Klearchos and Klearchos and Ors
[2016] FamCA 571
•24 May 2016
FAMILY COURT OF AUSTRALIA
| KLEARCHOS & KLEARCHOS & ORS | [2016] FamCA 571 |
FAMILY LAW – PROPERTY SETTLEMENT – PRACTICE AND PROCEDURE – Application to have the final proceedings heard in separate blocks – Interests of justice – Where there is no defined separation of issues –Where the onus falls to the party proposing a separated hearing – Where the onus has not been discharged – Application dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Application to dispense with the requirement for a conciliation conference – Where there would be little utility in the parties participating in a conciliation conference – Notation that the proceedings under s 79 of the Family Law Act 1975 (Cth) may be heard despite the parties not having attended at a conciliation conference with a registrar.
FAMILY LAW – EXPERT EVIDENCE – Application to rely on adversarial experts in the case of disagreement as to choice of single experts – Orders made for a procedure to appoint single experts.
| Family Law Act 1975 (Cth) s 79 |
| AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 |
| APPLICANT: | Ms Klearchos |
| FIRST RESPONDENT: | Mr Klearchos |
| SECOND RESPONDENT: THIRD RESPONDENT: FOURTH RESPONDENT: FIFTH RESPONDENT: | E Pty Ltd Q Pty Ltd R Pty Ltd H Ltd |
| FILE NUMBER: | SYC | 2977 | of | 2013 |
| DATE DELIVERED: | 24 May 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 24 May 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dixon SC |
| SOLICITOR FOR THE APPLICANT: | Lander & Rogers |
| COUNSEL FOR THE RESPONDENT: | Mr Lloyd SC |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan |
| COUNSEL FOR THE SECOND, THIRD AND FOURTH RESPONDENTS: | Mr Wheelhouse SC |
| SOLICITOR FOR THE SECOND, THIRD AND FOURTH RESPONDENTS: | Rockwell Olivier |
| COUNSEL FOR THE FIFTH RESPONDENT: | Mr Priestley |
| SOLICITOR FOR THE FIFTH RESPONDENT: | Peters Linette Lawyers |
Orders
The wife and husband do all things to instruct single experts to prepare reports as to:
(a)The value of any real estate in which the wife alleges that the husband has an interest of whatsoever nature, or controls, or which the wife otherwise submits should be included in the matrimonial asset pool for the purposes of any order pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”);
(b)The value of any corporate entity of whatsoever nature (including but not limited to companies, trusts and foundations) in which the wife alleges that the husband has an interest of whatsoever nature, or controls, or which the wife otherwise submits should be included in the matrimonial asset pool for the purposes of an order pursuant to s 79 of the Act;
(c)The value of any vehicle (including ocean vessel) in which the wife alleges that the husband has an interest of whatsoever nature, or controls, or which the wife otherwise submits should be included in the matrimonial asset pool for the purposes of an order pursuant to s 79 of the Act;
(d)The assets and financial resources which the wife alleges are owned or controlled by the husband, or have been transferred by him to third parties, and historical transactions related thereto;
(e)Any liability encumbering or in connection with howsoever any property or entity listed in paragraphs (a) to (d) (inclusive) hereof, and historical transactions related thereto;
(f)Any issue of foreign law which is prima facie relevant to these proceedings.
For the purposes of order 1:
2.1The wife provide to the solicitor for the husband a list of assets, liabilities, financial resources and entities which she seeks to have valued and any question of foreign law about which advice is required, together with the names of three proposed experts for each item or question and an estimate of the costs of each proposed expert;
2.2Within 28 days after compliance with 2.1, the husband shall nominate one of the proposed experts for each item;
2.3In the event that the husband fails to comply with 2.2, in relation to any category of expert, the wife is at liberty to select an expert from those proposed.
2.4In the first instance the costs of the experts are to be paid equally by the husband and the wife but in the event that the husband neglects or fails to meet some or all of his contribution to those costs, they will be paid by the wife.
