Minke & Minke (No 4)

Case [2025] FedCFamC1F 133


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Minke & Minke (No 4) [2025] FedCFamC1F 133

File number SYC 9122 of 2022
Judgment of WILSON J
Date of judgment 28 February 2025
Catchwords

FAMILY LAW – PRACTICE AND PROCEDURE – request by a third party to inspect the court record – related proceedings in the Federal Court of Australia in which the applicant for inspection is involved  

FAMILY LAW – PRACTICE AND PROCEDURE –applicant applying to adjourn the trial of the proceeding in this court – applicant for inspection’s interest in the proceeding is dependent upon the outcome of the Federal Court proceeding – application for inspection of the court file in this proceeding granted

Legislation

Family Law Act 1975 (Cth) s 79

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 15.13

Cases cited

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170

Barnes v Addy (1874) LR 9 Ch App 244

Carter & Carter [2018] FamCAFC 45

Chen v Chen (No 3) (2020) 63 Fam LR 448

Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 80

Hearne v Street (2008) 235 CLR 125

In the Marriage of Biltoft (1995) 19 Fam LR 82

V Company v Mr Z [2022] FCAFC …

V Company v Minke [2018] NSWSC …

Nevins & Urwin [2021] FedCFamC1F 342

Oates & Q [2010] FamCAFC 202

Re Wakim; Ex parte McNally (1999) 198 CLR 511

Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261

Stanford v Stanford (2012) 247 CLR 108

Sun & Yeng (No 5) [2024] FedCFamC1F 702

Division Division 1 First Instance
Number of paragraphs 31
Date of hearing 27 February 2025
Place Melbourne
Counsel for the applicant Mr G. Richardson SC
Solicitor for the applicant Barkus Doolan Winning
Counsel for the respondent Mr A. Leopold SC
Solicitor for the respondent Walter & Elliott Family Lawyers
Counsel for the applicant for inspection Mr L. Glick KC with Mr S. Cromb
Solicitor for the applicant for inspection HWL Ebsworth Lawyers

ORDERS

SYC 9122 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN

MS MINKE

Applicant

AND

MR MINKE

Respondent

V COMPANY
Applicant for Inspection

ORDER MADE BY:

WILSON J

DATE OF ORDER:

28 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The trial in this proceeding fixed to commence on 31 March 2025 is vacated.

2.The trial in this proceeding is to commence hereafter only upon –

(a)the conclusion or resolution of proceeding … and of proceeding … in the Federal Court of Australia; or

(b)further order of this Honourable Court.

3.V Company as a person having a proper interest in this proceeding or in information obtained from the court record in this proceeding for the purposes of rule 15.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ("the rules") has leave under rule 15.13(1) of the rules…

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AGLC
Minke & Minke (No 4) [2025] FedCFamC1F 133
Case
[2025] FedCFamC1F 133
Decision Date

CaseChat Overview and Summary

In the matter of Minke & Minke (No 4), V Company, a third party, applied to inspect the court record in a family law proceeding between Ms Minke and Mr Minke. The application for inspection was made under rule 15.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, and V Company also sought an adjournment of the trial pending the outcome of related proceedings in the Federal Court. The primary legal issue was whether V Company had a proper interest in inspecting the court record in the family law proceeding, and if so, whether the inspection should be granted, and if so, under what conditions. The court held that V Company had a proper interest in the family law proceeding as it involved an equitable interest in a property that was central to the dispute. The court noted that V Company was a contingent creditor of the husband and had a reasonable and sustainable case against the respondents in the Federal Court litigation. The court found that the husband's contention that no prima facie case was shown about V Company's entitlement was erroneous. The court concluded that V Company should be granted leave to inspect the court record in the family law proceeding, subject to certain conditions, including that V Company must identify and notify the parties of any documents required to be copied, and that the copying of documents must be limited to the solicitors for the applicant, the respondent, and V Company, or as otherwise agreed.

The court further ordered that the trial in the family law proceeding be vacated and adjourned until the conclusion or resolution of the related proceedings in the Federal Court, or further order of the court. The court also made orders regarding the costs associated with the application for inspection, including the time frames for filing and serving costs applications and affidavits, and the date by which a decision on the costs would be made. The orders reflect the court's careful consideration of the legal principles and the practicalities of the case, and its commitment to ensuring that the interests of all parties are protected.

