Tael and Anor & Liao
[2008] FamCAFC 127
•23 April 2008
FAMILY COURT OF AUSTRALIA
| TAEL & BONNARD EQUIPMENT PTY LTD & LIAO | [2008] FamCAFC 127 |
| FAMILY LAW - APPEAL – From decision of Family Law Magistrate – Adequacy of reasons FAMILY LAW - PRACTICE AND PROCEDURE – Anton Piller order – possibility of privileged and personal communications – appropriate for appointment of a supervising solicitor |
| Family Law Act 1975, s 94AAA(3) Federal Proceedings (Costs) Act 1981 Magistrates Court Act 2004, s 31 |
| Aarons v Knowles (1995) FLC 92-627 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170 Alfasi and The Alfasi Group (2006) FLC 93-271 Bennett & Bennett (1991) FLC 92-191 Bruce F McLaren Holdings Pty Ltd & Ors v McLaren and McLaren (2000) FLC 93‑030 Butler, Man and Child Support Registrar [2003] FamCA 33 Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Johnsonv Johnson (2000) 201 CLR 488 Long and Specifier Publications Pty Ltd (1998) 44 NSWLR 545 Microsoft Corporation v The Goodview Electronics Pty Ltd and Anor (1999) 46 IPR 159 PMSI Group v Wilson [2003] NSWSC 263 Rutherford and Rutherford (1991) FLC 92-255 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Sourlos v Luv A Coffee Lismore Pty Ltd [2007] NSWCA 203 Strbak v Newton (NSWCA, 18 July 1989, unreported) Television Broadcasts Ltd and Nguyen (1988) 21 FCR 34 |
| FIRST APPLICANT: | Mr Tael |
| SECOND APPLICANT: | Bonnard Equipment Pty Ltd |
| RESPONDENT: | Ms Liao |
| FILE NUMBER: | PTW | 3677 | of | 2007 |
| APPEAL NUMBER: | WA | 15 | L | of | 2007 |
| DATE DELIVERED: | 23 April 2008 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | 15 November 2007 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 3 September 2007 |
| LOWER COURT MNC: |
REPRESENTATION
| COUNSEL FOR THE FIRST APPLICANT: | Self Represented |
| COUNSEL FOR THE SECOND APPLICANT: | Self Represented |
| COUNSEL FOR THE RESPONDENT: | Mr Davies |
| SOLICITOR FOR THE RESPONDENT: | O'Sullivan Davies |
Orders
That the proceedings stand adjourned to a date to be fixed, if practicable in July 2008, for submissions in relation to costs.
IT IS NOTED that publication of this judgment under the pseudonym Tael and Bonnard Equipment Pty Ltd and Liao is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 15 L of 2007
File Number: PTW 3677 of 2007
| Mr Tael] |
First Applicant
And
| Bonnard Equipment Pty Ltd |
Second Applicant
And
| Ms Liao |
Respondent
REASONS FOR JUDGMENT
This was an application for leave to appeal and, if leave was granted, an appeal against orders made by Magistrate Fleming on 3 September 2007. The orders authorised one party to the litigation to have access to information stored on the other party’s computer.
I dealt with the matter on 15 November 2007 as a single Judge, pursuant to s 94AAA(3) of the Family Law Act1975. After hearing argument, I granted leave to appeal, allowed the appeal and discharged the orders. I gave brief reasons at the time and indicated I would give detailed reasons later. These are my reasons.
Background
The applicant for leave to appeal is Mr Tael (“the husband”). The respondent is Ms Liao (“the wife”).
The husband and wife were born in [a foreign country] and migrated to Australia in about 1985, prior to their marriage in 1987.
The parties incorporated a company in [a foreign country] known as Bonnard Construction, which acquired [an asset]. At some stage, ownership of the [asset] was transferred from Bonnard Construction to Bonnard Equipment Pty Ltd, a company incorporated in Australia, of which the husband is the sole director.
The husband and wife separated in June 2006. They attempted to resolve division of their property, but without success. In May 2007, the [asset] was sold to a [foreign] company for about A$1.6 million. The wife’s solicitors subsequently asked the husband to provide information concerning disbursement of the proceeds. On 16 July 2007, the husband advised that the proceeds had been used to “meet company liabilities and operating expenses as and when they fall due” and indicated that financial accounts would be provided in due course.
In the meantime, the wife had commenced proceedings in the Family Court of Western Australia for settlement of property. She also filed an Application in a Case seeking, inter alia, orders restraining the husband from leaving Western Australia and from disbursing any of the proceeds of sale of the [asset]. On 11 July 2007, orders were made restraining the husband from leaving Western Australia and the proceedings were adjourned to 17 August 2007.
On 6 August 2007 the wife amended her application to seek an order that the husband cause the proceeds of sale of the [asset] to be placed in a trust account. On 17 August 2007, the day on which the matter was listed for hearing, the wife filed a further amended application in which she sought the following order:
The husband do immediately make available to [the wife’s computer expert] of [a management consulting firm] (together with any assistants he may have with him) the laptop computer owned by the husband together with any other storage device for the purpose of taking a forensic image of each storage device.
On 17 August 2007, Magistrate Fleming made an order that the husband deliver his laptop to the Registry Manager and directed that it be held until further order of the Court. The husband complied and the proceedings were adjourned to 3 September 2007. On 29 August 2007, the husband filed a Response opposing the application concerning the computer.
The matter came back before Magistrate Fleming on 3 September 2007. The orders which were extracted after the hearing were in the following form:
1.Solicitors for the applicant Ms Liao are at liberty to arrange for their Expert to image the first respondent’s computer and obtain information as to financial matters.
2.Any information that is obtained from the computer of the first respondent Mr Tael is only to be utilized in relation to the Family Court financial proceedings.
3.Solicitors for the applicant to provide the respondent with at least 10 days notice of the time and date on which the Expert will attend at the Family Court.
4.The respondent be at liberty to instruct his own Expert to be present during the imaging process.
5.The parties to update their disclosure within 14 days.
6.The imaging is to take place at this Registry and the computer is to remain in the custody of the Registry Manager thereafter.