2.5The ultimate responsibility for the costs of the experts is reserved to the final hearing.
Within 28 days from today’s date or such further time as the parties may agree the wife file any further Amended Initiating Application in these proceedings together with, in relation to any prayer other than a prayer pursuant to s 79 of the Act or otherwise calling for orders or declarations against or affecting the third parties to the proceedings, points of claim fully particularised in accordance with the provisions of Parts 14 and 15 the Uniform Civil Procedure Rules of NSW.
Any Amended Response in relation to the wife’s Further Amended Application shall be filed within 21 days thereafter.
Leave is granted to the parties to administer such number of specific questions to each other party as they may be advised.
Leave is granted to the parties to seek the issue of such number of subpoenas to produce documents, as they may be advised.
The Court notes that it is satisfied that there are special circumstances by reason of which it would be appropriate to make an order under s 79, notwithstanding that the parties to the proceedings have not attended a conference in relation to the matter with a Registrar or Deputy Registrar of the Court.
The application of the respondents for a separate hearing in relation to some aspects of the proceedings is refused.
The proceedings are fixed for hearing over 10 days commencing on 28 November 2016.
Notwithstanding order 9, leave is granted to the parties to settle by agreement with the associate to Justice Loughnan other dates for the final hearing and in the event that the dates fixed in order 9 are not practicable for one or more of the parties and the parties are unable agree on appropriate alternate dates with each other and the Court, they have leave to restore the proceedings before Justice Loughnan on giving seven days’ notice to the Court and each other indicating by correspondence suggested available dates for each party.
Unless the parties agree to the contrary, 28 days prior to the commencement of the trial, each party shall file and serve all affidavits on which they seek to rely, that is to be only one affidavit from each deponent and in relation to the husband and the wife they shall file and serve within that same time, updated Financial Statements.
Not later than seven days prior to the commencement of the final hearing each party shall lodge with the Court and exchange with the other parties, a Case Outline document setting out the details of the orders sought by that party to the extent that they are different from the most recently filed Application or Response, a list of the documents to be relied on, and an outline of the arguments to be made in relation to each of the claims before the Court.
By 10.00 am on the first morning of the trial, the legal representatives for the husband and wife shall settle an agreed balance sheet and the advocates for all parties shall join issue in relation to objections to evidence.
In the event that any party becomes aware of any circumstance that would prevent the hearing commencing on the first date fixed or continuing to conclusion by the last date fixed, that party shall forthwith restore the proceedings before Justice Loughnan on 48 hours’ notice to the Court and the other parties.
The parties are granted general liberty to apply on seven days’ notice in relation to the proceedings and in particular, the parties are invited to restore the matter in relation to any issues arising under the slip rule or any agreed or disputed issues in relation to the wording of these orders.
The question of the costs of the parties of and incidental to the proceedings today is reserved.
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 Klearchos & Klearchos & Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2977 of 2013
| Ms Klearchos |
Applicant
And
| Mr Klearchos |
First Respondent
And
| E Pty Ltd |
Second Respondent
And
| Q Pty Ltd |
Third Respondent
And
| R Pty Ltd |
Fourth Respondent
And
| H Ltd |
Fifth Respondent
REASONS FOR JUDGMENT
These are interlocutory proceedings in the context of final proceedings which include a dispute about property settlement.
The husband is nearly 66 years of age and the wife is 46. They were married in 2000; separated either in August 2010 or in May of 2013, based on the respective contentions of the wife and the husband. They have two children, B, who is 15 years of age, and C, who is nearly 13 years of age.
The matter came before the Court on 9 May 2016 and there were appearances for the husband, the wife, the second, third and fourth respondents (represented by one lawyer) and the fifth respondent by another. In broad terms the second, third and fourth respondents are entities involved in a trust related to the husband’s family. The fifth respondent is a company called H Ltd which is a creditor.
