Romano and June (No 3)
[2011] FamCA 743
FAMILY COURT OF AUSTRALIA
| ROMANO & JUNE (NO. 3) | [2011] FamCA 743 |
| FAMILY LAW – EVIDENCE – Telephone and audiovisual communication – Application by the husband for witnesses whose evidence he intends to rely upon to be permitted to give evidence by electronic audiovisual communication from London and Perth – Where the wife objects to some witnesses – refusal of leave in respect of those witnesses. FAMILY LAW – EVIDENCE – Expert evidence – Application by husband for leave to adduce evidence as to evaluation of chattels from three expert witnesses who are not single expert witnesses – Order that leave be granted. FAMILY LAW – LEGAL PRACTITIONERS – Application by Husband to restrain the wife’s solicitor and the wife’s solicitor’s firm or agents from continuing to represent the wife in the proceedings – Whether the solicitor is in a position of conflict between his duty to the Court and his own interests – Where the husband argues that the wife’s solicitor has a personal and financial interest in the outcome of the litigation – Where the wife’s solicitor argues that the husband’s evidence is manifestly inadequate to satisfy the Court – Court not satisfied that the wife’s solicitor should be restrained. |
| Family Law Rules 2004 r 16.05, r 15.51, r 19.04 Foreign Evidence Act 1994 s 7, s 8 |
| Australian Securities and Investment Commission v Rich & Ors (2004) NSWSC 467 Clyne v The New South Wales Bar Association (1960) 104 CLR 186 Goodall v Nationwide News Pty Ltd (2007) FMCA 218 Kallinicos & Anor v Hunt & Ors (2005) 64 NSWLR 561 |
| APPLICANT: | Ms Romano |
| RESPONDENT: | Mr June |
| FILE NUMBER: | BRC | 3679 | of | 2010 |
| DATE DELIVERED: | 23 September 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 21 September 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hackett |
| SOLICITOR FOR THE APPLICANT: | Hirst & Co Family Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr S J Williams |
| SOLICITOR FOR THE RESPONDENT: | Bowen Buchbinder Vilensky |
COUNSEL FOR THE WIFE’S SOLICITOR: | Mr Amerena and Ms FitzGerald |
Orders
That pursuant to rule 16.05 of the Family Law Rules 2004 and sections 7 and 8 of the Foreign Evidence Act 1994, leave is granted to the husband to adduce evidence by electronic audiovisual communication at the trial in these proceedings commencing 3 October, 2011:
(a)from the Mercure Hotel located at 10 Irwin Street, Perth, Western Australia for the following witnesses:
(i)Ms SR;
(ii)Mr TH;
(iii)Mr PW;
(iv)Mr YS;
(v)Mr GK;
(vi)Mr VB
(vii)Ms NE; and
(viii)Ms BZ
(b)from the International Dispute Resolution Centre located at 70 Fleet Street, London, England:
(i)Mr HT;
(ii)Ms RT;
(iii)Mr RV;
(iv)Mr WB; and
(v)Mr VQ.
That all other witnesses whose evidence is to be relied upon by the husband in the hearing of these proceedings commencing 3 October, 2011, are to attend in person at the Family Court, Brisbane, Australia and make themselves available for cross-examination unless the husband’s solicitors are notified in writing by the wife’s solicitors prior to the commencement of the hearing that such witnesses are not required for cross-examination.
That all of the costs associated with the audio visual attendances of any of the witnesses referred to in paragraph 1 of these orders shall be met, in the first instance, by the Husband.
That all of the costs associated with the attendances at the Family Court, Brisbane, Australia, of all other witnesses whose evidence is to be relied upon by the husband in the hearing of these proceedings commencing 3 October, 2011, shall be met, in the first instance, by the Husband.
That pursuant to rule 16.05 of the Family Law Rules 2004, leave is granted to the wife to adduce evidence by electronic communication at the trial in these proceedings commencing 3 October, 2011:
(a)by way of audiovisual communication from the Mercure Hotel at 10 Irwin Street, Perth, Western Australia for the following witnesses:
(i)Ms G and
(ii)Mr EO
(b)by way of telephone link from an address in New Zealand for the following witness:
(i)Ms JS.
That all other witnesses whose evidence is to be relied upon by the wife in the hearing of these proceedings commencing 3 October, 2011, are to attend in person at the Family Court, Brisbane, Australia and make themselves available for cross-examination unless the wife’s solicitors are notified in writing by the husband’s solicitors prior to the commencement of the hearing that such witnesses are not required for cross-examination.
That all of the costs associated with the audio visual and telephone attendances of any of the witnesses referred to in paragraph 5 of these orders shall be met, in the first instance, by the Wife.
That all of the costs associated with the attendances at the Family Court, Brisbane, Australia, of all other witnesses whose evidence is to be relied upon by the Wife in the hearing of these proceedings commencing 3 October, 2011, shall be met, in the first instance, by the Wife.
