Jess & Jess (No 17)
[2025] FedCFamC1F 169
•17 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jess & Jess (No 17) [2025] FedCFamC1F 169
File number MLF 3444 of 2006 Judgment of WILSON J Date of judgment 17 March 2025 Catchwords FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – PRACTICE AND PROCEDURE – weekly directions hearings ordered in the three month lead up to trial – first of such directions hearings – applicant seeking compliance with existing discovery orders – second respondent and represented third parties seek further time to comply with disclosure requests – held, the second respondent and represented third parties have had sufficient time to comply with the disclosure orders made 8 December 2023 – further time allowed for second respondent and represented third parties to make disclosure in relation to requests made in January and February 2025. Legislation Family Law Act 1975 (Cth) ss 95 and 96
Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r 6.01 and r 6.03
Cases cited Jess & Jess (No 11) [2023] FedCFamC1F 1027
Jess & Jess (No 12) [2024] FedCFamC1F 58
Jess & Jess (No 14) [2024] FedCFamC1F 391
Division Division 1 First Instance Number of paragraphs 32 Date of hearing 12, 14 and 17 March 2025 Place Melbourne Counsel for the applicant Dr A. Dinelli KC with Dr P. Turner Solicitors for the applicant Kenna Teasdale Lawyers Counsel for the represented third parties Mr M. Kearney SC with Mr P. Springthorpe Solicitors for the represented third parties Taussig Cherrie Fildes Counsel for the interveners Ms N. Papaleo Solicitors 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
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
17 MARCH 2025
THE COURT ORDERS THAT –
1.By 5.00pm on Monday, 17 March 2025, the second respondent and represented third parties must provide to the other parties a copy of the disclosure table parts 1 and 2 with the column entitled “TCF Further Response” completed.
2.By 5.00pm on Monday, 17 March 2025, the second respondent and represented third parties must make discovery of all documents to which an objection is not advanced in the documents referred to in paragraph 1 above.
3.By 5.00pm on Tuesday, 18 March 2025, the second respondent and represented third parties must provide to the other parties a copy of disclosure table part 3 with the column entitled “TCF Response” completed.
4.By 5.00pm, on Tuesday, 18 March 2025, the second respondent and represented third parties must make discovery of all documents to which an objection is not advanced in the documents referred to in paragraph 3 above.
5.The applications in paragraphs 5, 6 and 7 of the applicant’s minute of order provided on 14 March 2025 are stood over until the directions hearing on 19 March 2025.
6.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
The first of the weekly directions hearings convened pursuant to my orders made on 4 March 2025 was conducted on 12 March 2025. While a number of steps remain to be completed in order for this proceeding to be ready for trial on 2 June 2025, my intendment in ordering weekly directions hearings was threefold. It was –
(a)to raise, debate and rule on opposed procedural matters adversely affecting the forward progress of preparation in the case;
(b)to progressively address and therefore remove obstacles standing in the way of the commencement of the trial on 2 June 2025; and
(c)to cooperatively address matters that were not truly insoluble and otherwise requiring determination following a contested interlocutory skirmish.
The parties did as was canvassed in my 4 March 2025 reasons by preparing a table that set out as separately numbered items 24 steps to be completed between now and 2 June 2025. Wednesday 12 March 2025 was fixed as the date for the conduct of the first directions hearing. The table was circulated in accordance with directions made on 4 March 2025.
THE EVENTS OF 12 MARCH 2025
On 12 March 2025 Dr Dinelli KC who appeared with Dr Turner of counsel for the applicant informed me that disclosure remained a significant contested issue between the applicant, the second respondent and the represented third parties. The applicant sought orders in accordance with a minute that called for certain steps to be done by a particular date. One of those steps which took the form of paragraph 1(a) in the minute sought by the applicant involved the second respondent and the represented third parties completing details in a column entitled “TCF Further Response” of a document called by the parties “Disclosure Table, Parts 1 and 2”. Paragraph 1(b) of the minute of orders sought by the applicant required the second respondent and the represented third parties to complete the details in a column entitled “TCF Response” of the document called “Disclosure Table, Part 3”. Paragraph 1(c) of the minute of orders sought by the applicant required the second respondent and the represented third parties to give discovery of all documents to which an objection is not advanced in the documents referred to in paragraphs 1(a) and 1(b). Paragraph 1(d) of the minute of orders sought by the applicant required the second respondent to depose in a separate affidavit setting out his response to matters raised by the applicant in relation to the documents referred to in paragraphs 1(a) and 1(b).
