Rusac & Dounar

[2022] FedCFamC1F 861

Federal Circuit and Family Court of Australia

(DIVISION 1)

Rusac & Dounar [2022] FedCFamC1F 861

File number(s):	MLC 4299 of 2020
Judgment of:	BENNETT J
Date of judgment:	11 October 2022
Catchwords:	FAMILY LAW – FINANCIAL – CASE MANAGEMENT - where final applications are not ready to proceed to hearing notwithstanding numerous court events – where husband and wife have incurred more than $200,000 in legal costs and counsel for third party does not know why the third party has been joined to proceedings – where no apparent compliance with rules of court in relation to joinder to parties and/or dispensation with conciliation conference - where matter referred to Co-ordinating Registrar for Melbourne.
Division:	Division 1 First Instance
Number of paragraphs:	18
Date of hearing:	11 October 2022
Place:	Melbourne (via MS Teams)
Counsel for the Applicant:	Mr Weil
Solicitor for the Applicant:	Otis Legal
Counsel for the First Respondent:	Mr Puyol
Solicitor for the First Respondent:	Mann Lawyers
Counsel for the Second Respondent:	Mr James
Solicitor for the Second Respondent:	Pearson Lawyers Pty Ltd

ORDERS

MLC 4299 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS RUSAC

Applicant

AND:

MR DOUNAR

First Respondent

MR NECMI

Second Respondent

order made by:	BENNETT J
DATE OF ORDER:	11 October 2022

THE COURT ORDERS THAT:

1.This matter be referred to the Coordinating Registrar for Melbourne for allocation to a registrar and IT IS REQUESTED that Judicial Registrar Ms E and Judicial Registrar Ms F be considered for such referral.

2.The registrar to whom the matter is referred pursuant to paragraph 1 of this Order confer with the parties and their practitioners for the purpose of finalising all issues of discovery, verification of evidence and readying the matter for a Trial Management Hearing.

3.Within 7 days the husband provide the last 18 months of BAS Statements in respect of any business operated by him or any entity controlled by him, such documents to be provided to the wife’s practitioners by email.

4.Within 14 days the practitioners for the husband and the wife each notify the other, in writing, of any further documents or things sought by way of discovery in this proceedings.

5.This matter be listed before a Registrar for the purpose of ascertaining:

(a)outstanding issues;

(b)what is best to be done in relation to the outstanding issues; and

(c)the listing of any application by the second respondent, Mr Necmi (son of the applicant) for disjoinder.

6.For the avoidance of doubt, the process between the Registrar and the parties is not confidential and the matter may at any time be referred back to me for further directions.

7.Any application for Mr Necmi for disjoinder may be oral if it is based solely on the contention that there is no identifiable cause of action referable to him.

8.Within 28 days the husband file and serve Contentions of Fact and Law in relation to any case of action for which Mr Necmi was joined to these proceedings.

9.For the avoidance of doubt, the Registrar to whom this matter is referred is at liberty to contact my chambers and seek information about dates available for final hearing of this matter and a trial management hearing before me.

10.Within 28 days the husband and the wife each prepare a list of assets, liabilities and financial resources including, but not limited to, the assets detailed at page 18 of the Outline of Case of the applicant wife filed 14 June 2021.

11.My reasons for decision this day be transcribed and when settled placed on the Court file and a copy be provided to the parties.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rusac & Dounar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex tempore

BENNETT J:

1. This financial matter comes before me as the first day of hearing. 

2. The parties are the wife and the husband and Mr Necmi.

3. The wife is 56 years of age and self-employed. She is represented by Otis Legal solicitors and has to date incurred legal costs of some $96,733 of which about only something under $10,000 has been paid. 

4. The husband is 47 years old; he is self-employed under a business known as B Pty Ltd.  He instructs Mann Lawyers, who have briefed Mr Puyol to appear today.  The husband has incurred approximately $119,000 in legal fees of which he has paid something in the vicinity of $40,000.