That leave is granted pursuant to Rule 15.51 of the Family Law Rules 2004 for the Wife to adduce evidence at the hearing of these proceedings commencing 3 October, 2011, from the following expert witnesses who are not single expert witnesses:
(a)Mr BB - being evidence contained in and annexed to his affidavit filed on 28 June, 2011;
(b)Mr NL – being evidence contained in and annexed to his affidavit filed on 28 June, 2011;
That leave is granted pursuant to Rule 15.51 of the Family Law Rules 2004 for the Husband to adduce evidence at the hearing of these proceedings commencing 3 October, 2011, from the following expert witnesses who are not single expert witnesses:
(a)Mr VQ – being evidence contained in and annexed to his affidavit filed on 29 August, 2011;
(b)Mr RV – being evidence contained in and annexed to his affidavit filed on 2 August, 2011;
(c)Mr VB - being evidence contained in his valuation report in relation to furniture and chattels situated at the property at A Street, Western Australia;
(d)Ms NE – being evidence contained in her valuation report in relation to paintings and prints and other artworks including sculptures situated at the property at A Street, Western Australia.
(e)Mr WB – being evidence contained in his valuation report in relation to the furniture and chattels situated at the property at Flats 1 and 2, London property in the United Kingdom.
That the Husband is granted leave to rely on the affidavits of Mr GK and Ms KS notwithstanding the fact that they were filed outside of the time by which all affidavits upon which he intends to rely were directed to be filed.
That before close of business on Thursday 29 September, 2011, the Husband make further disclosure and, in particular, of the following documents:
(a)all bank statements of accounts conducted with any financial institution, in the possession, custody or control of the Husband that evidence payments to the trust account of Patterson & Dowding between 24 March, 2009 and 19 October 2010;
(b)all bank statements of accounts conducted with any financial institution, in the possession, custody or control of the Husband that evidence payments to the trust account of Bowen Buchbinder and Vilensky between 19 October 2010 and the date of these orders;
(c)all bank statements of accounts conducted with any financial institution, in the possession, custody or control of the Husband not otherwise included in the documents identified in paragraphs 12(a) and (b) of these orders that evidence payments of any legal costs or disbursements associated with or related to these proceedings.
All other outstanding interim applications are dismissed.
That objections, if any, to be taken by either party to any of the evidence in chief sought to be relied upon in these proceedings by the other party in this case shall be exchanged between the legal representatives prior to close of business on Thursday 29 September, 2011, and lists shall be prepared by each party’s legal representative as to the objections taken by the other side that are conceded and as to the objections taken by the other side that are intended to be argued at the commencement of the trial, and forwarded by email to the Associate to Justice Forrest by close of business on Friday 30 September, 2011.
IT IS NOTED that publication of this judgment under the pseudonym Romano & June is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 3679 of 2010
| Ms Romano |
Applicant
And
| Mr June |
Respondent
REASONS FOR JUDGMENT
Introduction
Since 12 April, this year, substantive property division proceedings between the husband and wife in this matter have been, effectively, listed for trial before me in this Registry over 14 days commencing in just over a week from now, on Monday 3 October, 2011.
On that same date in April, the parties, assisted by very experienced counsel and specialist family law solicitors, agreed to and caused to be drawn up draft directions that I made with their consent that were intended to ready the complex property division dispute for this 14 day trial.
The matter was also specifically set down for compliance review before me on two subsequent dates and before a Registrar in this registry on no less than six subsequent dates.
Notwithstanding all that, in the period since that April 12 appearance, I have been required to determine several interim disputes about matters such as disclosure, requests for answers to specific questions, valuation evidence, and other matters and now, just over a week before the trial is set to commence, I am required to determine several more matters that are in dispute between the parties on an interim basis. These further applications were heard by me solely on the papers on Wednesday 21 September, 2011. That hearing took all day and, at the end of the day, I reserved my decision for further consideration.
To say that the parties are in high conflict is to understate matters as I see them. High conflict has, in my observation, characterised virtually all aspects of the preparation of this matter for hearing, including the interim applications that I have been required to determine from time to time over the course of the last five months. At times, rather unfortunately, that conflict between the parties has found reflection in the manner in which the respective legal representatives have dealt with each other. Now, the husband makes application for the Court to restrain the wife’s solicitor and the wife’s solicitor’s firm or agents from continuing to represent the wife in the proceedings. I am now to decide that.
In addition, application is made by the husband for many of the witnesses whose affidavits have been filed by him and/or upon whose evidence he intends to rely at the hearing to be permitted to give evidence by means of electronic audiovisual communication from London (as to seven of them) and from Perth (as to nine of them). That is unopposed by the wife with respect to some of the proposed witnesses but opposed in respect of several others.
The wife also makes application for two of the witnesses upon whose affidavit evidence she intends to rely at the hearing to be permitted to give evidence also by means of electronic audiovisual communication from Perth and for one other of her witnesses to be permitted to give evidence by means of telephone communication from her home in New Zealand. The husband opposes the latter application and proposes electronic audiovisual communication for that evidence as well.
Further, the husband applies for leave to adduce evidence as to valuation of chattels from three expert witnesses who are adversarial and not single expert witnesses. The wife opposes that but at the same time applies herself for leave to adduce evidence as to valuation of certain property from two expert witnesses who are similarly adversarial and not single expert witnesses. Interestingly, that is not opposed by the husband.
The husband also seeks leave to rely on the affidavits of two witnesses that were filed outside of the date by which they were to be filed pursuant to previous directions as well as leave to adduce expert evidence from two foreign lawyers who are not single expert witnesses. That latter application is not opposed by the wife.