On 9 May 2016, I adjourned the proceedings to this date in relation to the wife’s Application in a Case filed 30 March 2016; the husband’s Response to that application, which had not been filed; and any Response on any related issue to be filed and served within seven days after that date. The parties were not permitted without leave to rely on any material filed later than that date. Case Outline documents were to be provided and exchanged by Friday. It did not work out quite that way. Some of the documents that were relied on today were filed and served only recently. I received some Case Outline documents late. No point was taken on behalf of the parties about that, and I do not think there was ultimately any problem, although it was not a good way to start.
In broad terms, the main issues for today are whether the financial proceedings should be heard together or whether they should be broken up, with the issues involving the third parties heard separately and in advance of the issues between husband and wife. In the event that all of the third party issues were not heard separately it was proposed that at least the issues related to the fifth respondent might be heard separately. The wife seeks that there be a single hearing. The husband and the other respondents all seek that there be separate hearings. The issues about the second, third and fourth respondents arise because it is contended in the wife’s case that, to some extent, there are assets of the husband in the hands of those entities.
There is an indication of a claim by her that the husband is the alter ego of some of those entities. As I say, those respondents are entities engaged in the business affairs of the Klearchos Family Trust, a trust originally established by the husband’s father. I think the settlor may have been the husband’s brother. At some time, the husband has been director and shareholder of the corporate trustee. It is his case that he currently has no control or interest beyond an interest as a bare discretionary beneficiary of the trust. The wife has a different case to make.
The situation of the fifth respondent is a bit different. The evidence is that, at the husband’s request, the fifth respondent advanced money to the corporate trustee to buy a house for the husband and the wife to live in. A facility was made available for that purpose in the sum of $10 million and something like $8 million was advanced on that facility. That facility was unsecured until 2013 when a mortgage was registered against the title of the subject property, being a property then occupied by the wife and children. The advance falls due in June of this year when the principal and interest become payable. After June, the interest on the debt increases significantly to 10 per cent per annum.
Orders were made on an ex parte basis in 2014 that were agreed to by the corporate trustee or the entity owned by the corporate trustee, that the debt would not be repaid until the end of this year. The husband was not a party to the hearing that resulted in that order, nor was H Ltd, the creditor and fifth respondent. There was a subsequent defended hearing and a decision was made. That decision is the subject of an appeal, which is yet to be heard.
I was provided by Mr Wheelhouse with a decision by the New South Wales Supreme Court on the topic of separate hearings. The decision was made by Hidden J in Chaina v Bates & Ors, (2015) NSWSC 1867.
Hidden J quoted Einstein J in a matter, Idoport Pty Ltd v National Australia Bank & Ors [2000] NSWSC 1215. Einstein J said that the Uniform Civil Procedure Rules 2005 (NSW) on this issue proceed on the basis of the following principles:
(1) The power of the court to order the separate determination of an issue is a discretionary power which must be exercised judicially, but cannot otherwise be fettered.
(2)In exercising the power under Part 31, Rule 2, the Court is now enjoined to give effect to the overriding purpose of the Supreme Court Rules; namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings and cannot be stated in a more confined way
(3)The Court begins with the proposition that it is ordinarily appropriate that all issues in a proceeding should be disposed of at the one time … Accordingly, it is for the party who wishes to have a question separately determined to show that it is desirable for that to occur.
(4)Without being exhaustive, the separate determination of an issue may prove to be an appropriate procedure in at least the following sets of circumstances:
(a) where the resolution of that separate issue will have the effect of resolving the entirety of the litigious controversies or of substantially narrowing the field of litigious controversy
(b) where the resolution of that separate issue carries with it a strong prospect that the parties will thereafter be able to resolve their dispute themselves and thus avoid further litigation
(c) where there is a clear demarcation between that issue and all other issues in the case, including the issues going to the credit of witnesses
(5)Conversely, the separate determination of an issue will rarely be appropriate where:
(a) there are intertwined issues of fact or law between the separated question and the other questions such that the determination of the separate question will not have any substantial effect upon the width of the field of litigious controversy or the prospect of the settlement of the balance of the litigation.
