Moore and Moore (No 2)

[2010] FamCA 1200

FAMILY COURT OF AUSTRALIA

MOORE & MOORE (NO. 2) [2010] FamCA 1200

FAMILY LAW – PRACTICE AND PROCEDURE – discovery – application seeking that an order made for the discovery of documents be revoked – whether the documents sought are relevant – whether discovery would be oppressive – application dismissed

APPLICANT: Ms Moore

RESPONDENT: Mr Moore

FILE NUMBER: ADF 4732 of 1998

DATE DELIVERED: 10 December 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 10 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Whitington QC with Mr Jordan

SOLICITOR FOR THE APPLICANT: CE Legal

COUNSEL FOR THE RESPONDENT: Mrs Shaw QC

SOLICITOR FOR THE RESPONDENT: Barnes Brinsley Shaw Lawyers

Orders

1. That the Application in a Case filed by the husband on 7 December 2010 be dismissed.

2. That the question of the wife’s costs of and incidental to the application be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Moore & Moore is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

File Number: ADF 4732 of 1998

MS MOORE

Applicant

And

MR MOORE

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter I have before me an application by the husband seeking that the order that I made on 29 November 2010 be revoked.  That was an order which provided for the husband to make discovery:

   of all documents in relation to his dealings with [P Trust] and its assets from the date of the approval of the deed the subject of these proceedings to the date of distribution identified in paragraph 207 of his trial affidavit, including all documents filed in the three Supreme Court actions between [the husband] and Mr [S] and any document referred to in the list of documents filed in action number […] of 2007 that are relevant to these proceedings.

2. There were two affidavits filed in support of this application that is now before me.  One by the husband and one by Mr Barnes, the husband’s solicitor. 

3. The husband deposes that there has been discovery of all relevant documents relating to the P Trust in the sense of all business records such as statutory records, financial statements and tax returns.  He says, though, that any further documents with respect to, as he describes it, his direct dealings in relation to ER and N Trust are irrelevant to these proceedings, and he also says that, and referring particularly to paragraph 7.4 of his affidavit:

   The documents that evidence my dealings in the dispute –

   referring to the dispute with Mr S which was the subject of the Supreme Court proceedings –

   as a Director and authorized agent of [P] for the purpose of dealing with the dispute and the Supreme Court proceedings from 2006, are irrelevant to the question of whether I was the “alter ego”’ of [P] prior to the execution of the Deed of Settlement in November 2000 or that I had beneficial control over the assets of [P] prior to the signing of the said Deed;

4. Thus the husband, in that affidavit, challenges the relevance of the documents which are sought to be discovered by him.  He also says in this affidavit and particularly in paragraph 7.5 that the discovery of the documentation sought would be oppressive, and he refers there to the affidavit of Mr Barnes, which is the other affidavit in support of this application. 

5. Turning to that affidavit, that is an affidavit where Mr Barnes deposes to his efforts, or his firm’s efforts, to obtain all the documents which would be caught by the order that I made on 29 November 2010.

6. It seems that as a result of those efforts there are two boxes of documents obtained from Freehills Solicitors of Sydney.  There is a disk of what is described as containing most or all of the emails which were discovered as part of the Supreme Court proceedings, and there are also now two boxes of documents from Mr Ken Schurgott of SBN Lawyers in Sydney.  Mr Barnes deposes to having briefly and cursorily looked at the documents in the boxes the result of that is that some of the documents appear to be relevant to the Supreme Court proceedings, and some do not.  He then goes on and provides an estimate of the time it would take within his office to inspect all of those documents and, in effect, provide discovery. 

7. Now, there are really two bases on which the application is made.  One is, as I have identified, that many of the documents sought are not relevant to these proceedings and, in any event, it is oppressive to require discovery at this point.  Just to explain that, the specific issue of the discovery of these documents was raised, effectively, on the second day of the hearing in this matter and then, indeed, on 29 November 2010 when I made the order that I have referred to.  

8. What Mrs Shaw says is that if this was a matter which needed to be addressed, then the wife should have raised it through her legal representatives before the commencement of the hearing so that the issue could be properly addressed and argued and dealt with at that time.  She says there has been no further request for discovery beyond the requests associated with the lists of documents which have been provided by the husband and which are all annexed to the affidavit of Mr Barnes. 

9. In her further submissions Mrs Shaw has suggested that this is a fishing exercise and should not be allowed for that reason either. 

