Millman & Millman (No 2)
[2021] FedCFamC1F 93
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Millman & Millman (No 2) [2021] FedCFamC1F 93
File number(s): ADC 30 of 2020 Judgment of: BERMAN J Date of judgment: 1 October 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where the applicant seeks that the trial date be vacated – Where the respondents oppose the application – Where the wife’s senior counsel is no longer available on the trial dates – Where the applicant has been unable to brief alternate senior counsel – Where the wife still retains experienced junior counsel – Where the matter involves not only property aspects but serious parenting issues – Where the applicant would not be prejudiced by not being able to instruct senior counsel – Where the proper administration of justice requires that the litigation be brought to an end as soon as is reasonable – Application dismissed. Legislation: Family Law Act 1975 (Cth) s 106B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.25
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
NA & TIU [2017] FamCAFC 264
Rice & Asplund (1979) FLC 90-725
Division: Division 1 First Instance Number of paragraphs: 41 Date of hearing: 24 September 2021 Place: Adelaide Counsel for the Applicant: Ms Lewis Solicitor for the Applicant: Jacqui Ion Lawyers Pty Ltd Counsel for the First Respondent: Ms Nelson QC Solicitor for the First Respondent: Angela Ferdinandy Counsel for the Second Respondent: Mr Abbott QC Solicitor for the Second Respondent: Douglas Hoskins Legal ORDERS
ADC 30 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MILLMAN
Applicant
AND: MR MILLMAN
First Respondent
MR FAZIL
Second Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
1 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Application in a Case filed 27 August 2021 to vacate the trial listed to commence on 1 November 2021 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Millman & Millman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
By Further Amended Initiating Application filed 25 May 2021, Ms Millman (“the applicant”) seeks orders for property settlement and parenting orders. Mr Millman (“the first respondent”) opposes the orders sought, relying upon his Amended Response filed 15 June 2020 and his Amened Reply filed 27 October 2020. Orders were made on 16 April 2021 which listed all applications for final orders for hearing on 1 November 2021 at 10.00 am as a five to seven day matter.
The Court expressed some concern that the matter may not be ready for trial on the nominated date, principally in respect of the value of the first respondent’s interest in the following entities should the applicant be successful in setting aside their transfer to Mr Fazil (“the second respondent”):
(1)The companies known as:
(a)E Pty Ltd;
(b)T Pty Ltd;
(c)U Pty Ltd; and
(d)Millman Group Pty Ltd;
(2)In the name of the trusts but under the control of the trustees in respect of the:
(a)W Trust;
(b)T Trust;
(c)U Trust; and
(d)Millman Investment Trust
The first respondent’s interest in the venture known as “EE Pty Ltd” is also the subject of valuation.
Orders were made on 16 April 2021 listing the matter for trial on 1 November 2021 following the submissions of all parties to seek an early trial date.
On 30 June 2021 the Court heard and determined the applicant’s Amended Application in a Case filed 15 June 2021 seeking the sum of $233,055 on account of litigation funding.
Judgment was delivered on 2 August 2021 and orders were made that the first respondent pay or cause to be paid to the trust account of the applicant’s solicitors the sum of $77,000 by way of interim property settlement. The sum ordered was to enable the applicant to secure the services of senior counsel. The following observations were made in the judgment:
72.The wife is currently represented by a solicitor and counsel. At present, the solicitors are unpaid but have indicated that they will continue to represent the wife through to the conclusion of the trial. They are not obliged to do so and if they ceased acting that is not necessarily a prerequisite before a litigation funding order could be made.
73.The husband and Mr Fazil both consider that the complexity of the proceedings warrants the involvement of junior and senior counsel.
74.I consider that there is merit in the wife’s claim but only in so far as it would cover the likely counsel fees for both senior and junior counsel.
75.The relationship between the wife and her solicitors is qualitatively different to that as between the solicitors and counsel who have and are to be instructed.[1]
[1] Millman & Millman [2021] FamCA 556
The sum awarded was because the applicant’s nominated counsel, namely Mr Cox QC required an upfront payment.
