Kerr & Christie (No 2)
[2022] FedCFamC1F 285
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kerr & Christie (No 2) [2022] FedCFamC1F 285
File number(s): SYC 3851 of 2020 Judgment of: WILSON J Date of judgment: 2 May 2022 Catchwords: FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDING LIST – application to vacate trial dates – application refused. Legislation: Family Law Act 1975 (Cth) s 79 Cases cited: Cameron v Cole (1944) 68 CLR 571
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Delta Properties Pty Ltd v Brisbane City Council (1955) 95 CLR 11
Hsiao v Fazarri (2020) 94 ALJR 961
Kerr & Christie [2021] FedCFamC1F 313
McGibbon v Linkenbagh (1996) 62 IR 426
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 82
Standard v Stanford (2012) 247 CLR 108
Sullivan v Dept of Transport (1978) 20 ALR 323
Woodcock & Woodcock [2021] FedCFamC1F 88
Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 1 April 2022 Place: Melbourne Counsel for the Applicant: Mr S. Williams QC Solicitor for the Applicant: Russell Kennedy Aitken Lawyers Counsel for the Respondent: Mr L. Glick QC Solicitor for the Respondent: Barkus Doolan ORDERS
SYC 3851 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KERR
Applicant
AND: MS CHRISTIE
Respondent
ORDER MADE BY:
WILSON J
DATE OF ORDER:
2 MAY 2022
THE COURT ORDERS THAT:
1.The trial of this proceeding remains listed to commence at 10:00am on 1 August 2022.
2.On or before noon on 9 May 2022 the parties must prepare and submit a minute of agreed orders.
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
On 8 February 2022 I fixed the trial of this proceeding in the Major Complex Financial Proceedings List to commence before me on 1 August 2022. In paragraphs 6 and 7 of those orders I required certain steps in relation to valuations to be completed by 22 March 2022 and I adjourned the proceeding for mention on 1 April 2022.
On 1 April 2022 Mr S. J. Williams, One of Her Majesty’s Counsel for the husband submitted before me that the trial should not go ahead on the date fixed. He submitted –
(a)an appeal from the decision of Riethmuller J in relation to objections to subpoenae has not yet been heard and no date is fixed; and
(b)expert evidence has been problematic to date and it has not been prepared in accordance with earlier orders.
On behalf of the wife, Mr L. Glick, One of Her Majesty’s Counsel, submitted that the trial date should not be vacated.
As these reasons explain, I am of view that the trial date should stand.
THE APPLICATION BEFORE RIETHMULLER J
On 16 November 2021 his Honour heard an application to review a decision of a registrar made on 17 September 2021.[1] Riethmuller J discharged the registrar’s orders. In the application before the registrar J Pty Ltd was the recipient of a subpoena issued by the husband to produce various documents. Item 4 of the subpoena called upon J Pty Ltd to produce a copy of the financial statements including any profit and loss statements, list of distributions and asset schedules of the L Trust for the preceding three financial years. Item 5 of the husband’s subpoena called upon J Pty Ltd to produce a copy of the taxation returns for the L Trust for the preceding three financial years. J Pty Ltd objected to the production of those documents. The registrar ordered the production of the documents identified in items 4 and 5 of the husband’s subpoena. J Pty Ltd sought orders striking out items 4 and 5 of the husband’s subpoena. Riethmuller J granted the applications by J Pty Ltd and made orders striking out items 4 and 5 of the husband’s subpoena which, relevantly, operated in such manner that his Honour discharged paragraphs 17 and 18 of the registrar’s 17 September 2021 orders.
[1] Kerr & Christie [2021] FedCFamC1F 313.
Slightly earlier, on 26 November 2021 this proceeding was been entered into the court’s Major Complex Financial Proceedings List during a mention as part of the court’s Winter Callover. I fixed a directions hearing for 8 February 2022.
On 14 January 2022 the husband filed a notice of appeal against the orders made by Riethmuller J on 17 December 2021. By the time I heard directions in this proceeding on 8 February 2022, a date for the hearing of the appeal against Riethmuller J’s orders had not been allocated.
