Leventis & Leventis (No 3)

[2021] FamCA 473

FAMILY COURT OF AUSTRALIA

LEVENTIS & LEVENTIS (NO. 3) [2021] FamCA 473

FAMILY LAW – PRACTICE AND PROCEDURE – late production of responding expert evidence – whether to admit report – relevant principles – report allowed – consequential steps prescribed.

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Mallet v Mallet (1984) 156 CLR 605
Sali v SPC Ltd (1993) 67 ALJR 841
State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146

APPLICANT: Ms Leventis

FIRST RESPONDENT: Mr Leventis

SECOND RESPONDENT: Mr B Leventis

THIRD RESPONDENT: Ms G Leventis

FILE NUMBER: MLC 7710 of 2018

DATE DELIVERED: 1 July 2021

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Wilson J

HEARING DATE: 29 June 2021 & 1 July 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE APPLICANT: Nicholes Family Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Not applicable

SOLICITOR FOR THE FIRST RESPONDENT: Vadarlis & Associates

COUNSEL FOR THE SECOND RESPONDENT: Mr P. Panayi with Ms G. Rhodes

SOLICITOR FOR THE SECOND RESPONDENT: Pauline Madden Conveyancing & Legal

COUNSEL FOR THE THIRD RESPONDENT: Mr P. Panayi with Ms G. Rhodes

SOLICITOR FOR THE THIRD RESPONDENT: Pauline Madden Conveyancing & Legal

Orders

1. The second and third respondents have leave to file and rely on the expert witness report by H Accountants Ms J dated 10 June 2021.

2. On or before 12pm on 1 October 2021 the applicant must file and serve any responding material produced by Mr K to the J report.

3. On or before 12pm on 7 July 2021 the parties must provide to my associates a timetable for –

   (a)       the filing of an application for a part property order; and

   (b)       the filing of affidavit material and submissions.

4. The part property application is listed for an interim hearing on 3 September 2021 at 1pm.

5. This proceeding is listed for trial on 22 August 2022 for no more than seven days. 

6. The applicant’s costs application made on 29 June 2021 is fixed for 3 September 2021 at 1pm.

7. Any further affidavit of the applicant in support of her costs application must be filed and served by 4pm on 23 July 2021. 

8. Any affidavits in opposition by the respondents must be filed and served by 4pm on 13 August 2021. 

9. All parties’ submissions must be filed and served by noon on 20 August 2021. 

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 Leventis & Leventis 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 MELBOURNE

FILE NUMBER: MLC 7710 of 2018

Ms Leventis

Applicant

And

Mr Leventis

First Respondent

And

Mr B Leventis

Second Respondent

And

Ms G Leventis

Third Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The trial of this proceeding is scheduled to commence on 5 July 2021.  It will run for seven days as a property case. 

2. On 23 June 2021 the second and third respondents indicated that they wished to rely on expert accounting evidence (“the J report”) that responded to the applicant’s expert accounting evidence (“the K report”). 

3. The applicant objected to the receipt of the J report saying –

   a)no explanation for its late provision had been offered;

   b)if received, further Mr K evidence will be required;

   c)almost certainly the trial will be torpedoed; and

   d)in all the circumstances leave should be refused to adduce into evidence the J report.

4. The J report was not filed in compliance with dates previously ordered. 

5. The J report is a substantial document putting in issue significant evidentiary matters that must be determined in this litigation. 

6. Failure to adduce evidence in accordance with a date previously ordered does not, in and of itself, render the evidence excluded because in all situations the court must do justice between the parties.[1] 

   [1] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, Mallet v Mallet (1984) 156 CLR 605, Sali v SPC Ltd (1993) 67 ALJR 841 and State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146.

7. Shutting the second and third respondents out of adducing the J report would, in my view, occasion considerable hardship to them having regard to the fact that –

   a)they contend the K report contains significant factual errors which, if accepted without challenge, would lead me into error; and

   b)the second and third respondents would be denied an opportunity of presenting their best case.

8. As against that, the applicant contended that she had complied with the filing dates.  She also said that any adjournment that may be occasioned by allowing the J report into evidence will cause hardship to her.  Paragraph 2 of her response sealed 29 June 2021 was in the following terms –

   2.In the event leave is granted to the Joined Respondents to file and rely upon the J Report:

   (a)The final hearing of the parties’ financial and property matters be adjourned to a date to be determined by the Court;

   (b)Within 60 days the Joined Respondents pay to the Wife the sum of $117,893 on account of costs incurred to date;

   (c)The whole of the costs incurred by Mr K in reviewing, responding to and analysing the J Report be paid by the Joined Respondents, within 14 days of receiving an invoice from Mr K;

   (d)In the event the Joined Respondents fail to comply with their obligations in paragraphs 2(b) and 2(c) herein by the dates specified in in those sub-paragraphs, then interest will accrue on each of the payments until the date of payment at the rate specified by the Family Law Rules 2004.

9. Mr Panayi of counsel submitted that there were no cost consequences based on any adjournment. 

10. In my view, it is appropriate to allow the second and third respondents to rely on the J report, despite its late provision.  Applying principles espoused in Aon, Mallet, J L Holdings and Sali, it would be wrong for me to elevate principles of case management to such a level as to shut out the second and third respondents from relying on the J report.  If they are correct that the K report contains the errors they say the J report discloses, then I should not proceed to try this case using only the K report which may be erroneous in certain respects.  I say “may” advisedly as I do not yet know if the K report is in fact erroneous.  That must await cross-examination. 

11. In the end, whether to permit the second and third respondents to rely on the J report became a matter of doing justice between the parties.  In my view, justice is best done in the circumstances of this case by permitting the second and third respondents to rely on the J report.

12. Several consequences follow. 

13. First, the applicant should have an opportunity to respond to the J report.  Second, the trial of this proceeding will be adjourned.  Third, costs may become an issue. 

14. So far as the first of those was concerned, in my view the applicant should have up to three months within which to respond to the J report.  The solicitor for the applicant told me on 29 June 2021 that Mr K needed up to two months.  He should not be rushed.  I will allow three months for the provision of any responding material to the J report to be produced by Mr K. 

15. Next, the trial in this proceeding must be adjourned.

16. Finally, there may be cost consequences.  On behalf of the applicant it was put that the applicant’s present financial position is parlous.  The applicant sought costs on an indemnity basis. 

17. She also sought a part property order pending the resumption of the trial.

18. It seems to me that a timetable should be agreed between the parties’ legal representatives for –

    a)the filing of an application for a part property order; and

    b)the filing of affidavit material and submissions.

19. That must be done by 7 July 2021.

20. I can hear such an application on 3 September 2021.

21. The new trial date will be 22 August 2022.

22. I will also fix 3 September for the costs applications made in the applicant’s response.  Any further affidavits of the applicant in support of such applications must be filed and served by 4pm on 23 July 2021.  Any affidavits in opposition by the respondents must be filed and served by 4pm on 13 August 2021.  All parties’ submissions must be filed and served by noon on 20 August 2021.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 1 July 2021.

Associate: 

Date:  2 July 2021