Pulham & Anor and Ridi & Ors

[2011] FamCA 524

FAMILY COURT OF AUSTRALIA

PULHAM AND ANOR & RIDI AND ORS [2011] FamCA 524

FAMILY LAW – PROCEDURE – subpoenae filed and issued are set aside – costs

Family Law Act 1975 (Cth)

McGillivray & Mitchell [1998] FamCA 96

APPLICANT: Mr Pulham (As Liquidator Of B Pty Ltd) (In Liquidation)

HUSBAND: Mr Ridi

RESPONDENT WIFE: Ms Ridi

INTERVENER B Pty Ltd (Receivers And Managers Appointed) (In Liquidation)

INTERVENER HUSBAND: C Bank

FILE NUMBER: MLC 8719 of 2007

DATE DELIVERED: 29 June 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 29 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Rosner

SOLICITOR FOR THE APPLICANT: Herman Partners

THE HUSBAND : No Appearance

THE WIFE : No Appearance

C BANK : Mr Harvey

MADDOCKS LAWYERS & FORTE

 FAMILY LAWYERS:

Mr North SC

Orders

1. That the application in a case filed by the husband on 22 June 2011 is struck out.

2. That the four subpoenae filed and issued on 27 June 2011 to:

   (a)Mr G;

   (b)Mr H;

   (c)Mr I; and

   (d)Ms J,

   are all set aside.

3. That by 4.00pm on Friday 1 July 2011, any person who wishes to seek costs arising out of these orders may file and serve (the document being endorsed with the fact that it has been so served on all of the parties and how so served) any submission as to:

   (a)whether an order for costs should be made; and

   (b)if so, the quantum of those costs.

4. That by 4.00pm on 8 July 2011, the respondent husband file and serve on all other parties (the document being so endorsed as set out above) any reply to any submission so filed and served seeking costs.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment under the pseudonym Pulham and Anor & Ridi and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 8719 of 2007

Mr Pulham (As Liquidator Of B Pty Ltd) (In Liquidation)

Applicant

Mr Ridi
Husband

And

Ms Ridi

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by Mr Ridi on 22 June 2011.  Previously, I made some orders getting this matter ready for trial at the end of July.  In those substantive orders, I required Mr Ridi to file his trial material by 22 June.  To the extent that his affidavit, which I have read, purports to be a trial affidavit, he is sadly misconceived about what he had to do.  It certainly does nothing to assist me in respect of the substantive cause that is before the Court. 

2. His application in the case was filed on 22 June and listed for 10 am on 25 July.  That date apparently was chosen by Mr Ridi because it was the day for the substantive hearing.

3. Having looked at this application, it would be abundantly clear to anyone who reads it, that it has the potential, if successful, to derail the trial on 25 July, notwithstanding the valiant attempt by Ms Ridi today to indicate that she supports Mr Ridi’s application.  She wants the hearing to proceed on 25 July in respect of the substantive application.  It is not possible for anyone to envisage that if I made the orders on 25 July excluding the lawyers acting, that the trial of the substantive issue would not then be delayed substantially.  This case has been in the list for a number years, and it needs to be heard, and I thought I made that position abundantly clear when I set the matter down some weeks ago.

4. The next matter to consider is the fact that, subsequent to the filing of the application in the case, there was apparently some frenetic activity, between all of the parties involved, about listing the matter for mention before me, because of its potential to derail the final hearing.  I have not been made privy to what is in that email correspondence, nor should I be.  But I am told by my associate that, by arrangement with a number of parties, she fixed the matter for 9 o’clock this morning on the basis that it was the first available time. 

5. Mr Ridi apparently indicated either his inability to be here or desire not to be here.  I am not at all sure on what he was saying, but having regard to the fact that his application is not one that could be finally determined in any event, I am not troubled about dealing with what is before me today.

6. I am uncertain as to exactly why he is not here today.  Ms Ridi provided to me a medical certificate which was less than helpful, and Mr Ridi sent an email to her which wished everybody a good day in Court. 

