Merhi and Merhi and Ors

[2018] FamCA 582

FAMILY COURT OF AUSTRALIA

MERHI & MERHI AND ORS [2018] FamCA 582

FAMILY LAW – PRACTICE AND PROCEDURE – Where a single expert document examiner was previously appointed by Court order – Where the wife has provided sample documents to the expert – Where the Court is satisfied that there is no harm done in the expert having recourse to all of those more recently provided samples – Where leave is granted for the wife to provide additional specified documents to the expert.

APPLICANT: Ms Merhi

RESPONDENT: Mr G Merhi

SECOND RESPONDENT: Mr E Merhi Holdings Pty Ltd

THIRD RESPONDENT: Y Pty Ltd

FOURTH RESPONDENT: Mr E Merhi

FIFTH RESPONDENT: Ms J Merhi

FILE NUMBER: SYC 511 of 2014

DATE DELIVERED: 13 July 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 13 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson SC

SOLICITOR FOR THE APPLICANT: Barkus Doolan

COUNSEL FOR THE RESPONDENT: Mr Cummings SC

SOLICITOR FOR THE RESPONDENT: Broun Abrahams Burreket

COUNSEL FOR SECOND, THIRD, FOURTH AND FIFTH RESPONDENTS: Mr Campton SC

SOLICITOR FOR SECOND, THIRD, FOURTH AND FIFTH RESPONDENTS: Streeterlaw

Orders

1. Orders are made in terms of paragraphs 1, 2, 3, 4 and 8 (as amended) of the document titled “Minute Of Orders Sought By Applicant Wife” attached to the wife’s Case Outline document (Exhibit 1 dated 13 July 2018, as set out hereunder:

   1.      That for the purposes of providing documents to the jointly appointed handwriting expert, Mr K, the Applicant wife be granted leave to uplift the following original records produced under Subpoena by L Hospital (and the Court NOTES that the solicitor for the Applicant wife has marked each document with post it notes marked (1) – (4) in Subpoena Bundle 48):

   1.1Patient Leave Form dated 30 March 2013 [Ms J Merhi].

   1.2Non-Admitted Patient Front Sheet dated 18 February 2013 [Ms J Merhi];

   1.3MERHI Screening Form dated 3 January 2013 [Ms J Merhi].

   1.4M House Consent Form dated 23 May 2014 [Ms J Merhi].

   2.      That for the purposes of providing documents to the jointly appointed handwriting expert, Mr K, the Applicant wife be granted leave to uplift the following original records produced under Subpoena by N Hospital (and the Court NOTES that the solicitor for the Applicant wife has marked each document with post it notes marked (A) – (H) in Subpoena Bundle 52):

   2.1Doctor Admission Request Form – Patient Consent dated 31 August 2009 [Ms J Merhi];

   2.2Consent Form dated 29 September 2009 [Mr E Merhi];

   2.3Financial Consent relevant to admission date 31 March 2012 [Mr E Merhi];

   2.4Consent Form – O Angiography dated 23 February 2011 [Mr E Merhi];

   2.5Patient History dated 28 February 2011 [Mr E Merhi];

   2.6Consent for Treatment dated 16 September 2010 [Mr E Merhi];

   2.7Consent for Treatment dated 14 August 2009 [Mr E Merhi];

   2.8Patient History form dated 14 August 2009 [Mr E Merhi].

   3.      That for the purposes of providing documents to the jointly appointed handwriting expert, Mr K, the Applicant wife be granted leave to uplift the following copy records produced under Subpoena by N Hospital (and the Court NOTES that the solicitor for the Applicant wife has marked each document with post it notes marked (1) – (8) in Subpoena Bundle 46):

   3.1Patient Estimate of Expenses/Financial Consent, Hospital and Day Surgery Cases dated 13 August 2011 [Ms J Merhi];

   3.2Patient Estimate of Expenses/Financial Consent, Hospital and Day Surgery Cases dated 22 September 2009 [Ms J Merhi];

   3.3Blood Transfusion form dated 14 September 2009 [Ms J Merhi];

   3.4Patient Estimate of Expenses/Financial Consent, Hospital and Day Surgery Cases dated 28 February 2011 [Mr E Merhi];

   3.5Patient Details form dated 16 September 2010 [Mr E Merhi];

   3.6Patient Estimate of Expenses/Financial Consent, Hospital and Day Surgery Cases dated 23 September 2010 [Mr E Merhi];

   3.7Patient Estimate of Expenses/Financial Consent, Hospital and Day Surgery Cases dated 13 August 2009 [Mr E Merhi];

   3.8Day Surgery Nursing Discharge Summary and Instructions dated 14 August 2009 [Ms J Merhi].

