KINGSTON & KINGSTON

[2015] FamCA 203

FAMILY COURT OF AUSTRALIA

KINGSTON & KINGSTON [2015] FamCA 203

FAMILY LAW – PROPERTY – Application to set aside final orders under s 79A – bifurcation of proceedings – appointment of single expert valuers

FAMILY LAW – PRACTICE AND PROCEDURE - Discovery

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

G & G [2005] FamCA 1171
Patching & Patching (1995) FLC 92-585; 18 Fam LR 675

APPLICANT: Ms Kingston

RESPONDENT: Mr Kingston

FILE NUMBER: MLC 1960 of 2013

DATE DELIVERED:

PLACE DELIVERED: Melbourne

PLACE HEARD:

JUDGMENT OF: Johns J

HEARING DATE: 28 January 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weil

SOLICITOR FOR THE APPLICANT: Kennedy Partners

COUNSEL FOR THE RESPONDENT: Mr Sweeney

SOLICITOR FOR THE RESPONDENT: Tait Legal

Orders

1. That the final hearing listed before the Honourable Justice Johns on 20 April 2015 be vacated.

2. That subject to any order of the trial judge to the contrary, there be a separate hearing in respect of whether, as contained in the wife’s Amended Initiating Application filed 28 October 2014, there has been a miscarriage of justice by reason of suppression of evidence including the failure to disclose relevant information or the giving of false evidence and whether in the circumstances, the Court, in its discretion, should vary or set aside the orders made on 19 July 2006.

3. That within seven days the husband and the wife do all such acts and things as may be required to instruct Mr B, valuer, or such other valuer as agreed between the parties to value the following:-

   (a)“Property A”, B Town, Victoria, being the land contained in the following titles:

   (i)Volume … Folio … – approximately 77.45ha[1]

   [1] Registered Proprietor – Property A Super Pty Ltd

   (ii)Volume … Folio … – approximately 138.8ha1

   (iii)The balance of land remaining un-transferred from the original crown grant … referring to portion A of Section Y of the parish of C Town, being the Property A pre-emptive right (see memorial Book …) – approximately 208.4154 ha[2]

   [2] Registered Proprietor – Mr Kingston (either solely or jointly with others)

   (iv)Volume … Folio … – approximately 215.6ha1

   (v)Volume … Folio … – approximately 40.46ha1

   (vi)Volume … Folio … – approximately 82.81ha1

   (b)“Property D”, B Town, Victoria, being the land contained in the following titles:

   (i)Volume … Folio … – approximately 0.4705ha2

   (ii)Volume … Folio … – approximately 8.09ha2

   (iii)Volume … Folio … – approximately 26.35ha2

   (iv)Volume … Folio … – approximately 6.458ha2

   (v)Volume … Folio … – approximately 7.5905ha2

4. That the letter of instruction to the said valuer be in the terms of the document annexed hereto and marked with the letter “A”.

5. That within 14 days each party make available to the other copies of the documents listed in the annexure attached hereto and marked with the letter “B”.

6. That the Application in a Case filed 19 January 2015 and the Response to an Application in a Case filed 14 January 2015 be otherwise dismissed.

7. That all extant applications be listed for mention before the Honourable Justice Johns at 9.30 am on 19 March 2015.

ANNEXURE A

27 April 2015

Mr B

Dear Mr B

[Kingston] & [Kingston] – MLC1960/2013

We act on behalf of [Ms Kingston] in relation to Family Court proceedings.

Taits Legal of … act on behalf of the husband, [Mr Kingston], their reference Grant Ezzy (email …).

Dispute between parties

The parties entered into final property consent orders which were made by Registrar Mestrovic of the Family Court of Australia on 20 July 2006 (“the 2006 orders”). 

