Purtle and Purtle and Anor
[2018] FamCA 561
•27 July 2018
FAMILY COURT OF AUSTRALIA
| PURTLE & PURTLE AND ANOR | [2018] FamCA 561 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Discovery – Further and better discovery – Where the second respondent asserts there are no further documents that are relevant to the proceedings – Where the applicant still seeks an order for further and better discovery – Family Law Rules 2004 (Cth) Part 13.2. |
| Family Law Rules 2004 (Cth) pt 13.2, rr 13.07, 13.14 |
| Re Ronald Neville McGorm Ex Parte: the Co-Operative Building Society of South Australia [1989] FCA 87 |
| APPLICANT: | Ms Purtle |
| 1st RESPONDENT: | Mr Purtle |
| 2nd RESPONDENT: | Ms B Purtle |
| FILE NUMBER: | ADC | 4737 | of | 2016 |
| DATE DELIVERED: | 27 July 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 18 July 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Bullock |
| SOLICITOR FOR THE APPLICANT: | Howe Jenkin |
| COUNSEL FOR THE 1ST RESPONDENT: | No appearance |
| SOLICITOR FOR THE 1ST RESPONDENT: | No appearance |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Ross-Smith |
| SOLICITOR FOR THE 2ND RESPONDENT: | Townsends Solicitors |
Orders
That the second respondent do give further and better discovery of all documents that:-
(a)are or have been in the possession or under the control of the second respondent; and
(b) are relevant to an issue in the proceedings.
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 Purtle & Purtle and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 4737 of 2016
| Ms Purtle |
Applicant
And
| Mr Purtle And Ms B Purtle |
2nd Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Ms Purtle (“the wife”) commenced proceedings for property settlement by Initiating Application filed 6 December 2016. Mr Purtle is the respondent husband and Ms B Purtle, the husband’s mother, is the second respondent.
Part of the final orders sought was that the husband indemnify the wife in relation to any alleged debt owed by the husband and/or the wife or the Purtle Partnership to the second respondent.
The wife also sought an anti-suit injunction to restrain the second respondent from continuing proceedings commenced by her against the wife in the Supreme Court of South Australia.
The anti-suit injunction was heard by Judge Heffernan and on 11 August 2017 the following orders were made:-
1Until further order, the second respondent is restrained and an injunction is granted restraining her from taking any further steps in the Supreme Court of South Australia....
2The application of the first and second respondents that the proceedings be stayed is dismissed.
By Application in a Case filed 14 February 2018 the wife seeks further and better discovery of all documents referred to in a letter from the wife’s solicitors to the second respondent’s solicitor dated 16 November 2016. The second respondent by Response filed 13 April 2018 opposes the order for further and better discovery and if successful seeks that the wife pay her costs.
The second respondent also filed an Application in a Case on 23 April 2018 seeking that the wife give further and better discovery of documents referred to in a letter from the second respondent’s solicitor dated 20 February 2018. The wife filed a Response on 9 July 2018 and seeks that the second respondent’s application be dismissed.
At the hearing counsel for the second respondent submitted that the documents that had been requested had now been provided and the application was no longer pressed save as to costs. The question of the parties’ costs generally were reserved and the application was dismissed.
The only matter remaining for determination is the wife’s Application filed 14 February 2018.
BACKGROUND
The parties were married in 2002 and separated in 2014. There are three children of the relationship.
The husband’s family operated a farming enterprise. At the time of marriage the husband was employed by members of his family for wages but also did farm contract work for other farmers.
In March 2003 the husband and the wife entered into a farming partnership venture with the husband’s parents. The first partnership was named No 1 Purtle partnership (“the first partnership”).
It is not controversial that by 2013 the first partnership was financially precarious.
The husband’s parents retired from the first partnership in June 2013. The new partnership was renamed No 2 Purtle partnership trading as Purtle B Town Farms (“the second partnership”).
The wife contends that the husband’s parents gifted their interest and entitlement in the first partnership to them to help the husband and wife trade profitably.
She did not consider that any credit loan accounts or partnership drawings would need to be repaid to the husband’s parents as they had foregone any entitlement.
