Pitt & Pitt (No. 2)

[2009] FamCA 741

FAMILY COURT OF AUSTRALIA

PITT & PITT (NO. 2) [2009] FamCA 741

FAMILY LAW – DISCOVERY – Whether documents in the possession power or control of the wife relate to an issue in the substantive proceedings

FAMILY LAW – INJUNCTION – Whether it is proper for an injunction to be granted restraining the wife from further communication with a possible commercial competitor

Family Law Act 1975 (Cth) s 114(1)
Family Law Rules 2004 r.13.07

APPLICANT: Mr Pitt

RESPONDENT: Ms Pitt

FILE NUMBER:  SYC 2905 of 2007

DATE DELIVERED:  7 August 2009

PLACE DELIVERED: SYDNEY

PLACE HEARD:  SYDNEY

JUDGMENT OF: ROSE J

HEARING DATE: 5 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: C. Simpson SC and
P. Livingstone

SOLICITOR FOR THE APPLICANT: Armstrong Legal

COUNSEL FOR THE RESPONDENT: D. Dura

SOLICITOR FOR THE RESPONDENT: Slade Manwaring Solicitors

Orders

1. That pursuant to Pt 13 R. 22 of the Family Law Rules (2004) the Wife produce to the Husband copies of all documents and writings provided by her to and received from G Limited trading as G Company from 1 January 2009 to 17 July 2009, within 48 hours of the date of this Order.

2. That in the event that the Wife no longer has in her possession, custody or control a document referred to in Order 1 the wife shall furnish to the husband a list of all such documents on or before 5pm 14 August 2009.

3. That the parties are to pay one-half of all costs and disbursements incurred by the experts, Ms D and Mr H, respectively, as and when same fall due.

4. That the parties execute any retainer agreement as each of Mr H and Ms D may reasonably require.

5. That the Wife by herself, her servants or agents be restrained pending further Order from undertaking any communication with any employee or representative of G Ltd or any subsidiary or associate of G Ltd or providing any document or information to that company relating to the business and undertaking conducted by R Pty Ltd save and except for the leave that has been provided to the Wife to file and serve a particular affidavit in accordance with Order 1 made 5 August 2009.

6. Costs reserved.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2905 of 2007

MR PITT

Applicant

And

MS PITT

Respondent

REASONS FOR JUDGMENT

1. On 5 August 2009 there were a number of applications before me for determination of interim or interlocutory issues.  On that day I made the following orders and notation:

   IT IS ORDERED:

   (1)That the Wife have leave to file and serve an affidavit of a representative of [G] Limited in relation to any offer to purchase the undertakings of [R] Pty Limited on or before 4 pm 17 August 2009.

   (2)That judgment is reserved in relation to injunctive and other relief sought to be given at 2.15pm on Friday 7 August 2009.

   Notation:

   A.That the parties through their legal representatives will settle and dispatch a letter today to the Single Expert seeking a supplementary report on all of the matters that were agitated during the hearing today.

2. In addition, senior counsel for the husband and the solicitor for the wife informed me that they would also apply themselves to ensure that a joint letter of instructions was settled, with a view to being sent to a further single expert Mr H, in relation to a different matter. 

3. I will now proceed to determine the remaining interim relief that was sought by reference to the respective applications.

The Application in the Case of the husband filed 17 July 2009

1. An issue was raised in relation to disclosure of documents.  It appeared that some documents were provided.  The real issue was whether or not copies of all documents and writings as sought within not only the possession, but the power and control of the wife, had been disclosed in accordance with the Rules.

2. I have reviewed the affidavit evidence in relation to this application.  I accept the affidavit evidence of the husband in relation to those matters.  The circumstances of the wife, regardless of her motivation, in dealing with G Limited, is obviously an issue in the substantive proceedings. Consequently, in accordance with the Rules and what was for years the common law approach, that documents must be discovered in relation to an issue in a trial and discovered on the basis of being within the possession, power or control of the relevant party, continues to apply.