Soon after appearances were announced, Dr Dinelli KC informed me that he relied on the contents of documents in a folder he handed up. Mr Kearney SC objected to my receiving the folder. Mr Kearney said he had not been provided with a copy of it so it was not appropriate for me to have the folder. I did not receive the folder. Dr Dinelli KC then paraphrased the contents of the folder without handing it to me. He explained that the folder contained documents referred to in the draft minutes of proposed orders, being the disclosure table parts 1, 2 and 3. Dr Dinelli said that the documents of immediate concern to the applicant fell into one of five categories, those being –
(a)documents in respect of which the second respondent had provided no response to the applicant’s request;
(b)documents provided to the applicant which had the effect of closing off all ongoing enquiries on the relevant issue;
(c)documents in respect of which only part of the disclosure requested had been supplied;
(d)documents of a particular category in respect of which an assertion was made that no further documents existed to be produced; and
(e)documents in respect of which the second respondent and the represented third parties stated that further instructions were being sought.
Mr Kearney SC informed me on 12 March 2025 that he was unable to meaningfully debate the matters before me and that his clients needed an opportunity to focus on the proposed minutes put forward by the applicant. He said that by reason of his part-heard commitments the earliest he could become involved after 12 March was 1.00pm Friday 14 March 2025.
Dr Dinelli KC submitted for the most part, item 1 of the table circulated on 6 March 2025 related to the orders made by me in Jess & Jess (No 11)[1] which still remained the subject of agitation. Mr Kearney submitted that he should have an opportunity to take instructions, at least in respect of the proposed orders sought. At that stage it was not known whether and if so to what extent the second respondent and the represented third parties opposed the orders sought by the applicant. At the request of Mr Kearney I adjourned the hearing of the first of the pretrial weekly directions hearings to 1.00pm on Friday 14 March 2025, that being the earliest Mr Kearney could devote himself to this debate.
[1] [2023] FedCFamC1F 1027.
It must be borne in mind that subsequent to the discovery orders of 8 December 2023 being pronounced, contested interlocutory disclosure disputes were argued before me in Jess & Jess (No 14).[2] Disclosure issues have bedevilled this litigation since the orders I made 8 December 2023.
[2] [2024] FedCFamC1F 391.
THE DIRECTIONS HEARING ADJOURNED TO 14 MARCH 2025
On 14 March 2023 prior to the appearance at 1.00pm, the solicitors for the second respondent and the represented third parties filed, without leave, an affidavit of the second respondent made that day. The affidavit itself was 15 pages in length. To it were exhibited documents that brought the overall page number of the affidavit and exhibits to 217. On the same day, the applicant’s solicitor, Mr AL, made an affidavit in which he deposed to exchanges between solicitors on 13 March, the day earlier. After debate I decided it most productive to admit into evidence on this directions hearing the affidavit of the second respondent as well as the affidavit of Mr AL, each made 14 March 2025. It is utile to synthesise the more important matters that arose from the second respondent’s 14 March 2025 affidavit, namely –
(a)he exhibited parts 1, 2 and 3 of the disclosure list in the folder, an attempt having been made to hand it up by the applicant’s counsel on 12 March 2025;
(b)he deposed to asking for more time to produce outstanding documents sought by the applicant;
(c)he deposed to a quantity of new documents having been sought by the applicant for the first time on 9 January 2025 and 28 February 2025;
(d)he said that producing disclosure to date had been onerous and had impacted on the ordinary course of the business he conducts;
(e)he said he had been assisted in the task of complying with his disclosure obligations by three staff members;
(f)despite this litigation having been on foot for many years, he said the issues keep changing and expanding requiring him to identify and locate records for entities and trusts which had not been earlier relevant but which now involve a very substantial amount of work;
(g)on 9 January 2025 the applicant’s solicitors provided to his solicitors a 63 page table headed “list of outstanding documents” pursuant to which table the applicant requested disclosure of documents described by reference to the clause “to the extent not already provided” which he asserted was an acknowledgment that some documents had already been provided rendering the request defective for lack of specificity;
(h)the 8 December 2023 orders had the effect of creating a new request requiring production of documents in respect of more than 50 trusts which, according to the second respondent, was not easily identifiable over the 16 year period to which this litigation relates;
(i)as at the date of the making of his 14 March 2025 affidavit, the second respondent stated that he had been working through the 9 January 2025 letter from the applicant’s solicitors when on 27 February 2025 a further request for disclosure was sent to him;
(j)the 27 February 2025 request was new and it sought disclosure in relation to X Corporation Pty Ltd and Jess Retail Unit Trust in the period 1 July 2009 to 30 June 2024 none of which was the subject to any prior disclosure request; and
(k)as at the date of his 14 March 2025 affidavit he was collating what he called the new documents sought on 9 January 2025 and on 27 February 2025.
