In FEDERAL CIRCUIT COURT OF AUSTRALIA
| SALTZER & PACEK (No.4) | [2020] FCCA 3484 |
| Catchwords: FAMILY LAW – Property – discovery – where application in a case brought late – where Court facilitated expedition in determination of many applications – where applicant retains a series of lawyers and accountants in proceeding – where proceeding set down for hearing – where parties maintain that they strive to retain trial date – where application in case brought on eve of trial seeking extensive discovery – where applicant unilaterally cancels agreed mediations – where discovery predates separation by many years – whether the discovery necessary – where no cogent evidence as to necessity is provided – whether applicant seeking to discover if he has a case rather than evidence to support case – whether applicant embarking on fishing expedition – whether large-scale of discovery sought on eve of trial indicates an abuse of discovery process – whether case management considerations militate against such broad relief – orders made. |
| Applicant: | MR SALTZER |
| Respondent: | MS PACEK |
| File Number: | MLC 2954 of 2020 |
| Judgment of: | Judge A. Kelly |
| Hearing dates: | 17-18 December 2020 |
| Date of Last Submission: | 18 December 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 21 December 2020 |
REPRESENTATION
| Counsel for the Applicant: 17 December 2020 18 December 2020 | Ms R. Matson Mr D Brown, Q.C. with him, |
| Solicitors for the Applicant: | Melbourne Legal Chambers |
| Counsel for the Respondent: 17 December 2020 18 December 2020 | Ms S. Fisken Ms R. Stoikovska, Q.C. with her, |
| Solicitors for the Respondent: | Cornelius Family Law |
ORDERS
Pursuant to ss 67 and 68 of the Federal Circuit Court of Australia Act 1999 (Cth), the parties may appear and make submissions via audio and video link.
By 4:00pm on Wednesday, 23 December 2020, the parties sign all documents and do all things as necessary to instruct Domantay Legal to release the sum of $500,000 to each of the parties from the sale proceeds of the property situate at A Street, Suburb B, currently held on their behalf in a controlled monies account by Domantay Legal.
By 4:00pm on Wednesday, 23 December 2020, the respondent sign all documents and do all things as may be necessary to authorise the applicant to obtain copies of bank or account statements for the financial years ended 30 June 2019, 30 June 2020 and 1 July 2020 to date, being accounts identified in Annexure A to this order of:
(a)H Group Pty Ltd;
(b)Q Pty Ltd;
(c)V Pty Ltd;
(d)V Family Trust;
(e)E Pty Ltd;
(f)W Pty Ltd;
(g)X Pty Ltd; and
(h)the respondent.
By 4:00pm on Wednesday, 30 December 2020, the applicant make file and serve an affidavit making discovery:
(a)
by consent, in appropriately redacted form, of the tax invoices issued, and any office and trust account ledgers held, by the lawyers Vlahos Legal and Melbourne Legal in the period
20 April 2020 to the date of that affidavit;
(b)of all bank statements relating to any account…
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- AGLC
- SALTZER & PACEK (No.4) [2020] FCCA 3484
- Case
- [2020] FCCA 3484
- Decision Date
CaseChat Overview and Summary
The central legal issues before Judge A. Kelly were whether the extensive discovery sought by the applicant was necessary, given the lack of cogent evidence supporting its necessity, and whether the application constituted a "fishing expedition" or an abuse of the discovery process due to its broad scope and timing. The court was also required to consider case management principles in determining whether to grant such broad relief.
The court reasoned that the applicant had failed to provide sufficient evidence to demonstrate the necessity of the broad discovery sought, particularly given its retrospective nature and the proximity to the trial date. The court found that the application appeared to be an attempt to discover whether a case existed, rather than to obtain evidence to support an existing case, thus constituting a fishing expedition. Case management considerations, including the need to preserve the trial date and avoid undue delay, weighed against granting the extensive relief sought.
The court made several orders, including authorising parties to appear via audio and video link, releasing a sum of $500,000 from sale proceeds to each party, and ordering limited discovery from both the applicant and respondent concerning specific entities and periods. Directions were also made for the filing of trial affidavits, a joint court book, and outlines of case, with strict timeframes to ensure the final hearing could proceed as scheduled. Other outstanding interim applications were dismissed.
Orders
Orders of the court
1.
Pursuant to ss 67 and 68 of the Federal Circuit Court of Australia Act 1999 (Cth), the parties may appear and make submissions via audio and video link.
2.
By 4:00pm on Wednesday, 23 December 2020, the parties sign all documents and do all things as necessary to instruct Domantay Legal to release the sum of $500,000 to each of the parties from the sale proceeds of the property situate at A Street, Suburb B, currently held on their behalf in a controlled monies account by Domantay Legal.
3.
By 4:00pm on Wednesday, 23 December 2020, the respondent sign all documents and do all things as may be necessary to authorise the applicant to obtain copies of bank or account statements for the financial years ended 30 June 2019, 30 June 2020 and 1 July 2020 to date, being accounts identified in Annexure A to this order of:
(a) H Group Pty Ltd;
(b) Q Pty Ltd;
(c) V Pty Ltd;
(d) V Family Trust;
(e) E Pty Ltd;
(f) W Pty Ltd;
(g) X Pty Ltd; and
(h) the respondent.
