FAMILY COURT OF AUSTRALIA
| SIGLEY & DE SANTIS AND ORS | [2020] FamCA 780 |
| FAMILY LAW – PRACTICE AND PROCEDURE – electronic trial fixed for 16 October 2020 – respondent’s solicitor working from home in accordance with COVID restrictions – those solicitors contending they are unable to retrieve their files so as to advance their trial preparation – direction given to solicitors to retrieve files forthwith – direction given to report on success or otherwise of retrieval of their files. |
| FIRST RESPONDENT: | Mr De Santis |
| SECOND RESPONDENT: | Q Pty Ltd as trustee for Q Discretionary Trust |
| THIRD RESPONDENT: | R Pty Ltd as trustee for De Santis Family Trust |
| FOURTH RESPONDENT: | Ms S De Santis |
| FIFTH AND SIXTH RESPONDENTS: | Mr T and Mr U as liquidators of E Pty Ltd (in liquidation) |
| SEVENTH RESPONDENT: | De Santis Family Investments Pty Ltd as trustee for E Superannuation Fund |
| EIGHTH RESPONDENT: | V Partners Pty Ltd (formerly P Partners Pty Ltd) |
NINTH RESPONDENT: | W Pty Ltd |
| TENTH RESPONDENT: | X Pty Ltd as trustee for Trust for the Children of Mr & Ms De Santis |
| ELEVENTH RESPONDENT: | E Pty Ltd |
| TWELFTH RESPONDENT: | Ms De Santis (also known as BB De Santis) |
| THIRTEENTH RESPONDENT: | E Pty Ltd |
| FOURTEENTH RESPONDENT: | Mr AA De Santis |
| FIFTEENTH RESPONDENT: | Ms EE De Santis |
| SIXTEENTH RESPONDENT: | Ms DD De Santis |
| SEVENTEENTH RESPONDENT: | Ms AA De Santis |
| FILE NUMBER: | MLC | 9296 | of | 2015 |
| DATE DELIVERED: | 17 September 2020 |
| PLACE DELIVERED: | Melbourne |
| HEARING DATE: | 16 & 17 September 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr J St John QC |
| SOLICITOR FOR THE APPLICANT: | Peter Szabo Family Law |
| COUNSEL FOR THE FIRST RESPONDENT: | No appearance |
| SOLICITOR FOR THE FIRST RESPONDENT: | No appearance |
| COUNSEL FOR THE SECOND RESPONDENT: | No appearance |
| SOLICITOR FOR THE SECOND RESPONDENT: | No appearance |
| COUNSEL FOR THE THIRD RESPONDENT: | No appearance |
| SOLICITOR FOR THE THIRD RESPONDENT: | Berry Family Law |
| COUNSEL FOR THE FOURTH RESPONDENT: | No appearance |
| SOLICITOR FOR THE FOURTH RESPONDENT: | Berry Family Law |
| COUNSEL FOR THE FIFTH AND SIXTH RESPONDENTS: | Dr A P Trichardt |
| SOLICITOR FOR THE FIFTH AND SIXTH RESPONDENTS: | Charles Fice Solicitors |
| COUNSEL FOR THE SEVENTH RESPONDENT: | No appearance |
| SOLICITOR FOR THE SEVENTH RESPONDENT: | Berry Family Law |
| COUNSEL FOR THE EIGHTH RESPONDENT: | No appearance |
| SOLICITOR FOR THE EIGHTH RESPONDENT: | V Partners Pty Ltd |
COUNSEL FOR THE NINTH RESPONDENT: | No appearance |
SOLICITOR FOR THE NINTH RESPONDENT: | Berry Family Law |
| COUNSEL FOR THE TENTH RESPONDENT: | No appearance |
| SOLICITOR FOR THE TENTH RESPONDENT: | Berry Family Law |
| COUNSEL FOR THE ELEVENTH RESPONDENT: | No appearance |
| SOLICITOR FOR THE ELEVENTH RESPONDENT: | Berry Family Law |
| COUNSEL FOR THE TWELFTH RESPONDENT: | No appearance |
| SOLICITOR FOR THE TWELFTH RESPONDENT: | KCL Law |
| COUNSEL FOR THE THIRTEENTH RESPONDENT: | No appearance |
| SOLICITOR FOR THE THIRTEENTH RESPONDENT: | Charles Fice Solicitors |
| COUNSEL FOR THE FOURTEENTH RESPONDENT: | No appearance |
| SOLICITOR FOR THE FOURTEENTH RESPONDENT: | Berry Family Law |
| COUNSEL FOR THE FIFTEENTH RESPONDENT: | No appearance |
| SOLICITOR FOR THE FIFTEENTH RESPONDENT: | Berry Family Law |
| COUNSEL FOR THE SIXTEENTH RESPONDENT: | No appearance |
| SOLICITOR FOR THE SIXTEENTH RESPONDENT: | Berry Family Law |
| COUNSEL FOR THE SEVENTEENTH RESPONDENT: | No appearance |
| SOLICITOR FOR THE SEVENTEENTH RESPONDENT: | Berry Family Law |
Order
I direct the legal representatives for the respondents to apply forthwith for permits to enter their workplaces to retrieve their files and they in fact retrieve their files forthwith.
