Jess & Jess (No 9)

Case [2023] FedCFamC1F 713

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Jess & Jess (No 9) [2023] FedCFamC1F 713

File number MLF 3444 of 2006
Judgment of WILSON J
Date of judgment 24 August 2023
Catchwords FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – DISCLOSURE – represented third parties protesting about providing disclosure pending the hearing and determination of two applications for leave to appeal – represented third parties objecting to being required to give disclosure in relation to several corporate respondents the registration of which have been deregistered – legal consequences of a company being deregistered – held, application held over to 18 September 2023.   
Legislation

Corporations Act 2001 (Cth) ss 50AA, 601AD and 601AH

Family Law Act 1975 (Cth) s 45A

Cases cited

Jess & Jess (No 7) [2023] FedCFamC1F 291

Ozer v Ozer (2021) 64 Fam LR 554

Tarkington Pty Ltd & Anor v Kingdrake Pty Ltd [2000] VSCA 98

Division Division 1 First Instance
Number of paragraphs 34
Date of last submission 26 June 2023
Date of hearing 26 June 2023
Place Melbourne
Counsel for the applicant Mr G. Dickson KC with Ms R. Matson
Solicitor for the applicant Kenna Teasdale Lawyers
Legal personal representative of the first respondent Mr W. P. Howard
Counsel for the represented third parties Mr I. G. Waller KC and Mr J. Mereine
Solicitor for the represented third parties HWL Ebsworth Lawyers
Counsel for the intervenors Ms N. Papaleo
Solicitor for the intervenors Lander & Rogers

ORDERS

MLF 3444 of 2006

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN

MS JESS

Applicant
AND

MR JESS JNR AND OTHERS

Respondent

MR K AND MR L AS TRUSTEES OF THE BANKRUPT ESTATE OF MR JESS SNR

Intervenors

ORDER MADE BY

WILSON J

DATE OF ORDER

24 AUGUST 2023

THE COURT ORDERS THAT –

1.The further hearing of this application in a proceeding is adjourned to 10:00am on 18 September 2023 in the Major Complex Financial Proceedings List. 

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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

WILSON J

INTRODUCTION

  1. By application in a proceeding dated 25 May 2023, the wife sought disclosure of a collection of documents identified in the annexure to her application and which, for convenience, I replicate as an annexure…

Continue reading Jess & Jess (No 9)

Sign in free to access the full text

Details
AGLC
Jess & Jess (No 9) [2023] FedCFamC1F 713
Case
[2023] FedCFamC1F 713
Decision Date

CaseChat Overview and Summary

The case of Jess & Jess (No 9) involves a dispute between parties represented by legal counsel regarding the disclosure of information in family law proceedings. The matter was heard in the Family Court of Australia, with the central issue being the timing and scope of disclosure in the context of pending appeals. The represented third parties had objected to providing disclosure pending the outcome of two applications for leave to appeal, and they were also protesting about being required to give disclosure in relation to several corporate respondents whose registrations had been deregistered.

The legal issues that the court was required to decide included whether disclosure should proceed in the absence of a resolution of the pending appeals, and if so, to what extent disclosure should be granted. The court also needed to consider the implications of the deregistration of certain companies on the litigation and whether the represented third parties' concerns about the disclosure were justified. The represented third parties argued that without a stay of the orders requiring disclosure, the appeals would be rendered nugatory and they would suffer substantial injustice. They further argued that the balance of convenience favoured granting a stay.

The court found that while the represented third parties' concerns had merit, it was not appropriate to halt the proceedings entirely pending the outcome of the appeals. The court reasoned that the status of the deregistered companies needed to be reviewed and that the relevance of disclosure from the schedule B and schedule C entities needed to be investigated. The court also acknowledged that the complaints about disclosure from the Mr Jess Jnr entities had some merit. Ultimately, the court decided to adjourn the matter to allow for further investigation and to ensure that the proceedings could move forward efficiently.

The court's final orders were that the further hearing of the application in the proceedings be adjourned to 10:00am on 18 September 2023 in the Major Complex Financial Proceedings List. This decision allowed for the investigation of the status of the deregistered companies, the relevance of disclosure from the schedule B and schedule C entities, and the resolution of the pending appeals, without unduly delaying the case.

Orders

Orders of the court

THE COURT ORDERS THAT –

1. The further hearing of this application in a proceeding is adjourned to 10:00am on 18 September 2023 in the Major Complex Financial Proceedings List.