On 19 March 2013, the wife filed an application to set aside the 2006 orders asserting that, inter alia, the husband failed to disclose the existence of a proposed quarry on his land, the planning for which she asserts was well underway at the time the 2006 orders were made.  Subsequently, a report prepared by [Mr E] in February 2014 recorded the husband’s instructions to [Mr E] that, at the time the 2006 orders were made, an in principle verbal agreement had been reached between the husband’s father ([Mr F Kingston]) and a wind farm company, [G Pty Ltd], for installation of a wind farm on land which included land owned by the husband.  That agreement was also not disclosed to the wife.  Despite the instructions recorded in Mr E’s report, the husband now “does not accept” that an in principle verbal agreement had been reached between the husband’s father ([Mr F Kingston]) and a wind farm company, [G Pty Ltd], for installation of a wind farm on land which included land owned by the husband.

The husband opposes the wife’s application to set aside the 2006 orders. 

The quarry has now been operating for some years.  The wind farm originally proposed did not proceed. An entirely different agreement with another operator was reached some years later and only just now coming into operation. It is governed by a lease that was executed between the operator ([H Pty Ltd]) and the husband on 24 January 2014.  For the purposes of these proceedings, we require a valuation of the land, as at 20 July 2006, and the present date.

Your instructions

For these proceedings we wish to engage you to provide a valuation of the following land retrospective to July 2006 and on the basis that the facts or information then in existence were known to the valuer:

1. 1.1“[Property A]”, [B Town], Victoria, being the land contained in the following titles:

   1.1.1Volume … Folio … – approximately 77.45 ha.[3]

   i)[3] Registered Proprietor - Property A Super Pty Ltd

   1.1.2Volume … Folio … – approximately 138.8ha.¹

   1.1.3The balance of land remaining un-transferred from the original crown grant 401/766 referring to portion A of Section Y of the parish of [C Town], being the [Property A] pre-emptive right (see Memorial Book …) – approximately 208.4154 ha.²

   1.1.4Volume … Folio … – approximately 215.6ha.¹

   1.1.5Volume … Folio … – approximately 40.46ha.¹

   1.1.6Volume … Folio … – approximately 82.81ha.¹

   1.2“[Property D]”, [B Town], Victoria, being the land contained in the following titles:

   1.2.1Volume … Folio … – approximately 0.4705ha.²

   1.2.2Volume … Folio … – approximately 8.092ha.²

   1.2.3Volume … Folio … – approximately 26.35ha.[4]

   ii)[4] Registered Proprietor – Mr Kingston (either solely or jointly with others)

   1.2.4Volume … Folio … - approximately 6.458ha.²

   1.2.5Volume … Folio … - approximately 7.5905ha.²

   We note that the [J] quarry which is presently operating is operated from the land referred to in 1.1.4 to 1.1.6.

   Please let us know if you do not have the expertise to complete such a valuation.  

Please let us know when you will be able to prepare the valuation and report, and confirm your estimated fees.

It is proposed that each party, or a representative of the party, be present at your inspection of the properties.  Please confirm with our office a convenient date and time for the inspection of the properties and we will make the appropriate arrangements. 

Single expert

A copy of Divisions 15.5.4, 15.5.5 and 15.5.6 of the Family Law Rules are enclosed. Please ensure you are acquainted with these Rules before proceeding with the valuation.

Previous Valuations

The husband engaged the wife’s adversarial valuer from the initial proceedings, [Mr E], to prepare a report on his behalf for these proceedings.  A report was prepared by [Mr E] in February 2014.  The report was provided to the wife in November 2014.  The report is enclosed herein for your reference.

Also enclosed herein are copies of valuation reports prepared by Mr I in 2003 (valuing part of [Property A]), [Mr E] in 2004 (valuing [Property D] and [Property A]) and [R Pty Ltd] in 2011 and 2013 (valuing the quarry).

