FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the respondents in the substantive proceeding (“the respondents”) seek to appeal from financial disclosure orders – Where the respondents seek to appeal from the dismissal of their application to stay the financial disclosure orders – Where the respondents contend leave to appeal is not required when the orders infringe their substantive right to keep documents confidential – Where the respondents’ desire for the retention of confidentiality is not the same thing as the enjoyment of a right to the retention of confidentiality – Whether the primary judge denied the respondents procedural fairness by rejecting their application to amend their Defence – Where the doctrine of procedural fairness is concerned only with the fairness of the hearing, not with the fairness of the result – Where not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation – Where this ground is devoid of merit – Where the primary judge ordered one respondent to file an affidavit requiring his opinion as to the estimated value of certain unit holdings – Where this order did not reflect the intentions of the primary judge and should not extend so far as to require expert valuation opinion evidence – Where the respondents conceded the application of the slip rule is appropriate – Order varied under the slip rule – Leave to appeal refused – Where the applications were wholly unsuccessful – Where the respondents did not cavil with the wife’s application for costs – Respondents ordered to pay the wife’s costs in a fixed sum.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Jess & Jess (No 5) [2024] FedCFamC1A 85
Case
[2024] FedCFamC1A 85
Decision Date
CaseChat Overview and Summary
The appellants, Mr. Jess Jnr, Mr. Ban, and AAA Pty Ltd as trustee of the BBB Trust, sought leave to appeal against financial disclosure orders made by the primary judge in the context of a complex family law dispute involving claims for property and income against the deceased estate of Mr. Jess Snr and other respondents. The respondents, including Ms. Jess and the trustees of Mr. Jess Snr's bankrupt estate, had intervened in the proceedings. The wife alleged that the deceased and the respondents had engaged in a fraudulent scheme to conceal Mr. Jess Jnr's involvement in the flow of funds through various corporate entities. The primary judge made several financial disclosure orders, which the appellants sought to challenge on the grounds of infringement of their right to confidentiality and alleged procedural unfairness in the dismissal of their application to stay these orders.
The court addressed the appellants' contention that leave to appeal was not required as the orders infringed their substantive right to keep documents confidential. The court clarified that the respondents' desire for the retention of confidentiality did not equate to the enjoyment of a right to the retention of confidentiality. Additionally, the court found that the primary judge did not deny the appellants procedural fairness by rejecting their application to amend their Defence, as procedural fairness concerns the fairness of the hearing, not the fairness of the result. The court held that the primary judge's order for one respondent to file an affidavit requiring an opinion as to the estimated value of certain unit holdings did not reflect the intention expressed in the reasons for judgment and should not require expert valuation opinion evidence. The court varied this order under the slip rule.
The court refused leave to appeal in both appeals, dismissed the notices of appeal, and ordered the appellants to pay the first respondent's costs of and incidental to the applications for leave to appeal, fixed in the sum of $71,258. The court varied one of the orders to delete the requirement for the current estimated value of the units.
Orders
Orders of the court
NAA 42 of 2024
NAA 360 of 2023
MLF 3444 of 2006
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR JESS JNR
First Applicant
MR BAN
Second Applicant
AAA PTY LTD AS TRUSTEEE OF THE BBB TRUST (and others named in the Schedule)
Third Applicant
AND:
MS JESS
First Respondent
MR J IN HIS CAPACITY AS THE LEGAL PERSONAL REPRESENTATIVE FOR MR JESS SNR (DECEASED)
Second Respondent
MR K AND MR L AS TRUSTEES OF THE BANKRUPT ESTATE OF MR JESS SNR
Intervener
ORDER MADE BY:
ALSTERGREN CJ, AUSTIN & WILLIAMS JJ
DATE OF ORDER:
16 MAY 2024
THE COURT ORDERS THAT:
1. In Appeal NAA 360/2023:
(a) leave to appeal is refused;
(b) the Notice of Appeal filed on 22 December 2023 is dismissed; but
(c) pursuant to r 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Order 8(e)(ii) made on 8 December 2023 is varied by deleting the suffix words “together with the current estimated value of the Units”.
