Taveray and Wedgewood and Anor

[2018] FamCA 183

FAMILY COURT OF AUSTRALIA

TAVERAY & WEDGEWOOD AND ANOR [2018] FamCA 183

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment and disclosure – Where the applicant wife seeks an adjournment of a trial date and further disclosure by the respondents – Where the first respondent husband opposes the adjournment and disclosure applications – Where the wife’s legal representatives previously told the Court they were ready for trial – Where it would be unjust for the wife not to be provided with all the documents and data the Respondents had provided to the single expert valuer – Where orders were made for the trial listing to be vacated and set down at a later date and for further disclosure to be provided to the wife.

Family Law Act 1975 (Cth)

Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125
Sadek & Hall (2015) FLC 93-634

APPLICANT: Ms Taveray

FIRST RESPONDENT: Mr Wedgewood

SECOND RESPONDENT: Wedgewood & Associates Pty Ltd (ACN …) atf Wedgewood Family Trust

FILE NUMBER: BRC 1533 of 2017

DATE DELIVERED: 26 March 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 23 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O'Meara

SOLICITOR FOR THE APPLICANT:	Mark Taveray & Associates
COUNSEL FOR THE RESPONDENTS:	Mr Bunning

SOLICITOR FOR THE RESPONDENTS: Creevy Russell Lawyers

Orders

1. That the trial listing of this matter for the week commencing Monday, 16 April 2018, be vacated.

2. That the matter be listed for trial before his Honour Justice Forrest for three days commencing at 10.00 am on Monday, 28 May 2018.

3. That the compliance hearing currently listed to take place before a Registrar on 27 March 2018, be vacated.

4. That the respondents shall disclose to the wife before the close of business on Thursday, 29 March 2018 all disclosable documents in their possession or control that have not been disclosed to her at this point in time, including in particular all documents or data provided by the respondents to the single expert valuers that have not been disclosed to the applicant to date, whether or not those documents are said to have been relied upon by the valuers in arriving at their opinion as to value.

5. That any affidavit of Dr B going to the wife’s health and any affidavit of Mr C going to the value of the second respondent’s shares in D Pty Ltd intended to be relied upon by the wife at the trial, shall be filed and served by close of business on Friday, 20 April 2018.

6. That the wife shall not be able to rely upon any other affidavit not filed in accordance with these directions, save for her own trial affidavit and Financial Statement already filed, without the leave of the Court first obtained.

7. That the husband shall have an extension of the time within which he is to file and serve his own trial affidavit and Financial Statement, an affidavit of his mother and an affidavit of his adult son, until the close of the business on Friday, 27 April 2018.

8. That the husband shall also cause the valuation reports of the single accounting and real property valuers to be attached to affidavits and filed by close of business on Friday, 27 April 2018 but they are understood to be single expert witnesses and not the husband’s adversarial witnesses.

9. That the husband shall not be able to rely upon on any other affidavit not filed in accordance with these directions without the leave of the Court first obtained.

10. That either party who wishes to cross-examine any of the single expert valuers at the trial should give the other party and that single expert at least 14 days’ notice in writing before the commencement of the trial and, unless otherwise agreed between the parties and the expert, or ordered by me, that cross-examination shall take place with the expert attending the trial in person and that attendance can, in the normal course, be expected to be required on Tuesday, 29 May 2018.

11. The matter is listed for a further compliance mention at 9.30 am on Wednesday, 9 May 2018 and the parties’ legal representatives shall be permitted to attend that mention by telephone if they make prior arrangements for same with the Court including by way of the provision of a telephone number at which they will be able to be contacted for that mention, with the parties themselves being excused from attendance unless they wish to attend with their legal representatives.

12. The parties’ costs of and incidental to this Application in a Case are reserved.

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 Taveray & Wedgewood 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 BRISBANE

FILE NUMBER: BRC 1533 of 2017

Ms Taveray

Applicant

And

Mr Wedgewood

First Respondent

And

Wedgewood & Associates Pty Ltd (ACN …)
atf Wedgewood Family Trust

Second Respondent

REASONS FOR JUDGMENT

1. This is an application brought by the Applicant wife for the adjournment of a trial currently listed as a reserve trial of two days’ duration in the week commencing Monday, 16 April this year – the second week of a running list of trials set down to be heard over those two weeks collectively by six Judges of this Court. It is also an application by the wife for further disclosure by the Respondents, including the First Respondent husband.