10. Now, the specific issue of discovery of these documents arose out of an application by the husband’s seeking that the wife’s senior counsel be restrained from continuing to act for her in the proceedings.  That related to Mr Whitington having represented Mr S in the Supreme Court proceedings in 2006, and the suggestion that thereby Mr Whitington had acquired information which he would be able to use in these proceedings specifically in his cross-examination of the husband and that would put the husband and his legal representatives at a disadvantage and, on the other side of the coin, put the wife at a distinct advantage. 

11. Now, as Mr Whitington has said in his submissions that was not the first application of that nature; there was a previous application made in March 2010.  And as Mr Whitington rightly points out, those applications have been made on the basis of a suggestion by the husband that the Supreme Court proceedings were critically relevant to the proceedings currently before the court and that was the link in a sense that would disqualify – or should lead to the restraint of – Mr Whitington, he having been involved in those proceedings in acting for Mr S.

12. Thus, Mr Whitington suggests that it is an about-face by the husband to now say, as he does in his affidavit, that the documents now sought which relate principally to but not totally to the Supreme Court proceedings are irrelevant to the issues that I have to determine in this case. 

13. Now, Mrs Shaw has, in her reply, submitted that there is no about-face and the husband still maintains that he is prejudiced although, of course, I have made a ruling about that and dismissed the application.  Mrs Shaw suggests that the first indication that it was part of the wife’s case that the overall conduct of the Supreme Court proceedings by the husband was relevant was in a letter providing that as a further particular dated 23 November 2010.

14. Now, that is all very well, but as I said in my reasons when I made the order for discovery there is an ongoing obligation on both parties in these proceedings to provide full and frank disclosure.  It is not a situation where one party can sit back and wait for the other party to identify and specify what is required by way of discovery.  There is no doubt, as Mrs Shaw has rightly said, that it is open to one party, when discovery has been made by the other party, to make an application or, indeed, first make a request, and then follow it up with an application seeking, for example, further and better discovery.  However that does not in any sense lessen the obligation of the husband in this case to discover relevant documents in these proceedings. 

15. Now, as I said on 29 November 2010, if it was indeed being put to me that the husband was not aware of the case of the wife in relation to P Trust, namely, that the issue was his control of P Trust at the relevant time and that the wife’s case was to look beyond the date of the approval of the deed as to the husband’s dealings with P Trust and to then submit that that, in a sense, can be used to establish what the true position was before the approval of the deed, then I do not accept that.

16. For my part, the husband should have made discovery of all relevant documentation in relation to his dealings with P Trust right up until the time of at least the Supreme Court proceedings but, as has been identified in my order, up to 2007 when there was a distribution of the assets or the funds available to P Trust. 

17. Nothing that has been put to me excuses the husband from making discovery in relation to that topic.  What has happened is he has made discovery of some documents relevant to P Trust at various stages of this matter including many documents relating to the ER Trust and the N Trust, documents which the husband is now saying are irrelevant. 

18. My concern about this application today, and Mr Whitington has highlighted it, is that all I have before me is what I will say are broad assertions by the husband that these documents are not relevant, and then followed up with an affidavit by Mr Barnes where he says that it is going to take significant time for them to fully inspect the documents and categorise them, and it is oppressive to require that.

19. I note that Mr Barnes’ affidavit was filed on 7 December 2010.  He certainly, as is apparent from his affidavit, made timely requests of the relevant persons to ascertain the availability of the documents sought, and they have now been received.  For example, his office received the two boxes from Freehills on Wednesday, 1 December 2010, and he received the disk either then or not long thereafter.  Then on 3 December 2010 he received two further archive boxes.  His affidavit says that in relation to the first set of boxes it will take ten business days to peruse, inspect and discover relevant admissible documents.  That is from, I assume, 1 December 2010.  However I have not been told that any attempts have been made to do that.  Indeed, if that was done, that exercise would have been concluded on 11 December 2010, and 11 December 2010 is only a couple of days away. 

20. With the documents received on 3 December 2010, Mr Barnes says in paragraph 13 that a period of eight days is required to examine those documents.  Eight days from 3 December 2010, again, is 11 December 2010.  However I have not been told that anything has been done about that either. 

21. I am still satisfied that the category of documents, the general category identified in my order of 29 November, are relevant and should have been discovered. 

22. Thus I am not prepared to revoke my order on the basis of the affidavit material in support of that and the submissions I have heard today. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 10 December 2010.

Associate: 

Date:  12 January 2011