(b) there is a commonality of witnesses and issues of credit as between the separate issue and the other issues in the case which will or may necessitate a ruling on the credit of one or more of the common witnesses, thus possibly precluding the same judicial officer from again dealing with the matters going to the credit of the common witness in accordance with the decision of the Court of Appeal.
(c) there is a possibility that the resolution of the separate issue will not finally determine the issue but will merely result in an appeal from that decision in relation to that separate issue, creating a multiplicity of proceedings, interruption to the court and undesirable fragmentation of the proceedings.
(6) The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings as anticipated, but often has the reverse effect, merely causing added delay and expense to the resolution of the litigation. Thus, before an issue is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings.
(Citations omitted)
And then Hidden J goes on, and this is the point, perhaps, that Mr Wheelhouse was making, referring to a decision by Barr AJ in a matter of McLean v Marshall [2013] NSWSC 1400 where his Honour observed that in more recent times “no doubt in response to legislative changes, the courts have been readier to separate issues”.
Barr AJ is quoted to say:
Another significant legislative change has been the introduction of the UCPR and an increasing emphasis in the Court on early determination of issues in order to achieve a just, quick and cheap resolution of proceedings. The courts have … to be more prepared to intervene to separate issues in order to resolve significant parts of litigation expeditiously.
That is the view stated by Brereton J in that case. In this decision, Hidden J decided to separate out a hearing of a preliminary issue.
Coming to the arguments made in these proceedings – the case was mainly carried by the fifth respondent and the second, third and fourth respondent as a group. It was submitted that in relation to the third parties the relevant evidence would be that of the officers of those entities and that there would be no need for evidence from the husband or the wife or other witnesses that might be relevant to the substantive proceedings.
There is no issue about the need for evidence from the wife but on behalf of the wife it is said that in relation to the issues relevant to the third parties, there would be a call for evidence from husband. It was submitted on behalf of the fifth respondent that it stands in a very different position to the second, third and fourth respondents because it is not a creature of the Klearchos Family Trust.
The arguments in favour of the separation of issues are obvious. If their issues can be dealt with separately then third parties do not have to be part of the s 79 hearing and their costs will be reduced. It is submitted that as strangers to the marriage, it is unfair that they would be exposed to those costs. They are now concerned about being able to recover their costs because of the evidence about the wife’s financial position. She has indicated that that absent the benefit of orders under s 79 she does not have the wherewithal to meet the undertaking as to damages that she gave to the Court when the orders were made preventing the repayment of the fifth respondent’s debt. That circumstance disadvantages the fifth respondent and means that all of the third parties are exposed. The response on behalf of the wife is that the fifth respondent is protected in relation to its debt by the terms of the agreement. Interest runs on the debt and there is penalty interest if the debt is not repaid soon. The Sydney property market, as a matter of common knowledge, appreciates from time to time. The property was bought for $8 million and as was asserted from the bar table, perhaps the property is worth $10 million now.
In any event the secured creditor is protected by its security. Obviously, that might change over time.
It is difficult to be absolutely certain about the sources of relevant evidence in the disputes involving the third parties. Typically family law, parenting and property settlement disputes deal with a history rather than an event, unlike other civil litigation. Civil litigation often relates to a contract or an accident or another incident. Occasionally, there is one critical issue in property settlement proceedings such as a valuation issue or an issue about ownership. The resolution of that issue might shed a significant light on the ultimate proceedings.
As I understand the wife’s case, the importance of the question about the fifth respondent relates not only to the fact that $8 million is a significant sum but that it is an asset within Australia. Counsel today talked about assets being within the jurisdiction. In fact there is no physical limit in relation to this Court’s jurisdiction, but there are issues about the ease of enforcement in relation to assets that are within the geographic jurisdiction of the Court. There are principles such as the Mozambique Rule which interfere with a Court dealing with immovables outside the country. In those circumstances, the Court’s powers are limited to powers in personam. I think I was told today that the husband is outside Australia. If he is outside Australia, that could make it difficult to enforce orders made in personam. Given those matters it is understandable that there is a preference for assets being secured within the jurisdiction. The equity in the former matrimonial home is not the only asset claimed by the wife. In her Further Amended Initiating Application, she makes a claim for some $30 million. That speaks of some confidence about there being other assets. I was told that not all of the wife’s claims rest on her applications in relation to the connections between the husband and the second, third, fourth and fifth respondents.