2. Though the adjournment application is opposed by the husband, and there is a remarkable fact in the case that provides merit to his opposition, I have determined to cause the matter to be removed from the running list and listed for trial on definite dates at the end of May this year instead.

3. These are my reasons for this decision.

The Background Circumstances

1. Early last year, the wife commenced proceedings for property settlement and interim spousal maintenance against the husband and the Second Respondent, the corporate trustee of a family trust controlled by the husband through which assets such as the home the former couple built and lived in, are held.

2. On 26 June 2017, Justice Carew made orders with the consent of the parties at the interim hearing of an application apparently brought by the wife. Those orders included an interim spousal maintenance order that the husband pay the wife $1,500 per week. They also included restraints on the husband in respect of alienating assets or exercising any power of appointment in a number of trusts. Relevantly, those orders also provided for appointment of single expert valuers to provide a valuation of five named companies and any trusts those companies might be a trustee or beneficiary of.

3. The process of instructing the valuers to provide the valuation commenced in or around early August 2017. Before the valuation had been completed and provided to the parties, the parties were before a Registrar of the Court for a conciliation conference and certain orders were made adjourning that until 4 December 2017 amongst other things. There were a number of matters listed under a heading “Notations” on the Registrar’s Orders that day.

4. Notation D said:

   The parties have agreed that the Husband will provide to the Wife’s solicitors copies of all correspondence between he and/or his solicitors and the valuer related to the valuation and also as to any documents provided to the valuer by the Husband.

5. On 11 October 2017, the wife’s solicitors wrote to the husband’s solicitors referring to an email they had received from the husband’s solicitors that mentioned documents that had been provided by the husband to the valuers that had not been disclosed to the wife, requesting copies of those and referring to the orders of the Registrar. Of course, I observe here that a Notation at the foot of an order is not an order.

6. On 27 November 2017, the wife’s solicitors wrote again to the husband’s solicitors and pointed out to them that the husband had given information to the valuers that he had not disclosed to the wife. They pointed out that the husband had given access to the valuers to particular accounting software records that the business entities used but had not provided disclosure of those documents to the wife.  They also alerted them to the need for production of a valuation of the shares held in a company called D Pty Ltd not included in the list of five entities previously ordered to be valued. D Pty Ltd is a private company in which the second respondent holds a number of shares as trustee as one of numerous shareholders.

7. It is asserted for the wife that no responsive reply was received to that request.

8. The valuation report was provided to the parties on 29 November 2017.

9. The Conciliation Conference took place in early December. The matter did not resolve at that conference.

10. On 19 February 2018, the matter was again before Justice Carew in a judicial duty list on an application in respect of the possession by the applicant of a motor car. Both parties were represented by counsel. On that day, Carew J asked the parties if they were ready for trial and told them that if they were they could be listed into this Court’s planned two week running list in April 2018. Curiously and remarkably, having regard to what has now transpired, the parties’ legal representatives told Carew J they were ready for trial and, consequently, she listed it into the running list and made trial directions so that the matter would be ready for trial in the second week of the running list.

11. At the hearing of this application, the Court was told that the wife’s legal representatives had agreed to that as they thought they would be ready, but soon realised that would depend on whether they got the further disclosure from the husband.

12. On 6 March 2018, nearly three weeks after agreeing the matter was ready for trial, the wife’s solicitors wrote to the husband’s solicitors again requesting copies of all data and/or documents provided to the valuers by the husband or his accountants with particular reference to the accounting software records that had been provided to the valuers but not the wife. Other more specific requests for further disclosure were also included and a deadline of 4.00 pm on 15 March 2018 was given to the husband to provide it so that trial direction timeframes could be met.

13. The wife’s solicitors pressed again for a response on 8 March 2018, not having received one by that time.

14. On 13 March 2018, the wife’s solicitor swore an affidavit that was filed on 15 March 2018 in support of the wife’s application for the adjournment. The same day, the Husband’s solicitors provided a large number of documents, totalling in the hundreds at least, by way of disclosure as had been requested.

15. The wife’s solicitor refers to this disclosure in the affidavit he swore that same day and filed on 15 March 2018, and asserts that the husband still had not disclosed all the documents that he had provided to the valuers.

