Pacek & Saltzer (No 2)

[2024] FedCFamC1F 666

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Pacek & Saltzer (No 2) [2024] FedCFamC1F 666   

File number	MLC 2954 of 2020
MLC 7293 of 2024
#...78
#...07
Judgment of	WILSON J
Date of judgment	30 September 2024
Catchwords	FAMILY LAW – PRACTICE AND PROCEDURE – application by the respondent for an adjournment of the hearing on 30 September 2024 – adjournment application dismissed.
Division	Division 1 First Instance
Number of paragraphs	3
Date of last submission	30 September 2024
Date of hearing	30 September 2024
Place	Melbourne
In MLC 2954 of 2020
Counsel for the applicant	Mr I. Coleman SC with Mr G. Thompson and Mr W. Newland
Solicitor for the applicant	ISAKOW Lawyers
Counsel for the respondent	Litigant in person
In MLC 7293 of 2024
Counsel for the applicant	Mr I. Coleman SC with Mr G. Thompson and Mr W. Newland
Solicitor for the applicant	ISAKOW Lawyers
Counsel for the respondent	Mr L. Magowan with Mr D. Kaufman
Solicitor for the respondent	J and K Law
In #...78
Counsel for the plaintiffs	Mr I. Coleman SC with Mr G. Thompson and Mr W. Newland
Solicitor for the plaintiffs	ISAKOW Lawyers
Counsel for the defendant	Mr L. Magowan with Mr D. Kaufman
Solicitor for the defendant	J and K Law
In #...07
Counsel for the plaintiffs	Mr I. Coleman SC with Mr G. Thompson and Mr W. Newland
Solicitor for the plaintiffs	ISAKOW Lawyers
Counsel for the defendant	Mr L. Magowan with Mr D. Kaufman
Solicitor for the defendant	J and K Law

ORDERS

MLC 2954 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN

MS PACEK

Applicant

AND

MR SALTZER

Respondent

MLC 7293 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN

MS PACEK

Applicant

AND

MR SALTZER

First Respondent

AND

H PTY LTD
Second Respondent

AND

Q PTY LTD
Third Respondent

AND

W PTY LTD
Fourth Respondent

AND

V PTY LTD
Fifth Respondent

AND

E PTY LTD
Sixth Respondent

AND

SALTZER PTY LTD
Seventh Respondent

#...78

IN THE SUPREME COURT OF VICTORIA

BETWEEN

H PTY LTD
First Plaintiff

AND

SALTZER PTY LTD

Second Plaintiff

AND

Q PTY LTD
Third Plaintiff

AND

E PTY LTD
Fourth Plaintiff

AND

W PTY LTD
Fifth Plaintiff

AND

V PTY LTD
Sixth Plaintiff

AND

MS PACEK
Defendant

#...07
IN THE SUPREME COURT OF VICTORIA
BETWEEN	H PTY LTD First Plaintiff
AND	Q PTY LTD Second Plaintiff
AND	E PTY LTD Third Plaintiff
AND	V PTY LTD Fourth Plaintiff
AND	MS PACEK Defendant

ORDER MADE BY	WILSON J
DATE OF ORDER	30 SEPTEMBER 2024

THE COURT ORDERS THAT –

1.The adjournment application 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).

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 Pacek & Salzer has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

WILSON J

1. Following extensive argument on 17 September 2024 I handed down a ruling in these four pieces of litigation on 20 September 2024 setting out the manner in which each proceeding was to be conducted today.  The date 30 September was preserved.  I declined to adjourn any of the four proceedings. Between 10.00am and 12.30pm on 30 September Mr Magowan who appeared for the husband and companies he controlled debated an adjournment application.  In essence he argued that it was essential that the court deal with all matters raised in each of the four pieces of litigation at the one time because, so he said, all facts are in issue.  Mr Coleman SC who appeared with Mr G Thompson of counsel and Mr Newland of counsel opposed the adjournment application.

2. In the interests of expedition today being the one day allocated for the hearing of the applications in two of the four cases I decided to rule on the upshot of the adjournment application and provide reasons which I now do.  In my view –

   (a)no new point emerged in argument today that had not been advanced by Mr Magowan on 17 September unsuccessfully as it transpired;

   (b)no admissible evidence was adduced by the husband and the companies he controlled by which a valid reason was advanced to support the adjournment application;

   (c)Mr Magowan frankly conceded he was not ready for the debate today, a wholly unsatisfactory position given his appearance on 17 September and in the period intervening;

   (d)as Mr Magowan eventually conceded the application for the recovery of books and records was spent and a cost debate only remained;

   (e)the alleged breach of fiduciary duty case against the wife was nowhere near ready to begin and in any event, any damages sought in that case can include whatever may be the financial outcome of the enforcement application whatever that may be; and

   (f)the enforcement application and the joinder application which were before me today involved submissions, each of which can be dealt with by counsel.

3. At least one application raised a fundamental jurisdictional issue of whether this court possesses power to enforce its order. The respondents challenge that. They have done so for months. Today is the day allocated to debate that. I agree with Mr Coleman SC’s characterisation of the position adopted by the respondents, namely that this adjournment application is none other than an attempt to circumvent the consent order sought to be enforced. The adjournment application is refused.

I certify that the preceding three (3) numbered paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Wilson.

Associate:

Dated:       30 September 2024