THE HEARING BEFORE ME ON 8 FEBRUARY 2022
On 8 February 2022 this case was brought on for directions in the Major Complex Financial Proceedings List. Mr Doolan, solicitor, appeared for the husband. Soon after appearances were announced I enquired about the status of the husband’s appeal. Mr Doolan made the following submissions –
MR DOOLAN: Your Honour, his Honour gave judgment in December, as you know, effectively upholding the review application by the trustee of a trust. Subsequent to that, in January of this year, the husband filed a notice of appeal to the 20 appellate division of the court in respect to that decision of his Honour, that appeal being filed, I think, on or about 14 January. The appeal relates to an issue in respect of documents sought by the husband relating to a trust in the control of my client’s mother, so it’s a relatively discrete issue. On behalf of the respondent wife, there was forwarded to your Honour’s associate yesterday afternoon a proposed set of 25 directions on behalf of my client, with a view trying to progress the matter, and can I say at the outset that’s not an agreed document.
HIS HONOUR: But hang on. There’s an appeal pending, so what’s the point of making orders where the time will elapse pending the hearing of the appeal?
MR DOOLAN: Well, can I try and convince your Honour as to why, in fact, these things could be done in parallel in this particular case? The appeal relates to the husband’s seeking documents in respect of a trust controlled by my client’s mother. His argument is that that trust represents a financial resource of my client. The only matter that would flow from the husband succeeding on that appeal and having access to those documents, in the sense of what would happen with the preparation of the matter for trial is that, if the appeal succeeded and he was given access to documents in relation to the trust, there would simply be then ..... case as part of his submission, being a legal submission, about that trust constituting a resource of my client, presumably .....
HIS HONOUR: Keep going.
MR DOOLAN: Presumably just a tender, your Honour, of the financial statements of that trust deed. There is nothing, we would say, that would prevent this matter otherwise being prepared for trial. There was no reason why my client can’t prepare her affidavit material or the husband couldn’t prepare his affidavit material. His affidavit material won’t go to the question of a trust relating to my client’s mother so there’s no evidence that either parties will give in their affidavits of evidence-in-chief that will be affected by the outcome of the appeal itself.
Similarly, the parties can get on with the job of getting valuations of other assets, which are property of the parties, valued so that, at that point in time when the appeal is disposed of by the appellate dividend, this matter is then able to progress. I’ve had an email from my friend [Ms Z] this morning noting that, whilst her client – and I will just use her words – “agrees to the sentiment of advancing the matter”, it’s her position that …occur until . appeal has run its course. But, for the reasons I put forward, your Honour, we say that both can be done in parallel.
This matter has been around for 18 months now. It’s a matter where, looking at the central practice direction and also the purpose of the major complex financial proceedings list, running this in a parallel fashion, preparing it for trial while at the same time allowing the appellate dividend to determine that discrete issue – and I put it as a discrete issue that won’t affect the affidavit material or valuation evidence – both can be done at once. I accept it’s an unusual course, but it’s one that I would urge upon your Honour.
Ms Z for the husband opposed the fixing of the proceeding for trial. She submitted –
(a)the husband should have financial disclosure to enable him to ascertain the asset pool;
(b)the appeal from Riethmuller J’s orders will have a bearing on the ascertainment of “property” because the documents sought by the subpoena relate to a trust which the wife’s mother controls so it may go beyond a merely future financial resource of the wife;
(c)that impacts upon the parties’ balance sheet;
(d)the husband wishes to explore resolution at mediation;
(e)he needs to know the size and composition of the pool in order to effectively mediate and the documents sought by subpoena bear upon that issue;
(f)it would put the husband at a significant disadvantage if he were not allowed to have complete disclosure prior to trial;
(g)the husband says in this case that a number of assets are held by the wife’s family to which the wife has various entitlements;
(h)the asset position in this case is worth in excess of $100 million;
(i)the husband should not be put to the cost of preparing for trial when the financial material relevant to the ascertainment of the pool had not been fully disclosed to the husband;
(j)the wife is in a superior financial position to the husband;
(k)the husband has opposed the provision of updated valuation evidence; and
(l)if fixed for trial, the trial would likely run for five days.