This proceeding is listed for mention at 9:30am on 22 September 2020.
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 Sigley & De Santis 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 MELBOURNE |
FILE NUMBER: MLC 9296 of 2015
Applicant
And
First Respondent
And
| Q Pty Ltd as trustee for Q Discretionary Trust |
Second Respondent
And
| R Pty Ltd as trustee for De Santis Family Trust |
Third Respondent
And
Fourth Respondent
And
| Mr T and Mr U as liquidators of E Pty Ltd (in liquidation) |
Fifth and Sixth Respondents
And
| De Santis Family Investments Pty Ltd as trustee for E Superannuation Fund |
Seventh Respondent
And
| V Partners Pty Ltd (formerly P Partners Pty Ltd) |
Eight Respondent
And
Ninth Respondent
And
| X Pty Ltd as trustee for Trust for the Children of Mr & Ms De Santis |
Tenth Respondent
And
Eleventh Respondent
And
| Ms De Santis (also known as BB De Santis) |
Twelfth Respondent
And
Thirteenth Respondent
And
Fourteenth Respondent
And
Fifteenth Respondent
And
Sixteenth Respondent
And
Seventeenth Respondent
EX TEMPORE REASONS FOR JUDGMENT
The trial in this proceeding is presently fixed for 16 October 2020. The entire litigation has been on foot for many years. The last five years, during which time this case has been proceeding through its interlocutory phases, have been seriously draining on all parties, the principle players in which are of advanced years. The issues at play are complex, the documentation voluminous and the trial is listed for 12 days. It is likely to take longer, however.
In the current COVID atmospherics, the trial of this proceeding was ordered by me to be conducted electronically.
In the lead up to the trial I requested an update from the parties about the existence, if any, of impediments to the commencement of the trial on 16 October 2020. On 16 September 2020 Mr St John QC, Mr Lipshutz, Ms Li Rosi and Mr Mihailidis appeared by telephone. Mr St John QC told me his case was on track and that the applicant wanted to preserve the trial date, albeit electronically. Mr Lipshutz and Ms Li Rosi said that by reason of stage 4 lockdown each had been forced to work from home and neither had their clients’ files. Each said his and her respective clients were not computer literate and in some instances did not even have a computer. Mr Lipshutz and Ms Li Rosi said that the task of preparing for trial with clients and counsel in the absence of access to their files was near impossible. Mr St John QC said the problem identified by the respondents was more apparent than real. Mr Lipshutz said his clients were unable to retain Mr Glick QC so alternative counsel needed to be sourced, briefed and instructed for trial, all time consuming and labour intensive tasks rendered difficult almost beyond measure when done remotely.
The hearing before me was, essentially, one month out from trial. The preparation of an electronic court book has not been undertaken.
Mr St John QC offered a practical way forward by suggesting the respondents at least attempt to obtain their files. If they can retrieve those files the case should proceed. If they cannot then I need to know and then, but only then, canvas the consequences.
I direct the legal representatives for the respondents to apply forthwith for permits to enter their workplaces to retrieve their files and they in fact retrieve their files forthwith.
I will list this proceeding for 9:30am next Tuesday 22 September 2020.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 17 September 2020.
Associate:
Date: 18 September 2020