Minke & Minke (No 4)
[2025] FedCFamC1F 133
•28 February 2025
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 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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Minke & Minke has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
By application in a proceeding dated 25 February 2025 the wife applied to vacate the trial of this proceeding fixed for 31 March 2025 until the conclusion of two proceedings currently pending before the Federal Court of Australia (hereafter collectively called "the Federal Court litigation").
The husband advanced a highly equivocal and conditional response to the wife's application to vacate the trial.
V Company, a company incorporated in Country W which asserts an equitable interest in property of the parties to this s 79 application, sought orders permitting it to inspect the court record in this proceeding. The husband opposed V Company's application.
V Company is a party to the Federal Court litigation. In it, V Company asserts that the husband in this proceeding breached fiduciary duties he or companies owned and controlled by him owed to V Company and others as joint venturers. V Company claims in the Federal Court litigation to be able to demonstrate that the husband wrongfully applied funds obtained in breach of fiduciary duty towards the acquisition of an extremely valuable parcel of real property at Suburb B, New South Wales, contrary to the principle in the rule in Barnes v Addy.[1] The Federal Court litigation is still in its interlocutory phases before Perram J, and is next before Perram J in April 2025.
[1] (1874) LR 9 Ch App 244 (Lord Selborne LC, Sir William James LJ, and Sir George Mellish LJ).
While very little attention was addressed to the question in debate before me, the factual scenario in the Federal Court litigation appears to go significantly beyond involving a common substratum of facts in this s 79 application with the consequence that the Federal Court litigation is unlikely to be amenable to being heard and determined as part of this s 79 application within the contemplation of statements of principle on accrued jurisdiction of the High Court of Australia.[2] I recently examined those principles in depth in Sun & Yeng (No 5).[3] V Company's claims in respect of the equitable interest it asserts in the Suburb B property are pending before Perram J, as I have said.
[2] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 and Re Wakim; Ex parte McNally (1999) 198 CLR 511.
[3] Sun & Yeng (No 5) [2024] FedCFamC1F 702.
UPSHOT
For the reasons that follow, I am of the view that this s 79 application must await the determination of the Federal Court litigation because only then will V Company's interest in the Suburb B property be determined.
HOW THIS APPLICATION AROSE
This proceeding was fixed for trial on an estimated duration of eight days in late 2024. The proceeding was commenced in 2022 and was subsequently entered in the Major Complex Financial Proceedings List. Complications associated with the quantification of certain taxation liabilities arose, delaying the fixing of the trial. Once those complications were overcome, the proceeding was fixed for trial. In accordance with my usual practice, I fixed a date (12 February 2025) for directions to ensure that all steps ahead of trial had been duly and diligently completed.
On 4 February 2025, V Company's solicitors wrote to the registrar of this court with a request for V Company to be permitted to copy and inspect the court record in this s 79 proceeding. The request was expressed to have been made in reliance upon rule 15.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ("the rules"), specifically, rule 15.13(1)(d).
The registrar provided V Company's request to me, having regard to the fact that I am the trial judge, and in the Major Complex Financial Proceedings List the docketed judge determines all interlocutory applications unless delegated by that docketed judge. Upon receipt of the 4 February 2025 correspondence from V Company's solicitors it seemed to me that the parties were likely to be affected by V Company's request so I arranged for a copy of the 4 February 2025 letter to be provided to the solicitors for the wife and for the husband and I included a discussion on V Company's request in matters to be debated on 12 February 2025. On 12 February 2025 Senior Counsel for the wife informed me that his camp had no knowledge of the matters raised in V Company's 4 February 2025 correspondence. I adjourned the hearing of directions from 12 February to 20 February 2025 to enable the parties to investigate their positions in respect of V Company's claims. On 20 February 2025, the matter was adjourned to 24 February 2025.
On 24 February 2025, the wife was represented by Mr Richardson SC and the husband was represented by Mr Leopold SC. Mr Leopold informed me that he had been retained to argue only the request by V Company for inspection of the court file because Mr Kearney SC had the overall carriage of the proceeding for the husband, including the trial. Mr Leopold sought to confine the debate by limiting the matter before me to the narrow issue of V Company's entitlement under rule 15.13 of the rules for inspection of the court file. It seemed to me to be important to know why V Company brought its application so close to the trial of this proceeding and what was V Company's ultimate purpose in seeking inspection. I deliberately refused to accede to Mr Leopold SC's request to confine the proceeding and instead ordered in paragraph 1 of the orders I made on 24 February 2025 as follows –
“The further hearing of this proceeding is adjourned to 27 February 2025 at 9am with a view to debating the involvement of [V Company] in this litigation.”