The proposed grounds of appeal
The husband provided a draft Notice of Appeal upon which he would rely if his application for leave were to be successful. He was self represented at the hearing before Magistrate Fleming and drafted his own Notice of Appeal. The proposed grounds are set out below precisely as they appear in the draft Notice (i.e. the typographical and grammatical errors are in the original):
1. The Magistrate erred in fact/law in:
(a)Admitted to the court that he had no time to read my Affidavits and Exhibits and therefore was mislead by the Applicant.
(b)Admitted to the court that he cannot be expected to make accurate decisions.
(c)Did not providing sufficient reasons for his decision.
(d)The Order No. 1 to image the first respondent’s computer is too general and not specific to which part and/or information in the computer can be imaged to obtan information related to financial matters.
(e)To allow the Applicant to Image my whole computer will be an invasion to my basic rigths and privacy.
(f)With a Image copy of my computer, the Applicant will have all the information in my computer some of the information are high confidential and sensitive, what harm and/or maze the Applicant can being to me in now and future after the Family Court proceeding.
(g)The Order do not address the issue araise in the event of disputes between the Experts from Applicant and Respondent in the process, method and how to image my computer.
(h)The Order do not address the issue on the Application Softwares Licenses in my computer.
(i)The information on the sale proceeds of the [asset] the applicant seek are already disclosed in my Affidavits & Exhibits.
(j)To retain ny laptop computer further will impose more disruption to my business and further hardship on to me.
The proceedings before the Magistrate
The wife’s application relating to the computer was first aired at the hearing on 17 August 2007. That hearing began with his Honour noting that he had “something like 12 special appointments from 11.30 on … and getting through those is going to be a task in itself”.
During the course of his submissions before the Magistrate, counsel for the wife sought to tender the amended application seeking orders about the computer. Counsel advised his Honour that a computer expert was in court and able to undertake the imaging of the computer. The husband, unsurprisingly, complained about the “last minute” application. He said [transcript page 6], “Of course, I have no objection for them to access my computer but I would like to defend myself first. I would like the Court to at least hear my side of the story”. After hearing some submissions from the husband, his Honour said
HIS HONOUR: All right. Look, the court is faced with an impossibility. I have what are, in effect, almost trial affidavits to consider. If this matter were ever to go to trial we’d be talking weeks, not days, for a hearing. But, it would seem, Mr Davies, that the respondent is prepared to hand over his computer.
His Honour then stood the matter down to allow the husband to be served with the amended application and for negotiations in light of the husband’s statement that he had no objection to the wife’s solicitors having access to his computer. On resumption of the hearing, counsel advised there was no agreement. The husband confirmed this and said [transcript page 9]:
… I say it’s not fair to just spring on me on the last minute and [inaudible] this application. It’s not even [inaudible], it’s not even - I have no chance to defend myself. You know, I'm quite happy, your Honour, to surrender the laptop to the court but not to my wife or her expert because I have no protection. Her expert could be planting information into my laptop and them later deem to be mine - my doing.
HIS HONOUR: Okay. Well, I'll accept ‑ ‑ ‑
[TAEL, MR]: Yeah, I can surrender that to the court.
There was then a further interchange, during the course of which the husband again confirmed he had no objection to surrendering his computer into the custody of the Court. His Honour thereupon ordered the husband to do so by 4.00 pm that day and restrained him from making any alteration to the contents of the computer.
His Honour then turned his attention to the orders the husband was seeking. Counsel for the wife began to make some submissions concerning the orders but was quickly interrupted by his Honour who said,
I am being placed in a position in a list of 30 cases …
‑ ‑ ‑ with documents that constitute a trial document. Now, if this matter ever went to trial, you’d be talking a two-week trial minimum, I suggest. Now, I can’t be expected to make accurate decisions with the documentation that I'm given. I just don’t have the time to go through the documentation. This is the affidavit and you’re aware of that. That’s the affidavit in response.
…
Now, I can’t be expected to be completely across that document at this hearing. Now, we’re adjourning the matter to enable the respondent to get his own legal advice in relation to the computer which was snapped off him this morning. …
Following the adjournment of the proceedings, the matter came back before the court on 3 September 2007. Counsel for the wife commenced his submissions by noting the orders sought in relation to the imaging of the computer and said that once the content had been copied, “[Mr Tael] then gets a copy of that, we have got a copy of it and [the] … laptop gets handed back to him”.
Counsel developed his submission by noting that the wife was still unaware of what had become of the proceeds of sale of the [asset] and that she did not accept the husband’s advice that the proceeds had all been disbursed. He submitted that:
all of the relevant information as alleged by the wife concerning the transactions associated with the sale of this [asset] are likely, more than likely, to be on this man’s computer. She says that. He does not dispute it.
Counsel for the wife went on to say:
My client respectfully submits, sir, that the only way and the quickest and the most cost effective and time effective way of trying to get to the bottom of exactly what has happened is to allow her – not even her but to allow the expert who has been appointed by her, who is independent of the wife, who would be appointed as an expert as such – to take an image of this computer. Each party would then have a copy of the exact document that has been produced and then each party can then analyse it quickly. We have access to accountants, who would then review the information on there to see whether or not we can find what, in fact, has happened to [the proceeds of sale of the [asset]].
After hearing submissions from counsel for the wife, the husband was permitted to respond. He began by saying, “the question here is is there any relevance in coming to my computer or is this just another fishing expedition by my … wife”.
He continued:
All I ask is please identify what document in here is inconsistent and not clear and then I can easily answer it instead of rushing and getting experts to look into the computer because the only thing I am worried about is that if I give my computer up are they really looking for information here or are they looking for more information so that they can crucify me?
HIS HONOUR: It is not so much "crucify". You are obligated to make a full disclosure of your financial position.
[TAEL, MR]: Yes, I have. I did a complete statement. Your Honour, if you look at the agreement of sale it clearly says that the money goes to a solicitor, it does not come to me, and the solicitor subsequently does the disbursement. I have given all the lists of where the money has gone to and they tell me, "No." I have given a list of the cash book, money that has gone into the company, where it is spent.
HIS HONOUR: You agree though that you use your laptop for your business affairs.
[TAEL, MR]: Not all of them. I mean, the majority of it, but what information are they seeking?
