the parties whether trial preparation was on track and whether any impediments presented themselves in respect of the commencement of the trial. On each occasion each party told me that trial preparation was on track and that no impediments presented themselves to the commencement of the trial on 2 June 2025.
Disclosure disputes have bedevilled this litigation since I took control of it. The applicant has complained that the represented third parties have failed to discharge their disclosure obligations in a timely or exhaustive manner. The applicant has consistently contended that the represented third parties’ approach to disclosure –
(a)has impaired the applicant’s ability to amend her pleadings so as to exhaustively record all causes of action she wishes to agitate in this litigation; and
(b)has prevented the applicant from expeditiously progressing the ongoing conduct of this case, especially whether and if so which party to join in order to seek remedies grounded in constructive or resulting trusts.
At a directions hearing convened prior to 28 February 2025 all counsel faintly hinted for the first time at the possibility that the time had been reached by which an application to vacate the trial would be made. None was then made, however.
By application in a proceeding dated 26 February 2025, the applicant has now applied for orders vacating the trial date and other orders. The applicant’s solicitor made an affidavit in support of the applicant’s application to vacate the trial. That affidavit was sworn on 27 February 2025. Several matters of relevance arouse from its terms, namely –
(a)the second respondent has been represented by new solicitors and counsel since March 2024;
(b)certain represented third parties have since 4 October 2024 filed a submitting notice;
(c)the trial of this proceeding is fixed to commence on 2 June 2025;
(d)on 8 December 2023 disclosure orders were made requiring the second respondent and the represented third parties to provide disclosure by 30 January 2024;
(e)those disclosure orders were unsuccessfully appealed and a stay of those orders was refused;
(f)the 8 December 2023 disclosure orders were not fully complied with by the second respondent and the represented third parties with the consequence that the applicant has been unable to articulate the relief she seeks by way of final orders with the consequence that legal fees have escalated;
(g)Kenna Teasdale, solicitors for the applicant, have been pursuing ongoing outstanding documents, they have issued 34 subpoenae up to 6 August 2024 and filed a contempt application on 8 March 2024 none of which steps was effective to exhaustively bring to conclusion all disclosure obligations;
(h)the case will not be ready for trial on 2 June 2025;
(i)subsequent to the 8 December 2023 orders, in 22 March 2024 DK Lawyers provided various tranches of documents and later compromised the applicant’s contempt application brought against the second respondent and the represented third parties;
(j)various other tranches of documents have been provided between the second respondent and represented third parties and the applicant;
(k)the applicant issued subpoenae to 34 entities for documents;
(l)by December 2024 the 13th tranche of documents was supplied by the represented third parties and the second respondent to the applicant; and
(m)the 17th tranche was provided on 14 February 2025.
Expressed in tabular form, the sequence of tranches supplied, the date the tranche was received, the documents produced and the actual pages produced between 21 December 2022 and 14 February 2025 is as follows –
The applicant’s solicitor then deposed to there being prejudice to the applicant by reason of the second respondent’s and represented third parties’ dilatory approach to discovery. He deposed to being forced (my construct of his deposition) into a situation where the second respondent or represented third parties have created a situation in which no time exists for the applicant to carefully consider her position of the best way to advance her claims against all proper parties (joined or yet to be joined) in this litigation. He put the position so high that he said the following –
“At this stage in the proceeding, in my professional view, my client, [Ms Jess], will be deprived of a fair opportunity to identify the potential claims available to her (and the specific assets the subject of those claims), to plead those properly and to adduce evidence in support of them, if the Second Respondent and the Represented Third Parties continue to fail to fulfill their discovery obligations”.
By way of elaboration Mr AL deposed to the existence of seven categories of claims the applicant wishes to advance and the pleading requirements of each, especially allegations of fraud as well as Barnes & Addy[1] claims. It is true, the pleading requirements in respect of those claims are exacting.
[1] (1874) LR 9 Ch App 244.
In part D of his affidavit, Mr AL deposed to the possibility of applying to join yet further respondents. He set out the identity of possible additional respondents and the basis of any joinder application in respect of each. However, he deposed to being hamstrung (my word) by the paucity of documentation in disclosure to enable the applicant and Mr AL to make an informed decision in that regard.
Mr AL deposed to seeking an adjournment of the commencement of the trial for an unspecified time. Mr AL stated that some valuations will need to be updated.
THE APPEARANCE ON 28 FEBRUARY 2025
Prior to the application on 28 February 2025 the applicant,[2] the second respondent,[3] the represented third parties[4] and the intervenors[5] agreed on a form of orders that were predicated on orders being made vacating the 2 June 2025 trial, fixed as it has been to run for one full month.
[2] Represented by Mr G. Dickson KC with Dr P. Turner of counsel.
[3] Represented by Mr M. Kearney SC.
[4] Ibid.
[5] Represented by Ms N. Papaleo of counsel.
