Porter and Bergman

[2008] FamCA 373

FAMILY COURT OF AUSTRALIA

BERGMAN & BERGMAN [2008 ] FamCA 373

FAMILY LAW – PRACTICE AND PROCEDURE – Case Management and Procedural Issues

APPLICANT: MR BERGMAN

RESPONDENT: MS BERGMAN

POTENTIAL THIRD PARTY: MR SARINSSON

POTENTIAL FOURTH PARTY: MR PORTER

FILE NUMBER: MLF 5245 of 2003

DATE DELIVERED: 20 MAY 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 20 MAY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR ST JOHN SC

SOLICITOR FOR THE APPLICANT: CAROLINE COUNSEL FAMILY LAWYERS

COUNSEL FOR THE RESPONDENT: Mr GEDDES QC

SOLICITOR FOR THE RESPONDENT: MARSHALLS & DENT

THE POTENTIAL THIRD PARTY: IN PERSON

SOLICITOR FOR THE POTENTIAL THIRD PARTY : N / A

COUNSEL FOR THE POTENTIAL FOURTH PARTY: MS NIKOU SC

SOLICITOR FOR THE POTENTIAL FOURTH PARTY: CAREW COUNSEL PTY LTD

Orders

1. THAT on or before 4.00 p.m. Wednesday 28 May 2008 the solicitors for the Case Guardian, on behalf of the husband, make file and serve an updated and appropriate affidavit from a duly qualified medical practitioner as to his current health and legal capacity.

2. THAT on or before 4.00 p.m. Thursday 22 May 2008 the solicitors for the appointed Case Guardian make file and serve an application specifying all orders sought and as are supported by the affidavit of the Case Guardian sworn 20 May 2008 and filed, by leave of the court, this day.

3. THAT on or before 4.00 p.m. on Wednesday 28 May 2008 each of the wife and the potential third and fourthnamed Respondents are to make file and serve any Response, specifying orders sought, and any affidavits to be relied upon in these continuing proceedings.

4. THAT the further hearing of all extant interim applications together with all primary applications be adjourned for hearing before Young J on Friday 30 May 2008 at 10.00 a.m.

5. THAT the extempore Reasons for Judgment be transcribed, be placed upon the court file and be made available to all parties and potential parties.

6. THAT all costs of and incidental to the mention of the matter this day between 11.00 a.m. and 12.30 p.m. are to be specifically reserved to the adjourned hearing date.

7. THAT I direct the wife and each of the potential third and fourth parties Mr Sarinsson and Mr Porter and the Case Guardian be all present at court and for the duration of the hearing commencing 10.00 a.m. 30 May 2008.

   IT IS NOTED

A.The parties have all been advised this day of the likely limited hearing time and court availability on the adjourned hearing date.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 5245 of 2003

MR BERGMAN

Applicant

And

MS BERGMAN

Respondent

And

MR SARINSSON
Potential Third Party

And

MR PORTER
Potential Fourth Party

EX TEMPORE REASONS FOR JUDGMENT

1. This matter is before me for case management and mention on a particular aspect of the case.  The part heard interlocutory application by the case guardian appointed for the husband is to join Mr Porter and Mr Sarinsson as the third and fourth parties to the proceedings.  Her Senior Counsel Mr St John has concluded his submissions, on the then available facts as of October of last year.  Mr Geddes QC commenced and has not concluded his submissions in reply on behalf of the wife.

2. At that stage, Ms Nikou of Senior Counsel was briefed by solicitors to appear for both the potential third and fourth respondents.  Subsequently, Mr Sarinsson has withdrawn instructions to solicitors and as at this day, he has now filed the notice of address for service (court index number 242).  He appears for himself in this proceeding today.  Ms Nikou SC therefore appears only for Mr Porter.  Mr St John continues his appearance for the husband with the appointed case guardian being the husband's daughter.

3. When the matter was part-heard from October, the intent of the court was to resume on 2 January 2008 at which time I was sitting in the defended list and had the available court time.  Somewhat understandably, that matter was inconvenient to various counsel and the parties and I was persuaded not to pursue the listing of the matter on that day.  I had at that time already allocated cases throughout January, February and March of 2008 and the matter was therefore listed in mid-April.