16. In his affidavit in reply sworn on 22 March 2018 (the day before the hearing of this adjournment application), the husband asserts that he has now provided disclosure of all the documents requested of him but admits that he has not provided the wife with access to, or disclosure of, his accounting software records – the same accounting software records that he provided the valuers with access to. The husband sought to justify this refusal to disclose all of these records by asserting:

    (i)that the registrar had effectively excused him from doing so in September, 2017;

    (ii)that he suspected the wife would use information contained within the documents he had not disclosed to his prejudice (as he said she had done prejudicial things before); and

    (iii)that he had disclosed all those documents that the valuers said that they had relied upon out of all the documents he had given the valuers access to, therefore the wife did not need to see any others.

17. Whilst I accept that Notation D to the Registrar’s Orders of September 2017 is a little ambiguous in its meaning, I do not accept that it reflects that the Registrar heard and determined a contested application for disclosure, and thereby somehow excused the husband from his obligation of full and frank disclosure of all relevant documents in his possession or control relevant to the matters in issue in the case.

18. It became clear to the husband and his solicitors soon after that hearing before the Registrar and before the valuation was even completed and provided, that the wife and her legal representatives required to be provided with disclosure of, and access to, all of the documents that the husband provided to the valuers. At no time was it asserted on the husband’s behalf that the Registrar had already determined that such disclosure was not required to be given.

19. In property settlement litigation like this, it would be unjust and unfair, in my judgment, for a single expert valuer to be provided with access to documents, information and data that the wife was not provided with. It is no justification for withholding disclosure of documents that are required to be disclosed on a unilateral assertion that the wife would use the documents to the prejudice of the husband.

20. If the husband was not made aware of the law, and it seems from my experience on this Court, that many litigants are not made aware of it by their legal representatives, access to documents and the information they obtain, that comes through either disclosure or production of documents pursuant to subpoena, comes subject to an implied undertaking not to use that for any purpose other than in the litigation in which it is obtained. Any breach of that implied undertaking may be punishable as a contempt of Court.[1]

    [1]Harman v Secretary of State for the Home Department [1983] 1 AC 280 adopted by the High Court in Hearne v Street (2008) 235 CLR 125 at 96.

21. It is not for a litigant to unilaterally determine not to disclose an otherwise disclosable document because of suspicion that it may be used for an ulterior purpose. If a litigant has a reasonable basis for an honestly held view that the other party is intending to, or is likely to use a document or the information it contains for an ulterior purpose, then an application seeking appropriate confidentiality orders as a consequence should be made to the Court in respect of it.[2]

    [2]Sadek & Hall (2015) FLC 93-634.

22. In this case, at the hearing before me, counsel for the husband did not argue against the factual proposition that his client had conceded that he had chosen not to give the wife access to all of the documents that the valuers had been given access to. He informed the Court that the deficiency in his client’s disclosure could be quickly addressed by the husband giving the wife and her legal representatives a password to be able to access the accounting software that he uses which he would leave open for a window of three days for her. He then submitted that the matter should still be able to proceed to trial in the second week of the running list in the week commencing 16 April. He further submitted that as the wife, through her legal representatives, had informed Carew J that the matter was ready for trial (even though it clearly was not from their position at the time they informed her of that) that the interests of justice required the wife to be held to that.

23. For the wife’s part, her solicitor had said in his affidavit that they needed to have some time to consider the documents that the husband conceded he had not disclosed, so that he and the wife could (i) confer with trial counsel; (ii) consider whether questions should be put to the author of the single expert valuation report; and (iii) consider whether a “contradictor” report (which I understood to mean a report from a shadow expert) should be obtained for the wife.

24. I accept, as I effectively said during the hearing to counsel who appeared for the wife on this application for the adjournment (not the same counsel who is briefed for the trial), that there is merit in the submission that all of that could barely be expected to be done by 16 April, though it even more sharply brings into focus the incredible nature of the assertion to Carew J last month that the matter was ready for trial. However, I was surprised even more when I indicated to counsel for the wife that I could list the matter for a trial before me in late May, six weeks after the current listing, when he submitted to me that the matter should not be listed for a trial just yet but should just be returned to the pool of matters awaiting trial management events.