Other documents

We also enclose the following:

1. A copy of a title search of each of the properties;

2. The following documents in relation to the quarry:

   2.1Documents which pre-date the orders:

   2.1.1Letter from Trident to [Mr Kingston] of 27 November 2007 referring to initial landowner agreement dated 28 October 2005;

   2.1.2Email from Department of Sustainability and Environment to L Pty Ltd dated 18 November 2005;

   2.1.3Record of consultation dated 13 December 2005 in relation to Onsite consultation at Property A with [Mr K], [Mr M], the husband, and representatives from Department of Primary Industries, North N Council and Department of Sustainability and Environment present;

   2.1.4Letter from DPI to [Mr K] dated 5 January 2006;

   2.1.5Email from [Mr K] to [O Pty Ltd] dated 9 January 2006 and reply dated 13 January 2006;

   2.1.6Letter from P Pty Ltd to the husband dated 6 February 2006;

   2.1.7Correspondence between [P Pty Ltd] and [Mr M & Mr K] in relation to specifics of capacity and planning of quarry dated 6 February, 18 March, 4 April, 26 May, 17 August and 27 September 2006 (the latter two letters being shortly after the orders were made);

   2.1.8Memorandum of [Mr Q] dated 23 August 2006 referring to a draft work plan sent to [N Council] on 28 June 2006.  We are endeavouring to locate a copy of this document;

   A proposal in relation to the quarry was apparently sent to DPI on 13 September 2005 (of which we are trying to locate a copy).

The valuation should be prepared on the basis that all information about the quarry and wind farm available at that time was provided to you and the quantity of granite now known to exist in the quarry was also known, identifying the extent to which each of the quarry and wind farm would impact upon your valuation. 

Please let us know whether you require any other documents.

The parties are to bear equally the cost of the valuation, and we would request an invoice for half of the valuation fees, be forwarded to each of the parties' solicitors. 

If you have any queries, please do not hesitate to contact us, noting that as single experts, any correspondence should be copied to both parties.

Yours faithfully
KENNEDY PARTNERS

Per:

Yours faithfully
TAITS LEGAL

Per:

Annexure B

1. All documents, files and correspondence between the husband and any other party interested in the operation of the quarry (or potentially interested) in relation to the quarry, or a potential quarry from 1994 to date.

2. All documents, files and correspondence held by the husband in relation to [O Pty Ltd’s] exploration license, covering an area including J, granted on 8 April 2004.

3. A copy of the initial quarry proposal dated on or around 13 September 2005 (if in existence).

4. All documents, files and correspondence held by the husband and/or his lawyers only in relation to the J quarry, excluding any Family Law file, including the file in relation to the quarry lease which the husband’s lawyers prepared, that are not subject to a claim of privilege, from 1 January 2004 to date.

5. All documents, commercial files and correspondence held by the husband and/or his lawyers in relation to [H Pty Ltd] to be situated (in part) upon the husband’s land from 1 January 2004 to date.

6. All documents, files and correspondence evidencing communications between the husband (or anyone on his behalf) and [Mr E] in relation to the verbal agreement with windfarm company [G Pty Ltd] or the husband’s instructions to [Mr E] about the same.

7. All documents, files and correspondence (including letters of instruction) given to [R Pty Ltd] in relation to their 20 December 2011 valuation and the subsequent letter dated 2 May 2013.

8. All documents, files and correspondence in relation to advice given by Taits Legal to the husband and the wife, individually or together, with respect to estate planning issues from 1974 to date.

9. All documents, files and correspondence held by or on behalf of the husband in relation to the “moiety land”.

10. All documents, files and correspondence evidencing arrangements between the husband and his brothers, including in relation to rent.

11. A copy of the draft work plan dated 28 June 2006.

12. To the extent that any documents on the commercial file are claimed to be privileged under paragraph 4, the husband is to provide an itemised list of those documents to the wife and an explanation as to why each document is claimed to be privileged.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1960 of 2013

Ms Kingston

Applicant

And

Mr Kingston

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 18 December 2014 this matter was listed for mention before me at the request of the parties.  On that day the husband sought leave to file an Application in a Case and affidavit in support seeking orders with respect to the appointment of single expert valuers.