   4.      That the Applicant wife be granted leave to uplift the following original documents from the Court file for the purposes of providing them to Mr K:

   4.1Affidavit of Ms J Merhi filed in Court on 4 May 2018;

   4.2Affidavit of Mr E Merhi filed in Court on 4 May 2018.

   …

   8.      That the husband, the wife, Mr E Merhi Holdings Pty Ltd, Mr E Merhi and/or Ms J Merhi (being the First, Second, Fourth and/or Fifth Respondents) respond to requests for information, documents or further exemplars from Mr K within 14 days of such requests being received by them.

2. For the purposes of the work of the jointly appointed handwriting expert, Mr K, he is authorised to inspect and report on those of the documents provided to him under cover of a letter from the wife’s solicitors dated 4 May 2018 that he considers would be of assistance in his task.

3. Unless the parties otherwise agree in writing no documents beyond those provided to the document examiner by agreement between the parties and those identified in the orders made today, are to be provided to the document examiner.

4. The Court notes that:

   (a)in relation to a subpoena issued to the third parties, copies of the wills of the husband’s parents will be produced by the return date of the subpoena.

   (b)there may be objections in relation to inspection or production of the wills

5. The proceedings are listed, if necessary, on 29 October 2018 for hearing an application on behalf of two of the third parties to be removed as parties to the proceedings.

6. Any amendment to the wife’s Response to that application will be made within seven days.

7. A case outline document or notice of contention on behalf of the third parties shall be provided to the Court and the solicitors for the remaining parties as soon as practicable after seven days from today’s date.

8. The husband is excused from appearing at Court on 29 October 2018.

9. The Court notes that the fifth respondent is deceased.

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 Merhi & Merhi and 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 511 of 2014

Ms Merhi

Applicant

And

Mr G Merhi

Respondent

And

Mr E Merhi Holdings Pty Ltd
Second Respondent

And

Y Pty Ltd
Third Respondent

And

Mr E Merhi
Fourth Respondent

And

Ms J Merhi
Fifth Respondent

REASONS FOR JUDGMENT

1. These proceedings are listed for trial in February over about two weeks.  An application was filed on 7 June 2018 seeking orders about which examples of signatures will be taken into account and assessed by the appointed single expert document examiner for the purposes of claims in respect of the authenticity of, or provenance of, six documents including loan agreements, caveats, withdrawal of caveats, mortgages and a purported unregistered discharge of mortgage.  The territory of concern relates to the authenticity of signatures of the husband’s parents.  Sadly, his mother has passed away, and his father, who appears by a case guardian, is not in a position to give evidence.

2. Orders were made in December 2017 and February 2018 for the appointment of the expert and about documents to be sent to the expert.  The complaint arises out of the fact that there were specific references to who would provide the specimen documents to the examiner.  There was no catch-all or overarching order about how the samples would be provided but the task set for the examiner was to assess the signatures on the relevant documents against all other examples.

3. The husband and the third parties complain that the wife jumped the gun with a letter to the expert of 4 May 2018 which attached or included a number of original documents which she sought be included in the expert’s comparisons.  The expert has written to the parties to advise that the signatures on two of the documents, being cards, are not useful examples.  He does not say why that is the case.  He does not say anything else about the other samples provided by the wife, save to say that at that time he did not have sufficient samples to undertake his work.  The expert may examine those documents.

4. Since then, the expert has been provided with an elegant sufficiency of documents.  It seems to me that there is no harm done in him having recourse to all of those more recently provided samples.  Some of them are medical records, and the concern there is that there might be something atypical about the signatures made on an occasion when the person involved was ill.  In my view those are matters about which the expert can report.  The style of report would be not an omnibus observation, presumably, but something that identified and commented on particular examples.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 13 July 2018.

Associate: 

Date:  1 August 2018