HIS HONOUR: What are they likely to find on that ‑ ‑ ‑
[TAEL, MR]: I don't know. That's why I say all I ask is please identify what you are looking for.
HIS HONOUR: What they want to know is what happened with the sale of the [asset] and where the funds went. Now, is that likely to be on the computer?
[TAEL, MR]: No, because I said the distribution was done from my solicitor's office. They money didn't come into my company or our company account. It went straight - as is stated in the agreement. If I bring attention to my wife's affidavit, if we look at the book of evidence - just one minute. Page 144, applicant's (indistinct) affidavit. Page 144.
HIS HONOUR: That is the agreement, yes.
[TAEL, MR]: If you can look down to page number 46 - 146, sorry, your Honour. Page 146 clause number 2. Purchased by (indistinct) purchase price 1.7 million. If you look at number 3, manner of payment, and if you look at 3.1(a) almost ‑ ‑ ‑
HIS HONOUR: All right. Well, that says where it is supposed to go but where is the documentation to establish that?
[TAEL, MR]: Yes, okay. If you look at the book of evidence, if you look at appendix 13, page 107, (indistinct) and Associates it is stated in the agreement and it says there, it tells you, as per instructions they issued the following cheques. These are the cheques made out and attached are the photocopies of the cheques made out. After that there is another list here which states those (indistinct) transferred using bank transfer, TT, telegraphic transfer ‑ ‑ ‑
HIS HONOUR: What additional information does your client want?
DAVIES, MR: Sir, I have got the husband's documents open there. Have a look at exhibit 28. Exhibit 28 is a copy of the balance sheet of the business for the 12 months to 31 December 2006. Have a look at the debts, the liabilities of the business, 2.1 million ringgit. So the husband's evidence is that no further contracts were entered into, no further trading, and yet an extra two and a half million ringgit is unaccounted for. That is the official financial position of the company and, of course, the [asset] is sold in May we subsequently find out and funds are allegedly - none of these debtors, sir, in exhibit 13 that he is referring to show up anywhere. Who are they? What are they for? To whom are payments being made from the solicitor's trust account? Under whose instructions and at what direction? Where is all of that information?
The husband's solicitors did not manufacture a list, sir. How is all of this generated to begin with? My client is quite sceptical about the actual transactions, as to where this is all going.
[TAEL, MR]: Your Honour, all my wife has to do is just ask me and I will explain. They have never until now asked me ‑ ‑ ‑
HIS HONOUR: But unfortunately she does not trust you and that is why they want to see what has been happening.
[TAEL, MR]: Yes, but my wife has made all kinds of allegations. If you recall, your Honour, I was retained here just on the pretext that I was going to leave and disappear into the thin air, and I was retained in this country for - since now, you know, and then come last two weeks ago, "I need the computer because this is all relevant, or all fabricated." Everything is here, you know. I mean, if we go on this way how are we going to proceed with this case, if everything I give is ‑ ‑ ‑
HIS HONOUR: I will tell you how it will proceed, it will go for weeks on end, just looking at the documentation we are dealing with at the moment.
[TAEL, MR]: If we keep going this way, you know? I protest for my wife to want to (indistinct) my computer with no clear boundaries and definition of what they want. It must be very clear. Now they say, "Okay, I want to know this payment that you made." How come? Why is ‑ ‑ ‑
HIS HONOUR: Is there anything on that computer that they should not be aware of?
[TAEL, MR]: Sorry?
HIS HONOUR: Is there anything on the computer records ‑ ‑ ‑
[TAEL, MR]: I do not know because what I am saying is how my wife operates, she is very good in getting information. Like I said to you before, if you look at her affidavit, she has sworn she has no access to the bank since January yet in August she can go to the bank and get a printout of the statements. You know, goes to the bank, calls up the bank or goes to the bank and asks for the bank statements and gets access, and she has sworn that in January I stop her, she has no money and that's why she has to come to court, to look for redress. That is why you at that time agreed that, "Look, [Mr Tael], I think you should stay until this thing is (indistinct)" and issue an order. That's what I am saying, they are very good in getting information and that is why I (indistinct).
HIS HONOUR: The computer document will indicate the workings of this [Bonnard] business, will it not?
[TAEL, MR]: Not the financials because I don't look after the accounts. The accounts are done over in [a foreign country] with another director, [Ms Tael], who is also my auntie and also [Ms S], the accounts keeper. I don't look after the accounts. In Perth the accounts are looked after by my wife, which I clearly state here in my affidavit. I go up on the - we have an arrangement. I work out on site, my wife looks after the administration, the accounting. So it is in [a foreign country]. If you look at my affidavit on the last - exhibit 33. If you look at my book of evidence, the respondent's book of evidence, page 33, it shows a very clear chart of how the operation works of my business. Everything goes through [Bonnard Equipment] and who is in charge of [Bonnard Equipment] administration? My wife. She has all the information, everything. She knows at all times.
I mean, your Honour, the issue - what is the issue here? The issue here is we had some assets overseas, business assets, working tools, equipment, assets overseas.
HIS HONOUR: "Had" is the operative word.
[TAEL, MR]: (indistinct) assets in Australia. We have a financial problem in 2005-2006. I sold the business assets. I told my wife if we sold the business assets it means the end of the business. We sold the [asset]. The [asset] is a working tool. We sold that. Once we sold that, that's it, that's the end of the business. Like a carpenter selling his tools. My wife knows that very well. After I have sold the assets to pay off the bills, my wife knows this, I'm not entitled to the assets in Australia. All that is hers and that's what the solicitor says. I left myself penniless.
HIS HONOUR: That is another argument. The argument we are having at the moment is in relation to disclosure.
[TAEL, MR]: Yes, okay.
HIS HONOUR: If she knows how much about how the business is running ‑ ‑ ‑
[TAEL, MR]: Yes.
HIS HONOUR: - ‑ ‑ then why is she so keen to get hold of your computer?
[TAEL, MR]: I don't know. I do not know. I do not know why.
HIS HONOUR: Because she would suggest that that will provide her with the source information she wants to find out where these moneys have gone and why these moneys have gone.
