Kelton & Brady and Anor
[2017] FamCAFC 186
•7 September 2017
FAMILY COURT OF AUSTRALIA
| KELTON & BRADY AND ANOR | [2017] FamCAFC 186 |
| FAMILY LAW – APPEAL – APPLICATION FOR LEAVE TO APPEAL – where the husband issued a subpoena to the accountant of a discretionary trust – where a notice of objection was filed objecting to part of that subpoena – where the primary judge set aside that part of the subpoena on the basis of “relevance” and “fishing” – whether the primary judge erred in failing to find that the requested documents were “apparently relevant” – whether the primary judge failed to refer to all of the evidence germane to the determination of apparent relevance – whether the primary judge provided adequate reasons – where the relevance of the documents sought to be adduced would be marginal at best – where the applicant failed to identify any discretionary error – application for leave to appeal refused. |
| Family Law Act 1975 (Cth) ss 79, 79(4)(e), 94AA, 94AAA(3) Family Law Regulations 1984 (Cth) reg 15A |
| Hatton, VF v Attorney-General of Commonwealth of Australia, Commonwealth Bank of Australia, and Commonwealth Development Bank of Australia (2000) FLC 93-038 Kennon v Spry (2008) 238 CLR 366 Santos Ltd and Others v Pipelines Authority of SA (1996) 66 SASR 38 Trade Practices Commission v Arnotts Ltd and Ors (No 2) (1989) 88 ALR 90 Waind v. Hill and National Employers’ Mutual General Association Ltd [1978] 1 NSWLR 372 White and Tulloch v White (1995) FLC 92-640 |
| APPLICANT: | Mr Kelton |
| FIRST RESPONDENT: | Mr Brady |
| SECOND RESPONDENT: | Ms Chatfield |
| FILE NUMBER: | BRC | 5404 | of | 2016 |
| APPEAL NUMBER: | NOA | 20 | of | 2017 |
| DATE DELIVERED: | 7 September 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 7 September 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 May 2017 |
| LOWER COURT MNC: | [2017] FCCA 1022 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | P Hackett |
| SOLICITOR FOR THE APPLICANT: | Hirst & Co Family Lawyers |
| COUNSEL FOR THE FIRST RESPONDENT: | P A Looney QC |
| SOLICITOR FOR THE FIRST RESPONDENT: | HopgoodGanim Lawyers |
| COUNSEL FOR THE SECOND RESPONDENT: | Mr C Minnery |
| SOLICITOR FOR THE SECOND RESPONDENT: | Nita Stratton-Funk & Associates |
Orders
The applicant be granted leave to rely upon the written outline of argument in reply filed on his behalf.
The first respondent be granted leave to rely upon a Notice of Contention exhibited to the affidavit of Ms J filed on 25 August 2017 and without the necessity to separately file the same.
The application for leave to appeal Order (1) of the orders made by Judge Cassidy on 18 May 2017 be dismissed.
The applicant husband pay the costs of each of the first and second respondents of and incidental to the application for leave to appeal within twenty-eight (28) days of an amount being agreed in writing between the parties as to those costs, or failing such agreement within twenty-eight (28) days of assessment in the amounts so assessed.
I certify for counsel and Queens Counsel.
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 Kelton & Brady and Anor 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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 20 of 2017
File Number: BRC 5404 of 2016
| Mr Kelton |
Applicant
And
| Mr Brady |
First Respondent
And
| Ms Chatfield |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT[1]
[1]As indicated orally during the delivery of the reasons, the settled reasons will contain the quotations mentioned orally and citations for any cases mentioned. As also indicated in the oral reasons, headings have been added for ease of reference.
The parties to a marriage which ended in September 2016 are engaged in property proceedings in the Federal Circuit Court of Australia. In the course of those proceedings the husband issued a subpoena directed to a chartered accountant who I will call for the purposes of anonymity, Mr B.
Mr B is the accountant for, relevantly, the C Investment Trust (“the Trust”). The subpoena sought to have him produce a number of documents relating to the Trust.
No objection was taken to production to the husband of an “[o]riginal or copy of the Trust Deed establishing [the Trust]” and “[a]ny Deed of amendment of [the Trust]” as sought in the subpoena, but objection was taken to producing to the husband “[t]he financial accounts including the balance sheets and profit and loss statements and any associated notes for [the Trust] (for the years ending 30 June 2015 and 30 June 2016)”. A Notice of Objection had been filed accordingly.