THE APRIL 2022 DIRECTIONS HEARING
Pursuant to the 8 February 2022 orders, the parties were required to do all things so as to comply with paragraphs 1, 4(d), 4(e) and 4(f) of orders made on 8 September 2021. They had until 4:00pm on 15 February 2022 to do that. Thereafter, by 22 February 2022 the legal representatives of the parties were required to confer in relation to any other single experts. If more were to give evidence, the sequence of events in paragraphs 7(a) to 7(e) of the 8 February 2022 orders were to unfold. I otherwise adjourned the further hearing of this proceeding to 1 April 2022 at 10:00am.
Between 8 February 2022 and 1 April 2022 the parties encountered considerable complications in undertaking the things that had been ordered for them to do on 8 February 2022. The wife deposed to those complications in her 8 March 2022 affidavit. Before addressing the matters raised in that affidavit it is necessary to record the applications each party advanced. The wife relied on her application in a case filed 16 March 2022 which provided as follows –
1.That these proceedings be relisted before the Hon Justice Wilson on the first available date in the Major Complex Financial Proceedings List.
2.That by 4pm on 14 March 2022, the joint letter to [M Company] annexed as "A" be cosigned by the solicitors for the Husband and returned to solicitors for Wife, who shall then onforward to the valuer.
3.That within 2 business days of the making of these Orders, the Husband shall respond to the letter from Barkus Doolan dated 18 February 2022:
3.1 Nominating an accounting expert; and
3.2 Either agreeing or disagreeing with the further items the Wife contends need to be valued, including details of any further asset he says requires valuation.
4.That Orders 9(a) to 9(d) made 8 February 2022 be varied to read as follows:
4.1 9(a) to read: "on or before 4:00pm on the 7th business day following the Husband's compliance with Order 3.2 above, the wife shall nominate a panel of three experts in each relevant category".
4.2 9(b) to read: "within 7 days of the Wife's compliance with Order 9(a), the Husband shall select an expert in each relevant category who shall be the single expert and in the absence of nomination by the Husband, the Wife shall select one".
4.3 9(c) to read: "within 7 days of the completion of Order 9(b), the Wife must provide a draft joint letter of instruction to each such relevant expert to the Husband for approval or amendment".
4.4 9(d) to read: "within 7 days of the Wife's compliance with Order 9(c), the Husband must provide to the Wife a response with any proposed amendments or additions to the joint letter of instruction, and thereafter the parties must forthwith do all acts and things to send the agreed joint letter to the expert in each relevant category."
5.That within 7 days of the making of these Orders, the Husband shall provide a response to and all information and documents sought within the letter from Barkus Doolan dated 16 February 2022 annexed as "B".
6.Costs.
In his response filed 31 March 2022, the husband sought a more complicated array of orders. They were as follows –
1.That the hearing dates before this Honourable Court from 1 to 5 August inclusive be vacated.
2.The matter be listed for interim hearing to determine the Orders sought by the Wife in her Application in a Proceedings filed 8 March 2022 and this Response on a date suitable to the Court noting that it is anticipate it will take 1/2 day of hearing time (including reading).
3.That the Orders made by the Court on 8 February 2022 be amended pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 as follows:
a.Order 5 be amended to remove the words “more than”
b.Order 6 and 9 of the Orders be removed.
4.Within 7 days of the date of these Orders the Applicant Wife shall provide the following documents or otherwise cause [N Pty Limited] to provide the following documents to [M Company] (the valuer) with a copy of that correspondence being sent to the Respondent Husband, noting these documents were first sought by the valuer on 14 April 2021;
a.A copy of all records showing or tending to show the fertilization records for the property known as “[Property C]” for the period 2010 to 2020 including but not limited to any receipts, internal memos or purchase orders, file notes or other documents;
b.A copy of the amendments to the Water Licence/Lease and any amendments made to that Water License/Lease relating to the property known as “[Property P]”;
c.A copy of any application for approval, any development application, communications with councils or other documents that show or tend to show any attempts made to further develop the property known as “[Property P]” including but not limited to the building of a quarry for the period 2010 to 2020;
5.Within 7 days of the date of these Orders the Applicant Wife provide to the Respondent Husband a copy of all communications between the Applicant Wife and/or Barkus Doolan Lawyers and [N Pty Limited] requesting or otherwise providing any of the documents set out in Order 4 or otherwise providing information and/or particulars that were used by the Applicant Wife to draft her letter to [M Company] dated 2 December 2020.