2. Upon hearing submissions from counsel representing each of the parties, I granted leave for the husband to file his Application in a Case and set a timetable for the filing of material by the wife in response.  Those applications were listed for hearing before me on this day.  The husband in his Application in a Case filed 19 January 2015 seeks orders with respect to:-

   ·The appointment of a single expert valuer to value the properties in dispute;

   ·The matters to be addressed in the letter of instruction to be provided to that single expert valuer;

   ·The costs of obtaining a report from the single expert valuer.

3. The wife’s Response to an Application in a Case was filed 14 January 2015.  The wife seeks orders with respect to:-

   ·Disclosure by the husband of specified documents;

   ·The appointment of single expert valuers to value the husband’s land and businesses conducted on that land;

   ·The form of the letter of instruction to be directed to the single expert valuer.

4. In addition to the matters raised in the parties’ competing applications, counsel for the husband made an oral application that there should be a bifurcation of the s 79A proceeding so that that issue is heard and determined prior to any s 79 application. That application was opposed by the wife.

BACKGROUND

1. The parties married in 1974 and separated in July 1994. 

2. Final orders were made by consent by Registrar Mestrovic in the Family Court at Melbourne on 19 July 2006 (“the final orders”).

3. On 19 March 2013 the wife filed an Initiating Application in which she sought to set aside the final orders. The wife relies upon s 79A(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) as the basis upon which the final orders be set aside.

4. In support of her application to set aside the final orders it is alleged by the wife that:-

   ·The husband failed to disclose the existence of a proposal to develop a quarry on land held by him, the planning for which she alleges had commenced at the time the final orders were made;

   ·The wife learnt of the existence of the quarry in about 2008;

   ·Had the wife known of the proposed quarry she would not have consented to the final orders.

5. It is alleged by the wife that the failure of the husband to disclose the plans for the proposed quarry deprived the wife of the opportunity of making her own independent enquiries as to the potential value of that development to the land. It is alleged by the wife that the husband has suppressed evidence in relation to the proposed quarry and that that suppression of evidence has given rise to a miscarriage of justice. It is the wife’s case that in those circumstances the Court should set aside the final orders in the exercise of its discretion and make another order pursuant to s 79 in substitution for the final orders.

6. By her Amended Initiating Application filed 28 October 2014 the wife sets out with precision the relief she seeks pursuant to s 79 of the Act.

7. In his Amended Response to Initiating Application filed 31 October 2014 the husband seeks orders that the wife’s application be dismissed and further that the wife pay the costs of the husband on an indemnity basis.

8. The matter was listed before me for the first day of hearing on 7 November 2014. 

9. At that hearing, the husband sought orders that there be a bifurcation of the proceedings such that the s 79A application be dealt with prior to any determination pursuant to s 79 of the Act.

10. Upon hearing submissions from counsel representing each of the parties I then determined that there should not be a bifurcation of the proceedings and I listed the matter for final hearing, noted as a five-day matter to commence on 20 April 2015.  In addition that day I made procedural orders with respect to the preparation of the matter for final hearing.  I also made orders by consent on 7 November 2014 which provided as follows:

    (1)That no later than 4.00 pm on 1 December 2014 the applicant and respondent join together to appoint a single expert witness to value all properties in dispute.

    (2)That no later than 4.00 pm on 26 November 2014 the solicitors for the applicant and respondent agree on a letter of instruction to the said single expert witness.

    (3)That the cost of obtaining the valuation report be paid equally by the parties.

    (4)That in the event that an agreement is not reached the parties each have liberty to apply for further directions on 72 hours written notice.

11. It is evident from the material filed by each of the parties in support of their current interim applications that, notwithstanding the orders I made on 7 November 2014, little has been done to progress the appointment of valuers in accordance with those orders.

12. At the commencement of the interim hearing before me, it was clear that there remain outstanding issues with respect to:-

    ·Disclosure;

    ·The identity of the single expert valuer to be appointed;

    ·The terms of instruction to be provided to such valuer;

    ·Whether the valuers nominated by each of the parties had the capacity to undertake the valuations they were being asked to prepare in anticipation of the final hearing listed on 20 April 2015, as there had been no communication with the proposed valuers to confirm whether or not they were able to complete valuation reports in the time available.