Finally, the wife seeks further specific disclosure from the husband of particular documents that she asserts he has not yet disclosed. I understand that application to be opposed.
I have determined to make the orders that are set out at the start of these reasons and shall now give my reasons for making these orders.
Should the wife’s solicitor, his firm or agents be restrained from continuing to represent the wife?
The husband asks the Court to exercise its inherent jurisdiction to restrain the wife’s solicitor and his firm, or any servant or agent of his, from continuing to represent the wife in these proceedings or from participating any further in these proceedings other than as a witness. His application for such orders was filed on 16 September, less than three weeks before the commencement of the trial.
Counsel who appeared for the wife’s solicitor on the application neatly stated the husband’s position as follows:
The husband seeks to invoke the supervisory jurisdiction of this court, as a superior court of record, to restrain a solicitor from acting in a particular case as an incident of its inherent jurisdiction over its officers and to control its processes in aid of the administration of justice.
There is no dispute between the parties that the Court has the jurisdiction to restrain a solicitor in the manner sought. See Kallinicos & Anor v Hunt & Ors (2005) 64 NSWLR 561 per Brereton J and Neczek & Dowler (2011) FamCAFC 179 per Bryant CJ, Thackray and Bennett JJ at paras 60 and 61. As the Full Court said in Naczek & Dowler, a practitioner’s duty to the Court is based on the Court’s immediate concern that it is assisted by independent legal representation for litigating parties. The duty imposed upon legal practitioners has as its foundation, preservation of the integrity of the administration of justice.
The Full Court in Neczek clearly identified the test to be applied in the exercise of this inherent jurisdiction. There was no dispute between the parties in this case that the Full Court’s statement of the test was correct. It is:
Whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
Relevantly, the Full Court went on after setting out that test to make some other observations in respect of the exercise of this inherent jurisdiction. The points noted were as follows:
(i)the jurisdiction is to be regarded as exceptional and is to be exercised with caution;
(ii)due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause;
(iii)the timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief;
(iv)it is important to identify precisely the obligation towards the former client or towards the court that may be breached or imperilled by the practitioner acting in the cause;
(v)a practitioner’s duty to the Court cannot be waived, so if the particular disqualifying feature involves a conflict between the interests of the practitioner and his duty to the Court such that could give rise to a situation where the independent administration of justice could be put in jeopardy, the Court would restrain the practitioner notwithstanding the wishes or interests of the client.
Background to the husband’s application
The evidence reveals that the wife’s solicitor put in place a lending facility with the National Australia Bank in April this year pursuant to which he was able to access $200,000 worth of funds on an ‘interest only’ repayment basis, to provide him with cash flow so as to be able to continue representing the wife in the conduct of these proceedings in circumstances where, apparently, she was unable to pay his fees and outlays on an ongoing basis because of lack of access to her own funds or finance. The wife’s solicitor and his own wife provided security for the bank finance through personal guarantees and indemnities and mortgages over several real properties in which they have interests in one form or another.
After that loan facility was established, it was drawn against from time to time by the wife’s solicitor, after obtaining signed authority from the wife and by early July this year it was fully drawn.
Between April and June 2011, there was delay in the receipt by the husband’s legal representatives of the wife’s costs notice that had been requested by them pursuant to Rule 19.04 of the Family Law Rules 2004. It is fair to say that delay was the responsibility of the wife’s solicitor. Ultimately, in June, a copy of the wife’s costs notice was provided to the husband’s solicitors. It included reference to payment of legal costs and outlays to that time being sourced from a National Australia Bank loan facility. Of course, at that time the husband’s legal representatives were not privy to the fact that the wife’s solicitor had himself organised and put in place the National Bank loan facility referred to.
The costs letter itself, whilst referencing a National Australia Bank loan facility, did not in any way explain what now appears to be clearly the reality, namely, that the borrowings were entirely the wife’s solicitor’s borrowings and that, in fact, the wife still owed her solicitor for the costs and outlays that had actually been paid or covered by his drawing on the National Australia Bank loan facility.
After receipt of the wife’s costs notice, the husband’s legal representatives, apparently excited by the fact that a National Australia Bank loan facility was referred to as a source of the wife’s payment of legal costs and outlays in circumstances where the wife had not to that point in time disclosed any documents in respect of such a loan facility, requested disclosure by the wife in respect thereof. Rather than providing an explanation as to the actual circumstances surrounding that National Australia Bank loan facility, the wife’s solicitor merely responded to that request by asserting that the wife had no documents to produce in relation to that loan.
Unsurprisingly, given the high conflict characterising this case, the husband’s solicitors, not satisfied with that response, filed an application for further disclosure by the wife. In an affidavit of the wife, filed in August in respect of that disclosure application, she deposed to the loan facility not being in her name nor guaranteed by her but one which was taken out by her solicitor and having been drawn upon with her consent. In that affidavit, the wife deposed to it being necessary for her to repay the loan at the conclusion of the proceedings. As things now seem to be, it appears that what was actually meant by that was the wife still has to pay her solicitor all of the costs and outlays that he has in fact covered in the first instance by drawing from that loan facility that he established. The evidence of the wife is that she is not required to pay any interest in respect of that money drawn from the loan facility by her solicitor and that her costs and outlays are to be paid pursuant to the retainer agreement she and her solicitor signed when he began to act for her, a copy of which is in evidence before me.
