Joubert & Anor and Verhoeven & Anor - [2018] FamCA 879

FAMILY COURT OF AUSTRALIA

JOUBERT AND ANOR & VERHOEVEN AND ANOR

[2018] FamCA 879

FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife joined a company and the husband’s brother to the substantive proceedings as the second and third respondents – Where the second and third respondents seek that the proceedings be bifurcated to determine the issue of whether the husband is a beneficial owner of any ordinary shares in the second respondent – Consideration of r 10.13 and r 10.14 of the Family Law Rules 2004 (Cth) as well as relevant case law – Where the court is not persuaded that bifurcation will result in an expeditious disposal of the proceedings – Where in this case a bifurcated hearing would not involve a narrow point – Where the issue of bifurcation is one of discretion – Where the court will not order a bifurcated hearing.

FAMILY LAW – PRACTICE AND PROCEDURE – Where it is sought that a bifurcated issue be transferred to the Supreme Court of New South Wales whilst the remainder of the proceedings stay in the Family Court of Australia for later completion – Consideration of s 45(2) of the Family Law Act 1975 (Cth) – Where s 45(2) on its face contains no power to transfer a bifurcated issue in the manner sought – Where there is a risk of conflicting findings of fact and credit by two different judges – Where the application is dismissed.

Family Law Act 1975 (Cth) ss 45, 79
Family Law Rules 2004 (Cth) rr 10.13, 10.14

Southwell v Bennett [2010] NSW SC 1372

FIRST APPLICANT:

Mr C Joubert

SECOND APPLICANT:

B Pty Ltd

FIRST RESPONDENT:

Ms Verhoeven

SECOND RESPONDENT:

Mr A Joubert

FILE NUMBER:

SYC

4981

2016

DATE DELIVERED:

29 October 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

13 September 2018

REPRESENTATION

COUNSEL FOR THE FIRST AND SECOND APPLICANTS:

Mr Lloyd SC

SOLICITOR FOR THE FIRST AND SECOND APPLICANTS:

Blanchfield Nicholls Partners

COUNSEL FOR THE FIRST RESPONDENT:

Mr Richardson SC

SOLICITOR FOR THE FIRST RESPONDENT:

Edwards Family Lawyers

SOLICITOR FOR THE SECOND RESPONDENT:

KD Holmes Solicitors

Orders

The Further Amended Application in a Case filed by Mr C Joubert and B Pty Ltd on 11 September 2018 is dismissed.
Proceedings number SYC4981/2016 are expedited.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Joubert & Verhoeven has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4981 of 2016

Mr C Joubert

First Applicant

Grounds of appeal

[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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Details

Case: [2018] FamCA 879
Decision Date: 29 October 2018

CaseChat Overview and Summary

The parties in this matter were the wife, Mr C Joubert, and B Pty Ltd. The wife had joined Mr Joubert's brother and B Pty Ltd as respondents to substantive family law proceedings. The second and third respondents sought to bifurcate the proceedings to determine a specific issue concerning whether Mr Joubert was a beneficial owner of ordinary shares in B Pty Ltd. The court was the Family Court of Australia, with Stevenson J presiding.

The legal issues before the court were whether to order a separate hearing for the discrete issue of Mr Joubert's beneficial ownership of shares in B Pty Ltd, pursuant to rules 10.13 and 10.14 of the Family Law Rules 2004 (Cth). Additionally, the court considered whether a bifurcated issue could be transferred to the Supreme Court of New South Wales while the remainder of the proceedings remained in the Family Court, in light of section 45(2) of the Family Law Act 1975 (Cth).

Stevenson J considered the principles governing the exercise of discretion to order a separate determination of an issue, drawing on case law such as *Southwell v Bennett*. The court noted that bifurcation is generally approached with caution and that the overriding purpose of the Civil Procedure Act 2005, namely the just, quick, and cheap resolution of proceedings, must be given effect. The court was not persuaded that bifurcating the proceedings would lead to an expeditious disposal, as the issue was not a narrow point and a bifurcated hearing would not necessarily be shorter or cheaper. Furthermore, the court found that section 45(2) of the Family Law Act did not confer power to transfer a bifurcated issue in the manner sought, and there was a risk of conflicting findings of fact and credit by different judges.

The court ordered that the Further Amended Application in a Case filed by Mr C Joubert and B Pty Ltd be dismissed. The court also ordered that proceedings number SYC4981/2016 be expedited.

Orders

Orders of the court

The Further Amended Application in a Case filed by Mr C Joubert and B Pty Ltd on 11 September 2018 is dismissed.