At paragraph 23 of his 14 March 2025 affidavit the second respondent falsely stated that at the directions hearing on 12 March Dr Dinelli KC “tendered a folder of documents”. Dr Dinelli did not do that. He attempted to do so. Mr Kearney complained about my receiving that folder. I refused to receive the folder in view of Mr Kearney’s complaint. I specifically directed my associates to return the folder to Dr Dinelli KC which was done. Curiously, the very document in its multiple parts that Dr Dinelli KC said was in the folder which I refused to accept was exhibited as exhibit “MRJJ 2” to the second respondent’s 14 March 2025 affidavit. No explanation of how that came to pass was given by the second respondent. That caused me to very carefully examine the precise information given as well as the language used by the second respondent in his 14 March 2025 affidavit. A large amount of that 14 March 2025 affidavit was a submission, not a deposition of a factual matter, as the rules of court required. Precisely how a lay person was able to depose to any want of specificity in a disclosure request as the second respondent purported to do in paragraph 15.1 of his 14 March 2025 affidavit went unexplained. Illustrations of submissions dressed up as factual matters were to be found in the second respondent’s 14 March 2025 affidavit at paragraphs 24, 25, 26, 27, 28, 29, 30 and 31.
Paragraph 34 was wholly inadmissible. It should not have been incorporated into the second respondent’s affidavit. The second respondent is not legally qualified. He was not able to assert why complications caused by his disclosure could impede the wife’s formulation of any amended statement of claim. His concerns about the wife’s delays in filing an amended statement of claim were not statements of fact. He did not say on what information the assertion in the last sentence of paragraph 34 was based. It was not probative of any relevant matter on this directions hearing.
The second respondent proposed certain orders. In them –
(a)he suggested 5.00pm today for the applicant to provide an amended list of documents to him setting out documents she said had not been provided by him (incorporating a revised version of part 3 of the list already provided);
(b)he suggested 5.00pm on 28 March 2025 to provide a response setting out his version of the documents already provided, documents in his possession and a list of documents he cannot produce; and
(c)he produce all outstanding disclosure in what he called “the Refined List” by 5.00pm on 28 March 2025.
Dr Dinelli KC conceded requests for disclosure had been provided by his client in early January 2025 and late February 2025. It seemed to me that it was unduly burdensome to require the second respondent and the represented third parties to be bound by a severely contracted disclosure timetable in respect of categories of documents brought into sharp focus as recently as January and late February this year. Conversely, the ongoing disclosure disputation between the wife, the second respondent and the represented third parties has been on foot since my orders of 8 December 2023, 15 months in the past. The time has well and truly arrived for all but the issues of disclosure raised in the January and February 2025 requests to be much more meaningfully advanced. I am willing to proceed on the basis that the second respondent and represented third parties need longer than Dr Dinelli KC has offered to advance the disclosure requested on behalf of the wife in respect of the requests made in January 2025 and in late February 2025. That said, in respect of disclosure emanating from my 8 December 2023 orders, it must not be overlooked that –
(a)the stay application sought in relation to the 8 December 2023 orders was refused in Jess & Jess (No 12);[3]
(b)the filing of an application for leave to appeal does not operate as a stay of the orders against which an appeal is filed;
(c)the Full Court’s decision against my decisions in Jess & Jess (No 11) and Jess & Jess No 12) was handed down on 16 May 2024, 10 months ago; and
(d)enough time had elapsed to complete the tasks which the applicant now requires completion.
[3] [2024] FedCFamC1F 58.
I do not accept the assertions provided by the second respondent in paragraph 41 of his 14 March 2025 affidavit. It is to push credulity to the outer limits for him to suggest that it is impossible to assess historical disclosure requests. He has had since 8 December 2023 (when the orders were made) at the earliest or 16 May 2024 at the latest (when he failed in the Full Court) to do that. While it may be true that commercially he wants to continue to operate his business, he is nevertheless bound by the overarching purposes set out in s 95 and s 96 of the Family Law Act and the duties reposed therein. I reject his assertion that it is not practically possible for him to complete outstanding disclosure until 28 March 2025. Complications he may be presently encountering by retaining a replacement CEO or other employee issues should not hold up the forward progress of this litigation, at least not insofar as disclosure other than the January and February 2025 requests are concerned.