After further communication between the legal representatives, the wife’s solicitor sent an amended costs notice in which he deleted the references to the National Australia Bank loan facility as being the source of payment of costs and outlays, at the same time, conceding that the original costs notice “may have been misleading”.
Ultimately, the husband’s legal representatives asked the wife’s solicitor to cease acting for the wife, which request he refused. This application was then brought.
Husband’s argument
For the husband it is argued that the wife’s solicitor has an interest, both personal and financial, in the outcome of the litigation in that he has exposed his own assets and assets of his partner and associated entities to significant risk depending on the outcome of the proceedings. It is submitted that as such his interest extends beyond merely being owed fees by his client.
It is argued that the wife’s solicitor, by having that particular interest in the outcome of the proceedings, places himself in a situation where there is conflict between his duty to the Court and his own interests. Indeed, for the husband it is argued that the wife’s solicitor’s actions in respect of the wife’s costs notice and the dispute about disclosure already demonstrates the wife’s solicitor’s inability to put his duty to the Court ahead of those interests.
The argument was initially attractive. Whilst it is perhaps understandable that a solicitor who has placed his own assets at risk so as to be able to continue acting for a client who is not initially able to pay him might not want to make those circumstances known to other lawyers, particularly to lawyers acting for the opponents of his client in bitterly contested litigation, it appears to me that the unwillingness to clearly disclose that fact and the clumsiness with which this matter was handled has brought the parties and the wife’s solicitor to these immediate proceedings.
The wife’s solicitor’s arguments
Counsel for the wife’s solicitor argued that the occasion for the exercise of the discretion does not actually arise unless the Court is satisfied as to the fact or factual circumstances that give rise to the conflict, or appearance of conflict, which detracts from the administration of justice by calling into question the practitioner’s capacity to independently and objectively discharge his duty to the Court. The wife’s solicitor’s counsel argued that the evidence is manifestly inadequate for the Court to be so satisfied.
Counsel for the wife’s solicitor cited and relied upon authorities that establish the principle that a solicitor may, with perfect propriety, act for a client who has no means, expending his own money in payment of counsel’s fees and other outgoings in circumstances where the solicitor has no prospect of being paid either fees or the outlays except by virtue of a judgment or order against the other party in the proceeding. See Clyne v The New South Wales Bar Association (1960) 104 CLR 186 and Schokker v Commissioner of Taxation (2000) 106 FCR 134.
Counsel for the wife’s solicitor argued that the evidence, being the bundle of documents produced under subpoena by the wife’s solicitor, (Exhibit 1) evidences nothing more than the fact that the wife’s solicitor has obtained a credit facility to the extent of $200,000, the repayment of which is secured by various securities provided by him and his associated family and corporate interests and that he otherwise has a normal, not speculative, retainer agreement with his client. Counsel argued that the evidence establishes merely that the wife’s solicitor, in an attempt to “carry” the wife in the proceedings with the expectation that he would be paid all outstanding costs and outlays at the conclusion of the proceedings either out of a judgment obtained in favour of the wife or by accessing equity in her own residual property holdings by, at the same time, accessing his own bank credit facility to provide necessary cash flow along the way. Counsel argued that the evidence establishes that the wife’s solicitor, therefore, has no interest in the proceedings beyond the recovery of his proper fees for acting for the wife and that it has not been shown that he has such an inappropriate pecuniary stake in the outcome of the litigation that would give rise to a conclusion on the part of the fair-minded, reasonably informed member of the public that the proper administration of justice requires the wife’s solicitor to be restrained from acting for the wife in the interests of the integrity of the process.
My conclusion
After consideration all of the evidence and the submissions made on behalf of all the parties and the applicable principles that emerge from the authorities, I am not satisfied that the wife’s solicitor should be restrained from continuing to act for her in these proceedings.
Firstly, although, as I have said, the evidence establishes grounds for some concern as to the apparently clumsy manner in which the wife’s solicitor dealt with the issue, on the evidence before me I do not find that the wife’s solicitor’s interest in the proceedings is anything other than an interest in ultimately recovering his fees and outlays. In that regard, I am also satisfied, on the evidence, that the wife’s solicitor has an expectation, reasonably based, that he will recover his fees and outlays from the wife regardless of the outcome of the proceedings.
Although I consider the fair-minded, reasonably informed member of the public might scratch his or her head and ask why the wife’s solicitor did not just come straight out and inform the husband’s legal representatives as to the full detail of the circumstances by which he was continuing to act for the wife from April this year and as to how it was that the matter was so clumsily dealt with by him from April through to June, I do not consider that he or she would think it necessary for the wife’s solicitor to be restrained from acting for the wife, just one week out from the start of a 14 day trial simply because he is effectively “carrying” the wife in respect of hundreds of thousands of dollars in fees and outlays where the property pool sought to be divided between the parties is worth, even on the husband’s case, many millions of dollars.
Secondly, I am not satisfied that what I have termed the “clumsiness” with which the wife’s solicitor dealt with the matter in the wife’s costs notice and the issues surrounding the husband’s requests of the wife for further disclosure demonstrates an inability to put his duty to the Court ahead of his own interests.