2. In Appeal NAA 42/2024:
(a) leave to appeal is refused; and
(b) the Notice of Appeal filed on 22 February 2024 is dismissed.
3. The appellants shall pay the first respondent’s costs of and incidental to the applications for leave to appeal, fixed in the composite sum of $71,258 pursuant to r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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).
Background
Background to the litigation
For the following reasons, leave to appeal is refused in both instances, though one order is varied pursuant to r 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) because it inadvertently does not reflect the intention expressed in the reasons for judgment published by the primary judge.BACKGROUND Immediate identification of the many parties to, and the nature of, the underlying dispute will aid comprehension of these reasons. The wife pursues financial relief against the deceased estate of the late husband (“the deceased”) under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”). The trustees of the deceased’s bankrupt estate have intervened in the proceedings (“the trustees”). As an adjunct to the federal financial cause, claims are brought by the wife against other parties to recover property and income, intending that such property and income should form part of the property interests of the deceased and then be amenable to division between the wife, the deceased, and the trustees pursuant to property settlement orders made under Pt VIII of the Act. The wife’s allied claims comprise applications pursuant to s 106B of the Act to set aside a trust deed, the transfer of unit holdings the subject of the trust deed, and a deed of settlement, and in addition, claims in equity in reliance upon doctrines of constructive trust, tracing, and the taking of accounts. Aside from the deceased, who is the first respondent to the proceedings, the deceased’s son (“Mr Jess Jnr”) is the second respondent, Mr Jess Jnr’s wife (“Ms C Jess”) is the twenty-ninth respondent, an associate of Mr Jess Jnr (“[Mr Ban]”) is the fourth respondent, and the remaining respondents comprise a multitude of corporations said to be under Mr Jess Jnr’s actual or ostensible control. Ten of the twenty-nine respondents were consensually discharged as parties to the proceedings on 8 December 2023 (Order 1), which order is not challenged in the appeal, though it seems the order mistakenly omitted to achieve the intended additional removal of the sixth respondent (at [5]). Broadly stated, the wife contends the deceased and the respondents complicitly perpetrated an extravagant fraud to relieve the deceased of property and income to which he was properly entitled, which should now be available for division between the wife, the deceased and the trustees by adjustment orders made under Pt VIII of the Act. The primary judge described the wife’s case in this way:51.For the purpose of rule 6.03(b) one of the issues in the proceeding is fraud, commencing from 20 September 2009 and the transactions done allegedly in pursuance of that fraud. On the [wife’s] case, the number of corporate entities involved in the fraud is vast, each having a connection to [Mr Jess Jnr]. According to the wife, at least one component of the fraud alleged has involved installing persons as directors of the relevant entities who are not [Mr Jess Jnr] but who act at his direction in directing the relevant corporate entity. Another component of the fraud alleged is that one or more persons has been installed as the shareholder in the relevant entity who holds the relevant shareholding on trust for [Mr Jess Jnr] with the consequence that [Mr Jess Jnr] remains the full beneficial owner of the relevant company, even though the registered legal shareholder is someone else. That has the consequence that any financial benefit of the shareholding in the relevant entity inures to [Mr Jess Jnr]. The network of companies alleged by the wife is seemingly labyrinthine. …68.The precise nature of the fraud in which the wife alleges [Mr Jess Jnr] engaged is presently unknown to her. That is unsurprising. She was not privy to it. But the wife asserts she has identified that [Mr Jess Jnr] employed a scheme by which his involvement in the flow of funds was concealed by the use of trusts in which any one of the persons named in paragraph 8B of annexure A was included. It is true, those persons are not presently named, in terms, in the amended statement of claim. But it must not be overlooked that a distinction exists between pleading allegations of fact as opposed to pleading particulars.(Footnote omitted)