Liveson and Zhou

[2019] FamCA 878

FAMILY COURT OF AUSTRALIA

LIVESON & ZHOU [2019] FamCA 878

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the Husband seeks an adjournment of the trial because he and his legal representatives were not ready for the trial as a result of the Husband’s ill-health and impecuniosity – Where there was no other reason provided for the lateness of the application for an adjournment – Where the application is dismissed as it is not in the interests of either party for the adjournment to be granted.

Elgin & Elgin (No. 2) [2012] FamCA 1158

APPLICANT: Mr Liveson

RESPONDENT: Ms Zhou

FILE NUMBER: LEC 610 of 2011

DATE DELIVERED: 29 April 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 29 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mort

SOLICITOR FOR THE APPLICANT: Armour Legal

COUNSEL FOR THE RESPONDENT: Mr Alexander

SOLICITOR FOR THE RESPONDENT: Somerville Laundry Lomax

Orders

1. That the Application in a Case filed 18 April 2019, be dismissed.

2. That leave be granted to the legal representatives for the applicant husband to withdraw from the proceedings.

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 Liveson & Zhou 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 BRISBANE

FILE NUMBER: LEC 610 of 2011

Mr Liveson

Applicant

And

Ms Zhou

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The parties in these property adjustment proceedings commenced cohabitation in or about 1998 after they met and commenced a relationship in Melbourne. They married in 1999.

2. There remains, apparently, some dispute about when they actually separated, but on any account, it was after around a decade of marriage, give or take a couple of years. That is a fact about which there is some fairly decisive evidence, but which nevertheless remains disputed at this point in the proceedings.

3. The wife has an adult daughter of an earlier relationship but she and the husband had no children of their union.

4. The wife is of Chinese origin. She had obtained professional qualifications as a health care worker earlier in her adult life in China, before she came to Australia and was studying in Melbourne. Those qualifications were not recognised when she came to Australia and she and the husband met whilst they were both studying. After they married, and the wife obtained permanent residency in this country through a spousal visa, she began working as a health care assistant whilst she undertook the process of obtaining recognition of her professional training and experience and the right to work as a health care worker in this country. She obtained that in 2003 and she began working as an employed health care worker thereafter.

5. The couple then located and purchased a business in country Victoria in a town some four hours drive away from Melbourne. The wife worked in that business with other staff also being employed. Real property was purchased in the same town as the business was purchased. A self-managed superannuation fund was established by the two parties with them being its members and, as I understand it, its trustees, if not the directors of a company that was its trustee. That fund purchased further real property, including the real property from which the business was operated and another property in another small town that was located nearby, in which another business was established.

6. In the second half of 2007, yet another business was purchased, though this time in country New South Wales, and the wife moved to that town to operate that business. Indeed, it is at that time that she says the separation occurred.

7. Whatever the separation date was, it is clear that from some time after this particular phase in their lives, the parties’ relationship terminally fractured and they began living separate lives.

8. An application for dissolution of their marriage was filed by the wife in 2011 and that was granted in February 2012. The husband filed an application for property adjustment in 2013 in the Federal Circuit Court.  At some subsequent date, the matter was transferred to this Court on the basis of its apparent complexity. For reasons not entirely clear to me at this point in time, the proceedings did not reach a Judge’s docket to be listed for trial at least before September of last year.

9. On 21 September 2018, the matter came before me for the consideration of a number of matters on an interim basis.  The husband, who had been previously represented by three different law firms since the proceedings had been commenced by him, was without legal representation at that time. The wife though was represented by solicitor and counsel.

10. There was evidence that both parties were suffering from fairly poor health. Indeed, the wife has had cancer and it was argued on her behalf that the matter needed to be finalised as soon as possible for her sake, lest her health deteriorate any further in the meantime. The husband also suffers from poor health. He is indeed 71 years of age now. He managed to convey to me at that hearing in September last year, his serious concerns about the matter, particularly in respect to the single expert valuation report that had been previously obtained from an experienced accountant who had reported on the value of the parties’ interests in several corporate and trust entities. He also conveyed to me concerns he had for his own potential liability in respect of tax issues that may emerge out of the conduct of the affairs of the entities by the wife in the years since their separation.