4. For reasons that were known to all practitioners and by agreement, the matter was adjourned from that date and was listed in the second week of May.  At that time, for personal reasons, I was unable to sit, and the matter was then adjourned to 20 May.  What occurred in my absence was that Cronin J conducted the mention of the matter on 12 May and made orders whereby issues of and related to the availability of subpoenaed documents to be provided to investigating authorities and in particular, either the Victorian, the Australian Federal Police or the Fiji Police were elevated in priority and listed for hearing yesterday.  I commenced that hearing and it remains part-heard.  The joinder matter was to follow as the next interlocutory proceeding and I am yet to resume that hearing. 

5. Mr St John yesterday gave notice to the court that he would allege on behalf of his client that various commercial and financial events and transactions have occurred in the intervening period of some six months that were important to be in evidence before the court and which allegedly changed the factual matrix of this case.  There was then no affidavit available but this morning, Mr St John has produced to the court an affidavit sworn this day by the case guardian on behalf of the husband. That is an affidavit of nine pages with a very considerable number of annexures thereto.

6. The orders sought on an interlocutory, injunctive or other basis are not as yet drafted and are not before the court.  Mr St John has submitted that there will be seen to be real urgency in the hearing of the making of injunctive orders on an interim or other basis.  I cannot hear and determine that issue today because of the fact that the orders are not drafted and because the other parties, represented and unrepresented, are yet to receive the material and file any affidavits in reply or take other action as they may be so advised.

7. I have carefully indicated to counsel and have received submissions about the priority of hearing of interlocutory matters.  Mr St John would have matters of now alleged urgency dealt with, irrespective of any conclusion of the joinder application.  Mr Geddes and Ms Nikou would urge the joinder application concluded and if it is ordered that one or other of Mr Porter or Mr Sarinsson are not joined as parties in this court, then future proceedings be taken elsewhere by the husband, or on his behalf, to have orders made as he may prove to the court, or any other court, are appropriate.

8. I carefully make no further comment upon, nor finding on those issues.  I find myself in the very difficulty position of having little or no flexibility or availability of court hearing days or court time.  I am committed to concluding the part-heard subpoena application today and delivering a judgment as soon as is practicable. 

9. What I propose to do is to allow the filing of the affidavit of the case guardian but on the very express understanding that further objection to the content thereof or to the filing thereof can be taken by Senior Counsel for the wife or by or behalf of the other potential parties.  I will order a timetable to ensure that the matters are mentioned before me on Friday, 30 May at 10.00 a.m.  I have told counsel I am listed in the Judicial Duty List that week.  I may have some time available on the Friday, but I have a very real concern that it will be insufficient time to enable any proper understanding of, or hearing of, or receiving submissions in respect of and then determining orders.

10. I have indicated to counsel I will discuss with the coordinating judge the availability of any other judge to take over my duty list week but that is most unlikely.  I have disclosed that I am out of the Melbourne Registry and interstate for the first two weeks of June.  Of course I have defended matters listed throughout the balance of June and all of July and August, as now runs common with a Judge docket system in this Registry. 

11. With those matters said, however, there is both a need and an urgency for this matter to be heard and if possible, concluded, be it on an interim basis or otherwise.  What I propose therefore to do is to require the husband, through the case guardian, to file and serve the application and affidavit for all orders sought by 4.00 p.m. this Thursday, 22 May 2008.  That includes appropriate service on the wife and the potential third parties, including service upon Mr Sarinsson at his address at ….  Thereafter, the wife and each of the potential third parties will have until 4.00 p.m. on Wednesday, 28 May 2008 to file and serve their orders sought by way of a response or their affidavits to be relied upon.  I know the timetable is short but it is the only manner in which I can facilitate a further overview of this matter on Friday, 30 May 2008. 

12. At the commencement of the mention this morning, I again raised the issue of the appropriateness of the affidavit supporting the ongoing appointment of the case guardian.  I did that on the motion of the court and not at the request of any other party.  I will require a full and meaningful affidavit to be filed by a medical practitioner who has proper knowledge of and consultation with the husband to ascertain his particular current medical state of health and mental capacity.  That affidavit must be filed on or before 4.00 p.m., 28 May 2008, that is, next Wednesday, and appropriately served on all parties.  I require that as a priority.

13. I will have these brief case management orders and directions transcribed, placed upon the court file and made available to all parties and potential parties.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:         
Date: 26 May 2008