Thirdly, in deciding not to restrain the wife’s solicitor, I am acutely conscious of, and place significant weight upon, the following matters:
(i)the exceptional nature of the jurisdiction and the absolute caution with which it must be exercised; and
(ii)the fact that the wife apparently has complete confidence in her solicitor who has been acting for her in this complex, highly conflictual, time consuming and expensive litigation since it was commenced in this Court in April 2010 and, as identified in the authorities, the public has an interest in a litigant not being deprived of the lawyer of her choice without due cause; and
(iii)the application was brought within three weeks of the commencement of the trial and heard by me just over a week before the commencement of the trial and, on the evidence, which I accept, likely consequences of an order restraining the solicitor from continuing to act for her would include significant inconvenience to the wife in respect of having to engage new legal representatives, significant extra expense to the wife in respect of same, inconvenience and potential prejudice to her if she was unable to secure alternative legal representation and potential adjournment of the trial with the attendant loss to the Court of fourteen days of trial time that has been reserved for these proceedings for over five months where there are many other litigants who would have taken that time if they could have.
In giving weight to the proximity of the filing and hearing of this application to the commencement of the trial as a relevant matter in determining not to exercise the discretion to grant the restraint the husband seeks, I do not overlook or disregard the forceful submissions of counsel for the husband that the application has only been able to be brought at this late moment due to the fact that complete understanding of the actual position was only able to be obtained by the husband and his legal representatives after production of documents by the wife’s solicitor pursuant to subpoena had been secured and those documents inspected.
Counsel for the husband argued that the lateness of the application is truly the responsibility of the wife’s solicitor and, therefore, ought not tell against the husband in the exercise of the discretion. I accept the fundamental tenet of that submission that the responsibility for timing of such an application is relevant in the discretionary exercise. However, as I have determined that the evidence as ultimately presented does not satisfy me that the wife’s solicitor’s interest is such that the fair-minded, reasonable observer would expect him to be restrained from continuing to act, in the interests of the due administration of justice, the apportionment of responsibility for the timing of this application is, in the end, of little relevance.
I will not restrain the wife’s solicitor from continuing to act for the wife in the proceedings.
Should some of the husband’s witnesses be permitted to give evidence by means of electronic audiovisual communication from London and Perth?
The husband makes application pursuant to Rule 16.05 of the Family Law Rules 2004 and s 7 and s 8 of the Foreign Evidence Act 1994 for orders allowing for the cross-examination of sixteen of the witnesses whose evidence he intends to rely upon at the trial to take place via electronic audiovisual communication between Brisbane and Perth in respect of some of them, and between Brisbane and London in respect of others.
The Application in a Case and supporting affidavit in which the orders are sought appear was said to have been filed electronically with the Court Registry on 5 September 2011. The supporting affidavit does bear a court date stamp indicating that, whilst the Application in a Case bears a date stamp dated 8 September 2011. It may be that the application was not filed until after the e-filing of the affidavit, but the exact circumstances surrounding that are not clear to me. I only mention this because Rule 16.05(2) of the Family Law Rules requires the application to be filed at least 28 days before the court event in respect of which the orders are sought. Twenty-eight days before the commencement of the trial in this case was 5 September, the date it was apparently filed. All of the requirements of Rule 16.05(3) otherwise appear to have been complied with in respect of the application. I intend to consider the application on the basis that it was filed 28 days before the trial.
For the husband, it is submitted that insofar as the witnesses proposed to be cross-examined by audiovisual link between Brisbane and London are concerned, the evidence establishes the following:
(i)24 hour audio-visual facilities are available at the International Dispute Resolution Centre at 60 Fleet Street, London;
(ii)a technician will be on hand at an hourly cost for the use of specialised video and conferencing equipment permitting witnesses to see and hear the Court in Brisbane and vice versa;
(iii)a town agent could be engaged by the husband’s solicitor to organise and facilitate the attendance of witnesses and the management of documents.
It is also said for the husband that as London is approximately nine hours behind Brisbane it may be that the time difference might necessitate an adjustment of the Court’s sitting time or alternatively for the witnesses to give evidence outside the normal business hours.
Counsel for the husband submits that the evidence establishes, insofar as the witnesses who are proposed to give evidence from Perth are concerned, the following
(i)it is intended to book the use of an audio-visual equipped conference room at the Mecure Hotel in Perth;
(ii)a technician will be available to assist in the use of that audio-visual facility at an hourly cost;
(iii)the audio-visual facility will include a camera capturing sounds and images and transmitting them to the Court sitting in Brisbane and that the witness in Perth will face a screen permitting them to see and hear the Court;
(iv)the solicitors from the firm retained by the husband will be available to facilitate and organise attendance of witnesses in Perth as well as in the management of documents;
(v)the costs of the room hire and audio-visual equipment is $560 per day with the audio-visual technician’s costs estimated to be at $1,932 per day;
(vi)Perth is two hours behind Brisbane time, such that it is unlikely to cause any significant interruption to the Court’s sitting times.
Insofar as the provisions of the Foreign Evidence Act 1994 are relevant, s 7 gives the Court the discretion, if it appears in the interests of justice to do so, on the application of a party to a proceeding, to make orders such as those sought by the husband in respect of witnesses he proposes to be cross-examined by audio-visual means between Brisbane and London. Sub-section (2) of s 7 lists matters to which the court is to have regard in making the decision as to whether it is in the interests of justice to make such orders, as including the following:
(a)whether the person is willing or able to come to Australia to give evidence in the proceeding;
(b)whether the person will be able to give evidence material to any issue to be tried in the proceeding;
(c)whether, having regard to the interests of the parties to the proceeding, justice will be better served by granting or refusing the order.