Background

Background to the litigation

As these reasons record, I take the view that this discovery dispute should be adjourned to 18 September 2023. RELEVANT BACKGROUND On 27 April I handed down reasons for judgment in Jess & Jess (No 7).[1] That decision concerned the represented third parties’ application to have the intervenors’ cross claim summarily dismissed which was itself dismissed. I also dismissed the represented third parties’ application for the summary dismissal of the intervenors’ cross claim on the basis that it had no reasonable prospects of success. Similarly, I dismissed the represented third parties’ application for the dismissal of the intervenors’ cross claim under s 45A of the Family Law Act on the basis that the cross claim was an abuse of process. [1] [2023] FedCFamC1F 291. On 19 May 2023, I made orders dismissing the represented third parties’ application to stay my orders made on 27 April 2023. By notice of appeal dated 25 May 2023, the represented third parties sought leave to appeal against my orders made 19 May 2023. The two paragraphs of their application for leave were as follows – 1.In respect of the appeal against paragraph 1 of the Orders made on 19 May 2023 by the Honourable Justice Wilson (Orders) the Applicants for leave to appeal refer to the grounds of appeal set out in paragraphs 1 and 2 of Part E below and submit that in the circumstances of this case:(a)The decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and(b)Substantial injustice would result to them if leave were refused, supposing the decision to be wrong.2. The substantial injustice includes:(a)The Applicants' Application for Leave to Appeal paragraphs 4 and 5 of the Orders made on 27 April 2023 by the Honourable Justice Wilson (the April Orders), and the Appeal therefrom, (the Appeal) will be rendered nugatory if a stay is not granted because the subject matter of the Appeal will be destroyed if discovery and inspection is required to be given before the Appeal is determined.(b)If a stay of paragraphs 4 and 5 of the April Orders is not granted the Applicants will be practically deprived of any capacity to challenge orders that arguably should not have been made before being required to comply with those orders.(c)There is a real risk that if the Appeal succeeds the Applicants will be deprived of the fruits of the Appeal as it will not be possible for them to be substantially restored to their former position if the stay is not granted. The represented third parties’ grounds of appeal were in two main paragraphs, paragraph 2(b) of which related to discovery. The grounds of appeal were as follows – 1.The primary judge erred ([10], [11] and [15]) in finding that the Appeal will not be rendered nugatory unless the April Orders are stayed.2.The primary judge ought to have granted a stay of the April Orders pending the determination of the Appeal in circumstances where:(a)The Appeal would be rendered nugatory if a stay was not granted because the subject matter of the Appeal would be destroyed if discovery and inspection was required to be given before the Appeal is determined.(b)Although paragraphs 4 and 5 of the April Orders were interlocutory, they required the consideration and application of a fundamental legal principle in respect of tracing. That fundamental legal principle, and its proper application, is central to the Appeal against those orders.(c) The balance of convenience favoured the grant of a stay.(d)The Applicants had identified an adverse and severe consequence if the stay was not granted, being the unjustified incursion into their private affairs which could not be undone if the Appeal is successful.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MR J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MR J

By way of reply, Mr Dickson KC submitted that paragraph nine and following of the minute (the annexure to these reasons) gives voice to the direction I made many months ago that the parties must agree on a trial plan. CONSIDERATION In my view, not only is it optimistic but it is unduly premature to be prescribing trial directions. The applications for leave to appeal currently pending must be heard and determined. I will not order trial directions now as those orders will almost certainly require recalibration if ordered. In my view the status in this litigation of the deregistered companies and the single company under external administration must be carefully reviewed by the wife’s legal advisors. If no plans are presently afoot to apply to reinstate the deregistered companies, then the applicant should give consideration to applying for the removal of those deregistered companies from this litigation. So far as the schedule B entities are concerned, to the extent that one or more of those schedule B entities is or are involved in a pleaded allegation, then it will be sufficient for Mr Jess Jnr to give such discovery as he has in relation to each of any schedule B entity on a pleaded issue. So far as discovery from Ms C Jess and Mr Ban is concerned, I accept that no direct allegation has been made against each of Ms C Jess and Mr Ban, so it seems peculiar that discovery could be sought from Mr Ban and Ms C Jess having regard to there being no pleading against them. As to the represented third parties’ overall position that there should be no disclosure until the fate of their two applications for leave to appeal are known, it seems to me that unless and until the appeal court tells me that I erred, my decision stands. In those circumstances, disclosure must be made. If it transpires that my 27 April 2023 decision is overturned on appeal, orders can be made for disclosure in the light of the reasons given by the Full Court hearing the leave application. I do not agree that this proceeding should stop altogether until the decision of the appeal court is handed down. That decision could take many months from now and the forward progress of this case should not be suspended on that basis alone. Ordering discovery from what are described as the Mr Jess Jnr entities calls for an assessment of corporations to which s 50AA of the Corporations Act applies. Answering that enquiry goes beyond the usual task of assessing whether a particular document is discoverable. To my mind, the complaints raised about disclosure from the Mr Jess Jnr entities have merit. Similarly, the schedule C entities appear to have no discernible connection to this litigation. GOING FORWARD To my way of thinking, the most time efficient and cost effective manner of proceeding with the wife’s discovery application is to not dismiss it but to adjourn it for a period of about a month. In the intervening period – (a)the status of the deregistered companies can be investigated, especially whether they should remain in this litigation and if so, by when application will be made for reinstatement of their registration to the register of companies and if they are not to remain in this litigation then they should be removed as parties; (b)the relevance of discovery from the schedule B and schedule C entities can be investigated and in particular the apparent connection can be made of each of the schedule B and schedule C entities to this litigation; (c)the application hitherto referred to Harper J but now returned to me from Harper J will proceed on 18 September.