SIGLEY & DE SANTIS AND ORS - [2020] FamCA 780

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.

APPLICANT:

Ms Sigley

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

2015

DATE DELIVERED:

17 September 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SIGLEY & DE SANTIS AND ORS

Details

AGLC: SIGLEY & DE SANTIS AND ORS [2020] FamCA 780
Case: [2020] FamCA 780
Decision Date: 17 September 2020

CaseChat Overview and Summary

In the matter of *Sigley & De Santis and Ors*, heard before Wilson J, the dispute concerned the ability of the respondent's legal representatives to access their files in preparation for an electronic trial scheduled for 16 October 2020. The solicitors for the respondent were working from home due to COVID-19 restrictions and claimed they were unable to retrieve their files to advance trial preparation.

The central legal issue before the court was whether directions could be given to compel the solicitors to retrieve their files and to report on the success of such retrieval. This involved considering the court's power to manage its proceedings and ensure adequate preparation for trial, particularly in the context of the prevailing public health measures.

Wilson J directed the legal representatives for the respondents to immediately apply for permits to enter their workplaces to retrieve their files. The court further ordered that they must retrieve their files forthwith. The proceeding was then listed for mention on 22 September 2020, at which time the solicitors were to report on the success or otherwise of their file retrieval efforts.

Orders

Orders of the court

Order

1. 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.

2. 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.

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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