11. I determined then, without serious objection from either party, to list the matter for final trial before me over three days in March of this year, some six months from that date in September when the matter was before me. On that date in September I made Orders that provided for the parties to file their trial affidavits in February of this year, as well as Orders that dealt with the matters of concern the husband had raised with me. In particular, paragraph 3 of the trial management directions that I made on 21 September 2018 says this:

    3.That should the husband seek to rely upon an affidavit of an expert witness in respect of matters of law pertaining to trusts, corporate trustees and taxation obligations relating thereto, he shall by 4.00 pm on Friday, 15 February 2019, make, file and serve an affidavit of the expert who he intends to rely upon.

    I also made the following direction in paragraph 5 of those orders, namely:

    5.That, at his option and expense, the husband shall make, file and serve on the wife’s solicitors and the single expert, Ms [B], on or before Friday, 14 December 2018, a document in which he includes points he wishes to bring to Ms [B’s] attention and questions he wishes to ask her in respect of matters pertaining to the affairs of the trust, the corporate trustees and Ms [B’s] valuation of the parties’ interests in same, with Ms [B’s] written response to be provided to each of the parties at the husband’s expense, if he requires such written response, on or before Friday, 25 January 2019.

12. I also strongly advised the husband on that September day that he should seek and obtain legal advice and representation if he possibly could, to help him prepare for and run the trial. With that in mind, I also made an order that provided liberty to each of the parties to restore the matter for Trial Management for further directions at any time on the giving of 7 days’ notice between that date and the date of the trial.

13. On 11 February this year, I caused notice to be given to the parties that the trial dates were administratively changed with the trial being adjourned from March until today’s date, 29 April, due to unforeseen circumstances occurring with respect to the management of my docket in this registry. Just over a week after that, a Melbourne firm of solicitors, the same firm that appears today instructing counsel from the Melbourne Bar on behalf of the husband, filed a Notice of Address for Service on behalf of the husband.

14. It seems, that in the evening of Thursday, 18 April, that is the day before Good Friday and the Easter break commenced, and two calendar months after the filing of the Notice of Address for Service, the husband’s solicitors filed an Application in a Case. It was apparently listed for hearing at the commencement of the trial that was listed to start at 10.00 am this morning. There is no evidence that any request was made when that Application in a Case was filed, or subsequent to that Application being filed, for the matter to be heard any earlier than 10.00 am today at the commencement of the trial that was listed for three days.

15. As I was on leave for the Easter break and all of last week, the matter was brought to my attention this morning by my Chambers staff. The husband, by his Application in a Case, seeks to have the trial adjourned. He also seeks a number of other orders that are truly predicated on the success of the adjournment application. Those include interim litigation costs funding and lump sum spousal support. The wife opposes the adjournment and submits that even if the adjournment is granted, she is not ready to answer the other applications of the husband and argues that they would need in turn to be adjourned and set down for hearing on another day.

16. For the husband it is submitted that the adjournment should be granted in the interests of justice because the husband and his legal representatives are simply not ready for the trial.  It is asserted that the twin grounds of the husband’s ill-health and his impecuniosity explain that fact.

17. The husband’s evidence, in affidavit form, filed in support of the application for the adjournment, sets out that he is in poor health and lists six problems he says he has with his health. In respect of four of those, he deposes to suffering from them for differing periods of time that commence as far back as 2010 and going through to November 2017. As for the other two, he does not depose to a time period for which he has suffered from those problems. He says in his affidavit that the various medical conditions make it difficult for him to concentrate for extended periods of time and that he will “often lose focus”. He says “I have found it difficult to prepare for these matters”.

18. No evidence of any treating or reporting medical practitioner providing expert opinion evidence about any of these health issues is relied upon by the husband in support of the application.