Judge Cassidy upheld Mr B’s objection, setting aside the relevant paragraph of the schedule to the subpoena.
From that “interlocutory decree”,[2] the husband seeks leave to appeal. Mr B and the wife are both respondents to the application for leave and each opposes leave being granted.
[2]Family Law Act 1975 (Cth) (“the Act”) s 94AA; Family Law Regulations 1984 (Cth) reg 15A.
On 4 August 2017 the Chief Justice made an order pursuant to s 94AAA(3) of the Act that it was appropriate for the jurisdiction of the Family Court in relation to the appeal to be exercised by a single judge and it was heard by me today on that basis.
Leave to Appeal
It is convenient to postpone a consideration of the application for leave until after a conclusion has been reached on whether, if leave is granted, the appeal has merit and should be allowed.
Why was the Relevant Part of the Subpoena Set Aside?
Having first set out the background and the law, her Honour’s ultimate findings appear in the final two paragraphs of the reasons:
27.In the present case I consider that this matter aligns squarely with the MacDowell case because the wife has never been a shareholder or director and has never received any distribution from the Trust on her evidence and the evidence of the director of the trustee company. The wife has only in recent times enjoyed the benefit of living in a house the Trust owns rent free for [omitted] months. There is no satisfactory justification for the husband’s attempt to subpoena the documents sought from the person subpoenaed. There has been no consent as there was in MacDowell to providing certain documents I am satisfied that it is appropriate to set aside the subpoena on the basis of relevance.
28.The husband’s evidence at paragraph 13 above swears he has no knowledge of the wife not having received a distribution from the trust and no knowledge of a beneficiary loan account. In my view the husband would need to point to some evidence to support the assertion the wife received a distribution or has a loan account otherwise the issue of the subpoena could be described as a fishing exercise. Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100-101. For that reasons [sic] I would also set aside the subpoena.
The stated bases, therefore, for setting aside the relevant part of the subpoena are relevance and “fishing”.
It is uncontroversial that the husband had not made application pursuant to s 45 of the Federal Circuit Court of Australia Act 1999 (Cth) and Part 14 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) for discovery or the delivery of interrogatories.
The substantive property proceedings before her Honour are, I am told, progressing to trial. Counsel for the husband informs me that a mediation has been ordered but that his client “will not be participating in any mediation” without disclosure of documents pertaining to the Trust. The proceedings are, I am told, on a callover apparently held by her Honour at which trial dates will be set.
What Issues Arise on the Appeal?
The questions which arise on this appeal by reference to the grounds of appeal and arguments advanced on behalf of the husband are:
a)Were the documents sought “apparently relevant” to the issues in the proceedings and did her Honour err in applying the law in concluding that they were not?
b)In that respect, did her Honour fail to refer to all of the evidence germane to the question of relevance?
c)Are her Honour’s reasons adequate to explain her conclusions and orders?
Leave was granted for Mr B to rely upon the ground of “oppression” (which had been raised before her Honour) and was contained in a Notice of Contention annexed to an affidavit in support of an Application in an Appeal filed on 25 August 2017. Oppression was used, as I apprehend the argument, not in the sense of production being overly burdensome but in the sense of infringing upon the privacy and rights of a stranger to the action (the wife’s mother).
No dispute attends the test her Honour was to apply either in the proceedings below or before me. It is accepted that a proper basis for objection is that the documents have no “apparent relevance” to the issues in the proceedings.[3]
[3]See for example, Hatton, VF v Attorney-General of Commonwealth of Australia, Commonwealth Bank of Australia, and Commonwealth Development Bank of Australia (2000) FLC 93-038 (“Hatton”) and the cases there cited.
It is now settled that a subpoena can be set aside in so far as it seeks production of documents which have no “apparent relevance” to the issues in the proceedings.[4]
[4]Hatton, above.
In so holding for the purposes of proceedings in the Family Court, the Full Court in Hatton, above, cited with approval what was said by Beaumont J in Trade Practices Commission v Arnotts Ltd and Ors (No 2):[5]
… Does the material sought have an apparent relevance to the issues in the principal proceedings, ie, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of [the person at whose request the subpoena was issued].