The husband agrees that his parents provided assistance to them and says that there was a clear understanding that any benefit provided by the husband’s parents to the husband and wife should be considered as a loan and they would be entitled to be repaid when the financial circumstances permitted. Whether as part of the restructuring of the husband’s parents’ finances, or as a consequence of the transfer of their interest in property to the husband and the wife, they were able to receive a Centrelink benefit, pension or entitlement.
Ultimately, the second partnership was unsuccessful, the assets were sold and following payment of liabilities there remained the sum of $813,619.
It is against this background following the death of the husband’s father in 2014, the second respondent issued a Notice of Demand for $842,966 to the husband and wife and when not satisfied, issued proceedings naming the wife alone as defendant in the Supreme Court of South Australia on 25 October 2016.
WIFE’S APPLICATION
The wife’s solicitors wrote to the second respondent’s solicitors seeking further discovery of documents which relate to issues “agitated by [the second respondent]” in her affidavit filed 15 December 2017. The letter from the wife’s solicitors to the second respondent’s solicitors dated 16 November 2016 is Annexure “D” to the affidavit of the wife’s solicitor filed 14 February 2018. The letter seeks the following categories of documents:-
1documents relating to the terms and conduct of the partnership referred to in paragraph 4, 5 and 6;
2documents relating to the making and terms of the alleged loan referred to in paragraph 7;
3documents relating to the alleged “substantial drawings” referred to in paragraph 8;
4documents relating to the making and terms of the alleged loan referred to in paragraph 10;
5documents relating to the making and terms of the alleged loan referred to in paragraph 11;
6documents relating to the … assertion that the [Purtle] partnership “took over the assets and liabilities of the old partnership”, including any advice received by [the second respondent] from her accountant;
7documents relating to the making and terms of the alleged loan referred to in paragraph 15;
8documents relating to the implicitly alleged agreement that [the second respondent] would accept a motor vehicle as part-payment of the alleged loan amount, as set out in paragraph 20;
9the Will and other documents relating to the allegation that “[Mr Purtle Snr’s] interest in the loan…passed to me under survivorship” in paragraph 22;
10documents relating to [the second respondent’s] entitlement to a pension as set out in paragraph 23, including her application for a pension and any material supplied as part of the application; and
11[the second respondent’s] tax returns since the alleged transfer of assets and liabilities to the Purtle partnership.
By letter dated 22 November 2017 the second respondent’s solicitors sent to the wife’s solicitors a list of documents which forms Annexure “A” to the wife’s solicitors’ affidavit filed 14 February 2018. Annexure “B” to the affidavit annexes the wife’s solicitors’ response of 11 December 2017 with the following relevant excerpt:-
Further, we refer to paragraph 3 of the orders made on 17 October 2017 and note your client’s List of Documents sent to us by email on 22 November 2017. With respect, we assert that your client’s List of Documents is inadequate. In our letter to you of 16 November 2016, we sought disclosure of a number of documents. Apart from the Will of [Mr Purtle Snr] (requested in paragraph 9 of that letter), it would appear that none of the documents sought appear in your client’s List of Documents.
Accordingly, we assert that your client should make further and better discovery.
By letter dated 18 December 2017, the second respondent’s List of Documents was expanded by the inclusion of the second respondent’s tax returns for the financial years 2012, 2013, 2014 and 2015 together with a letter from D Consultants to the second respondent.
The wife’s solicitors do not accept that no other documents exist, in particular as set out in the letter dated 16 November 2016.
The second respondent filed an Affidavit on 13 April 2018 which confirms that she is the recipient of a Centrelink pension and she exhibited at “HP12” a copy of the relevant application document.
She asserts that she had little involvement in the financial management and administration of the farming enterprise and said “my role in the family was purely as a homemaker and I had no involvement in any matter dealing with anything outside of homemaking”.
In particular, the following appears:-
17.I do not have any documents in categories in the Application in my possession, custody or control beyond those already contained in the list of documents provided by me.
The wife’s solicitors consider that there is likely to be further documents in circumstances where the second respondent has a level of confidence in her claim such that she issued proceedings in the Supreme Court seeking relief against the wife for the amount claimed.