19. The husband still lives in country Victoria. His solicitors’ practice is in Melbourne, as I said, about some four hours travel from the place where the husband lives.

20. With respect to the husband and to those who have prepared his affidavit evidence for this application, the husband gives no evidence as to what he did or did not do between 21 September 2018 and January this year, when it is said he first consulted his current solicitors in respect of readying the matter for trial in accordance with my directions of 21 September 2018. In particular, apart from referencing his health problems, no particular evidence is given explaining a lack of action in that period of time. With respect to the husband and to those who have prepared his evidence for this application, no evidence is given as to what was done and what was not done about preparation of the matter between January when he says he approached his solicitor, or even February when he said he engaged the firm to “assist [him] to prepare for the final hearing”. No evidence of any explanation for not having done anything like filing his affidavit of evidence in chief that was due to be filed by mid-February, has been provided at all.

21. For the husband, it is submitted that there are serious matters of justice that abound in this matter for which the adjournment is required. The Court is told that there are disputes about valuation of real properties and dispute about the single expert’s valuation of the various corporate and trust entities, including as to tax implications. However, there is no evidence provided as to why these matters were not attended to in accordance with the provisions of the trial management directions of September last year that I have already referred to, no evidence whatsoever.

22. Again, with respect to the husband and his legal representatives, no evidence of any explanation as to why this application for the adjournment and the application for interim litigation costs funding was not brought any earlier than it was – namely at some earlier time in the two months from mid-February to the evening just before the Easter break – has been provided at all.

23. Counsel for the husband asks for the matter to be adjourned for three months and for it to be carefully judge managed in the meantime to ensure it is readied for such an adjourned hearing.

24. For her part, the wife opposes any adjournment of the trial. Counsel for the wife points to the prejudice that his client will suffer in respect of, in no particular order: firstly her costs; the costs thrown away by the adjournment; and more particularly, in respect of her own health. He also refers to the interests of other litigants who are awaiting trials in this Court. He submits that it is solely the husband’s responsibility for not being ready for trial and that the trial should nevertheless proceed and that in the interests of justice the case would be best served by dismissing the adjournment application.

25. In my extemporaneous judgment delivered on 18 July 2012 in a matter of Elgin & Elgin (No. 2) [2012] FamCA 1158 where an application for an adjournment of the trial was made on the first day of the trial, I said in paragraphs 22 and 23 of that judgment the following things that I consider appropriate and relevant to cite in these extemporaneous reasons:

    22.Active case management of the matters by the Courts is now considered, not only as directed to the resolution of the disputes that exist between the parties to proceedings before the Court, but also as directed towards the achievement of a just but timely and cost-effective resolution of a dispute.  That is, of course, a worthy goal.

    23.There are interests other than just the interests of each party to the proceedings that must be considered when case management is being undertaken.  The Court must consider the need to avoid disruptions to its lists.  The Court must consider, particularly, the inconvenience to the Court and, even more particularly, the prejudice to the interests of other litigants when disruptions to proper case management of its lists are being proposed.  I attribute the recognition of those principles to Gummow, Hayne, Crennan, Kiefel and Bell JJ of the High Court, found to be pronounced at paragraph 93 on page 211 in their decision in the case of Aon Risk Services Australia Limited v ANU (2009) 239 CLR 175.

26. Having regard to those matters that I have just cited, and having regard to the matters that I have already discussed and mentioned earlier in these extemporaneous reasons, I am particularly persuaded in this case that the adjournment application should be dismissed.  I consider that not only would the wife herself be prejudiced by the adjournment, but having regard to the evidence  about the husband’s state of health, the further adjournment of this matter to sometime in the future would also be somewhat prejudicial to the husband, though he may not consider that to be the case at this particular time.  I am not persuaded that the interests of justice demand that this matter, that has been listed for trial over these three days for six months now, will be served by adjourning the trial to a future date on the application of the husband for the reasons advanced.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 29 April 2019.

Associate:

Date:  26 November 2019