[5](1989) 88 ALR 90, 103 (“Arnotts”).
The onus was on Mr B to establish that the documents sought had no apparent relevance to the issues in the proceedings.[6]
[6]Santos Ltd and Others v Pipelines Authority of SA (1996) 66 SASR 38, 52 citing Arnotts, above; and applied in Hatton, above.
The only basis for the subpoena sworn to by the husband is at paragraph 35 of his affidavit which in turn refers to the affidavit sworn by the wife’s mother. The husband deposes:[7]
… [The wife’s mother] states that at no time has [the wife] received a distribution of income or capital in her capacity as a beneficiary of [the Trust]. I do not know this from my own knowledge. I seek to test this assertion by viewing the financial statements of [the Trust] … I have no knowledge of whether or not [the wife] has a beneficiary loan account in [the Trust] and seek to satisfy this issue by inspection of the financial accounts.
[7]Husband’s affidavit filed 24 March 2017.
The evidence of both the wife and the mother is to the effect that no distributions have ever been made to the wife and the mother deposes that it is not intended to make any distributions to the wife of income or capital in the foreseeable future. The wife’s mother specifically deposes that the wife does not have a beneficiary loan account with either a credit or debit balance.
I reject the contention of counsel for the husband that the evidence given by each of the wife and her mother is “secondary evidence” and that the “best evidence” of the matters they depose to is constituted by the financial documents sought from Mr B. The mother is the effective controller of the trust. It is her actions (and her intentions) which govern the administration of the trust and directs the activities of the trustee, including the making of any loans and decisions as to distributions, including, crucially, the exercise of discretion relevant to them. In my view, the evidence of the mother is direct evidence and she is perfectly entitled to give the evidence that she has.
The form of the wife’s evidence may be objectionable in so far as it purports to give evidence of what may or may not have happened within the trust, but that, in my view, does not impact upon the evidence of the mother nor make the documentary evidence of the trust the “best evidence” of the matters to which the mother deposes.
The basis of the objection deposed to by the husband is, in my view and with respect, contrary to the submission made by his counsel before me, the essence of what is conveniently described as “fishing”. Although that term is frequently used, it is, as it seems to me, effectively a convenient description for other recognisable forms of objection to a subpoena (for example, impermissible purpose or oppression). The purpose deposed to by the husband, is to provide the possibility of establishing that what the mother (and the wife) have deposed to as to distributions and loan accounts is untrue and the husband provides no proper evidentiary foundation for asserting any lack of truthfulness.
Ultimately, however, it should be accepted, as it seems to me, that the proceedings before her Honour focussed primarily on the question of apparent relevance as did the appeal before me.
The Trust
The structure and control of the Trust is, save for one matter to which reference will shortly be made, uncontroversial.
The Trust was established by a Trust Deed dated in 2007 and has the wife’s mother as its appointor and C Investments Pty Ltd as its trustee. The wife’s mother is the sole director, secretary and shareholder of the corporate trustee;
The Trust is a discretionary trust. The wife disclosed her interest in the Trust as a discretionary beneficiary in her sworn Financial Statement. She is, along with the mother and her sister, one of the three “principal beneficiaries” of the trust and, similarly they are the three “default beneficiaries” of the Trust.
The sworn evidence of the wife’s mother is that:[8]
a)The wife’s mother provided the capital of the Trust on its establishment;
b)the funds were accumulated by her and her late husband as a result of their efforts during their lifetime;
c)at no time did the wife make “any contribution toward the acquisition, preservation or management of the capital or income of the Trust”;[9]
d)the wife has not received any distribution of income or capital from the Trust in her capacity as a beneficiary or default beneficiary of the Trust;
e)the wife does not have a beneficiary loan account with a credit or debit balance in the books of the account of the Trust; and
[8]Affidavit of the wife’s mother filed on 13 March 2017, paragraphs 3–17.
[9]Ibid, paragraph 16.
Other evidence is to the effect that the only evidence of any benefit that the wife has received from the Trust is her having been allowed to live in a house owned by the Trust rent free from the time of separation for approximately 18 months until she was better placed financially.