25. The husband strongly opposed that outcome and I was persuaded that it should not be the preferred course, particularly given the following matters of fact:

    (i)the fact that valuations of the business interests as at 30 June 2017 and of the real property have already been obtained;

    (ii)the fact that the husband is paying the wife $1,500 per week for her maintenance until further order;

    (iii)the fact that the wife is said to be suffering from anxiety and depression, which I am satisfied she is more likely to have a better chance of recovery from when these proceedings are concluded, as soon as that can be; and

    (iv)the fact that the valuation report about which the wife is apparently troubled was provided in late November last year, nothing more was said of the non-disclosure by the wife before the Court was told by her that the matter was ready for trial in mid-February this year and then a month later the requests for disclosure so that the opinions in the report might be subjected to “testing” or challenge were re-activated.

The Outcome

1. Accordingly, I will vacate the trial listing for the week of 16 April, 2018 but will list the matter for trial over three days before me commencing at 10.00 am on Monday, 28 May 2018. I will vacate a compliance hearing currently listed before a Registrar on 27 March 2018.

2. I will order that the Respondents disclose to the wife before the close of business on Thursday, 29 March 2018 all disclosable documents in their possession or control that have not been disclosed to this point in time, including in particular all documents or data provided by the Respondents to the single expert valuers that have not been disclosed to the Applicant to date whether or not those documents are said to have been relied upon by the valuers in arriving at their opinion as to value.

3. I will order that any further affidavits of evidence of any witness to be relied upon by the Applicant at the trial not yet filed in accordance with the existing trial directions be filed by close of business on Friday, 20 April 2018. Noting that I am aware that the wife’s trial affidavit has already been filed, I will further direct that she shall not be able to rely at the trial on any further affidavit sworn by herself without first obtaining the leave of the Court.

4. The Court was informed that the wife intended to file an affidavit attaching a report of her current treating psychiatrist, Dr B, going to her current state of health. It has not yet been filed, despite the existing directions requiring her evidence to have been filed by now. As I have said, the wife will have until Friday, 20 April 2018 to file and serve any such affidavit.

5. Finally, the Court was told that the wife was trying to get an affidavit from a man named Mr C who was expected to say something about the value of the shares in D Pty Ltd. Any affidavit to be filed by him will also have to be filed by Friday, 20 April 2018. Any other affidavits the wife intends to rely upon at the trial, will only be able to be filed and relied upon with my leave first obtained.

1. As for the husband’s evidence for the trial, I will give him in an extension of the time for the filing of his affidavit evidence until the close of business on Friday, 27 April 2017. The court was told he was going to rely on affidavits of himself, his mother and his young adult son. I will expect him to cause the valuation reports to be filed attached to affidavits of the single experts who were retained. Any other affidavits he intends to rely upon at the trial, will also only be able to be filed and relied upon with my leave first obtained.

2. I will also direct that either party who wishes to cross-examine any of the single expert valuers should give the other party and that expert at least 14 days’ notice in writing before the commencement of the trial. Unless otherwise agreed between the parties and the expert or ordered by me, that cross-examination shall take place with the expert attending the trial in person and that attendance could, in the normal course, be expected to be required on Tuesday, 29 May 2018.

3. I will also mention the matter again in early May to check that it will be proceeding on 28 May 2018.

Costs

1. I heard submissions as to costs having regard to the potential outcomes.

2. For the husband, it was submitted that because the wife told the Court in February that the matter was ready for trial, she should pay the husband’s costs thrown away by the adjournment if it is granted. Of course, he also sought his costs if I decided to dismiss the adjournment application.

3. For the wife, it was submitted that the question of each party’s costs should be reserved, to be decided by me after it becomes clear at the trial or otherwise whether there was any real impact on the current standing of the proceedings brought about by the adjournment and the further disclosure that the husband has now agreed to provide. I accept the merit of that submission.

4. The problem with the submission made for the husband is that by granting the adjournment sought by the wife, principally because of the husband’s conceded failure to disclose documents that he was always obliged to disclose, the wife has been successful in her application and the husband unsuccessful. It would be, in such circumstances, somewhat counter-intuitive, in my judgement, to order the wife to pay his costs in such circumstances.

5. I will reserve the question of the parties’ costs of and incidental to this application.

6. I make the orders set out at the commencement of these written reasons.

I certify that the preceding Forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 26 March 2018.

Associate: 

Date:  26 March 2018