7. It seemed to me that Mr Ridi was aware that the proceeding was going ahead in his absence.  The medical certificate did not tell me why he could not physically attend.  On that basis, and having regard to the consequences of not dealing with this issue now, it seems appropriate that I should proceed to hear the application in the case in the absence of Mr Ridi.

8. The application seeks seven orders.  The last three of those orders amount to some form of distribution from the disputed pool of funds.  Mushin J, in August 2010, made it clear that he was not prepared to entertain any money being made available to Mr Ridi who made an oral application at the time.  It has been brought to my attention today that Brown J suspended the substantive orders in the first place.  For me to make any order which would involve money being paid out of that source would presumably require me, first to override the suspension orders of Brown J, and then, even if that could occur, someone would need to address the jurisdictional issue of being able to do it.  I do not have the benefit of anybody arguing that it should be done.  So to that extent, those three applications go nowhere and cannot succeed.

9. The other four orders fit into two categories.  The first category relates to the power of the Court to make the sorts of orders proposed by Mr Ridi.  He seeks orders “reversing” actions taken by Maddocks Lawyers and Forte Family Lawyers in circumstances where it is alleged by Mr Ridi that those two law firms were in breach of various state legislative rules.  Another relates to reporting those firms to some ethics committee and also seeks details about fees and charges invoiced by the firms and paid to them by the Bendigo Bank from a fund that Mr Ridi describes as the B insolvency pool money.  And I am not at all clear what Mr Ridi means by that, but it seems to me that there is, at least, a limited power or no power to make those sorts of orders in these proceedings.

10. In any event, Maddocks Lawyers are not parties to the proceedings, and nor are Forte Family Lawyers.  Maddocks Lawyers have never been parties to the proceedings, although they may have acted in the proceedings for one of the parties at some stage or other.  I am not at all clear on what their position was or is, and on that basis, I do not propose to try and work out the question of jurisdiction and power.

11. The second of the two categories relates to a specific order that,

    Maddocks Lawyers and Forte Family Lawyers are to be dismissed from current proceeding at the Family Court, and any other proceeding to [B] insolvency and/or its pool money for the same above reasons.

12. To the extent that I could interpret that as an application for an injunction against either of those two firms, the first problems is that Maddocks Lawyers, I am told, are not acting for anybody in these proceedings, and therefore, it is questionable whether the power of the Court to control its process relating to officers of the Court, could extend that far.  Again, my attention has been drawn to a number of authorities, but none of those really matter in this case because Mr Ridi is not here to argue his cause. 

13. Forte Family Lawyers are instructing Mr Harvey of counsel in respect of a party to the proceedings.  At its highest, Mr Ridi says that Mushin J raised the question of whether there was a conflict of interest, and expressed some concern in August 2010 that may have somehow or other tainted the role of Forte Family Lawyers and Mr Harvey acting in the proceedings.  His Honour, for reasons which are obscure, indicated in the transcript that he wanted an explanation.  He went so far in the transcript as to indicate that it should be done in affidavit form, but the order that I have read does not suggest that.  What seems to have transpired is that a partner of Maddocks, Mr Musgrove, wrote to his Honour’s associate with a long-winded explanation of what involvement the firm had had with Mr Ridi. 

14. Mr Ridi, in his affidavit, disputes what was said by Mr Musgrove to the extent that there is a factual dispute there.  I am not in the position to make any determination today, and again, Mr Ridi is not here to tell me whether or not he would want the opportunity to cross-examine Mr Musgrove, who has now filed an affidavit in these proceedings as a response to the application by Mr Ridi.

15. As such, the question of whether or not there is a conflict of interests is at best confusing and, at least, hard to argue.  Even if there was evidence to suggest that there is a conflict in this case, there is the problem of delay.  It has been brought to my attention that Mr Ridi, and to that extent Ms Ridi, have raised this issue prior to the hearing before Mushin J.  No one has made a formal application that I am aware of, until this application by Mr Ridi and again, I stress that I am interpreting that this is what Mr Ridi is talking about.