It seems to me that there is a substantial risk that the husband’s evidence would be relevant to the questions relating to the third parties. And as Einstein J is quoted as saying, there is the risk in the event of separate hearings, relating to credit findings and related to separate appeals. We do not have to speculate about the last issue in these proceedings. There have already been interlocutory appeals. I think one has been determined – at least one – and there is one on foot. The concerns about satellite litigation in this case, loom large.
At the end of the day, the only question in relation to splitting off one issue for hearing from the rest relates to the interests of justice, the attainment of justice. There are accepted principles about proportionality, about the cost of the proceedings bearing some sensible relationship to the outcome. In addition, there is a relatively recent acceptance that the interests of other litigants before the Court are relevant to decisions about the conduct of proceedings. The decision in AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 highlights the fact that in making a decision in a particular case about allowing belated amendment of pleadings, the court was entitled to take into account those involved in the cases waiting in the queue and the impact on them of a delay in the subject proceedings.
In my view it is not clear that the issues that would need to be determined in relation to the claims in respect of the third parties are separate from critical aspects of the proceedings between husband and wife. The fifth respondent is here because land tax was not paid in relation to the property that is the security for the loan. That gave the creditor, the fifth respondent, the right to take action, and action was taken in the Supreme Court. The action was against one of the corporate entities involved in the trust, and there was going to be no defence.
The wife sought to join in those proceedings, and Hidden J, a judge of the New South Wales Supreme Court decided that it would be appropriate to transfer those proceedings here. His judgment is annexed to the wife’s affidavit. His Honour was presented with a claim by a third party, the wife, in uncontested proceedings between a creditor and a debtor. The third party occupies the subject property and it was thought that there would be an efficiency in the matter being dealt with by this Court.
His Honour went onto say that he did not suggest that it would be necessary for the issue between those parties to be heard at the same time as the issues between the parties in the proceedings already here. In other words his Honour flagged that way in which these proceedings should be heard is a matter for this Court.
There is no doubt the question is a matter for my discretion. It seems to me that the onus falls to the parties proposing a separate hearing and they have not discharged that onus. Therefore I will not order that there be a discrete hearing.
Some of the matters raised in the wife’s application have fallen away, but she seeks that the requirement for a conciliation conference be dispensed with. No submissions were made in opposition to that application. I will make that order. These proceedings have been on foot for three years. This is a complicated matter and it involves issues that I think make it very difficult for a registrar to provide effective, efficient advice. It has taken us all day today to deal with modest procedural issues in the matter. The idea that it would be possible for a registrar to qualify him or herself to express a useful opinion on the proceedings as a whole within the timeframe that would be available for a conference, is fanciful. Now, that said, if at some time in the future the parties feel as though there would be benefits to a conference then that issue could be revisited. At the moment the range of dispute includes a claim that there are no significant assets versus the contention that there is something greater than $30 million available.
That is just too great a range of dispute to bridge. If that controversy can be resolved and as the parties prepare their cases and identify the issues then it might be useful for them to think about a private mediation, or if the issues could significantly narrowed then perhaps a conciliation conference would be useful. The legislation requires that there be a conciliation conference. I have the power to dispense with it. It is appropriate that I do that at this stage in the circumstances of the case. That said, I would not want to put the parties off making a further application.
Nextly, the wife wants an order for leave for all the parties to issue subpoenas. The rules of Court require that that be done. I give the parties leave to issue such subpoenas as they may be advised.