Then followed paragraph 2 of those orders. It read as follows –
“The applicant's solicitors are directed to communicate with the solicitors for [V Company] to inform HWL Ebsworth of the fixture on 27 February 2025 and to invite submissions on [V Company’s] possible inclusion in this proceeding.”
The wife's application to vacate the trial was prepared on 25 February 2025, the day after I made the orders set out above. The wife filed an affidavit also dated 25 February 2025. In précis form, the following is a distillation of the more important matters that emerged from her affidavit made 25 February 2025 –
(a)when this proceeding was before the court on 12 February 2025, the court raised with the parties for the first time that V Company's legal representatives had written to the court on 4 February 2025;
(b)until reading the further amended statement of claim in one of the Federal Court proceedings, the wife was not aware prior to 12 February 2025 of the existence of that proceeding;
(c)the husband's trial affidavit filed 26 February 2025 in this proceeding recorded in paragraph 159 that the husband asserted that (according to the husband) the wife encouraged the husband to sue for injurious falsehood and copyright infringement and that the litigation was expanded upon V Company filing a counterclaim against Mr Z, H Investment Trust and the husband;
(d)legal fees in that case are estimated to be between $780,000 and $1.5m to conclude the case;
(e)prior to 12 February 2025 the husband did not disclose the existence of pleadings in the Federal Court litigation;
(f)the wife was aware of the proceeding in the Supreme Court of New South Wales because she was a party to it;
(g)at no stage has the husband disclosed to the wife in this litigation the extent of the litigation in the Federal Court;
(h)on 20 February 2025, the husband disclosed to the wife various documents in the Federal Court litigation;
(i)the wife seeks orders on a final basis in the s 79 application for her to retain the Suburb B property, currently registered in the wife’s sole name;
(j)V Company's solicitors have indicated in writing that the proceeds of sale of shares in a joint venture were used to purchase the Suburb B property;
(k)the purchase price for the Suburb B property in 2014 was $30m and the acquisition was settled only months after the sale of the shares;
(l)if the property was in fact purchased using the share sale proceeds, V Company may have an interest by way of a constructive trust in the Suburb B property or the husband may have an equitable interest in the property pursuant to a resulting trust;[4]
(m)the wife said she is now on notice that V Company may pursue issues in this proceeding in an endeavour to trace its claim to the Suburb B property;
(n)the overall legal and equitable interests of the husband and wife and their value cannot be determined until the Federal Court litigation is known;[5] and
(o)the Federal Court litigation is before the Federal Court next in April 2025.
[4] In Chen v Chen (No 3) (2020) 63 Fam LR 448, I addressed in considerable detail a resulting trust arising in such circumstances.
[5] This was a submission the wife was not qualified to make.
The 2018 case in the New South Wales Supreme Court was a claim by V Company against the husband for an interim freezing order which the Supreme Court judge refused.[6]
[6] [2018] NSWSC ….
In one of the Federal Court proceedings, currently in the docket of Perram J of the Federal Court of Australia, V Company sues the husband and H Pty Ltd. The pleadings are in their third iteration with a further amended statement of claim. That pleading has been settled by two King's Counsel as well as junior counsel. In related litigation, the Full Court of the Federal Court[7] had occasion in V Company v Mr Z,[8] to consider whether V Company's contentions had been made out about the validity of pleaded claims in respect of a dishonest and fraudulent scheme. In short, two of the judges of the Full Court held that V Company had a reasonable and sustainable claim in that regard.
[7] … JJ.
[8] [2022] FCAFC ….
The 4 February 2025 letter from V Company's solicitors to the registrar encapsulated the pithy essence of V Company's claim against the husband in the Federal Court litigation. Expressed most embryonically, it was as follows –
(a)the husband is the sole director of and sole shareholder in H Pty Ltd;
(b)V Company alleges in the further amended statement of claim that the husband and H Pty Ltd knowingly assisted in fraudulent designs adverse to V Company's interests as a shareholder in a joint venture;
(c)the fraudulent designs enabled the shares in the joint venture to be sold contrary to the interests of V Company;
(d)such knowing assistance in the fraudulent design enabled the husband and H Pty Ltd to profit;
(e)the husband knew of the dishonest or fraudulent design contrary to V Company's interests;
(f)the proceeds of the sale of shares in the joint venture are held on a constructive trust in favour of V Company;
(g)the relief sought from the husband and H Pty Ltd is declaratory in nature, an account of profits and equitable compensation;
(h)V Company believes that the proceeds of the sale of shares in the joint venture were used to acquire the Suburb B property; and
(i)V Company will have an interest in the Suburb B property by way of a constructive trust or the husband will have an equitable interest arising from a resulting trust.
V Company wishes to inspect the court record of this proceeding to enable it to determine the nature of its interest in the Suburb B property.
