Malinda and Malinda and Ors - [2011] FamCA 322

FAMILY COURT OF AUSTRALIA

Malinda & Malinda and Ors

[2011] FamCA 322

FAMILY LAW – PRACTICE AND PROCEDURE - joinder

Family Law Act 1975 (Cth)

B Pty Ltd and Ors and K and Anor [2008] FamCAFC 113; (2008) FLC 93-380
Gould and Gould; Swire Investments Ltd (1993) FLC 92-434

APPLICANT:

Ms Malinda

RESPONDENT:

Mr Malinda

2^ND RESPONDENT:

The Malinda Family Settlement

3^RD RESPONDENT:

Business 1

4^TH RESPONDENT:

G Malinda

5^TH RESPONDENT:

P Malinda

6^TH RESPONDENT:

A Malinda

FILE NUMBER:

MLC

12965

2007

DATE DELIVERED:

10 May 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

29 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr North SC with Mr Wood

SOLICITOR FOR THE APPLICANT:

Caroline Counsel Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Thompson

SOLICITOR FOR THE RESPONDENT:

Saxbys Lawyers Ptd Ltd

SOLICITOR FOR THE 2^ND RESPONDENT:

Mr Umbers, Wilsons Lawyers

COUNSEL FOR THE 7^TH, 8^TH, 9^TH AND

10^THRESPONDENTS:

Mr Moore

SOLICITOR FOR THE 7^TH, 8^TH, 9^TH AND

10^TH RESPONDENTS:

Rush & Failla

Orders

That Business 1, G Malinda (also known as L Malinda), P Malinda and A Malinda be joined as parties to these proceedings.
That the wife have leave to file a further amended application by 4.00pm on 4 May 2011.
That each party by 4.00pm on 5 May 2011 serve upon the solicitors for the new respondents copies of all documents relied upon.
That the return of the subpoenae this day be adjourned to 9.30am on 6 May 2011 before the registrar.
That all parties have the right to make an application for costs arising out of these proceedings if they so desire.
That the documents referred to in the schedule to the subpoena addressed to the Proper Officer of the Commonwealth Bank of Australia be released for inspection and copying by all parties.
That all documents referred to in the schedule to the subpoena addressed to The Principal of Caroline Counsel Family Lawyers be released to all parties for inspection and copying save for the following:
(a)communications in documents with Mr W that are not relevant may be masked; and
(b)provided a printed version of the document has been produced, it is not necessary to provide an electronic version of the same document.
That all documents referred to in the schedule to the subpoena addressed to Ms Malinda are released for inspection and copying.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including senior counsel and two counsel to attend.
That the reasons for these orders be released as soon as practicable.

AND THE COURT NOTES:

A.The husband’s solicitor agrees to make available to the wife’s solicitor for inspection and copying a copy of any documents evidencing communication between them and Mr W since 1 July 2010 but not any annexures in the same terms as set…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FamCA 322
Decision Date: 10 May 2011

CaseChat Overview and Summary

In the matter of *Malinda and Malinda and Ors*, Cronin J of the Family Court of Australia made orders concerning the joinder of additional parties and the disclosure of documents. The proceedings involved a dispute between the parties, with the wife seeking to join Business 1, G Malinda (also known as L Malinda), P Malinda, and A Malinda as parties. The wife was also granted leave to file a further amended application.

The court was required to determine the appropriate orders regarding the joinder of new parties, the service of documents, the return of subpoenas, and the release of documents for inspection and copying. Specifically, the court considered which documents, subpoenaed from the Commonwealth Bank of Australia, Caroline Counsel Family Lawyers, and Ms Malinda, should be made available to all parties, and under what conditions.

Cronin J ordered that Business 1, G Malinda, P Malinda, and A Malinda be joined as parties to the proceedings. The court further ordered that each party serve copies of all documents relied upon on the solicitors for the new respondents. The return of certain subpoenas was adjourned, and documents subpoenaed from the Commonwealth Bank of Australia and Ms Malinda were ordered to be released for inspection and copying by all parties. Documents subpoenaed from Caroline Counsel Family Lawyers were also ordered to be released, with specific exceptions for communications with Mr W that were not relevant and for electronic versions of documents already produced in printed form. The court also certified that it was reasonable to engage counsel, including senior counsel and two counsel, to attend the proceedings.

Orders

Orders of the court

That Business 1, G Malinda (also known as L Malinda), P Malinda and A Malinda be joined as parties to these proceedings.

That the wife have leave to file a further amended application by 4.00pm on 4 May 2011.

That each party by 4.00pm on 5 May 2011 serve upon the solicitors for the new respondents copies of all documents relied upon.

That the return of the subpoenae this day be adjourned to 9.30am on 6 May 2011 before the registrar.

That all parties have the right to make an application for costs arising out of these proceedings if they so desire.

That the documents referred to in the schedule to the subpoena addressed to the Proper Officer of the Commonwealth Bank of Australia be released for inspection and copying by all parties.

That all documents referred to in the schedule to the subpoena addressed to The Principal of Caroline Counsel Family Lawyers be released to all parties for inspection and copying save for the following:

(a) communications in documents with Mr W that are not relevant may be masked; and

(b) provided a printed version of the document has been produced, it is not necessary to provide an electronic version of the same document.

That all documents referred to in the schedule to the subpoena addressed to Ms Malinda are released for inspection and copying.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including senior counsel and two counsel to attend.

10.

That the reasons for these orders be released as soon as practicable.

AND THE COURT NOTES:

A. The husband’s solicitor agrees to make available to the wife’s solicitor for inspection and copying a copy of any documents evidencing communication between them and Mr W since 1 July 2010 but not any annexures in the same terms as set out in the order above.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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