I consider that those same sorts of matters should also be considered in respect of the application of the husband for witnesses to be cross-examined by audio-visual link from Perth.
Counsel for the husband, in written submissions, cite a number of decisions in which the question of allowing evidence to be taken by remote audio-visual communication technology has been considered and discussed. Those cases include a decision of the Full Court of this Court in K v S & Anor (2001) 27 FamLR 498; a decision of Justice Austin of the New South Wales Supreme Court in Australian Securities and Investment Commission v Rich & Ors (2004) NSWSC 467; a decision of the Full Court of the Federal Court of Australia in Joyce v Sunland Waterfront (BVI) Limited [2011] FCAFC 95; a decision of Federal Magistrate Lucev in Goodall v Nationwide News Pty Ltd (2007) FMCA 218; and a decision of Justice Tamberlin of the Federal Court of Australia in Versace v Monte [2001] FCA 1454.
I consider the underlying theme of all of those decisions to be that the use of technological advances such as electronic audio-visual remote communication in the conduct of civil litigation such as proceedings in this Court is something to be encouraged where there can be significant savings as to time and cost, but that the exercise of the Court’s discretion, of course, depends on the particular circumstances of each case and the interests of justice.
Clearly, the wife’s legal representatives are cognisant of this theme in that they have readily indicated acceptance of the proposed course with respect to a number of the witnesses to be cross-examined by video link between Brisbane and Perth and a number of the witnesses proposed to be cross-examined by video link between Brisbane and London.
However, the wife’s legal representatives oppose orders that would permit a number of the witnesses to be cross-examined via video link. Four of those witnesses are directors of companies, the actual control of which is at the heart of this multi-million dollar property division dispute. As I currently understand the issues in the case, this issue of control of a number of companies ultimately has the potential to impact upon the determination of the pool of property of the parties or either of them that is available for division between the parties in the order of many millions of dollars. Each of three witnesses who the husband proposes be cross-examined by video link between Brisbane and London is, as I understand it, potentially critical to this issue. Each has given an affidavit already and each is said to be unwilling and unable to travel to Australia to give evidence in person here in Brisbane. In response to the latter assertion, counsel for the wife submitted that the evidence as to their respective inabilities to travel to Brisbane is weak. I consider that there is some merit in that submission as not much more is said by each of those proposed witnesses other than the fact that they have “business commitments” that prevent them from travelling to Australia. In respect of one of the witnesses, Mr FD, counsel for the wife correctly submits, relying on the evidence, that he has already indicated a willingness to attend the trial in Brisbane in the recent past.
As Austin J said in the ASIC v Rich decision, there are exceptional cases where the audio-visual process will put the cross-examiner and the Court at a real disadvantage with respect to the issue of credit. Austin J said:
They will include cases like the present one, where the witness’s evidence is centrally important and the cross-examination is likely to be long and complex, and the issue of credit is likely to depend upon the witness’s responses to questions based on documents shown to him by the cross-examiner.
In respect of the three witnesses: Mr BN, Mr FD and Mr J, I consider that they fall within such an exception so discussed. I do not consider that requiring cross-examination of those witnesses to be conducted by the wife’s counsel by international video link, where copies of documents are sent across to London in advance and made available as required to the witnesses through a London agent, is a suitable alternative to physical presence that works in the interests of justice in this case. Even if the taking of such audio-visual evidence is to be considered the norm in this day and age and its refusal to be the exception, I am satisfied that in this case in respect of each of those three witnesses, refusal of the application is an appropriate exercise of the Court’s discretion having regard to the interests of the parties to the proceedings and the manner in which I consider justice will be better served in this case.
In respect of the witnesses proposed to be cross-examined by audio-visual link between Brisbane and Perth, the wife opposes the application in respect to only two of them, namely Mr P June and Ms BZ.
Mr P June is the husband’s brother and it is said that his evidence is relevant to the date of separation of the parties, lifestyle and contributions of the wife, contributions by the husband to the wife’s extended family and contributions by him on the husband’s behalf and post separation events. It is said that he is unwilling and unable to attend the trial in Brisbane due to work commitments.
For the wife, opposition to the application is based on similar grounds to the opposition raised against the proposed witnesses Mr BN, Mr FD and Mr J being cross-examined by video link from London. In this instance the husband’s brother is a director of the company, A Investments Pty Ltd and the ownership and/or control of that company is another of the central issues in the case which will also have a substantial impact on the final makeup of the pool of property that is available for division between the parties. Counsel for the wife again submits that the evidence does not establish the nature of the work or family commitments that would prevent the husband’s brother travelling to Brisbane to give evidence. Again, I find merit in that submission. As the cross-examination of the husband’s brother will be one that goes to credit and the determination of critical issues central to the case and is also likely to involve putting documents to the husband’s brother for his comment, I again am satisfied that refusal of the application for him to be cross-examined by audio-visual link should occur in the interests of justice.