3. I have determined to make the orders as sought with amendments, which will be apparent from the terms of the orders.

The amended application in the case of the husband filed 23 July 2009

1. The Amended Application, so far as it is still relevant, relates to the appointment of Mr H, a single expert, to report upon the matter the subject of the orders sought and as a consequence, order that the parties’ solicitors to settle in effect a joint letter of instructions to Mr H.

2. In addition, a joint letter of instructions for the obtaining of a further written opinion from the single expert, Ms D was also the subject of the Application.

3. As previously observed, there no longer appeared to be any issue in relation to the appointment of Mr H.  So much was confirmed during the course of submissions.  The real issue appeared to be the terms of the joint letter of instructions.  Ultimately I was left with the impression that such a letter would be settled that day without any further controversy and then it would be a question at the trial as to such of his evidence that might attract weight.

4. Consequently, there does not appear to be any need for orders to be sought in terms of paragraphs 3 to 5 of this Amended Application.  However, on the same basis that such appointment was a matter of substance that should be ordered by the Court failing any agreement, and as their agreement did emerge, not to mention the joint letter of instructions to Ms D for the supplementary report, it only leaves for me to make the orders as sought in paragraphs 6 and 7 as they are a necessary consequence of the appointment of Mr H and for the retaining of the single expert, Ms D, to provide the supplementary report.

The Application in the Case of the husband filed 29 July 2009

1. I have re-read the affidavit evidence provided by each of the parties.  It is not a matter of controversy that the wife determined to unilaterally deal with G Limited for the purposes that she stated, namely, to elicit evidence of an offer to purchase the undertakings of R Pty Limited (“the company”) at a level which would suggest that the value of that company may be considerably greater than that determined by the single expert.

2. It may well be that the wife took the action that she did out of anxiety to ensure that the most reliable evidence was placed ultimately before the court at the trial.  Nonetheless, to have decided to take that action unilaterally without any prior notice to the other director of the company, namely her husband, or his legal representatives, or to mention the matter in Court on the occasions when there was the opportunity to do so, seems to have been, perhaps with the benefit of hindsight, a rather extraordinary chain of events to have put in train.

3. In addition, I have noted that the wife executed a deed of confidentiality dated 21 May 2009, being Annexure A to her affidavit sworn 8 July 2009.  That deed was signed by her under implied authority as being a director of the company.  Quite clearly at that time the wife was and indeed remains a director of that company.  However, again it is not a matter of controversy, that there was no directors’ meeting or any other process followed to give her the authority to set in train the communications that she engendered to which I have earlier referred, let alone to execute that deed which purported to be signed by her under the office that she holds and therefore as an implied representation that it bound the company.

4. I should add, however, that I have not read the memorandum and articles of association of the company in order to ascertain whether or not the wife indeed had the power to execute such a deed, let alone the other communications to which I have referred without reference to the other director.  That issue, and the broader issues of dealings with G Limited will undoubtedly be matters that require some exploration during the forthcoming trial.

5. Upon those matters being more fully tested, it may emerge that the wife’s actions were completely proper and did not amount to any potential disadvantage to the company.  However, I have to determine this Application on the Papers on an interim basis.  The evidence which I have briefly summarised, together with its more extensive detail in the affidavits of the parties, particularly the affidavit of the husband sworn 28 July 2009, leads me to conclude that it is proper to grant the interim injunction as sought.

6. Consequently, I will make orders as sought in paragraphs 2 and 3 of this particular application.  The orders that I make are as follows:

   (1)Orders as sought in paragraphs 1 and 2 as amended by me in these reasons for judgment set out in the application in the case of the husband filed 17 July 2009;

   (2) Orders as sought in paragraphs 6 and 7 of the amended application in the case of the husband filed 23 July 2009;

   (3) Orders as sought in paragraphs 2 and 3 of the application in the case of the husband filed 29 July 2009, save and except for the leave that has been provided to the wife to file and serve a particular affidavit in accordance with order 1 made 5 August 2009.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  12 August 2009