The form of orders proposed by the applicant was amended twice before its final version was before me. In essence the applicant’s proposal in its final version made provision for the following –
(a)the clause “disclosure table” was referrable to the document exhibited as exhibit “MRJJ 2” to the affidavit of Mr Jess Jnr sworn 14 March 2025; and
(b)by noon on 17 March 2025 the second respondent and represented third parties provide to the other parties a copy of the disclosure table parts 1 and 2 with the column entitled “TCF further response” completed.
Pausing at that juncture and going no further for present purposes, the column “TCF further response” is presently blank I respect of part 1 and it is likewise blank in respect of part 2. The TCF response is important because the response in that column will represent the second respondent’s and represented third parties’ position in respect of documents in categories identified by the applicant. A few illustrations will serve to demonstrate the importance of the responses by those respondents. Item one on page seven of part 1 relates to the fifth respondent AAA Pty Ltd. The document requested is recorded as “detailed general ledgers FY10 to date”. The initial response by TCF (the solicitors for the second respondent and the represented third parties) was that no documents exist. The applicant’s legal representatives indicated that the second respondent should provide an affidavit deposing to why he asserts the documents do not exist.
The documents sought are in a range of dates from 30 June 2010 to present. The second respondent has indicated that no documents exist, even in the period of six years prior to today’s date. No suggestion has been made that the fifth respondent has been deregistered or placed in liquidation. Precisely why it has no documents in the period enquired after is not easy to comprehend. The wife is endeavouring to better understand why the second respondent asserts, without more, that no documents exist in the nature of general ledgers over the period 2010 to date in respect of the company AAA Pty Ltd. The second respondent’s counsel says the information sought is akin to the second respondent being interrogated which should not be permitted.
I disagree that the request for the second respondent to complete the table TCF’s further response to part 1 to exhibit “MRJJ 2” to the second respondent’s 14 March 2025 affidavit is akin to interrogation. Rule 6.03 of the 2021 rules of court provide that the duty of disclosure set out in rule 6.01 applies in relation to each document that “is or has been in the possession, or under the control of the party disclosing the document.”
In affidavits of discovery in common law courts a necessary step in such an affidavit is to state whether a document currently is or historically has been in the hands of the party from whom disclosure is sought. To say that a document currently is not in the possession or control of a party fails to address the other component of rule 6.03 by setting out whether a document has been in the possession of that party. To my mind, once relevance is enlivened, it is not sufficient for the second respondent to say in respect of a particular class of document that no documents presently exist. In my view, the second respondent is required to complete the column “TCF further response” by stating why the documents sought do not exist or that he once had control or possession of such a class of documents but no longer does.
Item 2 of part 1 relates to the seventh respondent, GGG Pty Ltd. The second respondent allegedly produced certain documents that purported to respond to a request for detailed general ledgers for the financial years 30 June 2010 to date. The applicant has contended that the documents provided were incomplete and that in the period 2010 to 2020 there were missing detailed general ledgers. To my mind it is necessary for the second respondent to provide the general ledgers he has not supplied. If he no longer has the missing general ledgers in his possession or control, he must say so identifying which document fits into that category. It is not satisfactory for him to supply a list that is incomplete, without more by way of explanation. Where production is awaited, it must be given. Where the applicant records on table 1 “accepted” then nothing further beyond production must be done.
To my mind, table 1 must be addressed by the second respondent in the manner just recorded.
Dr Dinelli KC submitted that the task of completing the column “TCF further response” should be concluded by noon on Monday 17 March 2025. It is 10.00am at the moment and noon is slightly less than two hours away. That is unrealistically short. That said, by 5.00pm today the task can be completed, if diligence is applied in accordance with s 95(1)(d) of the Family Law Act. It must not be overlooked that each party and each party’s legal representative is, by force of s 96 of the Family Law Act, bound by the duties imposed by s 95 of the Family Law Act.
Paragraph 1 of the applicant’s proposed minute must be limited by the disclosure requests made 9 January 2025 and 28 February 2025. In other words, paragraph 1 of the orders propounded by the applicant must be understood to apply to the applicant’s requests for disclosure other than the requests made on 9 January and 28 February 2025.
In those circumstances I make an order in terms of paragraph 1 of the orders propounded by the applicant with the modification that the time for compliance is 5.00pm rather than noon today.