13. It was conceded by each of the parties’ counsel that the trial listed could not proceed on 20 April 2015 given the work still to be undertaken to prepare the matter. 

14. It was against that backdrop that counsel for the husband renewed the husband’s application for a bifurcation of issues to enable the s 79A part of the application to proceed in the days available on 20 April 2015. 

MATERIAL RELIED UPON

1. The husband relied upon the following material in support of his interim application:-

   ·Application in a Case filed 19 January 2015;

   ·Affidavit of Ms T filed 5 January 2015;

   ·Draft letter to Mr B dated 28 January 2015, requesting valuation of identified properties as at 20 July 2006;

   ·Draft letter to Mr B dated 28 January 2015, requesting valuations of identified properties as at 20 July 2006 and current.

2. The wife relied upon the following material:-

   ·Response to an Application in a Case filed 14 January 2015;

   ·Affidavit of Ms U filed 14 January 2015;

   ·Minute of Orders sought.

DISCLOSURE

1. On 18 September 2014 I made orders with respect to disclosure in the following terms:-

   If discovery and disclosure has not been completed, each party by 4.00 pm on 31 October 2014  provide to the other party a list of all documents required for inspection and within 7 days thereafter, subject to any objection on the grounds of privilege, such documents be made available for and be inspected by the other party(ies).

2. Paragraphs 2 and 3 of the wife’s Response to an Application in a Case seek orders to enforce those orders for disclosure contained in paragraph 5 of the orders on 18 September 2014.  In particular the wife seeks orders that the husband produce documents sought from him pursuant to letters forwarded to his solicitor on 27 October 2014 and 17 December 2014. 

1. During the course of his submissions, counsel for the husband conceded that there was no issue with the husband making disclosure with respect to the documents requested by the wife. 

2. Given that concession, I stood the matter down to enable counsel for the parties to draft a Minute of Order reflecting the agreed matters. 

3. Upon the resumption of the hearing I was provided with a handwritten Minute which sets out with precision the documents sought by the wife from the husband.  Further, it was confirmed by counsel for the husband that the documents sought from him would be provided within 14 days.

4. Chapter 13 of the Family Law Rules 2004 (Cth) (“the Rules”) sets out the duty of disclosure between parties in financial cases. The Rules require that parties in financial cases exchange significant documentation.

5. Rule 13.01(1) provides that “each party to a case has a duty to the Court and to each other party to give full and frank disclosure of all information relevant, in a timely manner”.

6. The duty of disclosure is a continuing obligation (r 13.01(2)).

7. Rule 13.07 of the Rules provides as follows:-

   The duty of disclosure applies to each document that:

   (a)is or has been in the possession, or under the control, of the party disclosing the document; and

   (b)is relevant to an issue in the case.

8. I am satisfied, on the balance of probabilities, that the documents sought by the wife are relevant to issues in the case.  In circumstances where it is conceded by the husband’s counsel that the documents will be made available, I will make orders for the production of the specified documents within 14 days. 

APPOINTMENT OF A SINGLE EXPERT

1. At the commencement of the hearing before me, counsel for the husband confirmed that his client no longer took issue with the valuer proposed by the wife preparing a single expert valuation with respect to the land the subject of the dispute between the parties.  Accordingly, I was not required to rule with respect to that issue.

BIFURCATION

1. The issue between the parties was the question of whether such valuation should include current valuations as well as retrospective valuation of the property as at 20 July 2006 (being the date of the final orders).

2. Linked to that issue is the question of whether there should be a bifurcation of the s 79A and s 79 proceedings. As noted above, I had previously heard submissions and determined that I would not bifurcate the proceedings.

3. Nonetheless, the circumstances of the case have altered significantly since I made that determination in early November 2014.  It is evident from the material filed since then that the range of issues is much broader than was understood at that hearing in November 2014.

4. Further, I need to consider the most appropriate way of allocating precious court resources in circumstances where these parties have had 5 days set aside for a hearing of their dispute and, due to their failure to comply with court orders, are not in a position to proceed on those days.