Let me say at once that interferences with trial dates are the subject of observation by the High Court in Aon Risk Services Australia Ltd v Australian National University.[6] There, the High Court pointed out that any decision to vacate a trial date necessarily involves the parties to the relevant litigation but broader ramifications are also enlivened. Among those broader ramifications are the following considerations referrable to this case –
(a)other litigants with highly deserving cases have been denied any prospect of their cases being heard in the period for which the trial of this proceeding is fixed (2 June to 30 June 2025);
(b)last minute vacating of trial dates orchestrates enormous dislocation to this court for the simple reason that the time of the judge who has blocked off time for the trial for which the vacating application is made is without a fixture and last-minute refixing of cases to fill that void causes substantial inconvenience and dislocation to parties and witnesses upon other cases being refixed;
(c)at its worse, the judge whose trial is at risk of being vacated will not be deployed to fullest and best use if the trial is in fact vacated thereby causing an extremely valuable public resource to be wasted;
(d)in this particular case, the parties were alerted many times to the consequences of any vacating of the trial;
(e)if the trial is vacated the prospects of refixing the trial on an estimated duration of one month (which in the circumstances would be a prudent but not unrealistic estimate) within a sensible range of dates is bleak; and
(f)in the particular circumstances of this litigation which has been on foot for nearly 20 years, the attraction of vacating the trial of a proceeding involving difficult principles of equity is near zero.
[6] (2009) 239 CLR 175.
In debate with counsel for all parties on 28 February 2025 I raised with them the need for all parties to resource themselves in such manner that full-time effort was being devoted to the preparation of this case. Mega litigation in any superior court, of which this case in an exemplar, demands a particular focus by clients, witnesses and legal representatives. As the trial date approaches, the attention to all aspects of the case calls for concurrent activities by all involved to be full-time. Counsel in this case should not be doing other trials, teams of solicitors should be strategically deployed in time efficient and cost effective activities. Fact intensive conferences with witnesses should be underway. In short, with three months to the commencement of the trial in this piece of mega litigation, skirmishing about discovery should be over, discussions about joining parties should be in the distant past, agitation about rearranging pleadings should also be over and preparation for an in-court trial should be well underway.
That is very far from the position which presented itself before me at the mention on 28 February 2025.
An unacceptable risk presents itself if I accede to the urgings of the parties to vacate this trial. That risk is multifaceted consisting of the following –
(a)the parties are likely to lose the impetus to get this case ready for trial;
(b)the case is at risk of drifting;
(c)the prospects of the court being able to allocate a new trial date in a tolerably short time from now is bleak; and
(d)the extremely valuable resources of the court will be wasted at incalculable cost to the public purse in a manner that cannot be adequately remedied.
To my surprise, it was the applicant who brought this application to vacate the trial. She was the person who, having succeeded in getting a trial date and having secured funding for this case, now says she cannot be ready.
I am not prepared at present to vacate the trial. Three months are yet to unfold between now and the start of the trial. I do not accept that at this precise juncture the applicant will not receive a fair trial. It is premature to make such a submission. I reject it and, to the extent that the other parties joined in that submission, I likewise reject their contentions in that regard.
Having mooted weekly directions some time ago, an invitation not taken up in this case, I now order weekly directions forthwith, each Wednesday at 10.00am between this date and the Wednesday prior to 2 June 2025. Ahead of the first directions hearing I direct that all parties confer with a view to producing before me a timetable setting out with date-specific precision and in strict chronological order (if necessary, setting out several activities to be done concurrently) –
(a)the relevant activity, identifying which party is to perform it and which party is affected by that activity, such as disclosure of specific documents from a named party, joinder in respect of an identified party, an expert to be engaged by which party to provide a report on a specific issue and by when;
(b)the precise date by which the identified task is to be performed by which party and if disagreement emerges as to the date by which the identified task is to be performed, each affected party must nominate its proposed completion date for that activity;
(c)during each directions hearing the timetable will be considered for compliance; and
(d)tasks completed will be removed from the timetable and new tasks added, as required.
The parties to this litigation should keep uppermost in mind the overarching obligations reposed in the Federal Circuit and Family Court of Australia Act 2021 as well as in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. Those statutory provisions emphasise getting on with litigation effectively and cost efficiently. Those provisions also permit the court to craft orders that get the case on for trial as efficaciously as possible.
In the circumstances I will not vacate the trial at this stage. The balance of the orders sought in the applicant’s application in a proceeding are not appropriately made now either. The directions I have pronounced will give effect to the steps to be undertaken but much quicker than the parties suggest. Weekly directions hearings are now to take effect. Any want of cooperation will be dealt with separately.
ORDERS
I dismiss the applicant’s application in a proceeding dated 26 February 2025.
I direct the first weekly directions hearing to be conducted at 10.00am on Wednesday 12 March 2025 and weekly thereafter in accordance with these reasons.
I direct the first iteration of the timetable referred to in these reasons to be filed and served by 4.00pm on Thursday 6 March 2025.
Costs are reserved.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Wilson. Associate:
Dated: 4 March 2025
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