Nextly, she seeks a scheme of orders in relation to expert evidence, and this was the subject of significant attention and submissions today. Ultimately, the wife has prepared a minute in the style of ‘husband and wife do all things to instruct experts to prepare reports’, and there a number of categories, the value of real estate which the wife alleges may be relevant to these proceedings; the value of corporate entities, including but not limited to companies, trusts and foundations; the value of vehicles, including ocean going vessels; the value of assets and financial resources which have been owned or controlled by the husband or have been transferred to third parties; the value of liabilities encumbering one of the other categories of asset; and finally, issues of foreign law relevant to the proceedings.
The wife’s proposal was that she provide the details of three experts for each category of items, together with an estimate of their costs, and then the husband would choose amongst the experts and pay one half of the costs of the chosen experts. The wife proposed that if the husband failed to do that then the wife was at liberty to select one of the nominated experts as her expert and she would pay the costs in the first instance. In my view, orders in those terms could be effective.
The wife’s initial proposal was that if the husband did not join in that scheme then she would be at liberty to appoint her nominee in each category as adversarial experts. This Court prefers to appoint single experts. The reasons for that are well known, and the same approach is applied now in many courts. There is a concern that adversarial experts become yet another advocate for the party who retain them. We have had single experts in parenting cases in this jurisdiction since 1976, and increasingly, in this jurisdiction, it is the default position for all expert evidence.
Parties do not need leave to rely on the evidence of a single expert. They do need leave to rely on anybody other opinion evidence. There is nothing in the wife’s case that suggests there is the need for adversarial experts. Adversarial experts are appointed where a single expert was not able to qualify himself or herself with information that would be available to another expert or where there are two schools of thought about a particular discipline or issue, and one expert is not able to give evidence about the two different approaches. For example there might be a surgical solution to a problem and a non surgical solution to the same problem. If evidence is not available about both approaches from one specialist physician it may be necessary to have adversarial experts.
Adversarial experts can involve additional costs over and above the costs of a single expert. They usually need to confer and they may have to give evidence together. That can add to the complexity of the case. There is none of that suggested here. There is no reason why appropriately chosen single experts cannot express a reliable opinion about the matters in dispute. Mr Dixon was not heard to argue strongly against this proposition, and nobody else referred to it. There is no reason to depart from the default position. There should be single experts, but they can be chosen in the way the wife has proposed.
I have prepared a slight amendment. I have left the terms of the front page of the document provided to me by the wife’s counsel, and I will mark that exhibit A. I have written that single experts are to prepare reports and then I have listed (a) to (f) which were 5.1 to 5.6 in the application in a case. And then I have gone on in a document that I will attach as part of exhibit A that for the purposes of paragraph 2.1:
The wife provide to the solicitor for the husband a list of assets, liabilities, financial resources and entities which she seeks to have valued, and any question of foreign law about which advice is required, together with the names of three proposed experts for each item or question, and an estimate of the costs of each proposed expert.
The wife had required that she do things within 28 days I will not specify a time. It is in her interests to do it as soon as practicable, so I do not think I need to specify a time limit for her to do that, and I do not think the other parties will be aggrieved if I do not specify a time. Obviously, the sooner she does it, the better.
2.2:Within 28 days after compliance with 2.1, the husband shall nominate one of the proposed experts for each item.
2.3:In the event that the husband fails to comply with 2.2 in relation to any category of expert, the wife is at liberty to select an expert from those proposed.
2.4:In the first instance, the costs of the expert are to be paid equally by the husband and the wife, but in the event that the husband neglects or fails to meet some or all of his contribution to those costs, they will be paid by the wife.
2.5:The ultimate responsibility for the costs of the experts is reserved to the final hearing.
I do not think I need to explain why I think those orders are appropriate. It seems to me that they will get the parties through. They provide some certainty, and deal with the issue of payment in the first instance, which is all that the experts themselves will be concerned about.
Next, the wife sought an order about trial affidavits. That raises the question of whether the wife’s claim is adequately identified now.