The controversial matter to which I have earlier referred, arises from the assertion in counsel for the husband’s written outline of outline of argument in reply that “the wife cannot be removed as a beneficiary or default beneficiary”. Reliance in that respect is placed upon clause 3.3(a) of the Trust Deed.
That clause provides:
3.3Removal of Beneficiaries
(a)A beneficiary, other than a default beneficiary, will cease to be a beneficiary:
i)if by deed expressed to be irrevocable the beneficiary, not being a minor, unconditionally declares a determination to no longer be included as a beneficiary and serves a properly executed copy of such deed on the Trustee; or
ii) where the Trustee with the consent of the Appointor by resolution or deed declares that a person or a class of persons is no longer to be included as a beneficiary and the deed or resolution is expressed to be irrevocable.
However, Queens Counsel for Mr B refers to Clause 3.3(e) which provides:
(e)A default beneficiary may only cease to be a beneficiary where a variation of this deed to such effect is made in accordance with clause 10 and where there will remain at least one default beneficiary.
Clause 10 deals with “Variation of trust”. Clause 10.1 provides that “the Trustee may with the written consent of the Appointor [in this case the mother], by deed alter, vary or revoke any interest or provision of this deed other than this clause, clause 7 and clause 8.1”. However, that provision is made subject to clause 10.2 which provides as follows:
10.2Restriction on variation
An alteration, variation or revocation pursuant to clause 10.1 must not:
(a)divert or modify a vested interest of a beneficiary in income or capital or the investments representing the same or income derived from any such investment to which such beneficiary has become absolutely entitled pursuant to this deed; or
(b)infringe any applicable law or rule against perpetuities or relating to remoteness of vesting or the period during which income may be accumulated or otherwise extend the termination date or result in any provision of the Trust becoming void.
Clauses 7 and 8.1 to which clause 10.1 is subject, are each lengthy and deal, respectively, with “Appointment and removal of trustee” and “Provisions relating to Trustee”.
It will be appreciated that in the context of this application for leave to appeal, detailed submissions were not made with respect to these provisions. However, for the purposes of these proceedings, I accept that the wife can be removed as a beneficiary or a default beneficiary, albeit that conditions apply to that removal.
Counsel for the husband seeks to rely on the fact that, as contended in the written outline “a house property had been purchased by the Trust for the Wife to reside in around the time of the parties separation” and she “paid no rent to the Trust for [omitted] months until [omitted] November 2016 when she alleged rental payments commenced (a fact unsupported by disclosure)”. It is also pointed out that the “Wife’s legal costs had been paid by her mother (although the source was unidentified)”.
I accept the submission by Queens Counsel for Mr B that there is no evidence, much less any expert evidence, before either the primary judge or me, by which I could or should conclude that the evidence as to the provision of the benefit of accommodation for the wife (admitted by both the wife and the mother) whether free or paid for, would be, or should be, treated within the accounts of the trust in the manner asserted from the Bar Table (or indeed in any particular manner).
The submissions in reply also point to evidence of the wife’s mother in respect of trust income. She deposes that income of the trust is distributed to a company wholly owned by the Trust’s corporate trustee so as to avoid vesting of income in the default beneficiaries (of which the wife is one). Thus, it is said, income is accumulating in a company wholly owned by the trustee company.
It is not suggested that the wife has any vested interest in the trust. However, it is contended centrally by the husband that, within the substantive s 79 proceedings, the wife has an interest in property within the meaning of that section (relying, as I apprehend it, upon what was said, in particular by French CJ in Kennon v Spry,[10] or she has as an expectancy or financial resource relevant to s 79(4)(e) of the Act).
[10](2008) 238 CLR 366, [73]–[78].
It was contended by counsel for the husband in the proceedings before her Honour that the financial accounts of the Trust the subject of the subpoena:
… show either the potential value of either a proprietary right or financial resource, which may be – may favour the wife at some future point in time, because as a – not only discretionary beneficiary in default, when the mother dies it can be wound up, and the two beneficiaries are she and her sister.[11]
[11]Transcript, 27 March 2017, p 20, ln 42–46.
The accounts do not, of course, show the value of any such asserted proprietary interest or indeed the trust itself. Counsel asserts orally that while that might be so, the accounts are nevertheless the “starting point” in arriving at any such valuation.