[TAEL, MR]: Yes, but she has to tell me exactly (indistinct) information about (indistinct). That is not on the computer because that is from the solicitor's office. The payments, all the payments made out in this list here, they are not on my computer. They are definitely not in my computer. This list was made in [a foreign country], my wife knows that, so there is no relevance in my computer. That's why I'm worried, because she knows this is done by [Ms Tael] and [Ms S]. That's why I'm worried, what evidence is she after? She's going on the pretext she wants to look at this but what actually - I don't know what she's looking for and then she use it here against me.
Your Honour, how does she get all this information? If you look back, if you look at exhibit N, the series of correspondence between her and the solicitor way back in September, September last year, strategising how to approach this case. It's not something that just happened today, your Honour. This happened in September last year. If you look at exhibit N, very clear. All the emails between her and the solicitor and they were, in fact, sitting, watching, hoping that I would get a higher price for the [asset]. Never any time, never any time did she tell me that if I sell the [asset] she wants any money or she wants to be consulted or she wants to be told. No. She just sat on the sideline watching and consulting with her solicitor. "Maybe [Mr Tael] (indistinct) second buyer. Maybe now we can get a price higher."
I don't know what her plans were then but it is very obvious now. She knew that the sale would be done; a sale has been done and the payment will be made in May and June. Her solicitor admitted it. Why did she wait after the sale has been done, money has been collected, after settlement. One month after settlement. Then only she has come to me and asked me for the money. She could have asked me in May. She could have asked me way back in June. Yes, a letter been sent. Yes. In my affidavit, your Honour - if you please read my affidavit, I was definitely offshore. I only got back on the shore around 5 May; 5 June, sorry.
HIS HONOUR: So you say all of these funds, and as I understand it you are now on Centrelink ‑ ‑ ‑
[TAEL, MR]: Yes.
HIS HONOUR: But all of these funds have been expended?
[TAEL, MR]: Yes, they have been expended. Yes, there are some (indistinct) before that, there are some retention money, about another 5 per cent, about 580,000 ringgit, which is about 200,000 retention money still hold. There is still some money. Maybe about another 100, 200,000 ringgit in the company account, but what I said in my letter, there are expenses and liabilities of the company that need to be met because the companies over in [the foreign country] are still ongoing. There are expenses. We cannot just give the money to my wife. The money belongs to the company, it doesn't really belong to me. I own the shares, yes ‑ ‑ ‑
HIS HONOUR: I am going to give them access to your computer.
[TAEL, MR]: I will protest, your Honour.
HIS HONOUR: You can protest as much as you like. You can appeal the decision if you want. What I am going to require is an undertaking from them that any information that they do glean will only be used in relation to these proceedings and no further than that.
[TAEL, MR]: Your Honour, I (indistinct) this order. I will appeal.
HIS HONOUR: You can appeal if you want. Now, I have decided that they can access the computer. If you have got nothing to hide then so be it. I am going to get an assurance from them that any information that they do use will only be used in these proceedings and nothing other than that.
[TAEL, MR]: But only for this related to the expenses and not (indistinct) for my family - because I am applying for child custody so would that be used against that?
HIS HONOUR: There is - if (indistinct) print in relation to that then so be it but, no, it is only to do with financial matters. Do you want your own expert to be present?
[TAEL, MR]: Of course I want, but I still protest, your Honour. You know, I feel that I should be at least given more - more specific ‑ ‑ ‑
HIS HONOUR: The rules provide quite specifically that parties are to give full disclosure. Now, for whatever reason they do not believe that you have given that full disclosure and on balance I think they can access the computer on that basis. As I say, it will only be used for these proceedings and if you say that the records that they are looking for are not on the computer then so be it.
[TAEL, MR]: What happens then (indistinct) information they expect on the computer.
HIS HONOUR: I am not running their case, I am just dealing with the issue of disclosure. Both parties are to provide a full disclosure and on the balance I am prepared to find that there may be information on the computer that is relevant to these proceedings.
[TAEL, MR]: I have also, your Honour, asked for disclosure for where the money of the sale of the investment property ‑ ‑ ‑
HIS HONOUR: Yes.
[TAEL, MR]: To today I have never got any response.
HIS HONOUR: We will deal with that in due course but I will deal with the computer now. How can we best arrange this?
DAVIES, MR: Sir, I think the computer should stay at the court.
HIS HONOUR: Okay.
DAVIES, MR: I will then bring the experts to court, coordinate with the registry downstairs. We will do that in advance and give [Mr Tael] notice so that he has got plenty of notice as to when that is to be taking place. I suspect that it will take - gosh, it's going to take me a couple of days to organise to physically get - I would have thought some time towards the end of this week, I would anticipate.
HIS HONOUR: Have you anyone in mind who can ‑ ‑ ‑
[TAEL, MR]: I have not - like I said, they are very expensive. I don't have that much money to hire (indistinct) inquiry. When I asked the legal adviser he told me it is very expensive to get this (indistinct).
HIS HONOUR: Yes.
[TAEL, MR]: But notice (indistinct) days. I mean, you know, Mr Davies is very good in giving me just three hours' notice.
HIS HONOUR: Well, it is going to be more than that. I would have thought somewhere between seven and 14 days to enable [Mr Tael] to get someone to protect his interests.
All right, well, the orders that I will make in relation to this are as follows. Now, firstly, there will be an order that any information that is obtained from the husband's computer is to be only utilised in relation to these Family Court financial proceedings and that injunction will be directed to the wife. There will be an order that the solicitors for the applicant wife will be at liberty to arrange for their expert to access the husband's computer and obtain records from that computer.
DAVIES, MR: The word, sir - I would specifically ask if - the word is "image", "be able to image the computer".
HIS HONOUR: All right, or image that computer. There will be an order that the solicitors for the wife are to provide the husband with at least, I will make it, 10 days' notice of the time and date upon which the expert will attend at the Family Court to access that computer. There will be an order that the husband be at liberty to instruct his own expert to be present during the imaging procedure.
In the cross application he has brought up issues in relation to lack of disclosure on behalf of your client. Now, what do you say to that?
DAVIES, MR: We do not but, sir, what I am able to say is that each party give updated lists of disclosure, I am happy to address it in that way. We have done that. We have provided disclosure lists.
HIS HONOUR: Well, specifically he is talking about disclosure of how these funds and the various ‑ ‑ ‑
DAVIES, MR: About the properties.