There is some grey area about this, as I said, in the course of submissions and discussed with Mr Dixon. In proceedings for settlement of property, formal declarations can be made about issues and findings can be made. The concern relates to whether the outcome of a finding or declaration needs to be visited on a third party or not. To take an example, if one party says that $2 of joint assets is held by a third party , if the Court was asked to make an order to get the $2 back then a declaration might be made because of the need to make orders against that other party. If the $2 was to be simply adjusted out of moneys that were held by one or both of the parties to the marriage a finding might suffice.
But that is a long way of saying that there are aspects of the wife’s claim that do not find expression in her Further Amended Initiating Application, and she needs to again amend her Application. Much was made of the moving feast in this case and that is a concern.
Late amendments to a claim should not happen in a way that is unfair and that is of particular concern in relation to claims for relief outside the bare s 79 issues. I am going to order that the wife file an amended application. That does not mean that at some time in the future the parties might agree, or the Court might allow the wife or somebody else to amend their claim in some way, but it seems to me that it is appropriate that we do what we can to try and crystallise the claims. There is an application for points of claim. Where there is a claim that is more akin to an argument to be made in another jurisdiction then the devices of that jurisdiction are often useful in providing the parties with information about the nature of the claim, and a description of the facts that are going to be relied on, relevant to the claim.
This was not ultimately controversial. I suppose the problem is we are going to have a new application from the wife. I will require the wife to plead claims that are made directly against or affecting the interests of the third parties – second, third, fourth and fifth respondents. The order I make is that within 28 days from today’s date or such further time as the parties may agree the wife file any further amended initiating application in these proceedings, together with in relation to any prayer other than a prayer lying under the terms of s 79 of the Family Law Act 1975 (Cth) affecting the third parties to the proceedings, points of claim fully particularised in accordance with the provisions of the Uniform Civil Procedure Rules of New South Wales, part 14 and 15.
Normally there would be a defence in relation to points of claim. That is not needed in this jurisdiction. I order that any Amended Response in relation to the wife’s Further Amended Application be filed within 21 days thereafter.
The other issue is whether trial dates are fixed at this stage. It was the strong view – I think I can safely say – on behalf of the husband and the second, third and fourth respondent and the fifth respondent that in the event that there is not to be a separate trial conducted for issues to do with those third parties, that trial dates not be allocated at this time and that the matter come back when more is known about the proceedings. The wife seeks that trial dates be allocated.
There are arguments for and against in relation to this issue. The matter has been listed for hearing on a previous occasion, I think, for nine days or something like that, and those dates were vacated. On the other hand, after three years, one is becoming nervous that the matter will never be ready, and, of course, at each stage of the proceedings, there is the potential for satellite litigation about trial directions, about various things. But Mr Dixon was not sanguine the parties agreeing about trial dates. That may be so.
I will allocate hearing dates but will give the parties the right to bring the matter back. I think I told the parties that I had time between November and the end of the year. I have the weeks of 21 November, 28 November, 5 December, 12 December, and for those who do not have any religious convictions, 19 December. The parties could agree to any two contiguous weeks in that period. In order to provide certainty I will allocate the two weeks commencing 28 November 2016.
I fix the proceedings for hearing over 10 days, commencing on 28 November, so that is two weeks commencing 28 November, but give leave to the parties to restore the proceedings by arrangement – well, firstly, to give the parties leave to settle by agreement with my associate other dates for the final hearing, and, in the event that there is an argument about the dates and the parties cannot agree, that they have leave to restore the proceedings before me on giving seven days’ notice to the Court and each other, indicating perhaps by correspondence suggested available dates in each case.
The trial directions that the wife proposed work backwards from a trial. They seem appropriate save that an order sought that the parties file a financial statement. I have seen a financial statement for the husband in the documents I have, and I do not know what has happened to it. It is a mess, but maybe I have the wrong version. The husband and wife will have to update their financial statements. One of the third parties sought an order that they be excused from requirement. A Financial Statement is not a document that lends itself to completion by a corporation. Its living expenses will be complicated and so on. I will not require the second, third, fourth and fifth respondents to file a Financial Statement.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 24 May 2016.
Associate:
Date: 14 July 2016
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