It should be observed that in Kennon v Spry, above, the Chief Justice, while agreeing with Gummow and Hayne JJ that “the equitable right to due administration of [a trust]” or the “equitable entitlement to due consideration in relation to the application of the income and capital” might be property, also said:[12]
In so agreeing, however, I acknowledge, consistently with the observations of the Full Court [of the Family Court] in Hauff and Evans, that it is difficult to put a value on either of these rights though a valuation might not be beyond the actuarial arts in relation to the right to due consideration.
(Emphasis added)
[12]Above, [78].
There was no evidence adduced before her Honour as to whether the “actuarial arts” might be able to value the asserted interest in property (if that is what it is found to be) or the financial resource, much less the basis or bases upon which any such “valuation” might be conducted or how a present value of any such “value” might be calculated or what assumptions or qualifications may underlie it.
In any event, even if an actuarial “valuation” was possible, it would axiomatically be a “valuation” of: an indeterminate interest, of indeterminate amount, received (if at all) at an indeterminate time, and qualified by possible future events (including removal of the wife as a beneficiary) that may, or may not, occur at an indeterminate future time.
The relevance of any such evidence (even assuming it is obtainable; is obtained and is admissible; including being based on relevant expertise and established facts giving the basis for the opinion) is, to my mind, likely to be marginal at best within the context of the broad range of matters which a court must take into account by reference to each of s 79(2) and s 79(4) and, if an order is to be made, the broad discretion inherent within it.
To that effect, Queens Counsel for Mr B relied upon statements made by the Full Court in White and Tulloch v White.[13] That case, it should immediately be observed, involved the question of future expectancies under a will where the testator remained alive, a distinguishing feature being of course that a testator with capacity can change a will at any time before death without reference to any instrument such as a trust deed.
[13](1995) FLC 92-640.
Yet, the comments made in relation to indeterminate interests that may be received at an indeterminate time have relevance, in my view, to the instant case. In particular, the Full Court there said that “the ultimate criterion is whether the evidence is, or may be, relevant to the just and equitable process under s. 79 [and an] expectancy of inheritance will not be relevant in many s. 79 proceedings”.
Here, that is all the more so; in my view, the s 79 process will be informed by facts that are already known and documents which must in any event have been disclosed or will be disclosed.
As to the former, it is known by the husband that:
a)As has been said, an inheritance received by the wife’s mother from the mother’s husband (omitted) amounted to about $20 million;[14]
b)The mother deposes that she “personally provided the capital of the Trust on its establishment” and that this capital was “accumulated by me and my late husband as a result of our efforts during our lifetime”;[15]
c)The wife’s mother had the capacity to gift to the wife $100,000 in (omitted) 2007;[16]
d)The wife’s mother had the capacity to gift to the wife $1 million in (omitted) 2007;[17]
e)The wife’s mother had the capacity to gift to the wife $120,000 also in 2007 which was invested in the wife’s superannuation fund;[18]
f)The wife had accommodation in real property owned by the Trust;[19]
[14]Deposed to as having been ascertained by the husband’s solicitors searching a Supreme Court file apparently relating to a family provision claim in respect of the mother’s late husband’s estate.
[15]Affidavit of wife’s mother filed 13 March 2017, paragraph 15.
[16]Wife’s affidavit filed by leave on 27 March 2017, paragraph 3.
[17]Ibid, paragraph 4.
[18]Ibid, paragraphs 15–16.
[19]Ibid, paragraph 11.
In addition, in terms of any asserted present benefit being received by the wife from the trust (in whatever form), the husband will have access to the wife’s taxation returns and bank accounts and the product of the wife’s ongoing duty to make full and frank disclosure of all matters relevant to her financial position and affairs.
Discretion
Those matters aside, there is in my view a more fundamental reason why this application for leave to appeal should be refused.
In my view, within, it should be noted, the context of an interlocutory decision, it is not established that her Honour has made any discretionary error. I accept the submission by Queens Counsel for Mr B that her Honour was required to exercise a discretion.
In Hatton, above, the Full Court referred extensively to the seminal judgment of Moffitt P in Waind v. Hill and National Employers’ Mutual General Association Ltd.[20] In that earlier decision, the President of the New South Wales Court of Appeal referred to three steps or stages involved in the subpoena process described broadly as production, inspection and admission into evidence.