6.Within 21 days of the date full particulars and documents are provided for in accordance with Order 4 hereof the Respondent Husband will prepare and send to the Applicant Wife a draft letter to the valuer which will set out a statement of facts and clarify the matters put to the valuer by the Applicant Wife on 2 December 2020 and seek an updated valuation of the real property of the parties.
7.Within 7 days of receipt of the draft letter provided for in Order 6 hereof the Applicant Wife will respond, in marked up version, providing any suggested amendments to the joint letter to [M Company].
8.Thereafter the parties will collaborate to send out the joint letter to [M Company] within a further 7 days.
9.[Q Company] are hereby appointed as the joint expert, appointed to value each piece of real property held by [R Trust].
10.Within 7 days of the date of these Orders the Applicant Wife will provide to the Respondent Husband a list of the real property currently held by [R Trust].
11.Within 14 days of receipt of the list provided for in Order 10 hereof the Respondent Husband will prepare a proposed joint letter of instruction to [Q Company] and provide that draft letter to the solicitors for the Applicant Wife.
12.Within 7 days of receipt of the proposed joint letter required under Order 11 hereof the Applicant Wife will make any changes or additions to that proposed joint letter and return the amended letter to the Respondent Husband.
13.Thereafter the parties will collaborate to send out the joint letter of instruction within a further 5 days.
14.Not later than 28 days after the receipt of the last valuation from Q Company the parties will jointly instruct [Ms S] of [T Group] (“the expert accountant”) to provide a valuation of the current value of [R Trust] and in relation to that valuation the following shall occur:
a. The Applicant Wife will prepare the proposed joint letter of instruction and send that letter to the Respondent Husband not more than 14 days after receipt of the last valuation from [Q Company];
b. The Applicant Wife will provide to the Respondent Husband and send to expert accountant the following documents:
i.A copy of the Trust Deed for [R Trust];
ii.A copy of the taxation returns and financial statements for [R Trust] for the last three financial years (including 2021);
iii.A copy of all distribution receipts, bank statements or other documents that show or tend to show amounts distributed or paid to any beneficiary in the last 3 financial years;
iv.A copy of all documents that show or tend to show the total number of units held in [U Trust] and the current Unit holders;
v.A copy of all valuation reports from [Q Company].
c. The Respondent Husband will provide a response and make any changes or additions to that proposed joint letter and return the amended letter to the Applicant Wife within 7 days of receipt;
d. The parties will thereafter collaborate to send out the joint letter of instruction and the required documents to the expert accountant
15.Within 14 days from the date of these Orders the Applicant Wife will obtain an affidavit or Statutory Declaration from [Ms V] confirming that neither [N Pty Limited] nor any employee or associate of [N Pty Limited] has had contact with the expert accountant and will not have contact with the expert accountant, for any reason or at any time in relation to any work performed in relation to this family law matter and otherwise has no personal relationship with the expert accountant.
16.Within 14 days of the date of these Orders the parties exchange particulars on the values they each propose to adopt for the following assets:
a. [Vehicle 1] plant and equipment;
b. [Vehicle 2] plant and equipment;
c. [B Pty Ltd’s] plant and equipment;
d. The furniture and contents in the possession of each of the parties;
e. The jewellery in possession in the wife and in the safe at [Property D];
f. The artwork in the possession of the wife.