HIS HONOUR: Has that been done?
DAVIES, MR: I understand it has.
[TAEL, MR]: I have not received any. It is not even disclosed on that - if you look, one of the (indistinct).
HIS HONOUR: I will make a further order that both parties are to update their disclosure within 14 days. Now, what I would propose then is to adjourn the matter through to a date for further directions.
DAVIES, MR: Sir, what I would ask for is that perhaps then that could be a date 14 days after that 14 days.
HIS HONOUR: I am thinking in terms of a month.
DAVIES, MR: Yes, so that we can then at least start to - you know, the accountants will then start to look at the documentation on the computer. …
A little later in the proceedings, his Honour indicated that the proceedings would be adjourned to 4 October 2007. The following exchange then took place:
[TAEL, MR]: Your Honour, I like to appeal. I want to apply for a stay on the order for the computer.
HIS HONOUR: Well, you have got ‑ ‑ ‑
[TAEL, MR]: Because I think that is ‑ ‑ ‑
HIS HONOUR: This order will not become effective for a period of 10 days. The computer will remain in the court. Any inspection of the computer will not take place for 10 days and you will be given notice. So if you wish to bring an application for a stay of my order and a notice of appeal then you can file those documents and that can be dealt with within that 10-day period.
[TAEL, MR]: Yes, I would like to because, like I say, my wife has not been specific on what she wants. It's just a general - I cannot allow a general - because I have gone through some, you know, case previously on the Internet. It has to be specific on what you want.
HIS HONOUR: As I say, if you believe you have grounds for appeal then you can go ahead and do it.
[TAEL, MR]: I will.
The husband in due course filed his application for leave to appeal and obtained a stay of the orders made by Magistrate Fleming.
Leave to appeal – relevant law
The principles relevant to applications for leave to appeal against interlocutory orders are well-known. An applicant seeking leave to appeal must demonstrate that there has been an error of principle and/or a substantial injustice to one of the parties: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170 at 176. Rutherford and Rutherford (1991) FLC 92-255 at 78,715.
It has been suggested (albeit in obiter dicta) in Aarons v Knowles (1995) FLC 92-627 that leave to appeal may also be granted where the issue is one of general importance. This proposition has been cited with approval in subsequent cases – for example, Bruce F McLaren Holdings Pty Ltd & Ors v McLaren and McLaren (2000) FLC 93-030 and Alfasi and The Alfasi Group (2006) FLC 93-271; however a contrary view has also been expressed by the Full Court of the Family Court of Australia in Butler, Man and Child Support Registrar [2003] FamCA 33. The differing views are of academic interest only in cases such as the present where the application for leave to appeal and the appeal itself are argued together. Accordingly, I would only consider granting the husband leave to appeal if he can demonstrate an error of principle and/or substantial injustice arising from the orders.
Grounds 1.a and 1.b – failure to read relevant material
Grounds 1.a and 1.b of the draft Notice of Appeal relate to comments Magistrate Fleming made at the hearing on 17 August 2007, during which his Honour expressed exasperation about the volume of matters listed. In the course of his remarks, his Honour made clear that he had not read all of the documentation which had been filed. It must be remembered, however, that the orders the husband seeks to impugn were not made on 17 August 2007, but rather at the hearing on 3 September 2007. Whilst it may be true that nothing said by his Honour on 3 September 2003 demonstrated he had taken the opportunity to read the relevant documentation, he did not give any indication he had not read the material. I do not consider the husband can be permitted to rely upon remarks made by his Honour concerning his state of preparation for one hearing to support a complaint about orders made at a later hearing.
Ground 1.c – adequacy of reasons
Ground 1.c is a challenge to the adequacy of his Honour’s reasons. In considering this Ground it is important to recognise that the husband is a self represented litigant. Ordinarily, a ground drafted in the way chosen by the husband would be seen as attacking only the sufficiency and not the cogency of the reasons. However, given that the husband is a self represented litigant, and given the way in which the submissions were made, I consider it appropriate to treat this Ground as directed not only to the sufficiency but also the cogency of the reasons.
The requirement for judicial officers to give reasons is a fundamental tenet of our law. Without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary one. The delivery of reasons serves at least three purposes. The first is to enable parties to see which of their arguments has been understood and accepted as forming the basis of the decision. The second is to further judicial accountability. The third is to enable interested persons to ascertain the basis upon which similar cases will probably be decided in the future: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA.
In Bennett & Bennett (1991) FLC 92-191 the Full Court of the Family Court of Australia said:
In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge’s discretion. In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached… The important thing is that the appellate court must be placed in the position of being able to follow the trial Judge's line of reasoning, as must the parties, if they are to be satisfied that justice has been done.
The Full Court in Bennett accepted, however, that the adequacy of the reasons will depend upon the circumstances of the case. Mahoney JA discussed the limits of the requirement to give adequate reasons in Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378. Whilst accepting that the basis of the decision of the trial judge must be made apparent, his Honour went on to say:
This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.
To similar effect, in Strbak v Newton (NSWCA, 18 July 1989, unreported) Samuels JA (with whom Gleeson CJ and Priestley JA agreed) said:
What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his conclusion. There is no requirement, however, that reasons must incorporate an extended intellectual dissertation upon the chain of reasoning which authorises the judgment which is given.
These common law requirements are echoed in s 31 of the Magistrates Court Act 2004 (WA) which provides as follows:
31. Judgments, content of
(1) The Court’s reasons for a judgment in a case —
(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so;
(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so;
(c) need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
(2)The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.
In response to the complaint that Magistrate Fleming did not give adequate reasons for his decision, counsel for the wife submitted that it was necessary to take into account that his Honour was dealing with the wife’s application in a busy “General List”. The pressures under which Magistrates dispose of the many cases listed before them are notorious, but pressure of work does not obviate the necessity to give adequate reasons. If time does not permit such reasons to be given ex tempore, the Magistrate has no alternative than to reserve and give reasons at a later date. It is not to be expected, particularly in relation to interlocutory issues, that Magistrates will give detailed reasons, but it is necessary that sufficient reasons be given to allow the appellate Court “to discern either expressly or by implication the path by which the result has been reached”.