Proceedings number SYC4981/2016 are expedited.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Rule 10.13 of the Family Law Rules 2004 (Cth) (“the Rules”) empowers the court to hear and determine a discrete issue in a case. This Rule provides as follows:10.13 Application for separate decisionA party may apply for a decision on any issue, if the decision may:(a) dispose of all or part of the case;(b) make a trial unnecessary;(c) make a trial substantially shorter; or(d) save substantial costs. Rule 10.14 of the Rules provides that the court has a discretion as follows:10.14 What the court may order under this PartOn an application under this Part, the court may:(a) dismiss any part of the case;(b) decide an issue;(c) make a final order on any issue;(d) order a hearing about an issue or fact; or(e)with the consent of the parties, order arbitration about the case or part of the case. The written submissions on behalf of the wife referred to a decision of Southwell v Bennett [2010] NSW SC 1372 where Hallen AsJ set out the principles which apply to a determination whether to order a separate hearing of a question under the relevant Uniform Civil Procedure Rules 2005. His Honour said inter alia:15I take the principles that apply in determining whether to make an order for the separate determination of a question under the rule to be:(a)The rule speaks of “questions” and not “issues” and does not differentiate between questions of fact, or law, or partly of fact and partly of law.(b)The judicial determination of a “question” must involve a conclusive, or final, decision based on concrete and established, or agreed, facts, for the purpose of quelling a controversy between the parties: Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334, at [45] and [51].(c)The rule permits the Court to hear and determine the separate question at any point before, at, or after, any trial or further trial in the proceedings, rather than only as a preliminary question.(d)Whether such an order should be made is a matter for the court’s discretion, which discretion must be exercised judicially, but cannot otherwise be fettered: Dunstan v Simmie & Co Pty Ltd [1978] VR 669, at 670; Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7].(e)As a general rule, the discretionary power to order separate determination of a question should be approached with caution: Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at [436], per Callinan J; Tepko Pty Limited v The Water Board [2001] HCA 19; (2001) 206 CLR 1, at [168]–[170] per Kirby and Callinan JJ: Commonwealth Bank v Clune [2008] NSWSC 1125 at [6], per Johnson J; Bailey and Bailey v Director-General Department of Energy Climate Change and Water and Ors [2010] NSWSC 979 at [4] per Studdert AJ.(f)In exercising its discretion, the overriding purpose of the Civil Procedure Act 2005, namely the just, quick and cheap resolution of the real issues in the proceedings (s 56) must be given effect.(g)Generally, all questions of fact and law should be determined at the one time: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141-42; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14. If the Court is to depart from that position, the party seeking the separate determination of a question must satisfy the Court that it would be ‘just and convenient’ for that order to be made: Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 at [8]-[9], see also Energy Australia v Australian Energy Limited [2001] FCA 1049.(h)While it may appear attractive, superficially, to order the trial of a separate question, experience often shows that it will not be so, for example, because of the complications that can arise in relation to appeals, or to overlapping factual issues, or to questions of credit, if the same witnesses have to give evidence in relation to a question that is separated and those questions that are not: Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7(6)] per Einstein J.; Owners Corporation Sp 70672 v Trustees of Roman Catholic Church [2010] NSWSC 946 at [16] per Ball J.(i)The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings, but often has the reverse effect. It sometimes happens that it turns out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which it is intended to avoid: Idoport Pty Ltd v National Australia Bank Ltd; Tepko Pty Limited v The Water Board at [168].(j)Before a question is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings: Tallglen v Pay TV Pty Ltd at 142, per Giles CJ in Comm D; Parramatta Stadium Trust v Civil and Civic Pty Ltd; Century Medical v THLD (NSWSC, 27 August 1996, unreported).(k)Where findings as to the credit of a witness is, or of witnesses are, or may be, involved in the consideration of the evidence relevant to the question, it is inappropriate to order a separate trial: ABB v Freight Rail [1999] NSWSC 1037.(l)Often, a separate question is heard on the basis of:(i) agreed statements of fact;(ii) a narrow point to be determined; and(iii)a hearing that is able to be conducted within a short time (or a short time relative to the total length if the hearing of the separate question were not to be dealt with).(m)Factors that tend to support the making of an order, include that the separate determination of the question may:(i)contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the proceedings: Tallglen v Pay TV Holdings;(ii)contribute to the settlement of the litigation (CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 602 per Kirby P at 607).(n)It may be appropriate to determine a separate question, even if it will not resolve all the issues, provided that there is a strong prospect that the parties will agree upon the result when the core of the dispute has been decided, or if the decision will obviate unnecessary and expensive hearings of other questions: City of Swan v Lehman Brothers Australia Ltd [2009] FCA 784; (2009) 73 ACSR 86 at [27] per Rares J. The determination of the one question should enable a sensible reassessment of litigation risks, which is generally likely to encourage some form of settlement discussions.(o)Relevantly, one factor that may tell against the making of an order would be where there is likely to be a significant overlap between the evidence adduced on the hearing of the separate question and at trial — possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding: Reading Australia Pty Ltd v Australian Mutual Provident Society at [8]. There is always a risk of inconsistent findings arising from determination of separate questions.(p)Whilst the decision is ultimately one for the court to determine, it will have regard to the attitude of the parties: TVW Enterprises Limited v Duffy (Federal Court of Australia, 28 March 1985, unreported) Toohey J.(q)It is a relevant consideration to weigh the time likely to be taken in the hearing of a separate question and the availability of hearing dates for that purpose, against the time and expense of a substantive hearing and the length of time likely to elapse before such a hearing will take place: TVW Enterprises Limited v Duffy at pp 4-5.(r)Each case will have its own dynamics that dictate the relative importance of various factors to be considered in exercising the discretion conferred.(s)It is necessary that there be precision, both in formulating the question, and in specifying the facts upon which it is to be decided: Jacobson v Ross [1995] 1 VR 337 at 341

Ratio Decidendi

Legal Principle Established

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