17.In the event the parties have not reached agreement on the value of any of the above assets listed in Order 16 hereof within 14 days of receipt of the exchange as referred to in Order 16, then;
a. The parties will appoint [W Company] or other such valuer who is agreed between the parties to value the furniture of the parties (or any parts of the furniture that remain outstanding) and the plant and equipment for [Vehicle 1, Vehicle 2 and B Pty Ltd];
b. The parties will appoint [X Company] to value the artwork of the parties (or any parts of the artwork that remain outstanding);
c. The parties will appoint INSERT to value the jewelry [sic] that the wife has in her possession, and the jewellery in the safe at [Property D].[2]
18.So as to give effect to Order 17 hereof:
a. The Respondent Husband will prepare a proposed joint letter of instruction to each of the experts and provide that draft letter to the Applicant Wife by no later than 14 days after the expiration of the time provided for in Order 17 hereof;
b. The Applicant Wife will respond to the proposed letter of instruction with any proposed amendments or additions to the joint letter of instruction within 7 days of receipt of the proposed letters;
c. Thereafter the parties will collaborate to send out the joint letters of instructions within a further 5 days.
19.That the Applicant Wife pay the Respondent Husband’s costs of and incidental to this interim application on the following bases (in the alternate);
a. On an indemnity basis such amount to be fixed in accordance with the schedule of costs served by the Husband not less than 24 hours prior to the listing of this application for hearing;
b. On a party/party basis in accordance with the Schedule in the Rules such amount to be fixed and in accordance with the costs notice served by the husband not less than 24 hours prior to the listing of this application for hearing.
[2] As stated in the original document.
The wife’s affidavit may be synthesised in the manner set out below. She deposed to the following –
(a)on 11 February 2022 her solicitors wrote to the husband’s solicitors requesting that a letter that had been previously agreed to be sent to M Company (the real estate valuers) be signed for despatch to the single expert;
(b)on 18 February 2022 the wife’s solicitors wrote to the husband’s solicitors proposing the appointment of expert accountants;
(c)on 18 February 2022 the wife’s solicitors wrote to the husband’s solicitors seeking a response in relation to the joint letter to go to M Company;
(d)on 18 February 2022 the husband’s solicitors wrote to the wife’s solicitors indicating that the husband did not agree to sending the joint letter;
(e)on 24 February 2022 the wife’s solicitors wrote to the husband’s solicitors requesting an urgent response to the progress of the joint letter to M Company;
(f)on 1 March 2022 the wife’s solicitors wrote to the husband’s solicitors informing them of the wife’s intention to have this proceeding re-listed if valuation issues were not progressed;
(g)on 1 March 2022 the wife’s solicitors sent an email to the husband’s solicitors inviting them to telephone, since which the husband’s solicitors had not communicated with the wife’s solicitors;
(h)valuation issues had not progressed;
(i)the husband’s solicitors had not signed the joint letter to M Company;
(j)by order made on 8 September 2021, Senior Judicial Registrar McNamara required each party to notify the other within 14 days of that party’s request for further disclosure and for the opposite party to respond within 21 days;
(k)on 23 September 2021 the wife’s solicitors wrote to the husband’s solicitors requesting disclosure from the husband but no request had been answered;
(l)on 11 October 2021 the husband was ordered to respond to the wife’s solicitors’ 23 September 2021 letter yet no response had been provided;
(m)on 22 December 2021 the wife’s solicitors wrote again to the husband’s solicitors to which there was no response;
(n)on 16 February 2022 the wife’s solicitors sent the husband’s solicitors a consolidated disclosure request seeking a reply by 9 March 2022 yet no response was provided; and
(o)the wife sought orders for the provision of disclosure as requested by her on 16 February 2022.