Counsel for the wife also submitted I should look at the entirety of the exchange between counsel for the wife and his Honour as “forming the basis of the decision”. I accept that in some cases it may be possible to discern the path by which a judicial officer reached a decision by reference to remarks made in the course of exchanges between bench and bar. However, considerable caution needs to be exercised in such a process, as it may be that remarks falling from the bench in the course of the hearing are not necessarily the considered view of the judicial officer, but rather an attempt to elicit more helpful submissions. So much is clear from the authorities dealing with applications for a judicial officer to be disqualified by reason of apprehension of bias. Thus, for example, in Johnsonv Johnson (2000) 201 CLR 488 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said (citations omitted).
At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. …
It is also important to recognise that the fact a judicial officer made the orders sought by one party does not mean his or her reasons may be found by reference to the submissions made on behalf of that party. It may be that the judicial officer accepted some, but not all, of the submissions. Accordingly the failure of the judicial officer to indicate which of the submissions found favour leaves the unsuccessful party (and the appellate court) in a position of not knowing on what basis their case was unsuccessful. Different considerations may apply if the judicial officer expressly indicates that the decision was made for the reasons advanced by counsel for the successful party since, in those circumstances, the unsuccessful party has some appreciation of the basis of the decision. However, the circumstances in which such an approach can withstand appellate scrutiny are limited. In this regard, I respectfully concur with the following remarks by Ipp JA (with whom McColl JA and Hoeben J agreed) in Sourlos v Luv A Coffee Lismore Pty Ltd [2007] NSWCA 203:
[27] Mr Young drew attention to the reference made in his Honour's reasons to the written submissions that he had made at trial. He submitted that the judge's reasons should be understood as meaning that he accepted those submissions and this was an appropriate way of giving reasons for judgment. In other words, he submitted that it was permissible for the judge, without recounting the detailed submissions of counsel for the respondents in his judgment, to give, as his reason for finding for the respondents, that he accepted those submissions.
[28] At the outset I should say that his Honour did not say that, because he accepted Mr Young's submissions, he upheld the opinions of Mr Elliott and rejected those of Mr Jugmans on the relevant issues. He stated merely that he had taken those submissions into account. This, of course, is something that, in the normal course, one would expect.
[29] In any event, the argument so advanced is untenable. In certain situations, particularly in interlocutory matters of a certain kind, it is sufficient for judges, when giving brief reasons for their decisions, to say that their reasons appear sufficiently from the transcript of the argument, or from the submissions advanced by counsel for one of the parties. But that is not the general rule when a final judgment is given after a trial.
[30] Reasons for judgment disposing finally of a trial must contain the facts found and the judge's entire reasoning process. Any departure from this rule (by allowing the incorporation by reference to the submissions of counsel without setting those submissions out) would contravene the rule that justice must not only be done but must be seen to be done. There are many other objections in principle to such a practice. It could give rise to an impression that the judge has not properly grappled with the issues in the case (see Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [1]). It would tend to frustrate the losing party's right of appeal, particularly if the parts of counsel's submissions on which the judge accepted were not identified with precision. It would diminish the capacity of the reasons to indicate to the parties the extent to which their arguments have been understood and accepted, it would detract from judicial accountability, and it would prevent the public from understanding properly the basis on which the decision was given (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (at 279 to 280) per McHugh JA). As long ago as in 1866 it was said in Broom's Constitutional Law (1st ed) at 152 to 153 (quoted in De Iacovo v Lacanale [1957] VR 553 at 557 per Monahan J) that: "A public statement of the reasons for a judgment is due to the suitors and to the community at large". Such a practice would not comply with this long-established precept.
Examination of the transcript (which I have recited at length above) indicates that his Honour did not adopt the submissions made on behalf of the wife as being the basis for his decision. Instead, the transcript reveals that his Honour appears to have interrupted the husband in the course of his submissions and announced “I am going to give them access to your computer”. It may have been that his Honour intended at that point to go on and give reasons; however, as soon as his Honour indicated his intention, the husband began to protest and indicated his intention to appeal. The only remarks thereafter made by his Honour which could pass as reasons were these:
Now I have decided that they can access the computer. If you have got nothing to hide then so be it.
and
The rules provide quite specifically that parties are to give full disclosure. Now, for whatever reason they do not believe that you have given that full disclosure and on balance I think they can access the computer on that basis.
and
Both parties are to provide a full disclosure and on the balance I am prepared to find that there may be information on the computer that is relevant to these proceedings.
Albeit brief, these three remarks made by the learned Magistrate do constitute reasons. However, with respect to his Honour, they lack cogency. The fact that the husband might have “nothing to hide” is not a basis for permitting the wife unrestricted access to his computer. The fact that the wife did not believe that the husband had given full disclosure is also not a sufficient basis for allowing such access. Nor is the fact that there may be relevant information on the computer and that the Rules provide for parties to give full disclosure.
It must be kept in mind that the matter in contention was the husband’s alleged failure to supply sufficient documentation to provide justification for the disbursement of the proceeds of sale of the [asset]. It was not in dispute that the husband had provided some documents identifying the way in which the proceeds had been disbursed. The husband’s position was that he had disclosed all relevant documents and he called on the wife to specify what further documentation might be available. Had his Honour found that the husband had not disclosed all relevant documents, it would have been open to his Honour to consider granting the wife some relief to ensure the production of any missing documents. However, his Honour made no such finding and instead based his decision on the wife’s belief “for whatever reason” that the husband had not provided all relevant documentation.
If leave to appeal were to be granted, the appeal would succeed on this Ground.
Grounds 1.d, 1.e and 1.f - unnecessary breadth of the orders
These three Grounds are inter‑related. They challenge the breadth of the orders permitting the wife to have access to all documentation held on the husband’s computer, notwithstanding her desire to obtain only a limited category of documents – namely those showing the necessity for the disbursement of the proceeds of sale of the [asset]. In particular, the husband asserts that the orders permitted an inappropriate invasion of his privacy and allowed the wife access to confidential information.
Counsel for the wife submitted that the husband had not “gone to print and told us that there were private or confidential matters on this computer” and that it was “pure speculation” for the husband to submit that the wife was seeking more information than that to which she was entitled. I accept there is nothing in the husband’s affidavits which identifies any particular material on his computer to which the wife would not be entitled to have access as part of the process of providing full and frank disclosure. However, the husband repeatedly complained in the course of his oral submissions about the width of the disclosure which would be required if orders were made in terms of the wife’s application.