Chronologically next was paragraph 3 of the applicant’s proposed minute. Pursuant to that paragraph, the applicant sought an order that the second respondent and the represented third parties deliver all discovered documents in respect of which an objection is not advanced concerning the documents in paragraph 1 of the order. It follows that once the order in paragraph 1 was made the documents need to be physically produced. Enough time has elapsed in relation to the documents canvassed in the 8 December 2023 orders for production to be given where no objection is taken. Rather than ordering production at 10am on 17 March 2025, that time having already passed, the time should be extended to 5.00pm today for paragraph 3. That paragraph must be renumbered to become paragraph 2 it being chronologically in sequence next.
The second respondent and represented third parties submitted that they should have until 5.00pm on 17 March 2025 for the applicant to prepare yet another version of the list of documents. In other words, those respondents contended that the first step to be undertaken fell to the applicant. Those respondents argued that by 5.00pm on 17 March 2025 the applicant was required to identify the documents in exhibit “MRJJ 1” to the second respondent’s 14 March 2025 affidavit which have not yet been provided. That contention made little sense to me. By their proposal the second respondent and represented third parties were attempting to invert the sequence of tasks required to advance the dispute about disclosure by requiring the applicant to tell them what documents had not been provided. It would be extraordinary if the legal representatives for the second respondent and represented third parties did not keep a record of documents they say they have already supplied. Competent solicitors in mega litigation of this sort will invariably be completely on top of disclosure, if for no other reason than the importance of disclosure in cases such as this. I regard it as inefficient in terms of time and largely wasteful in terms of activity to order the applicant to prepare the list which the second respondent and represented third parties sought in paragraph 1 of their proposed minutes. I refuse to make such an order.
I do not accept the submission advanced by Mr Kearney that his clients are given an unfairly contracted time within which to perform the tasks set of them by requiring them to do anything prior to 28 March 2025. There is a modicum of merit in his proposition that his clients should have until 28 March 2025 to perform certain disclosure obligations. Those are only in relation to the disclosure sought on 9 January and on 28 February 2025. The proposal put forward by the second respondent and represented third parties advance the disclosure debate no further than requiring the second respondent to perform a very limited task by 5.00pm on 28 March 2025. By that time on that day Mr Kearney proposed his clients to record whether documents said to be outstanding had already been provided, whether those documents were in his client’s possession or control and “are to be produced” [whatever that meant] or whether those documents cannot be produced and why. The second respondent stipulated that all other documents in his possession or control relevant to the proceeding (the second respondent called it “the proceedings” even though only one proceeding is involved in this litigation) would be provided.
Mr Kearney submitted that in reality only eight days separated the proposals of the parties. I regarded that submission as being unduly simplistic. It was made in the same breath as was the submission that the second respondent and represented third parties should not be forced on with unseemly haste to address disclosure requested by the applicant on 9 December 2024 and 28 February 2025. It was also made against a factual backdrop that the second respondent said he is facing by reason of difficulties conducting his commercial activities concurrently with performing his disclosure obligations. To permit this case to drift in the manner suggested by Mr Kearney, even until 28 March 2025, is to act wholly inconsistently with the rationale behind conducting weekly directions hearings with a view to advancing the case to trial on 2 June 2025. His clients consented to weekly directions hearings.
The newly renumbered paragraph 2 (formerly paragraph 3 of the wife’s proposed minute) required the second respondent and the represented third parties to complete part 3 of the disclosure table in which the column “TCF response” is filled in. She asked for an order requiring those respondents to do that by noon on 18 March 2025, that is to say tomorrow. That task must be undertaken for the same reasons given in relation to paragraph 1 of the wife’s proposed orders. However, the second respondent and the represented third parties should have until 5.00pm that day to perform the task set out in the newly numbered paragraph 3. I make the same order in those terms.
Paragraph 4 of the wife’s proposed orders provided that the second respondent and represented third parties were required to make disclosure of all documents to which no objection was advanced and to do so by noon on 18 March 2025. For the same reasons as have been stated above about all disclosure and production narrated in these reasons, all such disclosure and production applies to disclosure referrable to requests other than those made on 9 January and 28 February 2025. Accordingly, I make an order in terms of paragraph 4 amended as to the time on 18 March 2025 (now 5.00pm) and as to second last number, being now 3 not 2.
The matters canvassed in paragraphs 5, 6 and 7 are stood over to the directions hearing on Wednesday 19 March 2025.
I make orders in terms of the applicant’s proposed orders as narrated above, and in the manner amended as narrated above but only in respect of paragraphs 1, 2, 3 and 4 of the minute. The applications in paragraphs 5, 6 and 7 are stood over to 19 March 2025.
Costs are reserved.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Wilson. Associate:
Dated: 18 March 2025
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