Their suspicion is further aroused by reference to the Centrelink application now provided by the second respondent which refers to the following matters that are relevant to the dispute between the parties:-
·Whether the second respondent and/or her late husband have money on loan to another person or organisation;
·Whether any interest or partnership has been given away, sold for less than their market value or surrendered;
·The claim by the second respondent that in exchange for accommodation for life she and her late husband transferred land worth $1,683,000 to the husband; and
·The claim that the second respondent gave away or sold at an undervalue her interest in a partnership and received no consideration for doing so.
The second respondent’s counsel proffers the simple submission that the second respondent has discharged her obligation to make full and frank disclosure by the provision of a List of Documents, an Amended List of Documents and the assertion at [17] in her Affidavit that she does not have any documents as requested or at all.
Notwithstanding the statement of the second respondent, the wife still seeks an order.
DUTY OF DISCLOSURE
Part 13.2 of the Family Law Rules 2004 (“the Rules”) set out the provision for the disclosure of documents in all cases.
Rule 13.07 provides:-
The duty of disclosure applies to each document that:
(a)is or has been in the possession, or under the control, of the party disclosing the document; and
(b)is relevant to an issue in a case.
The consequence of non-disclosure is provided for in r 13.14:-
If a party does not disclose a document as required under these Rules:
(a)the party:
(i)must not offer the document, or present evidence of its contents, at a hearing or trial without the other party’s consent or the court’s permission;
(ii)may be guilty of contempt for not disclosing the document; and
(iii)may be ordered to pay costs; and
(b)the court may stay or dismiss all or part of the party’s case.
IS A FURTHER ORDER NECESSARY?
The consequences for a party not making full and frank disclosure are significant. In the circumstances of this case it is likely that the Court’s ability to make findings in favour of one party or the other may be assisted by the availability of documents relevant to the alleged transactions between the parties.
The circumstances surrounding the transfer of the husband’s parents’ interest in the partnership to the parties and any other benefit that may have been provided is controversial.
Whilst it may seem unnecessary, there may be some purpose in refocussing the attention of the second respondent as to whether, notwithstanding her clear assertion to the contrary, documents relevant to the proceedings may exist.
In Re Ronald Neville McGorm Ex Parte: the Co-Operative Building Society of South Australia [1989] FCA 87 Von Doussa J said:-
[5]The obligation resting on a party obliged to give discovery requires that he make proper enquiries and efforts to identify and disclose all relevant documents that are not in his possession. The obligation extends to making enquiries from the person in whose possession the documents now are: see Mertens v. Haigh [1863] EngR 633; (1863) 3 De GJ & S 528 at 531; 46 ER 471, at 472. It was said in the nineteenth century case of Taylor v. Rundell [1841] EngR 256; (1841) Cr & Ph 104; 41 ER 429, at 433 by Lyndhurst LC. “If it is in your power to give the discovery, you must give it; if not, you must show that you have done your best to procure the means of giving it”. See also Palmdale Insurance Ltd (in Liquidation) v. L. Grollo & Co. Pty Ltd & Ors [1987] VicRp 8; (1987) VR 113.
[6]The scope of the enquiries which should be made will depend on the circumstances of the case having regard to the need for discovery in order to dispose fairly of the matters in question, or to save costs in the proceedings. The enquiries must be reasonable, but do not demand of the party giving discovery that he goes to lengths which are oppressive. Guidance is available from cases on the allied procedure for interrogatories. …
If after the second respondent has reflected on whether there are any further documents that are both available and discoverable, there are none, then the matter can be disposed of by her simple confirmation in writing that there is nothing further to discover. Whilst the further step may appear unnecessary in circumstances where the second respondent has asserted that there are no further documents available, there is little prejudice caused to her by her further consideration of the matter, particularly given the contents of the Centrelink application.
Her reaffirmation that no further documents exist that are relevant to the proceedings may well serve to bring a welcome level of certainty to the issue.
I make orders as appear at the commencement of these reasons.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 27 July 2018.
Associate:
Date: 27 July 2018
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