5. In order to resolve the question as to the instructions to be given to the single expert valuer, it is necessary that I determine whether all issues will proceed before me at final hearing or, alternatively, whether I should determine the s 79A aspect of the case as a discrete issue. 

6. In support of the application for bifurcation of the proceedings, it was submitted on behalf of the husband that:-

   ·The determination of the s 79A issue was a discrete issue and relatively simple compared to the issues which would arise at a hearing that also involved s 79 proceedings.

   ·Since the final orders were made, there has been a wind farm development on part of the land in which the husband has an interest. Accordingly any determination of s 79 will require a valuation of that interest.

   ·In addition to the wind farm, the s 79 proceedings would require current valuations of:-

   (a)The husband’s farming business, including plant and equipment and livestock;

   (b)The Property A homestead;

   (c)Units in V Town; and

   (d)The quarry operation.

7. It was submitted on behalf of the husband that the preparation of valuations in relation to the above interests would, of necessity, involve significant expense. Further, in circumstances where the parties separated in 1994, there is significant issue between them as to their respective contributions to those interests. As a consequence, evidence in relation to those matters is likely to be extensive. Accordingly, the husband submits that the appropriate course is for there to be a determination of the threshold s 79A issue before the parties are required to embark on the preparation of evidence for a trial with respect to the s 79 issues.

8. Counsel for the wife opposed the husband’s application.  It was submitted on behalf of the wife that many of the matters raised by the husband in support of a bifurcation of the proceedings were matters known to the Court at the time of the original determination of that issue in November 2014.  It was submitted that the only new development was the existence of the wind farm which has only come to light during the course of disclosure since the November hearing.  Accordingly, it was submitted on behalf of the wife that there was no justification for a bifurcation of the proceedings. 

9. I invited submissions from counsel for the wife as to the prejudice to the wife were the applications to be bifurcated.  The principal concern raised on behalf of the wife was the potential for costs to be duplicated between the two proceedings.  In support of that submission, counsel for the wife indicated that the wife’s trial affidavit had been prepared and was in a draft form already.  The work undertaken in the preparation of that document would be wasted if the matter did not proceed as originally listed. 

10. I do not accept that submission. It is likely that any draft trial affidavit will have specifically addressed the s 79A issues and that the other matters which relate to s 79 would be capable of being excised from that document to be used in a subsequent trial affidavit if the wife is successful in her application to set aside the final orders.

11. A perusal of the draft letters prepared to the single expert valuer dated 28 January 2015 highlights the additional work that would be required to be undertaken by that valuer if the proceedings are not bifurcated.  The letter of instruction which seeks current valuations as well as the retrospective valuation spans some five pages and includes no less than 10 additional parcels of land, as well as the farming business, the quarry operation and the wind farm.  The cost of those valuations is likely to be substantial. 

12. In determining the question of whether to bifurcate the proceedings, it is necessary to have regard to the relevant parts of s 79A(1).  The section provides as follows:-

    Where on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:-

    (a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information ), the giving of false evidence or any other circumstance; or …

    the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.

13. The Full Court considered that section in the decision of Patching & Patching (1995) FLC 92-585; 18 Fam LR 675. In considering that section the Full Court held at page 81,797 that:-

    …This involves four steps, namely whether there had been a suppression of evidence or “other circumstance” as alleged by the husband, whether that amounted to a “miscarriage of justice”, whether the Court, in its discretion, should “vary the order or set the order aside” and whether it should make another order under s 79.

14. In determining such application the Full Court emphasised that:-

    …It is generally preferable to deal with all of the steps in the one hearing. The reasons for that are obvious, namely that even if the Court concludes that there have been circumstances which amount to a miscarriage of justice it must then consider whether in all the circumstances it should exercise its discretion to vary or set aside the orders and/or make a new s 79 order. In exercising that discretion it will have regard to, inter alia, the degree and nature of the miscarriage in question, any delay, alterations in the parties’ positions in the meantime, and the extent to which, if at all, it is now appropriate to vary the original orders.

