FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Stopford Malloy & Malloy [2021] FedCFamC1F 123
File number(s): ADC 2595 of 2015 Judgment of: HARPER J Date of judgment: 13 October 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Discovery – Duty of disclosure applicable to all information relevant to the proceedings – Disclosure and production of documents overlap but not the same – Obligation to provide disclosure by a list of documents under the rules – Purpose of disclosure is to give parties equal access to information peculiarly or largely in the possession on one party – Overarching purpose of family law practice and procedure directions – Duty to provide a list of documents to which duty of disclosure applies – Duty to provide a list is separate to duty to produce documents – Orders for list of documents made. Legislation: Evidence Act 1995 (Cth) s 122(5)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67 and 68
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) s 37
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 1.12, 6.01, 6.03, 6.06, 6.09, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.18
Family Law Repeal Rules 2021 (Cth) sch 1
Family Law Rules 2004 (Cth) rr 13.01, 13.12, 13.13, 13.20, 13.22
Cases cited: CanWest Global Communications Corporation v Australian Broadcasting Authority (1997) 71 FCR 485; (1997) 147 ALR 539; (1997) 24 ACSR 405
Caltex Refining Co Pty Ltd v Amalgamated Metal Workers Union (1990) 51 IR 113
In the Marriage of Black and Kellner (1992) 106 FLR 154; (1992) 15 Fam LR 343; (1992) FLC 92-287
In the Marriage of Briese (1985) 82 FLR 369; (1985) 10 Fam LR 642; (1986) FLC 91-713
In the Marriage of Giunti (1986) 11 Fam LR 160; (1986) FLC 91-759
In the Marriage of Mezzacappa (1987) 11 Fam LR 957; (1987) FLC 91-853
In the Marriage of Morrison (1994) 18 Fam LR 519; (1995) FLC 92-573
In the Marriage of Stein (1986) (1986) 11 Fam LR 353; FLC 91-779
Joubert and Anor & Verhoeven and Anor [2020] FamCA 53
Kent Coal Concessions Ltd v Duguid [1910] AC 452; (1910) 79 LJKB 872; (1910) 103 LT 89; (1910) 26 TLR 571
Malloy & Stopford Malloy [2019] FamCA 986
Malloy & Stopford Malloy (2020) 61 Fam LR 449; [2020] FamCA 506
Martell v Victorian Coal Miner’s Association (1903) 28 VLR 643; (1903) 9 ALR 174a
Mulley & Marney v Manifold (1959) 103 CLR 341; (1959) 33 ALJR 168
Oriolo v Oriolo (1985) FLC 91-653; (1985) 10 Fam LR 665
Pendelbury v O’Neill (1911) 11 SR (NSW) 188; (1911) 28 WN (NSW) 59
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; (1998) 72 ALJR 841; (1998) 153 ALR 490; [1998] HCA 28
Stopford Malloy & Malloy (No 3) [2016] FamCA 931
Stopford Malloy & Malloy [2017] FamCA 116
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- AGLC
- Stopford Malloy & Malloy [2021] FedCFamC1F 123
- Case
- [2021] FedCFamC1F 123
- Decision Date
CaseChat Overview and Summary
The court found that the duty of disclosure applied to all information relevant to the proceedings, and while the duties of disclosure and production of documents overlap, they are not identical. The court emphasised that the purpose of disclosure in family law is to give parties equal access to information that is peculiarly or largely in the possession of one party. The overarching purpose of family law practice and procedure directions was to ensure fairness and transparency in proceedings. The court concluded that the duty to provide a list of documents was separate from the duty to produce documents, and that the list must include specific details about each document as outlined in the order. The court also noted that the duty to provide a list of documents was a continuing obligation under the rules, and that each party must verify the accuracy of the list with an affidavit of documents.
The court issued detailed orders regarding the disclosure of documents, specifying the information to be included in the list and the deadlines for compliance. The orders required the husband to provide a list of communications and correspondence with certain individuals, and the other respondents to disclose documents relevant to succession plans and mortgage execution. Additionally, the court prohibited further interim or interlocutory applications without leave and scheduled a mention date for the proceedings. Finally, the court ordered the parties to submit a draft agreed statement of issues for the final hearing. The orders reflect the court's commitment to ensuring that the disclosure process in family law proceedings is thorough and transparent, thereby promoting fairness and efficiency in the resolution of family law disputes.
Orders
Orders of the court
ADC 2595 of 2015
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS STOPFORD MALLOY
Applicant
AND:
MR MALLOY
First Respondent
DD PTY LTD
Second Respondent
MR Q MALLOY (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
13 OCTOBER 2021
THE COURT ORDERS THAT:
1. Without limiting his continuing obligation to make full disclosure in compliance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”), by no later than 4.00 pm on 12 November 2021, the First Respondent Husband (“the husband”) file and serve upon the Applicant Wife (“the wife”), a List of Documents for the period 14 July 2015 to the date of this Order disclosing:
(a) communication(s) or correspondence between the husband, and/or or on his behalf, and Mr Q Malloy and/or his legal representatives; and
(b) communication(s) or correspondence between the husband’s legal representatives and Mr Q Malloy and/or on his legal representatives
relevant to the issues in dispute in the proceedings.
2. The list provided pursuant to Order 1 shall comprise, in relation to each communication or correspondence:
(a) the date of such communication or correspondence;
(b) the method of such communication or correspondence;
(c) the sender(s);
(d) the addressee(s);
(e) a brief description of the content of the communication or correspondence; and
(f) in the case of any claim of privilege, the claimed ground of privilege and a description of the communication or correspondence sufficient to enable the claim to be ascertained.
3. Pursuant to r 6.18(1)(b), the husband provide an affidavit of documents verifying the List referred to in Order 1.
4. Without limiting their obligation to make full disclosure in compliance with the Rules, by no later than 4.00 pm on 12 November 2021, the Second to Fourth Respondents file and serve upon the wife, by her solicitors, a List of Documents relevant to the issues in dispute, complying with r 6.09.
5. The list provided pursuant to Order 4 shall include the following:
(a) for the period 14 July 2015 to the date of this order, communication(s) and/or correspondence between the husband and the Second to Fourth Respondents, or on their behalf (including by their solicitors) and the husband and/or his legal representatives relating to matters relevant to the within proceedings, including but not limited to details of the frequency of such discussions or communications, the type of communication, and the record of the communication;
(b) all documents which both directly refer to, or relate to, the husband and also record succession plans for the group of entities known as the Malloy Group upon the death, retirement, and/or disablement of Mr Q Malloy, including but not limited to a copy of Mr Malloy’s will; and
(c) all documents and information relating to any call or demand or communication between the husband and his father and the Second to Fourth Respondents (and/or their respective agents) to execute any mortgages, including the mortgages entered into on 7 August 2015.
6. Pursuant to r 6.18(1)(b), each of the Second to Fourth Respondents provide an affidavit of documents, verifying the List referred to in Order 4.
7. No further interim or interlocutory applications may be filed by any party, without leave of the Court.
THE COURT NOTES THAT:
A. The proceedings are listed for mention on 18 November 2021.
B. On 18 November 2021, the Court expects the parties to inform the Court of the status of the Application in a Proceeding filed by the wife on 13 September 2021.
THE COURT FURTHER ORDERS THAT:
8. By no later than 4.00 pm on 17 November 2021, the parties submit to the Chambers of the Honourable Justice Harper a draft agreed statement of issues for final hearing.
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.
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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