As to the last of the witnesses proposed to give evidence by audio-visual link from Perth, namely Ms BZ, of note is the fact that no affidavit deposed to by her has been filed. I understand that she has either been subpoenaed or is going to be subpoenaed to attend the proceedings.
The nature of the evidence that she is expected to give is evidence that she was formerly in a sexual relationship with the wife and matters surrounding, I am informed, the issue of the date of cessation of cohabitation between the wife and the husband.
Counsel for the wife submits that the application should be refused for a number of reasons, they are:
(i)her credit is expected to be a significant issue;
(ii)she is being paid by the husband to give evidence;
(iii)she has not sworn an affidavit and is to be subpoenaed;
(iv)there are documents required to be put to her during cross-examination; and
(v)there is no admissible evidence of her inability to attend the trial in person.
No submission was made by counsel for the wife that any of the issues upon which Ms BZ is likely to give evidence is of any material importance in the overall determination of just and equitable orders. I sought assistance from counsel for the wife in respect of the material relevance of the date of separation given that it is apparently in dispute, particularly in the context of my statutory obligation to consider relevant contributions of the parties rather than merely time lived together. Counsel for the wife made no particular submission in response. Accordingly, in respect of Ms BZ, I am not satisfied that her evidence is critical to a material issue and, therefore, I am not satisfied that the application for her to give her evidence in chief and be cross-examined by audio-visual link between Brisbane and Perth should be refused in this case. I will allow it.
Should the wife’s witnesses be permitted to give evidence by means of electronic communication?
I have not understood there to be any opposition by the husband to the wife’s proposal that two of her witnesses be cross-examined by electronic audio-visual communication between Brisbane and Perth. Accordingly I shall make that order.
One of the witnesses whose affidavit evidence the wife intends to rely upon at the trial is Ms JS. She lives in New Zealand, some distance out of the nearest city and has not long given birth to twins. The wife seeks an order that permits Ms JS to be cross-examined by telephone from her home. The husband opposes that and says rather that she should be cross-examined by audio-visual link.
Ms JS is a solicitor who was formerly employed by the wife’s solicitor’s firm. Her evidence is to the effect that on a holiday in Europe, subsequent to having left the employ of the wife’s solicitor’s firm, she was in Monaco and by chance came across a boat, the actual ownership of which is also a significant issue in this case and that she photographed the husband and a woman and child on that boat. The photos are part of her evidence.
The nature of the husband’s objection to her cross-examination being done by phone as opposed to audio-visual communication was not made clear to me. As such, I do not consider that the interests of justice in this case demand that Ms JS be cross-examined by way of an audio-visual link as opposed to by telephone. I will accede to the application made by the wife.
Should the husband be given leave to rely on the evidence of three expert valuers who are not single experts?
The husband also makes application pursuant to Rule 15.51 of the Rules for leave to rely at trial on the evidence of three valuers who have undertaken valuations of furniture, art and chattels in properties at A Street, Western Australia, and London in the United Kingdom.
By way of relevant background, the husband had in a financial statement filed on 29 July 2010, provided estimates of the value of the furniture and contents situated at A Street at a figure of $218,000 in total: furniture and chattels being $25,000; bronzes and sculptures estimated at $90,000; carpets at $3,000 and artwork at $100,000. No formal valuation had been obtained at that time.
In April 2011, the husband instructed his solicitors to get expert valuations in respect of those items. When the wife’s solicitors were approached to ascertain whether the wife would join in appointing Mr VB as a single expert to value the contents at A Street, the wife’s solicitors responded by indicating that she agreed to the figure that the husband had previously estimated was the value and stating that therefore, those items did not need to be expertly valued. The husband’s solicitors nevertheless went ahead and obtained valuation opinion from Mr VB and subsequently valuation opinion from FF Gallery. Both of those valuations have been previously provided to the wife’s solicitors, the last of them before the end of August.
The wife opposes leave being granted to the husband to rely on the evidence of the two valuers by reference to paragraph 2 of the trial preparation directions that were made by me on 12 April 2011 with the consent of the parties. That provides as follows:
On or before 4.00 pm on 26 April 2011 the parties notify the other of any item of property they require to be valued and any joint letter of instruction in relation to the valuation of such property issue to valuer by 4.00 pm on 3 May 2011.
Counsel for the wife submitted that the wife’s view is that because the items the subject of those valuations were not the subject of notification by the husband in accordance with that order that their value is not in issue. Counsel for the husband submitted that the discretion conferred upon the court by the relevant rule must be exercised judicially and to ensure that the interests of justice are not compromised. Reference was made to the High Court’s decision in State of Queensland v J. L. Holdings Pty Ltd (1997) 189 CLR 146 where the High court observed that case management is not an end in itself and should not be allowed to prevail over the attainment of justice.
The expert opinion sought to be relied upon by the husband is that the value of the items that were valued that were contained in the A Street property is substantially less than the estimate the husband originally gave that the wife seeks to hold him to.
