Napiat Pty Ltd v Salfinger; in the Matter of Salfinger (No 5)
[2011] FCA 1297
•8 November 2011
FEDERAL COURT OF AUSTRALIA
Napiat Pty Ltd v Salfinger; In the Matter of Salfinger (No 5) [2011] FCA 1297
Citation: Napiat Pty Ltd v Salfinger; In the Matter of Salfinger (No 5) [2011] FCA 1297 Parties: NAPIAT PTY LTD v RODERICK NEIL SALFINGER; IN THE MATTER OF RODERICK NEIL SALFINGER File number: NSD 476 of 2011 Judge: FOSTER J Date of judgment: 8 November 2011 Date of hearing: 8 November 2011 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 8 Counsel for the Applicant: Mr AP Cheshire Solicitor for the Applicant: Gye Associates Lawyers Counsel for the Respondent: Mr P Fary Solicitor for the Respondent: Mr Barry B Moshel
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 476 of 2011
IN THE MATTER OF RODERICK NEIL SALFINGER
BETWEEN: NAPIAT PTY LTD
ApplicantAND: RODERICK NEIL SALFINGER
Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
8 NOVEMBER 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The transcript of proceedings on Wednesday 9 February 2011 and Thursday 14 April 2011 before the Family Court of Western Australia between the respondent and his former wife (file No PTW 1961 of 2009) be admitted into evidence.
2.The transcript referred to in Order 1 above be marked as Exhibit “A” in this proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 476 of 2011
IN THE MATTER OF RODERICK NEIL SALFINGER
BETWEEN: NAPIAT PTY LTD
ApplicantAND: RODERICK NEIL SALFINGER
Respondent
JUDGE:
FOSTER J
DATE:
8 NOVEMBER 2011
PLACE:
SYDNEY
REASONS FOR EVIDENTIARY RULING
The applicant tenders the transcript of proceedings of the hearing which took place on two separate days before the Family Court of Western Australia in proceedings between the respondent and his former wife. The two days in question are Wednesday 9 February 2011 and Thursday 14 April 2011. The respondent objects to the tender of those transcripts on the basis that the tender of them causes prejudice to the respondent. Counsel for the respondent submitted that notice of the proposed tender was first given only yesterday and that the respondent has not had a fair opportunity to consider whether he wished to respond to the material in the transcripts. Counsel conceded that the transcripts are authentic and an accurate record of proceedings on the two days in question.
The transcript of the first occasion numbers seven pages and the transcript of the second occasion numbers 38 pages. I have required the applicant’s Counsel to identify within those pages the particular statements which are sought to be tendered against the interest of the respondent as representations made by him. Counsel has done so and the identified passages will be apparent from today’s transcript. Nonetheless, the entire transcript is tendered in order to ensure that there is no suggestion that there has been an inappropriate selection of material from the transcript.
The circumstances in which this material comes to be tendered may be shortly stated as follows:
(a)On 8 June 2011, which was the first occasion that the proceeding was listed before me, Counsel for the applicant sought an order or an appropriate request from this Court directed to obtaining from the Family Court of Western Australia the relevant file in respect of the respondent’s proceedings against his former wife.
(b)On 27 June 2011, the Court made orders in the following terms:
(1)[Order that] a Registrar of the Court forthwith request the Family Court of Western Australia by its proper officer to produce to this Court file number PTW 1961 of 2009 for the purposes of this proceeding.
(2)[Order that] the parties be notified by a Registry officer as soon as the said file is produced to this Court.
(c)The file was subsequently produced to this Court and the parties were notified of that fact.
(d)On 8 August 2011, I made an order in Chambers granting leave to Mr Gye, who is the solicitor for the applicant, to inspect file number 1961 of 2009 in the Family Court of Western Australia upon terms that such inspection should take place under the supervision of my Associate at such times and in such places as may be arranged with my Associate.
(e)Mr Gye availed himself of the opportunity afforded to him by that order.