In addition to the order of interim property settlement, more detailed trial direction orders were made requiring the filing of trial material predicated upon the trial commencing on 1 November 2021.
By Application in a Case filed 27 August 2021, the applicant seeks that the final hearing listed for trial be vacated and that the relevant trial directions orders be discharged. Other orders sought in respect of discovery and that the parties attend upon a mediation were not pressed.
The applicant’s concern is that Mr FF, the single expert valuer of the business, would not be able to complete his report in a timely fashion. To a significant degree, the issue is now moot given that Mr FF published his valuation report on 13 September 2021. It is anticipated that pursuant to r 7.25 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the applicant may put questions to Mr FF. At this stage I do not consider that there is any indication that the applicant rejects the valuation outcome nor is there any application for separate adversarial evidence to be called.
Whilst not specifically the subject of mention, it is not contended that other valuation evidence not be available.
The gravamen of the application arises from an advice by Mr Cox QC on 20 August 2021 that he would have to return the brief in the matter for the following reason:
27.Mr Cox QC advised he was involved in a matter on 18 August 2021 and during the course of that hearing the substantive appeal and cross appeal was listed for hearing on 3 November 2021. Mr Cox QC advised that he is not in a position to excuse himself from that commitment.[2]
[2] Affidavit of the applicant filed 27 August 2021.
It was foreshadowed that the applicant’s solicitor would then make enquiries in order to secure alternative senior counsel.
Ms Ion who represents the applicant is the deponent to an affidavit filed 21 September 2021. Consequent upon the return of the brief by Mr Cox QC, Ms Ion attests to having made enquiries with two senior counsel who both indicated they were not available for trial commencing on 1 November 2021. Three other senior counsel were conflicted having had some involvement with either of the respondents and a fourth senior counsel considered that there was a conflict in circumstances where he had a conversation about the matter with the second respondent’s junior counsel.
It is a relevant consideration that the first respondent now advises that he would take no objection to the sum paid by way of partial settlement of property being used for counsel generally and not restricted to fund senior counsel. There would be no objection to the money being used to fund a senior or junior counsel to assist Ms Lewis of counsel.
GENERAL PRINCIPLES
In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 the High Court considered the extent to which an application to amend a statement of claim should form a basis for an adjournment of a trial. The court specifically considered the decision of Queensland v JL Holdings (1997) 189 CLR 146. French CJ reflected on the balance that needs to be struck between the aim of the court to promote justice and the need for litigation to be dealt with in a timely and efficient manner. The following appears at 189:
24.… The discretion is exercised in the context of the common law adversarial system as qualified by changing practice. But that is not a system which today permits disregard of undue delay. Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation. …
In the decision of NA & TIU [2017] FamCAFC 264 Thackray J said at [22]:
I have also pointed out today that the authorities are clear that in dealing with case management issues such as this, the court is obliged to have regard not only to prejudice to the parties before the court, but prejudice to other parties whose litigation will be impacted by the way in which adjournment applications are dealt with and cases are managed.
And further at [25]:
Another part of efficient case management involves refusing, wherever just and practicable, applications for adjournments based on unavailability of counsel of first choice. I appreciate in this case there are some other factors relating to the personal circumstances of counsel, but this application comes on so late that it is impracticable for the matter to be replaced with another. …
It must be remembered that whilst the focus of the majority of the interim applications has been on the property component of the proceedings, there are serious parenting issues that need to be resolved.
At an early stage in the proceedings and when there was some uncertainty as to when the matter would be listed for final hearing, the respondent’s position was to seek that the proceedings be bifurcated to enable the children’s matters to be heard expeditiously, conceding that there may be some delay in the trial preparation for the property proceedings. The respondent’s application was resisted by the applicant and I was not prepared to accede to the respondent’s request.
It is desirable that all matters be heard and determined together. There is a long line of jurisprudence commencing with the decision of Rice & Asplund (1979) FLC 90-725 which reinforce a self-evident proposition that ongoing litigation is never likely to be in the best interests of a child. Parenting proceedings usually involve the assessment and observation of children and whilst interim orders are necessary to balance the need for children to have a meaningful relationship with their parents providing that it is safe for them to do so, it is desirable that interim orders should not be considered as a long term replacement for a final hearing.