Orders

Orders of the court

SYC 9122 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN

MS MINKE

Applicant

AND

MR MINKE

Respondent

V COMPANY

Applicant for Inspection

ORDER MADE BY:

WILSON J

DATE OF ORDER:

28 FEBRUARY 2025

THE COURT ORDERS THAT:

1. The trial in this proceeding fixed to commence on 31 March 2025 is vacated.

2. The trial in this proceeding is to commence hereafter only upon –

(a) the conclusion or resolution of proceeding … and of proceeding … in the Federal Court of Australia; or

(b) further order of this Honourable Court.

3. V Company as a person having a proper interest in this proceeding or in information obtained from the court record in this proceeding for the purposes of rule 15.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ("the rules") has leave under rule 15.13(1) of the rules to search the whole of the court record in this proceeding.

4. V Company by its solicitors HWL Ebsworth has until 4.00pm on 28 March 2025 to search the court record in this proceeding, unless that date is extended by order of this court.

5. After V Company has completed its search of the court record of this proceeding, any documents required by V Company to be copied –

(a) must first be specifically identified by V Company and notified to the solicitors for the applicant and the respondent; and

(b) photocopied documents provided to the solicitors for the applicant, the respondent and V Company only or as may be otherwise agreed.

6. The further hearing of this proceeding is adjourned to 22 April 2025 at 10.00am before me.

7. Any application for costs of or incidental to this application by V Company for leave to inspect the court record arising from its solicitors’ letter dated 4 February 2025 must be filed and served along with all affidavit material in support of that costs application by noon on 28 March 2025.

8. Any party opposing a costs application filed pursuant to paragraph 7 above must file and serve any affidavit in opposition to such costs application by midday on 28 April 2025.

9. Any submission on costs must be in writing filed and served by noon on 12 May 2025.

10. A decision on the papers in respect of costs will thereafter be made.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

Mr Glick KC for V Company submitted that its application for inspection should be granted. He argued – (a)V Company was a contingent creditor of the husband in accordance with the observations of the Full Court in In theMarriage of Biltoft;[14](b)V Company wants to inspect the court file in this proceeding to inform itself about aspects of the acquisition of the Suburb B property;(c)V Company has a proper interest in doing that within the meaning of rule 15.13(1)(d) of the rules;[15](d)it is not for the party opposing the inspection of the court file to assert whether or not any document has a forensic or evidentiary value to the inspecting party when the court file is inspected;(e)the case V Company advanced against the respondents in the Federal Court litigation has been found to be reasonable and sustainable by the Full Court of the Federal Court in V Company v Mr Z;[16](f)s 79(10) of the Family Law Act confers an entitlement on a person to intervene in certain circumstances so the husband should not be heard to say that V Company has no purpose in its application;(g)rule 15.13 is a public purpose provision;(h)any concerns about misuse of information are adequately addressed by the Hearne v Street[17] undertaking; and(i)the husband's contention that no prima facie case was shown about V Company's entitlement was erroneous.[14] (1995) 19 Fam LR 82.[15] Oates & Q [2010] FamCAFC 202, Carter & Carter [2018] FamCAFC 45 and Nevins & Urwin [2021] FedCFamC1F 342.[16] [2022] FCAFC … (at [436]).[17] (2008) 235 CLR 128.CONSIDERATION Rule 15.13 is in a form comparable to the form in which it appeared in the predecessor to the current rules. The decisions in Oates & Q and Carter & Carter retain their currency in terms of applicable legal principle. V Company must show that it has a proper interest in seeking to inspect the court file in this litigation. It would not be entitled to inspect the court file in the absence of an order under the rules it invokes or unless it becomes a party to the proceeding. V Company has not applied to be joined nor has either the applicant nor the respondent applied for V Company's joinder. Accordingly, V Company relies on the provisions of rule 15.13 for an order to inspect the court file. It must demonstrate a proper interest to inspect. To that I now turn. The husband erroneously submitted that V Company sought inspection with a view to advancing an application for an asset freezing order. Mr Glick KC repudiated[18] any such suggestion arguing that V Company wishes to inspect the court file with a view to determining whether it should seek leave to be joined so as to participate in this s 79 application. Such an approach is both reasonable and understandable. After all – (a)one of the most valuable assets in issue in this s 79 application is the Suburb B property;(b)V Company asserts an equitable interest in that property by reason of a constructive trust said to arise on principles espoused in Consul Developments and Say-Dee;(c)according to Stanford v Stanford,[19] I am required to ascertain the legal and equitable interest in existing property;(d)V Company asserts it has an existing equitable interest in the Suburb B property; and(e)V Company needs to inspect the court file in order to reach a concluded and informed view about that.[18] That was his terminology.[19] (2012) 247 CLR 108.