5. Mr Necmi was joined as a third party to the proceedings on 10 August 2021 on the application of the husband and purportedly through an order made “by consent”.  There appears to have been no observance of the rules of court in relation to the filing of contentions of fact and law, or a statement of claim or an articulation of the claim against Mr Necmi much less for Mr Necmi to file a defence or response.  Today Mr Neil James of counsel appears on Mr Necmi’s behalf.  Mr James has stated candidly that he cannot figure out why his client was necessarily joined.  He has not accepted an invitation to make an oral application for disjoinder today (in respect of which I would have allowed all parties time to respond), but it appears that such an application must be on the cards in the future if a proper cause of action is not articulated.  I have made an order in that respect.

6. There are two trust arrangements:

   (a)The Dounar Family Trust for which C Pty Ltd is trustee - that entity is not a trading company it is a trustee company only.  The husband is the sole director and shareholder of C Pty Ltd. 

   (b)B Pty Ltd Trust had as its trustee B Pty Ltd.  That was only a trustee company.  It was not a trading company, so I am told.  That is difficult to accept as I was also told that it was the entity through which the husband’s business was previously run.  In any event, B Pty Ltd is apparently an entity in the control of the husband, he being sole director and shareholder.

7. The husband asserts that he does not operate his business through any entity at the moment.  He is operating as a sole trader.

8. This matter is sent to me by the National Assessment Team. It is not ready to proceed to a first day notwithstanding the alarming number of appearances and court events it has had so far. 

9. The matter was before the Court on:

   (a)5 August 2020 before a Registrar;

   (b)1 September 2020 before a Registrar;

   (c)18 February 2021 before Judge Harland;

   (d)15 June 2021 for final hearing before Judge Harland in Division 2;

   (e)30 July 2021 before Judge Harland (Chambers Order);

   (f)10 August 2021 before a Registrar;

   (g)19 October 2021, before Judge Harland (Chambers Order);

   (h)14 February 2022, before Judge Harland;

   (i)10 May 2022 before Judge Harland (Chambers Order);

   (j)23 May 2022 before a Senior Registrar; and

   (k)30 July 2021 before Judge Harland (Chambers Order).

10. A further final hearing was allocated to Judge Harland on 23 May 2022.  Prior to the third scheduled final hearing, on 10 May 2022 Judge Harland made chambers orders transferring the matter to Division 1 on the basis that it had come to the attention of her chambers that the matter was likely to take more than the two days allocated to it in Judge Harland’s list.

11. The parties have had no conciliation conference, and there has been no formal dispensation, as best I can see, with the requirement that they attend a conciliation conference before the court can finalise the financial dispute.  The parties had a mediation with Mr D of counsel late last year, but that matter did not lead to any positive outcome; that is hardly surprising as both parties say that discovery is incomplete. 

12. Insofar as the wife is concerned, Mr Weil of counsel complains that the financial statements for the husband’s businesses for the last completed financial year have not yet been made available.  In the event that they have not yet been prepared he says that his client should have been provided with BAS statements; I have made an order in that respect.

13. Mr Puyol says, on behalf of the husband, that his instructing solicitors are going to make a request for discovery of documents.  When I asked why this had not been done given the plethora of return dates and final hearings, Mr Puyol could not explain. 

14. I do not have the time available to sort this matter out.  I estimate that after there is compliance with the few directions that I have made this day the matter may be somewhat simpler to sort out, but will still require at least a full day of conferencing between the registrar and the practitioners for the parties who are concerned.  That in itself will be costly, but it would be more costly to continue a matter where nobody knows what they are doing and complains about disclosure or lack of disclosure by the other parties.  Unfortunately, it is a further expense that the parties or their practitioners have brought on themselves without having been brought into line at one of the many appearances before registrars exercising judicial power.

15. Notably, the husband and the wife have together incurred more than $200,000 in legal costs with very little to show for it.

16. The orders that I make will provide for the matter to be able to be referred back to my list when it is actually ready to proceed; I am happy to determine the matter in due course. 

17. There should be no further mediation of the matter until the matter is appropriately prepared for a mediation. This means that all the financial returns are done, any valuations are completed, but not necessarily final affidavits for each party.  Of course, with all the false starts, they have had a number of final affidavits in any event.

18. The proceedings have a docketed registrar but case management guidelines have not afforded the docketed registrar an opportunity to put the matter into a state of preparation where it is fit for hearing. I will refer the matter to the Co-ordinating Registrar.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett delivered on 11 October 2022.

Associate:

Dated:       7 November 2022