15. However, the Full Court went on to say:-

    Of course there will be cases where it is convenient to divide the procedure into several hearings; for example, where there is a discrete issue under the first and/or second step and the property circumstances of the parties are complex.

16. The Full Court also considered the question of bifurcation in the decision of G & G [2005] FamCA 1171. At paragraph 20 of the judgment the Full Court noted:-

    Whilst there appear to be strong arguments as to why it might be inappropriate to hold split hearings in s 79A applications to determine firstly whether there is any basis for interfering with the existing orders, and then if there is such a basis what order it is then appropriate to make, there can be no doubt that there is a discretion to make an order for a split hearing.  In a case where the financial circumstances of the parties are very complicated, the cost of obtaining up to date valuations and of litigating over the size of the asset pool can be very substantial indeed.  Much of the cost involved in preparing for such litigation will be entirely wasted in a s 79A application if the applicant is unable to satisfy the Court of the existence of one of the necessary pre-conditions to the Court varying or setting aside the original order.

17. It is evident from the material filed on behalf of each of the parties in support of their applications currently before me that the proceedings are complex.  Already, the parties have had significant difficulties in completing disclosure and in finalising the terms of instruction to the relevant single expert valuers.  The draft letters of instruction to those valuers highlight the complexity of the issues before the Court. 

18. The allegation of suppression of evidence relates to the alleged failure of the husband to inform the wife, prior to the making of the final orders, of the proposal to develop part of his land as a quarry.  It is submitted on behalf of the wife that had she known of the proposed quarry development, she may have obtained an updated valuation which took the proposed development into account.  Further, it was submitted on behalf of the wife that had she been informed of the proposed quarry development she may have engaged a geologist or other expert to assess the potential value of the quarry operation.  The failure of the husband to disclose the proposed development deprived the wife of the opportunity to make those enquiries.

19. The husband concedes that the wife was not aware of the proposed quarry development at the time of the final orders but maintains that that fact does not give rise to a miscarriage of justice.  Further, the husband is critical of the wife’s delay in raising this issue in circumstances where he alleges she has been aware of the quarry development since 2008. 

20. It is the husband’s case that knowledge of the quarry proposal would have made no difference to the valuation of the subject land.  It was submitted that, in circumstances where substantial costs are likely to be incurred in preparing the whole of the matter, the appropriate course would be to bifurcate the proceedings. 

21. I am satisfied that the determination of the discrete issues with respect to the wife’ application to have the final orders set aside pursuant to s 79A(1)(a) of the Act is a matter capable of determination without the requirement that the parties provide evidence as to the history of contributions and the like. If at the hearing of the s 79A application the wife is able to establish, on the balance of probabilities, that there was a suppression of evidence and that such suppression impacted on the valuation of the subject property, such circumstance is likely to lead to a finding that there has been a miscarriage of justice, given the nature of the wife’s allegations. The current financial circumstances of the parties or the history of their contributions is unlikely to influence a determination of those issues.

22. Orders to bifurcate the proceedings allow for the prospect that a further trial may be unnecessary following the determination of the threshold issue, and may result in a substantial saving of costs.

23. Counsel for both parties confirmed that a hearing in relation to the s 79A aspect of the case was likely to take three days.  The substantive property issues could occupy a further five days of hearing.  The parties have already had five days allocated for the purposes of such hearing.  Due to their inability to comply with previous orders with respect to disclosure and valuation, those days have been lost.  In these circumstances I am loathe to allocate further substantial time to this matter at what is a significant cost to the community.

24. Having regard to the material currently before the Court I am satisfied that the issues can be discretely discerned at this stage and that, subject to anything else that may become apparent at the final hearing, it is in the interests of justice that the hearing be bifurcated. Accordingly, I propose to order that, subject to any order at the final hearing based upon material then available, there should be a bifurcation of the s 79A and s 79 proceedings.

