Jess & Jess (No 5)
[2022] FedCFamC1F 594
Federal Circuit and Family Court of Australia
(DIVISION 1)
Jess & Jess (No 5) [2022] FedCFamC1F 594
File number(s): SYC5516/2017 Judgment of: WILSON J Date of judgment: 17 August 2022 Catchwords: FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – parties previously ordered to bring a minute giving effect to reasons delivered on 29 July 2022 – parties unable to reach a consent minute – orders made. Cases cited: Jess & Jess (No 4) [2022] FedCFamC1F 530 Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 16 August 2022 Place: Melbourne Counsel for the Applicant: Mr G. Dickson QC with Ms L. Johnston Solicitor for the Applicant: Kenna Teasdale Lawyers Counsel for the Second to Twenty Ninth Respondents: Mr I. Waller SC Solicitor for the Second to Twenty Ninth Respondents: HWL Ebsworth Lawyers Counsel for the Interveners: Mr H. Austin QC Solicitor for the Interveners: Lander & Rogers ORDERS
SYC 5516 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS JESS
Applicant
AND: MR J AS LEGAL PERSONAL RESPRESENTATIVE OF MR JESS SNR (DECEASED)
First Respondent
MR JESS JNR (and others named in the Schedule)
Second Respondent
MR K AND MR L
Interveners
order made by:
WILSON J
DATE OF ORDER:
17 AUGUST 2022
THE COURT ORDERS THAT:
1.On or before 4:00pm on 30 September 2022 the wife must file and serve –
(a)a further amended initiating application in which the wife sets out in precise terms the relief she seeks against all respondents pursuant to section 79 of the Family Law Act; and
(b)a statement of claim to a standard commensurate with a proceeding in the Federal Court of Australia.
2.On or before 4:00pm on 28 October 2022 the 2nd to 29th respondents and the trustees of the bankrupt estate of Mr Jess Snr (Trustees) must file and serve their defences and any cross-claims.
3.On or before 4:00pm on 11 November 2022 the wife must file and serve –
(a)any reply to any defence of the 2nd to 29th respondents or the trustees; and
(b)any defence to any cross-claim of the 2nd to 29th respondents or the trustees.
4.On or before 4:00pm on 11 November 2022 –
(a)the 2nd to 29th respondents must file and serve any defence to any cross-claim of the trustees; and
(b)the trustees must file and serve any defence to any cross-claim of the 2nd to 29th respondents.
5.On or before 4:00pm on 25 November 2022 –
(a)the 2nd to 29th respondents must file and serve any reply to any defence of the wife or trustees to their cross-claim; and
(b)the trustees must file and serve any reply to any defence of the wife or 2nd to 29th respondents to their cross-claim.
6.On or before 4:00pm on 2 December 2022 any party must serve on any other party a list of documents or categories of documents that they require that party to produce by way of discovery.
7.On or before 4:00pm on 23 December 2022 any party served pursuant to paragraph 6 above must produce the documents requested insofar as those documents are or have been in that party's possession or control and which are not the subject of objection.
8.On or before 4:00pm on 30 September 2022 the applicant wife and trustees must file and serve written submissions not exceeding 20 pages in length, together with any affidavits, in relation to the costs sought by them against the 2nd to 29th respondents of and incidental to the hearing the subject of the judgment delivered on 29 July 2022.
9.On or before 4:00pm on 28 October 2022 the 2nd to 29th respondents must file and serve written submissions in response not exceeding 20 pages in length, together with any affidavits, to the costs submissions filed by the applicant wife and trustees pursuant to paragraph 8 hereof.
10.The further hearing of this proceeding is adjourned to 10:00am on 1 March 2023 for mention in the Major Complex Financial Proceedings List so that the parties may address –
(a)the determination of any outstanding disputes concerning discovery as follows –
(i)arising out of the process provided for in orders 6 and 7; and
(ii)the applicant wife’s application in a case filed 8 February 2019;
(b)the further conduct of the proceeding generally; and
(c)such other matter as the court considers appropriate.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Jess & Jess is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
On 29 July 2022 upon making an order setting aside the consent orders pronounced by Cronin J several years ago, I directed the parties to bring in a minute giving effect to my reasons.[1]
[1] Jess & Jess (No 4) [2022] FedCFamC1F 530.
