Miller and Miller and Anor

[2012] FamCA 1100

FAMILY COURT OF AUSTRALIA

MILLER & MILLER AND ANOR [2012] FamCA 1100

FAMILY LAW – Procedural matters – Adjourned part-heard

Family Law Act 1975 (Cth)

APPLICANT: Ms Miller

RESPONDENT: Mr Miller

SECOND RESPONDENTS: Mr Clarke and Ms Clarke

FILE NUMBER: MLC 6577 of 2010

DATE DELIVERED: 21 December 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 21 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sweeney

SOLICITOR FOR THE APPLICANT: Berger Kordos Lawyers

COUNSEL FOR THE 1^ST RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE 2^ND RESPONDENT: Ms Stewart

Kennedy Partners

Orders

IT IS ORDERED:

1. THAT all extant applications be adjourned for further hearing before Young J on a part-heard basis on 5 February 2013 at 10.00 a.m.

2. THAT within thirty (30) days the Second Respondents pay the costs of the wife’s Counsel and Solicitor for appearing this day those costs to be fixed at $2,500 for Counsel and $1,000 for Solicitor, a total of $3,500.

3. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of all parties

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mille & Miller and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6577 of 2010

Ms Miller

Applicant

And

Mr Miller

Respondent

And

Mr Clarke and Ms Clarke
Second Respondents

REASONS FOR JUDGMENT

1. The matter of Miller & Others has been forwarded to my Court by the co-ordinating judge, Cronin J, for hearing and determination on certain interim issues.  This is the final sitting of the court, on this Friday 21 December.  The matter was forwarded to me at or after 11.00 a.m. and the Court Registry shuts at 12.00 noon.  In that very limited context I have had brief submissions from Mr Sweeney of Counsel, for the wife and Ms Stewart of Counsel for the Second Respondents.  The husband, who appears in person, has not addressed the Court and that is seemingly appropriate.

2. I have been given a brief overview of the matter and the complex legal and factual issues therein.  The wife’s application this day is contained in her 30 November 2012 further-further amended application filed, and in particular annexure B thereof.  The Second Respondents have filed a further amended response to the further-further amended initiating application and that document was filed 18 December 2012 and I have had regard to the amended orders sought in paragraphs 1-5 inclusive thereof, and to the further costs order that they have identified. 

3. In brief summary, the wife seeks a hearing on an undefended basis of the section 79 application filed in this Court – and that is supported by the husband.  Initially the Second Respondents raised the prospects of transferring all proceedings to the New South Wales Supreme Court or otherwise of separating the proceedings of and concerning the repayment of a sum of $700,000 by the Second Respondents to the husband and/or wife, and specifically the timetable of that repayment. 

4. I was given a brief overview of the significant proceedings in the New South Wales Supreme Court which the Second Respondents has brought against other defendants of and related to a claim for approximately $129 million or thereabouts.  I do not need to further identify that claim. 

5. The history in this Court is that there have been two orders made by her Honour Justice Macmillan on 5 July 2012 and 8 October 2012.  They required production of certain identified documents by the Second Respondents.  Those orders have been ignored, certainly not complied with.  Significantly, there was no appeal lodged, as against either order, and the time for appeal is well and truly elapsed. 

6. Ms Stewart, in her submissions, identified that her clients could now seek to transfer proceedings to the Family Court of Australia in the Sydney Registry.  In so doing, there effectively was an abandonment of any transfer of proceedings to the Supreme Court of that State or of the splitting of proceedings or issues within proceedings.  It is said that the Second Respondents’ health is such that they cannot or should not be expected to travel and that they may have five court witnesses.  I make no findings on those issues because the material is either inappropriate or has not been fully read to and considered by me.

7. Time does not permit a proper examination of complex issues.  I have, from the submissions and what I have read, a very preliminary but strong view that these proceedings must and should remain in the Family Court of Australia.  On all that I have so far heard Melbourne is clearly the appropriate venue.  If a witness has to give evidence from Sydney, he or she may do so by video link transmission – subject to any proper costs arrangements.

8. I am going to adjourn the proceedings part heard before me.  I am going to re-list the matter on 5 February 2013.  I have no other available date.  The matter will be listed at 10.00 a.m. on that day, and I treat the matter as part heard with Counsel and solicitors.

9. In the meantime however, there is now every opportunity for proper and considered action to be taken, by way of compliance with past court orders or negotiating between solicitors a proper and satisfactory outcome.  I do not make a finding upon the issue of whether the Second Respondents are entitled to a copy of their own legal advice.  I may have a very preliminary view that it would be highly unusual, as they are the clients, if they did not have access to that advice. 

10. I understand that there may be considered issues of risk or confidentiality or security of advice, but the solicitors can discuss those matters in the interim.  I repeat that there are orders, which have not been appealed, which remain and need to be complied with by solicitors, as officers of the court.  I trust that is well and truly understood, or at least conveyed to other solicitors who are not before me today.

11. I intend to make a costs order.  I intend to fix the costs of the wife’s Counsel at $2,500 and solicitor at $1,000, a total of $3,000.  I stay the payment of those orders for thirty (30) days.  I well understand that thirty (30) days is prior to the re-listing of the matter on 5 February;  thus the reality is that I expect those cost orders, unless otherwise appealed, to be paid within the thirty (30) days but certainly prior to 5 February 2013.

    RECORDED  :   NOT TRANSCRIBED.

12. I will have the brief ex tempore reasons for judgment – which I emphasise are brief and ex tempore, are given without leaving the Bench and are given after a time when I should have risen from the Bench – they will be made available to the parties.

ORDERS DELIVERED

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 21 December 2012.

Associate: 

Date:  7 January 2013.