The first and second respondents both oppose the application for the trial date to be vacated.
The legal fees incurred to date and the anticipated fees to the conclusion of the proceedings may well exceed $450,000 for the applicant and $700,000 for the first respondent. As at 24 September 2021, the second respondent has incurred fees of about $170,000.
A significant component of the parties’ legal fees are the disbursement costs associated with the preparation of valuation reports.
It is not controversial that the personal circumstances of each of the parties are unsettled and if the proceedings are adjourned for a substantial period of time noting that the applicant seeks a trial mention date in 2022, there may well be a need for valuation reports to be updated.
The proceedings involve the joinder of the second respondent arising from the applicant’s application seeking orders pursuant to s 106B of the Family Law Act 1975 (Cth). Whilst I have found that the applicant has an arguable case, there is no admission by the second respondent that would favour the orders sought by the applicant nor has the matter been predetermined. The second respondent has given a wide ranging undertaking that may well impact upon his ability to operate and manage the bussineess. I accept that when an undertaking is given it is done so on the basis of a reasonable expectation as to how long an undertaking will remain in place.
At present there is no application by the second respondent seeking to be discharged from the undertaking but that is because a trial date was set.
SHOULD THE PROCEEDINGS BE ADJOURNED
The applicant is represented by experienced counsel. Ms Lewis is a highly regarded member of the Independent Bar practicing in the area of family law. Ms Lewis has been involved in the proceedings from a very early stage. She is familiar with the complexities of the litigation and has conducted the majority of the interim proceedings both in terms of applications brought by the applicant but also meeting applications pursued by the respondents.
The issue therefore is not that the applicant is left without competent counsel but that because Mr Cox QC returned the brief in the manner as outlined, the applicant feels disadvantaged in not having representation by senior counsel.
It could not be said that Mr Cox QC or any other senior counsel would be considered as the applicant’s counsel of choice.
It is not suggested by Ms Lewis that she is not sufficiently skilled to represent the applicant in the upcoming trial but rather it is a preference of the applicant that her representation match that of the respondents.
Not every case either requires or necessarily profits from the involvement of senior counsel. If Mr Cox QC had been involved in the matter over a long period of time there may be some argument that his knowledge and preparation could not easily be replaced by new counsel. That is not the position in which the applicant finds herself. She is represented by highly experienced counsel. To the extent that it was required, the first respondent concedes that the partial property settlement paid to assist in the instruction of senior counsel can now be used for junior counsel.
A more significant concern is the extent to which the affidavit material assists the Court in determining the application to vacate the trial date.
There is no criticism of the efforts made by the applicant’s solicitor to find senior counsel. The difficulty is that no attempt has been made to provide the Court with any alternative should the trial date as currently listed be vacated.
There is no evidence provided as to whether Mr Cox QC could still retain the brief but be given the accommodation of being able to attend his other unanticipated appeal commitments. There is no advice as to the availability of other senior counsel for the balance of the 2021 year.
An application for an adjournment of a primary listed trial should canvas not just the reason why a trial should be vacated but provide assistance to the Court as to when the proceedings could be relisted.
The application provides no assistance in that regard. If orders were made in terms of the application, the proceedings would likely be adjourned to an uncertain future in 2022.
CONCLUSION
I am not persuaded that the applicant would be prejudiced by not being able to instruct senior counsel. The applicant has the advantage of experienced counsel and the option of assistance of other junior counsel in the preparation and conduct of the proceedings.
In circumstances where I do not consider that there is any overt prejudice to the applicant, the proper administration of justice requires that the litigation be brought to an end as soon as is reasonable, particularly given that there are serious parenting issues to be heard and determined.
The application to vacate the trial date and relist the proceedings to a mention date in 2022 is dismissed.
I make the order as appears at the commencement of these reasons.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 1 October 2021
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