LETTER OF INSTRUCTION TO THE SINGLE EXPERT

1. The parties were also in dispute as to the terms of instruction for the single expert.  It was the wife’s position that, in the event that the proceedings were bifurcated, she would seek that the single expert valuer prepare a valuation of the land as at 20 July 2006 based on a series of assumptions.  One of the assumptions she sought to include in the letter of instruction was as follows:-

   That all information about the quarry and wind farm available at that time was provided to you and the quantity of granite now known to exist in the quarry was also known, identifying the extent to which each of the quarry and wind farm would impact upon your valuation. 

2. The husband opposed the inclusion of that assumption in the letter of instruction.

3. In support of its inclusion, counsel for the wife submitted that the wife had been deprived of the opportunity of obtaining expert evidence as to the potential value of the quarry development.  For example, the wife may have elected to obtain a geological survey of the site had she known about the proposed development.  In those circumstances, it was submitted that a valuation as to the potential value of the site which includes information about the quantity of granite extracted from the site was a relevant matter with respect to the s 79A issues. 

4. Although counsel for the husband opposed the inclusion of that assumption in a letter of instruction, no serious issue was taken with respect to the inclusion of that clause. 

5. I am satisfied that it is appropriate that the single expert valuer be instructed to prepare a valuation including the assumption as sought by the wife. If upon a hearing of the evidence at trial, I determine that there has been a suppression of evidence and as a result, the wife has been deprived of the opportunity of seeking expert opinion as to the potential value of the quarry development, a valuation of the land as at the time the final orders were made which takes into account the quantity of granite on site is likely to assist in the determination of whether I should exercise my discretion to vary or set aside the orders.   Accordingly that paragraph should be included in the letter of instruction.

6. Having regard to the above matters the orders I make are as follows:-

   (1)That the final hearing listed before the Honourable Justice Johns on 20 April 2015 be vacated.

   (2)That subject to any order of the trial judge to the contrary, there be a separate hearing in respect of whether, as contained in the wife’s Amended Initiating Application filed 28 October 2014, there has been a miscarriage of justice by reason of suppression of evidence including the failure to disclose relevant information or the giving of false evidence and whether in the circumstances, the Court, in its discretion, should vary or set aside the orders made on 19 July 2006;

   (3)That within seven days the husband and the wife do all such acts and things as may be required to instruct Mr B, valuer, or such other valuer as agreed between the parties to value the following:-

   (a)“Property A”, B Town, Victoria, being the land contained in the following titles:

   (i)       Volume … Folio … – approximately 77.45ha[5] 

   [5] Registered Proprietor – Property A Super Pty Ltd

   (ii)      Volume … Folio … – approximately 138.8ha3

   (iii)The balance of land remaining un-transferred from the original crown grant … referring to portion A of Section Y of the parish of C Town, being the Property A pre-emptive right (see memorial Book …) – approximately 208.4154 ha[6] 

   [6] Registered Proprietor – Mr Kingston (either solely or jointly with others)

   (iv)Volume … Folio … – approximately 215.6ha3

   (v)Volume … Folio … – approximately 40.46ha3

   (vi)Volume … Folio … – approximately 82.81ha3

   (b)“Property D”, B Town, Victoria, being the land contained in the following titles:

   (i)       Volume … Folio … – approximately 0.4705ha4

   (ii)      Volume … Folio … – approximately 8.09ha4

   (iii)     Volume … Folio … – approximately 26.35ha4

   (iv)     Volume … Folio … – approximately 6.458ha4

   (v)      Volume … Folio … – approximately 7.5905ha4

   (4)That the letter of instruction to the said valuer be in the terms of the document annexed hereto and marked with the letter “A”.

   (5)That within 14 days each party make available to the other copies of the documents listed in the annexure attached hereto and marked with the letter “B”.

   (6)That the Application in a Case filed 19 January 2015 and the Response to an Application in a Case filed 14 January 2015 be otherwise dismissed

   (7)That all extant applications be listed for mention before the Honourable Justice Johns at 9.30 am on 19 March 2015.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 18 February 2015

Associate: 

Date:  18 February 2015