(f)On 15 August 2011, I made a further order in Chambers which was in the following terms:
THE COURT:
1.GRANTS leave for Mr Anthony Gye, solicitor for the applicant, to be provided with a copy of each of the following documents from Western Australia Family Court file PTW 1961 of 2009:
(a)Transcript of proceedings dated Thursday 14 April 2011;
(b)Transcript of proceedings dated Wednesday 23 March 2011;
(c)Transcript of proceedings dated Wednesday 9 February 2011;
(d)Notice of Address for Service dated 14 March 2011;
(e)Request to Attend by Electronic Communication filed 15 March 2011;
(f)Affidavit of Roderick Neil Salfinger sworn 14 September 2009;
(g)Letter of Roderick Neil Salfinger to Western Australia Family Court dated 17 March 2011;
(h)Application for Final Orders filed 24 April 2009;
(i)Client Information Form filed 24 April 2009;
(j)Transcript of proceedings dated Tuesday 14 July 2009; and
(k)Affidavit of Krystyna Salfinger sworn 3 August 2009.
(g)I also ordered that, subject to and until further order of the Court, the said Anthony Gye retain possession, custody and control over the said documents and not provide any of them or a copy of any of them to any person except:
(a)An employee of the law firm of which he is a member, Gye Associates Lawyers, and then only for the purpose of copying the documents; and
(b)Counsel briefed to advise and/or appear for the Petitioning Creditor in this proceeding.
(h)A complete copy of the orders which I made on 15 August 2011 was emailed to Mr Gye on 16 August 2011 at 2.01 pm and to the solicitor for the respondent at the same time.
The respondent objects to the tender of the transcripts of the two occasions to which I have referred upon the basis not that the documents are not authentic but rather on the basis that the tender of them causes prejudice to the respondent because it has arisen at a very late stage and without fair notice to the respondent. In this context, it should be remembered that no orders were made by the Court nor sought by the respondent to the effect that documents which would be sought to be tendered at the hearing be notified prior to the hearing until Friday last, 4 November 2011, when I made an order requiring the applicant to notify such documents as it proposed to tender at the hearing by 12 noon yesterday. It was in compliance with that order that, amongst other things, the transcript of the two occasions was notified as material that would be tendered at the hearing.
It is quite clear that this material formed part of a larger body of material to which both parties had reasonable and fair access at all relevant times (ie, the file produced to this Court by the Family Court of Western Australia). Furthermore, as a consequence of the orders which I made on 15 August 2011, a much more limited collection of documents was provided to Mr Gye viz the documents listed in subpars (a) to (k) of Order 1 made on 15 August 2011. On 16 August 2011, the solicitor for the respondent was provided with a copy of the Orders which I made on 15 August 2011.
It must have been obvious to the legal representatives of the respondent, having regard to the terms of paragraph 3(b) of the Creditor’s Petition as originally filed, that the applicant was very interested in what it was that the respondent had told the Family Court of Western Australia on various occasions as to his current residential address. Had it not been obvious before 16 August 2011, when the orders of 15 August 2011 were communicated to the solicitor for the respondent, it must have been obvious at that point that the documents listed in paragraph 1 of those orders were the documents in which the applicant was most interested. Notwithstanding these circumstances, no attempt was made by the solicitors for the respondent to obtain copies of that which had been forwarded to Mr Gye or, indeed, any other documents from the file, although the Sydney agent of the solicitor for the respondent did inspect the file itself on two separate occasions, one of which was after 16 August 2011.
It seems to me that the alleged prejudice is illusory. The respondent has been well aware since at least May 2011 that the question of his ordinary residence and his having or not having a dwelling house in Australia were very live issues in this proceeding and that the applicant was delving into what it was that had been said by the respondent to the Family Court of Western Australia on that topic. It was open to the respondent and his legal representatives at all times since at least the middle of August 2011 to look at this material so that the respondent would be in a position to meet it were it tendered at the hearing. It was also open to the respondent and his legal representatives to seek an indication from the applicant as to which documents obtained from the Family Court file would be tendered at the hearing and, in the absence of such an indication, to seek an order from the Court compelling the applicant to notify its proposed tenders. Regrettably, none of these steps were taken. Instead, the respondent did nothing and waited until the hearing to take the present objection on the basis of prejudice. I do not think there is any real prejudice and I propose to admit the material.
Counsel has informed me that he does not seek an adjournment but, rather, the remedy which he seeks for the alleged prejudice is that the material be excluded. As I have indicated, I will not exclude the material and the two transcripts will together become Exhibit “A”.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 14 November 2011
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