As with so many aspects of this litigation, even that task was the subject of disagreement.
In essence, the represented third parties contended that –
(a)my orders made 29 July 2022 were likely to be the subject of an application for leave to appeal or an appeal as of right;
(b)no interlocutory orders should be made pending the hearing and determination of the represented third parties’ application for leave to appeal or their appeal proper; and
(c)if orders were made by me for the ongoing conduct of this litigation, a risk exists that on appeal those orders may be set aside so little purpose would be served in making orders at all at this stage.
Counsel for the wife and counsel for the trustees contended that the making of orders by me had the effect of bringing to a formal conclusion the issues determined by the decision dated 29 July 2022.
It seemed to me that all were correct in one sense yet consistent with my duty to determine fully the application the subject of the 29 July 2022 reasons, formal orders need to be pronounced. While I accept unreservedly Mr Waller QC’s statement that a notice of appeal will be filed, one has not yet been filed. Mr Waller QC informed me that the precise content of the appeal – whether for leave or not – is not yet settled. Mr Waller also informed me that having regard to certain observations in my 29 July 2022 reasons a recusal application may also be brought. Whether that emerges remains to be seen.
In my view, if the represented third parties are able to persuade an appeal bench to upend my 29 July 2022 decision, that bench can also grant a stay of the orders I now pronounce or it can altogether reverse what I have done, notwithstanding that this litigation has been festering for many years and no end is remotely in sight.
The specific orders are those appearing in paragraphs 1, 2, 3, 4, 5, 6, 7, 10, 11 and 13 in the wife’s and trustees’ minute handed up on 16 August 2022.
I decline to address the costs of the judgment of 4 December 2018. That should be done at the end of this litigation. Costs canvassed in the 29 July 2022 reasons should be determined by me soon into the future.
The return date of this proceeding will be in the new year. I shall fix 1 March 2023. That date may need to be moved depending on how any appeal bench addresses the represented third parties’ applications.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 17 August 2022
SCHEDULE OF PARTIES
MLF 3444 of 2006 Respondents
Fourth Respondent:
MR BAN
Fifth Respondent:
AAA PTY LTD AS TRUSTEE OF THE BBB TRUST
Sixth Respondent:
CCC PTY LTD AS TRUSTEE OF THE DDD UNIT TRUST
Seventh Respondent:
GGG PTY LTD
Eighth Respondent:
EEE PTY LTD
Ninth Respondent:
HHH PTY LTD
Tenth Respondent:
JJJ PTY LTD
Eleventh Respondent:
LLL PTY LTD
Twelfth Respondent:
MMM PTY LTD
Thirteenth Respondent:
X CORPORATION PTY LTD
Fourteenth Respondent:
X HOLDINGS PTY LTD
Fifteenth Respondent:
X INTERNATIONAL PTY LTD
Sixteenth Respondent:
X PROPERTIES PTY LTD
Seventeenth Respondent:
X PTY LTD AS TRUSTEE FOR THE JESS RETAIL UNIT TRUST
Eighteenth Respondent:
X-1 PROPERTIES PTY LTD
Nineteenth Respondent:
NNN PTY LTD
Twentieth Respondent:
OOO PTY LTD
Twenty-first Respondent
QQQ PTY LTD AS TRUSTEE OF THE RRR FAMILY TRUST
Twenty-second Respondent
X-1 PTY LTD
Twenty-third Respondent
Y (NZ) LIMITED
Twenty-fourth Respondent
Y (WA) PTY LTD
Twenty-fifth Respondent
Y INTERNATIONAL PTY LTD
Twenty-sixth Respondent
X-2 PTY LTD
Twenty-seventh Respondent
SSS PTY LTD AS TRUSTEE OF THE TTT INVESTMENT TRUST
Twenty-eighth Respondent
VVV PTY LTD
Twenty-ninth Respondent
MS C JESS
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