In his affidavit made 31 March 2022, the husband addressed a collection of other issues. They included the following –
(a)on 11 November 2020 he and the wife received valuations of real property commonly known as Property C Property D as well as the properties in H Town, Y Town and P Town;
(b)in a letter dated 2 December 2020 the wife posed questions to the valuer about the property at P Town and land owned by B Pty Ltd;
(c)he did not agree to the wife posing those questions;
(d)on 10 December 2020 the husband instructed his solicitors about the questions she raised with the valuers;
(e)on 25 January 2021 the wife’s solicitors wrote to the valuer requesting a response to their questions;
(f)on 22 February 2021 the husband instructed his solicitors to serve a list of questions on the valuer;
(g)on 2 March 2021 the husband provided certain rental agreements to the valuer;
(h)on 15 April 2021 the valuer requested additional information in order to respond to the questions that each of the husband and wife had posed;
(i)on 8 September 2021 the court made orders requiring the husband and wife to update the valuations of H Town, Y Town, P Town and Property D;
(j)on 15 April 2021 the husband deposed to the valuer requesting additional information and requesting that the husband and wife collaborate about the list of questions they wanted the valuer to answer;
(k)on 6 May 2021 the husband’s solicitors received correspondence from the wife’s solicitors requesting information in accordance with the valuer’s request;
(l)on 8 September 2021 the court ordered the parties to provide updated valuations of their real estate at H Town, Y Town, P Town and Property D;
(m)on 5 October 2021 the husband instructed his solicitors to respond to the amended draft joint letter of instructions to M Company;
(n)during their relationship the husband and the wife used the services of N Pty Limited to provide financial and accounting advice, as that company provided equivalent services to members of the R family;
(o)in the year 2020 N Pty Limited withdrew its services to the husband which, so the husband said, placed him at a disadvantage in this litigation;
(p)on 13 October 2021 the wife’s solicitors provided some of the information sought;
(q)on 3 November 2021 the husband instructed his solicitors to write to the wife’s solicitors proposing that valuations be revisited once a conciliation conference or mediation date had been set;
(r)on 12 November 2021 the husband instructed his solicitors to write to the wife’s solicitors to request a copy of correspondence passing between N Pty Limited and the wife’s solicitors, which, so the husband said, such correspondence was not provided;
(s)on 23 February 2022 the husband’s solicitors received correspondence from the wife’s solicitors to the effect that a joint letter of instructions to the valuer could be provided by mid-March 2022;
(t)on 1 March 2022 the wife’s solicitors threatened to re-list the matter on the basis that the husband had not complied with various orders;
(u)on 8 March 2022 the wife filed the application before the court; and
(v)he is concerned that the valuer may be tainted and that a new valuer may need to be engaged.
In other aspects of his affidavit the husband debated whether or not he was intentionally delaying a valuation. He said he was not. The chronological sequence of events recorded above disclosed very large epochs during which there was demonstrable inactivity on behalf of the husband, ranging from an omission or failure to answer correspondence to an uncooperative approach to dealing with M Company. During debate on 1 April 2022 I raised with Mr Williams QC whether his client intended to endeavour to resolve this litigation by a negotiated settlement, in which case the parties should do that, or whether they wished to prepare for trial, in which case they should do that. Of course, the two are not mutually exclusive – parties can concurrently prepare for trial while also negotiating to settle.
The husband devoted passages of his 31 March 2022 affidavit to complaints about the manner in which the wife had approached her obligations to make full and frank disclosure. He asserted he has continued to provide financial disclosure and will continue to do so. That is to do no more than discharge the burden the law imposes on him. He has no choice in the matter. His assertions in paragraph 46 of that affidavit were too abstract to have any probative value.
So far as the matters between paragraphs 47 to 53 of his affidavit were concerned –
(a)they were not matters of fact to which he could depose and therefore should not have appeared in his affidavit;
(b)his understanding and his solicitor’s understanding were irrelevant because such an assertion purported to record his and his solicitor’s subjective state of mind, both inadmissible; and
(c)they reflect an ongoing obdurate and uncooperative attitude towards the conduct of this litigation, wholly antithetical to the manner in which cases in the Major Complex Financial Proceedings List must be conducted.
THE HUSBAND’S ADJOURNMENT APPLICATION
The trial of this proceeding is four months away. Already the husband has sought to adjourn it. He says he needs the documents that are the subject of the appeal against Riethmuller J’s orders before he can properly prepare for trial.
In support of that application Mr Williams QC prepared written submissions. In those submissions he relied on the following, as synthesised by me –
(a)the case is complex, valuation issues are in a state of flux and the case should not remain fixed while “extensive valuation issues requiring to be completed” [sic];
(b)if the trial is ordered to proceed while the husband’s appeal is pending he will be denied procedural fairness citing McGibbon v Linkenbagh,[3] Minister for Immigration and Multicultural Affairs v Bhardwaj,[4] Cameron v Cole,[5] Delta Properties Pty Ltd v Brisbane City Council,[6] Sullivan v Dept of Transport,[7] Chaina v Alvaro Homes Pty Ltd[8] and Refugee Review Tribunal, Re; Ex parte Aala;[9]
(c)the amount attributed as the value of property to be divided is $100m; and
(d)the husband should not be forced on to a trial until his appeal is determined.