At the first hearing on 17 August 2007, the husband said that whilst he was happy to surrender his computer to the Court he was not prepared to surrender it to his wife or her expert “because I have no protection”. It is true that this comment appears to have been made in the context of a concern on the part of the husband that the wife’s expert might “plant” information on the computer; however, it also needs to be recalled that the wife’s application had been “sprung” on the husband and he had not had any opportunity to consider the ramifications of the orders sought.
At the hearing on 3 September 2007, the husband told his Honour he was worried whether the wife was “really looking for information” or was “looking for more information so they can crucify me”. He went on later, in response to a question from his Honour, to indicate that he did not know what information the wife’s solicitors were likely to find on the computer. The husband said “I protest for my wife to want to [image] my computer with no clear boundaries and definition of what they want. It must be very clear.” His Honour then once again asked the husband whether there was “anything on that computer that they should not be aware of” to which the husband responded “I do not know because what I am saying is how my wife operates, she is very good in getting information …”. The husband also said, “she’s going on the pretext she wants to look at this but what actually – I don’t know what she’s looking for and then she use it here against me”.
Later in the proceedings, after his Honour had indicated he was going to allow access to the computer, the husband said “ … but I still protest, your Honour. You know, I feel that I should be at least be given more – more specific …” – at which stage his Honour appears to have interrupted the husband’s submission.
Toward the conclusion of the hearing, albeit after the orders were made, the husband said that he wanted to make an application for a stay of the order because
like I say, my wife has not been specific on what she wants. It’s just a general – I cannot allow a general – because I have gone through some, you know, case previously on the internet. It has to be specific on what you want.
Although it was not mentioned during the course of the hearing, his Honour had before him the wife’s affidavit of 17 August 2007 in which she said that the husband
has owned a laptop computer on which he has kept the company records, data and business information. He has also been a regular user of emails as a means of communicating with business customers, employees, contractors, banks, family and friends.
This evidence should have alerted his Honour to the fact that the computer contained documentation not only concerning the business (which the husband would have an obligation to disclose) but also contained correspondence to the husband’s family and friends, which would not have been subject to the duty to make full and frank disclosure. It would also arguably have been proper for his Honour to have at least enquired of the husband, bearing in mind he was a self represented litigant, whether or not there were emails on the computer between the husband and his former legal advisors, which would have been subject to a claim of privilege.
It is not a sufficient answer that his Honour made an order that the wife could only “obtain information as to financial matters” from the husband’s computer since it would be necessary for the wife or her agents to examine the entire contents to identify which was the “information as to financial matters”. Nor is it a sufficient answer that his Honour made an order that the information obtained was “only to be utilised in relation to the Family Court financial proceedings”.
As I indicated to counsel for the wife in the course of his submissions, the orders made by Magistrate Fleming are analogous to what is known as an “Anton Piller” order. The cumulative effect of the orders made on 17 August 2007 and 3 September 2007 was little different to orders permitting a wife or her agents to attend without notice at the husband’s home and business and remove and inspect every document contained in his filing cabinets and any other repository where he might keep particularly personal or sensitive documents.
The extraordinary nature of an Anton Piller order and the limited circumstances in which they are warranted were explained by Powell JA, with whom Meagher and Handley JJA agreed, in Long and Specifier Publications Pty Ltd (1998) 44 NSWLR 545 at 547 where his Honour said:
Reduced to its essentials, an Anton Piller order is an order that the defendant to whom, or to which, it is directed, should permit the persons specified in the order to enter upon his, or its, premises, and to inspect, take copies of, and to remove, specified material, or classes of material, indicating, where appropriate, documents, articles or other forms of property. It is an extraordinary remedy, designed to obtain, and to preserve, vital evidence pending the final determination of the plaintiff's claim in the proceedings, in a case in which it can be shown that there is a high risk that, if forewarned, the defendant, would destroy, or hide, the evidence, or cause it to be removed from the jurisdiction of the court. For this reason, such orders are invariably made ex parte.
It is true that in the present case the husband’s computer was not removed on an “ex parte” basis; however, the husband was given virtually no notice of the application and was required to deliver up his computer within hours of the order being made. In any event, once the husband’s computer had been removed from his possession, he was entitled to expect the same degree of protection as would be afforded to a respondent to an Anton Piller application.
Although in the past solicitors acting for the applicant in a successful Anton Piller application would routinely be permitted unrestricted access to the documents seized from the respondent, it is now increasingly recognised this is an inappropriate practice, which frequently leads to complaint and disputation about privileged or personal communications. The device now increasingly employed is the appointment of an independent “supervising solicitor” whose task is to ensure the execution of the Anton Piller order in a way that achieves the objective but in a manner that preserves the rights of the party whose documents have been removed.
As Branson J said in Microsoft Corporation v The Goodview Electronics Pty Ltd and Anor (1999) 46 IPR 159 at [30]:
The service of the order by the supervising solicitor, a neutral appointee of the court, should assist in ameliorating the shock likely to be experienced by the occupier of premises when the order is served. Further the supervising solicitor will then be in a position:
(a)to give immediate and independent advice to the occupier as to the significance of the order;
(b)to ensure that the occupier has an appropriate opportunity to obtain his or her own legal advice should he or she so desire;
(c)to mediate any dispute as to whether any particular member of the applicant’s search team is an unsuitable member of the team on the basis, for example, that he or she might derive commercial advantage from an inspection of the premises;
(d) to ensure the proper protection of privileged documents (if any);
(e) to attempt to achieve agreement on a suitable search procedure;
(f)to assess whether items or documents come within the terms of the court order and, in the case, of doubtful material, to ensure its safe keeping pending an order of the court;
(g)to ensure that an appropriate list is prepared of all items or documents to be removed from the premises; and
(h) generally to assist in the smooth execution of the order.
Branson J went on to say at [31]:
While the appointment of an independent solicitor will involve the applicant in expense (which may or may not ultimately be recoverable from the respondent) it is interesting to note that it has been experienced in England that much, if not all, of that expense tends to be saved by the more expeditious and smooth execution of the order.