4.
By 4:00pm on Wednesday, 30 December 2020, the applicant make file and serve an affidavit making discovery:
(a)
by consent, in appropriately redacted form, of the tax invoices issued, and any office and trust account ledgers held, by the lawyers Vlahos Legal and Melbourne Legal in the period
20 April 2020 to the date of that affidavit;
(b) of all bank statements relating to any account held by him, or on his behalf, as detailed in paragraph (6) of the Order made, by consent, on 7 August 2020;
(c) of any documents evidencing his interest in any property (real or personal) which he has acquired, or in which he claims any interest, for the period 1 August 2019 to date;
(d) of any documents evidencing all payments which have been made by him or on his behalf to his personal assistant.
5.
By 4:00pm on Wednesday, 30 December 2020, the applicant produce in electronic read only format to the respondent each of the documents of which discovery is made in accordance with paragraph (4) of this Order together with any password required to open such documents.
6.
By 4:00pm on Wednesday, 30 December 2020, the respondent make file and serve an affidavit making discovery of all MYOB data files:
(a) for the financial years ended 30 June 2019, 30 June 2020 and 1 July 2020 to date which are in her custody, possession or control relating to H Pty Ltd; W Pty Ltd; E Pty Ltd; Q Pty Ltd; and, V Pty Ltd;
(b) which are no longer in her custody, possession or control and deposing as to when she last had any such MYOB documents.
7.
By 4:00pm on Wednesday, 30 December 2020, the respondent produce in electronic read only format to the applicant each of the documents of which discovery is made in accordance with paragraph (6) of this Order together with any password required to open such documents.
8.
The parties’ solicitor client costs of and incidental to making discovery and producing all documents in accordance with paragraphs (4) to (7) of this Order be reserved.
9.
The applicant pay the parties’ costs of Mr Melilli of counsel upon his retainer to act as their mediator on 9 December 2020 fixed at $5,000.
10.
In lieu of the directions given on 25 May 2020, the following directions are made respecting the final hearing on 4 February 2021:
(a) the evidence in chief of each party and any witness shall be by way of affidavit;
(b) by 4:00 pm on Wednesday, 13 January 2021, the applicant file and serve his, and any other witnesses, trial affidavit together with a statement of the precise final orders that he will seek for a final adjustment of the parties’ property interests and a balance sheet disclosing all items which he contends comprise the asset pool (both non-superannuation and superannuation assets and any liabilities), with copies of such draft final orders and balance sheet to be provided in Microsoft Word format;
(c) by 4:00 pm on Thursday 28 January 2021, the respondent file and serve her, and any other witnesses, trial affidavit together with a statement of the precise final orders that she will seek for a final adjustment of the parties’ property interests and a balance sheet disclosing all items which she contends comprise the asset pool (both non-superannuation and superannuation assets and any liabilities), with copies of such draft final orders and balance sheet to be provided in Microsoft Word format marking as tracked changes to the draft documents served on her by the applicant;
(d) by 4:00 pm on Monday, 1 February 2021, the parties file a joint Court book as follows:
(i) one copy in electronic format that has searchable functionality, is indexed, paginated and bookmarked;
(ii) two copies in hard format that is indexed and paginated;
(e) by midday on Wednesday, 3 February 2021, the parties file and exchange an outline of case (Times New Roman, font 12, 1.5 spacing not exceeding 15 pages), such outlines to be filed in Microsoft Word format and to identify with precision each of the issues that is required for determination.
11.
Save with leave of the Court, no party may rely upon any evidence that is not contained in their trial affidavits or Court book;
12.
by 4:00pm on Thursday, 31 December 2020, the solicitors for the applicant and respondent respectively make, file and serve an affidavit:
(a) deposing as to all legal costs and disbursements which have been incurred by their client to date (irrespective of whether they have been incurred with that or any prior legal firm);
(b) deposing as to the legal practitioners considered estimate of all legal costs and disbursements which are anticipated may reasonably be incurred from 1 January 2021 until judgment;
(c) deposing to having provided advice (orally and in writing) to their client of their considered estimate of legal costs and disbursements pursuant to paragraph (12(b)) of this Order and of the substantive effect of s 117 of the Family Law Act 1975 (Cth).
13.
All other extant interim applications be dismissed.
14.
The parties’ costs of and incidental to this application be reserved.
Annexure A
Entity
Bank account
H Pty Ltd
CBA
...33
H Pty Ltd
CBA
...11
H Pty Ltd
Z Bank
...00
H Pty Ltd
Z Bank
...46
Q Pty Ltd
Z Bank
...68
Q Pty Ltd
Z Bank
...54
Q Pty Ltd
AA Bank
...04
V Pty Ltd
Z Bank
...70
V Pty Ltd
AA Bank
...55
BB Family Trust
Z Bank
...93
E Pty Ltd
Westpac
...36
W Pty Ltd
Z Bank
...21
X Pty Ltd
CC Bank
...34
Ms Pacek
Amex
...03
Ms Pacek
CBA
...72
Ms Pacek
CBA
...07
Ms Pacek
Amex
...01
Ms Pacek
CBA
...94
Ms Pacek ATF DD
CBA
...71
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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