Peters and Giannopoulos & Ors (No. 2) - [2017] FamCA 965

FAMILY COURT OF AUSTRALIA

PETERS & GIANNOPOULOS AND ORS (NO. 2)

[2017] FamCA 965

FAMILY LAW – PROPERTY – Interim orders – Production of documents – Where an order for production of documents was made – Where the documents were subsequently provided in redacted form – Where the wife seeks production of documents in an unredacted form – Question of relevance of the documents – Consideration of the documents as a whole –Where it is appropriate for a single expert valuer to be appointed to assist the Court in determining the question of relevance.

Family Law Act 1975 (Cth) s 78

Egglishaw v Australian Crime Commission (No 2) 2009 FCA 12 GE Capital Corporate Finance Group Limited v Bankers Trust Co [1995] 1 WLR 172 Gray v Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045 Guns Limited v Marr [2008] VSC 464 Harris Scarfe (receivers and managers appointed) (in Liq) v Ernst & Young (No 10) [2006] SASC 389 MG Corrosion Consultants Pty Ltd v Gilmore [2011] FCA 1514 Oroa Limited & Asahi Holdings (Australia) Pty Ltd [2015] VSC 749 Telstra Corporation v Australis Media Holdings (Unreported, NSWSC, 10 February 1997)
APPLICANT:	Ms Peters

RESPONDENT:

Mr Giannopoulos

INTERVENOR:

S Pty Ltd - Trustee of the R Trust & H Pty Ltd - Trustee of the Giannopoulos Family Trust

FILE NUMBER:

ADC

3056

2014

DATE DELIVERED:

29 November 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

17 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mellows

SOLICITOR FOR THE APPLICANT:

Tolis & Co Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Richards

SOLICITOR FOR THE RESPONDENT:

Lempriere Abbott McLeod

COUNSEL FOR THE INTERVENOR:

Ms Kari

SOLICITOR FOR THE INTERVENOR:

Richards & Evans Commercial Lawyers

Orders

That the second and third respondents provide the documents marked as “Exhibit 1” in the proceedings in their unredacted form to the Court.
That the wife and the second and third respondents do agree the identity of a suitably qualified accountant who shall be appointed by the Court on its own initiative as a single expert witness to consider the “Exhibit 1” documents in their unredacted form and to advise the Court (but not the parties) of what part or portion of the documents are necessary and relevant to the ready comprehensibility and intelligibility of the status of the husband’s loan account as set out in the financial statements and tax returns for R Trust and Giannopoulos Family Trust.
Cost of the single expert witness to be borne by the second and third respondents.
That the time within which the wife is to comply with paragraph 5 of orders made 30 August 2017 be extended by a further thirty (30) days from the date of this order nunc pro tunc.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Peters & Giannopoulos and Ors (No. 2) has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FamCA 965
Decision Date: 29 November 2017

CaseChat Overview and Summary

In the matter of Peters and Giannopoulos & Ors (No. 2), Berman J of the Family Court of Australia considered a dispute concerning the production of documents in family law property proceedings. The wife sought the production of documents in an unredacted form, which had previously been provided in a redacted version. The central issue was the relevance of these documents to the proceedings.

The court was required to determine whether the redacted documents, when considered as a whole, were sufficiently relevant to warrant their unredacted production. Furthermore, the court needed to ascertain the appropriate mechanism for assessing the relevance of the documents, particularly in relation to the husband's loan account as detailed in financial statements and tax returns for R Trust and Giannopoulos Family Trust.

Berman J reasoned that a single expert valuer, a suitably qualified accountant, should be appointed by the Court to assist in determining the relevance of the documents. This expert would examine the unredacted documents and advise the Court, but not the parties, on which parts were necessary for the clear understanding of the husband's loan account status. The court ordered the second and third respondents to provide the documents in their unredacted form to the Court, and that they, along with the wife, agree on the identity of the expert. The cost of this expert was to be borne by the second and third respondents. The court also extended the time for the wife to comply with a previous order.

Orders

Orders of the court

That the second and third respondents provide the documents marked as “Exhibit 1” in the proceedings in their unredacted form to the Court.

That the wife and the second and third respondents do agree the identity of a suitably qualified accountant who shall be appointed by the Court on its own initiative as a single expert witness to consider the “Exhibit 1” documents in their unredacted form and to advise the Court (but not the parties) of what part or portion of the documents are necessary and relevant to the ready comprehensibility and intelligibility of the status of the husband’s loan account as set out in the financial statements and tax returns for R Trust and Giannopoulos Family Trust.

Cost of the single expert witness to be borne by the second and third respondents.

That the time within which the wife is to comply with paragraph 5 of orders made 30 August 2017 be extended by a further thirty (30) days from the date of this order nunc pro tunc.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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