16. The authorities, particularly of McGillivray & Mitchell [1998] FamCA 96, and specifically at paragraph 36 of that judgment, set out that if there is to be an argument about restraining lawyers acting in proceedings, the application must be made without delay.

17. It is inappropriate for a lawyer chosen by a client to be restrained from continuing to act in circumstances where a person who is opposed to them so acting sits on their hands and allows the other party and their respective lawyers to consider that they are not being challenged. 

18. In addition, a late application has the consequence of significantly delaying a trial, which not only has cost consequences for the parties, but significant problems for the already limited resources of this Court.  In those circumstances, I am perplexed as to why Mr Ridi, who was clearly encouraged by his Honour to raise the question of any conflict, has done nothing about the matter until now.

19. It must also be noted that, subsequent to last year, I have had the case before me on at least one, if not two occasions, and whilst Mr Ridi may very well have raised his concerns, no formal application has ever been made.  It is not the function of this Court to create the litigation that parties might ultimately want to run.  It is a matter for the parties to raise the applications, and for the Court to determine them.  On that basis, it seems to me that this application is misguided, and has no foundation.

20. Ms Ridi, who had previously indicated that she was not going to be here today, in fact arrived and supported Mr Ridi’s application, but she was not in a position to tell me how she would support it, other than the fact that she has some concerns about what she perceives as some contact going on between Maddocks Lawyers and Forte Family Lawyers.  Without some formal evidence about that, I am not particularly interested to try and delve into matters and find out what is going on.  I appreciate that Ms Ridi has had only a very limited time to respond to this material, but having regard to the fact that I see little that I can do with Mr Ridi’s application, it must follow that her application supporting his application goes nowhere either.

21. Other than that, there is no real support for Mr Ridi’s application.  I am conscious of the fact that he may bring another application, and as I said, if that occurs, I will deal with it then.  On the basis that Mr Ridi is not here to support his application, and there is nothing that I can see in any of the material that would enable me to make the orders, the application must be dismissed.

22. I then turn to the other issue, which is the question of a subpoena or subpoenas filed by Mr Ridi.  The rule in this Court is that litigants in person require the permission of a Registrar before the issue of subpoenas.  Mr Ridi convinced the Registrar that it was necessary for these subpoenas to be issued, but they too have been made returnable on 25 July.  It escapes me how Mr Ridi thought that he would be able to gather together all of the information and read it on 25 July, which is the first day of the trial hearing. 

23. Importantly, the schedule to each of the subpoenas, and specifically to the documents he seeks, are so vague and so unrefined that it would be impossible for the recipient of the subpoena to know exactly what it is that he is seeking.

24. For example, the subpoena to Mr G, who is apparently a partner of Maddocks Lawyers, seeks:

    …copies of all invoices to and from [C Bank] to Maddocks, yourself and or your partner’s associates.

    One might logically conclude that Mr Ridi is talking specifically about the association between the lawyers and those banks in relation to these proceedings.  But on the other hand, if Maddocks act for the bank in respect of numerous matters, does the recipient of the subpoena have to work out what it is that is being specifically sought?  The authorities of this Court and other Courts have always indicated that if the recipient of the subpoena has to sit down and workout what the subpoena means – in other words, cannot readily put their hands on the documents – the subpoena is defective.

25. Each of the subpoenas that I have read seeks numerous documents.  It seeks, for example, full details of Maddocks’ professional indemnity insurance policies.  I do not know what the description “full details” means.  Is that a document, or is it requiring the recipient of the subpoena to give a description of documents?  Those sorts of problems no doubt beset all litigation, but it is not the function of the Court to try and delve into these things and work out what parties want to do.  It is the function of the Court to hear and quell controversies.  On that basis, each of these subpoenas is set aside.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 29 June 2011.

Associate:

Date:  8 July 2011