THE PARTIES’ SUBMISSIONS
The applicant in this s 79 proceeding is the wife. As the moving party, one might reasonably expect her to press very hard for her case to be tried, preserving the current fixture of 31 March 2025 as the trial date. Yet Mr Richardson SC submitted that V Company's latterly raised position in the Federal Court litigation and its potential impact on this s 79 application cannot be denied, with the consequence, so Mr Richardson SC submitted, that the inevitable outcome that this proceeding must stand still, pending the determination of the equitable claims advanced by V Company against the husband in the Federal Court litigation, not the least of which is the Barnes v Addy[9] claim invoking principles espoused by the High Court in Consul Developments[10] and Say Dee.[11]
[9] (1874) LR 8 Ch App 244.
[10] (1975) 132 CLR 373.
[11] (2007) 230 CLR 80.
Mr Richardson SC recognised that the Federal Court litigation is advanced and that while it may be arguable that according to principles concerning this Court's accrued jurisdiction (surveyed by me in Sun & Yeng (No 5)[12]) this court may in the circumstances of this case, possess the requisite jurisdiction to entertain a Barnes v Addy claim insofar as it bore upon equitable interests in the Suburb B property, a large number of extraneous issues irrelevant to accrued jurisdiction might also be raised rendering it inappropriate for the subject matter of the Federal Court litigation to be incorporated into this s 79 proceeding. Mr Richardson pressed for the Federal Court litigation to go forward to verdict on the Barnes v Addy and other equitable claims.
[12] [2024] FedCFamC1F 702.
So far as the inspection of the court file by V Company was concerned, Mr Richardson submitted that the wife's position could be protected by orders confining access to documentation to legal representatives of the parties and limiting photocopying of documents to agreed documents, but not beyond.
Shortly after appearances were announced, I asked Mr Leopold SC for his client's attitude to the application by V Company. His response was not easy to follow. I asked him whether the husband opposed the application to vacate the trial as well as V Company's application for inspection. He said he was briefed to apply for an adjournment of the argument about inspection. He said he was not briefed about any broader issues concerning the parties' s 79 application in what he called "the Family Court"[13] because another Senior Counsel held the trial brief. I asked Mr Leopold why he needed an adjournment. He said he was not briefed to address that point. I pointed out to him that he was present when I made paragraph 2 of the orders made on 24 February 2025 which stipulated that the hearing then before me was being adjourned to enable debate to be held about V Company's role in this litigation. I told Mr Leopold the case had reached the point where that debate would be conducted. He said he was not briefed to argue that. I asked him what his client wanted to put in affidavit form for which he needed an adjournment. He said he was unable to say.
[13] Division 1 of this Court has not been called "the Family Court" since September 2021.
It seemed to me that based on the information conveyed by Mr Leopold, no useful purpose would be served by granting his client an adjournment. In any event, it is wholly unsatisfactory for counsel – especially Senior Counsel – to come to this court unarmed to respond to an extraordinarily simple proposition about why he says his client needs an adjournment, all the more in a closely managed judge-controlled list such as the Major Complex Financial Proceedings List. The efficient operation of that list is underpinned by the assistance of competent counsel.
Mr Leopold for the husband was trenchant in his resistance of V Company's application to inspect the court file. He argued that the Supreme Court judge had already determined the application for a freezing order, so there was no utility in the file being inspected if any such inspection was for the limited purpose of formulating a position in relation to the freezing order. In addition, Mr Leopold SC submitted that certain of the elements of the relevant rule had not been adequately engaged especially rule 15.13(5)(a) and rule 15.13(5)(b).
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.
In my view that represents a "proper interest".
The husband asserted V Company's application was not reasonable. I disagree. It is entirely reasonable for V Company to investigate the court file (which it would otherwise not be entitled to do) in order to make a determination on point.
No longer is V Company wishing to advance an asset freezing order application. V Company is exploring broader issues, including participating in this litigation. It is entitled to do that. This application is consistent with such an approach.
It does not lie in the mouth of the husband nor anyone else to assert that there will be no joy for V Company upon inspecting the court file. V Company is entitled to form its own views of the value of the information it obtains by inspecting the court file.
Counsel for the wife and for V Company have suggested that limits should be placed on the use to which the inspected information may be put. I agree. The orders expressed at the commencement of these reasons achieve certain safeguards. In addition, the parties will be bound by the Hearne v Street implied undertaking. V Company will be bound by other stipulations in the orders I now pronounce.
The trial must be vacated. I make an order in favour of V Company under rule 15.13. The Federal Court litigation is next before Perram J in April 2025. It makes sense to have this proceeding return before me a short time thereafter to know when a trial of the Federal Court litigation is likely. If any party seeks costs in respect of these orders, he, she or it must apply by way of application in a proceeding supported by proper affidavit material to be served by noon on 28 March 2025.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Wilson. Associate:
Dated: 4 March 2025
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