In deciding this matter I have regard to the following:
(i)the husband is not an expert furniture or art valuer;
(ii)the wife and her legal representatives knew that the husband is not an expert furniture or art valuer;
(iii)notwithstanding the orders I made by consent on 12 April 2011 not being complied with by the husband in a strict technical sense, the wife and her legal representatives knew in April that the value of the contents at the A Street property was in issue insofar as the husband was concerned;
(iv)the husband’s solicitors proposed the appointment of a single expert to provide expert valuation opinion in a timely fashion. The wife and her legal representatives refused to join in that process;
(v)the husband’s legal representatives, after that refusal engaged the experts themselves;
(vi)the expert opinion was provided to the wife and her legal representatives in a timely fashion;
(vii)the wife and her legal representative chose the course of opposing the husband’s reliance on the expert opinion rather than joining in seeking a single expert opinion or their own expert’s opinion;
(viii)apparent injustice would be done if the expert opinion value was not now allowed to be relied upon as the husband’s original non-expert opinion is wrong.
In the circumstances, I will give leave to the husband to rely on the expert opinions as to the value of the contents of the A Street property. Further, I understand the wife’s position to be that if I granted such leave she would be content for those two expert witnesses to be cross-examined, if that is required, by electronic audio-visual communication between Brisbane and Perth and I shall make orders to that effect.
The husband also seeks leave to rely upon evidence from an expert furniture valuer from the United Kingdom as to the value of the contents of a property in London.
In respect of the London valuer, it is conceded by the husband’s legal representatives that no request was made to the wife’s legal representatives for the wife to join in instructing a single expert to value contents of the London property. It also has to be said that my direction of 12 April, 2011, which was made with the consent of the parties, was not complied with.
The relevant factual circumstances are these:
(i)the husband originally estimated in his financial statement the contents to be worth £17,150, the equivalent of AUD$29,659;
(ii)in May 2011, London valuers were instructed by the husband’s legal representative to carry out a valuation;
(iii)a valuation report was published on 6 June 2011 and received by the husband’s legal representatives on 17 June and then sent under cover of a letter to the wife’s solicitors on 28 June 2011. I do not understand it to be in dispute by the wife’s solicitors that they received that valuation in late June;
(iv)The expert opinion is that the contents that the husband has previously estimated to be worth £17,000 are in fact worth £1,845, the equivalent of AUD$2,807 as at 8 September 2011.
Although the wife’s solicitors were not asked to join in getting a single expert, it again appears to be the case that they sought simply to rely on the non-compliance with the strict wording of my April direction to try to prevent the husband from being able to rely on the valuation evidence he obtained. I am satisfied that if the wife had wanted to she could have sought to reach agreement with the husband to instruct a single expert or to have taken steps to obtain her own expert opinion if she considered that the expert opinion the husband had obtained and provided to her in June somehow worked an injustice to her.
Without any expert opinion in respect of chattels, the Court would be left in that invidious position that it is often left in in property division proceedings of having to determine how to make just and equitable property division orders in respect of chattels without any expert opinion as to valuation. In the circumstances, I will give leave to the husband to rely on the valuation evidence of the London expert and, again, I will give leave for the expert in London to be cross-examined, if that is the decision of the wife’s legal representatives, by electronic audio-visual communication between Brisbane and London.
Should the husband be granted leave to rely on the affidavits of two further non-expert witnesses?
The husband also seeks leave to rely on the affidavits of two further witnesses, such leave being necessary as they were filed outside of the time provided by directions previously made by me in respect of the filing of affidavits of evidence in chief. Those witnesses are Mr GK and Ms KS.
Mr GK’s evidence is said to be relevant to the proceedings in that it provides corroborating evidence in respect of matters deposed to by the husband and which contradicts evidence given by the wife insofar as it relates to the wife’s travels with the husband and the contributions the wife claims to have made.
Ms KS is an officer of the Department of Immigration and Citizenship and she gives evidence relevant to the issue of proving, in admissible form, the movement records held by the Department recording the husband’s travel in and out of Australia.
Interestingly, no explanation was given in the affidavit evidence of the husband’s solicitors as to the failure to file those two affidavits in accordance with the directions. Notwithstanding that failing, no submissions were put to me for the wife that the grant of leave sought by the husband would somehow cause prejudice to the wife. In the circumstances, particularly given the notice the wife has had and the absence of any submission that granting the leave the husband seeks would cause prejudice, I intend to grant the leave.
Should the further particular disclosure the wife seeks be ordered?
The wife makes application for orders that the husband disclose statements from bank accounts that evidence payments to the trust accounts of the two sets of solicitors who have acted for him in these proceedings to date. The wife’s evidence is that the information provided by the husband to date in respect of the payment of his legal costs and the documents he has disclosed do not reconcile. This matter has apparently been taken up by the wife’s solicitors with the husband’s solicitors without satisfactory response. Consequently, particular disclosure is now sought by the wife.
The issue of the payment of legal costs and the source of the payment of those legal costs is clearly material in property division proceedings, particularly where legal costs are high as they no doubt are in this case. I am satisfied, particularly having regard to the position the husband and his legal representatives have taken in respect of the issue of the payment by the wife of her legal costs, that the particular disclosure sought by the wife should be ordered. I do not accept the argument made on behalf of the husband that a commitment to honour his general disclosure obligations in due course prior to trial is sufficient answer. I will make particular orders as to disclosure as sought by the wife.
Finally, I will also make an order in respect of the manner in which objections to evidence are to be dealt with in the lead up to the trial commencing in just over a week’s time.
I make the orders that are set out above.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 23 September 2011.
Associate:
Date: 23 September 2011
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