[20][1978] 1 NSWLR 372, 381 (“Waind”).
Here, Mr B did not object to bringing the documents to court by reference to, for example, the subpoena being not properly served or the like; his objection was to the documents being given to the husband (and/or his lawyers). Moffitt P held that the “critical question” at this step was the power of the judge to permit inspection and, in particular, whether the judge had a discretion to permit inspection of the documents.[21]
[21]Waind, above, 383; Hatton, above, [40]
Referring to what in other decisions has been called the “adjectival relevance” as distinct from “substantive relevance”[22] the President continued in Waind, above:[23]
The crucial question in relation to the exercise of the discretion to permit inspection in the second step is whether the documents have apparent relevance to the issues. It is at the third step that questions between the parties of relevance in fact and admissibility are ruled upon.
…
The exercise of the discretion does not involve the determination of an issue between the parties as to the relevance or admissibility of the document. …
[22]See, for example, Beaumont J in Arnotts, above.
[23]Waind, above, 385.
It is by reference to that distinction, that a distinction is made between “adjectival relevance” and “substantive relevance”. Contrary to that which is alleged in the first ground of appeal, I can see no basis in the arguments advanced on behalf of the husband that her Honour “misapplied the law as to relevance” of the documents mentioned in the ground.
Nor do I consider that her Honour’s reasons are inadequate to explain the conclusion that her Honour reached; having set out the relevant facts, law and arguments, her Honour concluded that Mr B (and the wife) had established that the documents sought were not “apparently relevant”. Additional or perhaps more extensive reasons may have been given, but that is not the test and, in any event, these proceedings related to an interlocutory issue and it is not necessary for a primary judge to traverse all of the reasons advanced before him or her.[24]
[24]See, for example, A v J (1995) FLC 92-619, 82,233 and recently, Searle & Mellor [2017] FamCAFC 46, [27].
In terms of the asserted discretionary error that her Honour failed to take account of relevant considerations, the written outline on behalf of the husband asserts:
28.The Husband in paragraphs 6 to 25 of his affidavit filed 24 March 2017 provided evidence that:
(e)The Wife had a close relationship with her mother.
(f)That the Wife’s mother had received a significant inheritance of up to $20M from her late husband and after doing so gave $1M to the Husband and Wife.
(g)That after the parties separated the Wife moved to a house owned by the Trust and resided there rent free for [omitted] months until at least [omitted] November 2016. The Wife had not disclosed documents which established the actual payment of rent after that date. Further, that the Wife had told the Husband that her mother was buying her a house to live in.
(h)That the Wife had acknowledged in her own affidavit that her mother had paid her legal fees. The Husband is unware [sic] of the source of this payment and if [the wife’s mother] had met this payment through the Trust as no disclosure has been provided.
It is true that her Honour did not mention those matters (noting that her Honour does refer to the first part of that which is referred to at sub-paragraph (g)). As I have earlier said, some or all of those matters might inform arguments by the husband, ultimately, that they should inform part of the s 79 exercise. But those matters, all already known to the husband, do not in my view assist a decision as to whether the relevant documents are apparently relevant in the sense referred to in the authorities. I do not consider that the omission of the parts of the evidence there quoted are omissions or considerations centrally relevant to the exercise of her Honour’s relevant discretion.
I am unable to see any other discretionary error asserted or made out. In my view, her Honour took account of all such considerations as were relevant to the issue which she needed to determine.
Conclusion
I am not persuaded of any appealable error. I am not persuaded that the order made by her Honour results in any injustice to the husband.
The application for leave to appeal should be refused.
Costs
Prior to standing down to consider my judgment, I asked for submissions from all parties in relation to costs in respect of all possible results of the application for leave to appeal.
It is conceded, properly with respect as it seems to me in the circumstances of this case, that if the application for leave to appeal fails, costs should follow the event. I will so order.
Other Orders
At the outset of the hearing the husband sought leave to rely upon a written outline of argument in reply. Leave was not opposed and a formal order will be made to that effect.
Similarly, Mr B sought leave, through his Queens Counsel, to rely upon a Notice of Contention exhibited to an affidavit of Mr B’s solicitor, but not filed. Again, that was not opposed and leave was granted without the necessity to separately file that document.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 7 September 2017.
Associate:
Date: 12 September 2017
3