In Television Broadcasts Ltd and Nguyen (1988) 21 FCR 34 at 38 Lee J said:
The grant of an Anton Piller order is a peremptory and severe interference with the ordinary rights of a party when it is done without the support of any binding judgment and care must be taken to see that the order is only granted in appropriate cases and with due safeguards.
In PMSI Group v Wilson [2003] NSWSC 263 Campbell J said at [8]:
The role of the Supervising Solicitor is most important. The Supervising Solicitor must be a solicitor who is independent of the solicitor for the plaintiff, and who has experience in the execution of Anton Piller orders.
In my view, his Honour erred in allowing the wife or her agent to access the entire contents of the husband’s computer without putting in place any safeguards to ensure that privileged or personal information was not inspected. It is true his Honour ordered that the husband be at liberty to instruct his own expert to be present during the “imaging process”. In this regard, counsel for the wife submitted that the husband would have “more than ample opportunity” to identify any documents on the computer which he alleges were not “relevant”. It is true that the husband would have some opportunity to identify irrelevant, privileged or personal material but the difficulty with his Honour’s order is that it did not provide the husband any basis on which to object to the imaging and inspection of such material.
In view of the absence of any adequate safeguards to protect the husband’s interests, I consider there would be substance in these Grounds of Appeal if leave to appeal were to be granted.
Ground 1.g – lacuna in event of disagreement between experts
Ground 1.g complains about his Honour’s failure to include in his orders any mechanism to deal with any dispute that might arise between the parties’ experts during the “imaging” of the husband’s computer.
It will be apparent from discussion of the previous Grounds that I consider there is merit in this Ground. Although his Honour presumably intended that the presence of the husband’s expert would provide some form of “protection”, the orders conferred no authority on the expert to do anything other than to be present whilst the computer was being “imaged”. The only “protection” afforded to the husband by his own expert being present would be to allay his concern about the wife’s expert “planting” information on his computer.
Once again, if leave to appeal were to be granted, this ground would provide a basis for a successful challenge to his Honour’s orders.
Ground 1.h – infringement of software licences
Ground 1.h relates to the possible infringement of software licenses as a result of the imaging of the entire contents of the husband’s computer. This was not a matter argued before his Honour and in light of the view I have formed in relation to the other Grounds, it is unnecessary to consider the submissions made in support of this Ground.
Ground 1.i –unnecessary orders
Ground 1.i challenges his Honour’s orders on the basis they were unnecessary because the husband had already disclosed “information” concerning the sale proceeds of the [asset]. Once again, because of the decision I have reached in relation to other Grounds, it is unnecessary to say more than that the disclosure of “information” would not be a sufficient disclosure. The husband’s obligation is not only to provide information but documentation. Accordingly, I do not consider there would be any merit in this Ground as presently drafted.
Ground 1.j – hardship and disruption to husband’s business
The final ground of appeal complains about the hardship and disruption to the husband’s business as a consequence of the order for the computer to remain in the custody of the Registry Manager, even after the imaging process had been completed.
As will be noted from the citations from the transcript above, the wife’s counsel had originally made it clear that the computer could be returned to the husband as soon as the “imaging” process had been completed. Examination of the transcript indicates that his Honour did not make an order for the computer to remain in the custody of the Registry Manager after the imaging had been completed. It seems that the order to this effect may have found its way into the extracted order as a result of a misunderstanding concerning his Honour’s intent when he said “The computer will remain in the court”. The context reveals that his Honour was not there directing that the computer remain in Court after “imaging”, but rather was to remain in Court pending the “imaging” process being undertaken.
Given the concession made on behalf of the wife that there was no reason why the computer should not be returned to the husband after the “imaging” process, there was no justification for an order being made for it to be retained in the registry, apparently indefinitely. However, given that the transcript does not reveal that such an order was made, the appropriate remedy for the husband would be to seek rectification of the order.
Conclusion – leave to appeal granted
I have found there are a number of grounds on which the husband’s appeal would be successful if leave to appeal were granted. Leave should be granted since the husband has successfully demonstrated errors of principle. There is also the prospect of substantial injustice to the husband as a result of the wife or her agent being permitted to have access to privileged and/or personal documentation. Leave having been granted, the appeal should be allowed.
Re-exercise of discretion
I indicated at the hearing that I was not minded to re‑exercise his Honour’s discretion and instead decided the matter would be remitted to the Magistrates Court for rehearing. There were a number of reasons why I thought remission was the preferred course. Chief among these was the desirability of appointing a supervising solicitor to oversee the inspection of the material on the husband’s computer if the Court was satisfied that it was appropriate for an order to be made requiring such inspection. This was not a matter that had been previously considered by the parties and it would have been necessary to consider logistical issues associated with the appointment of a supervising solicitor.
The husband was also agitating new and potentially important issues (relating to privacy legislation and infringement of software agreements) which had not been the subject of argument before the Magistrate. As any appeal against a decision made by me in the re-exercise of the discretion could proceed only by way of an application for special leave to the High Court, it was my view that it would be more appropriate for these issues to be agitated at first instance. In the event either party was aggrieved, the matter could then be determined in the usual fashion rather than relying upon a grant of special leave.
Orders
As I indicated at the time of the hearing, the husband for some reason was seeking to appeal only Orders 1, 2 and 6 of the Orders made by his Honour, notwithstanding that Orders 3 and 4 were inextricably linked to the orders under challenge. Nevertheless, as there was no formal appeal against Orders numbered 3 and 4, I determined to discharge only Orders 1, 2 and 6.
Costs
I did not receive submissions concerning costs and indicated that the parties would be given the opportunity to make such submissions once I had published these reasons. I did, however, indicate that I would give favourable consideration to the issue of costs certificates under the Federal Proceedings (Costs) Act1981 for both the appeal and the retrial.
Rather than putting the parties to the expense of making written submissions in relation to costs, I propose to relist the matter upon my return from long service leave in July 2008 for brief oral submissions. Accordingly the formal order of the Court is that the proceedings stand adjourned to a date to be fixed, if practicable in July 2008, for submissions in relation to costs.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Court.
Associate:
Date: 23 April 2008
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