[3] (1996) 62 IR 426.
[4] (2002) 209 CLR 597.
[5] (1944) 68 CLR 571.
[6] (1955) 95 CLR 11.
[7] (1978) 20 ALR 323.
[8] [2008] NSWCA 353.
[9] (2000) 204 CLR 82.
On behalf of the wife Mr Glick QC pointed out –
(a)this case could be in a state of limbo for over 12 months pending the hearing and determination of the appeal;
(b)no date has been mentioned for the likely appeal hearing;
(c)the husband has had, quite literally, months to prepare for the trial;
(d)even if the appeal is successful it may have a bearing on a very discrete and isolated category of documentation; and
(e)all other aspects of the case can be prepared for trial while the hearing of appeal is pending.
On 8 February 2022 when this matter was before me for directions, the husband’s solicitor floated, in imprecise terms and only faintly, how the husband asserted that the determination of the appeal from Riethmuller J’s decision was allegedly centrally important to the ongoing progress of this litigation. Ms Z submitted that a number of assets were held by members of the wife’s family to which the wife has entitlements, in respect of which the husband asserted that the wife’s disclosure had been inadequate so he (the husband) sought to obtain the applicable documentation by subpoenae.
On examining the notice of appeal, ground one involved a contention that Riethmuller J had misapplied the relevant legislative principles in respect of subpoenae. In Woodcock & Woodcock[10] I examined all the applicable authorities. To the extent that on this application to vacate the trial date I must immerse myself with the reason for the request to vacate, the main ground of appeal raises an issue which may well be difficult to sustain. That said, it is desirable for me to say no more than that. And, as was revealed in debate on 8 February 2022, the subpoenae was limited only to profit and loss statements and tax returns for three years – a very discrete point. It is almost impossible to see how the overall s 79 application involving factual and evidentiary issues vastly more far reaching than profit and loss statements and tax returns for three years, could be or should be held up by the determination of an appeal having dubious merit and in respect of which appeal no hearing date has yet been fixed.
[10] [2021] FedCFamC1F 88.
To my mind, it is to embellish the husband’s circumstances in this application very considerably for him to submit, as Mr Williams QC submitted on his behalf, that he will be denied a reasonable opportunity to present his case while the appeal is pending. It is an equal overstatement for the husband to assert that he will be “deprived of the possibility of a successful outcome” if the trial is held prior to the appeal. Neither Mr Williams QC or before him Ms Z took any step to articulate the “successful outcome” of which the husband might be deprived if the trial proceeded while the appeal was undetermined. The migration authorities on which the husband relied seemed to me to have a very different focus when they speak of a successful outcome (namely obtaining a visa) as opposed to a s 79 application. It must not be overlooked that in a s 79 application, the “outcome” (to the extent that such a word may be accurately invoked) is a just and equitable alteration of property interests. Any “success” in that “outcome” is to be measured against the justice and equity of the property interests that may be altered. That much seems axiomatically to follow from such authorities such as Standard v Stanford[11] and Hsiao v Fazarri.[12]
[11] (2012) 247 CLR 108.
[12] (2020) 94 ALJR 961.
In his zeal to point up his submissions on some alleged denial of procedural fairness, the husband substantially overlooked the uncooperative approach he exhibited towards the task of advancing the finalisation of the report from M Company. I not only eschew such an uncooperative approach but I require the opposite behaviour in the conduct of litigation in the Major Complex Financial Proceedings List.
It is necessary to insist on a tight tameable for ongoing activity in this case. The wife’s application in a proceeding was filed on 16 March 2022 and by then, the date mentioned in paragraph 2 of the wife’s proposed orders had already elapsed. Dates must be recalibrated. I will give the parties seven days to do that.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 2 May 2022
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