Varley v Varley

[2007] NSWSC 125

CITATION:	Varley v Varley [2007] NSWSC 125
HEARING DATE(S):	21 February 2007
JUDGMENT DATE :	21 February 2007
JURISDICTION:	Equity
JUDGMENT OF:	Campbell JA
EX TEMPORE JUDGMENT DATE:	21 February 2007
DECISION:	Time for referee to report extended. Otherwise no direction given.
CATCHWORDS:	PRACTICE – reference questions to an expert – extent to which court should involve itself in ongoing conduct of the reference
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005
PARTIES:	John Anthony Varley - Plaintiff Alexandria Margaret Varley - Defendant
FILE NUMBER(S):	SC 4946/04
COUNSEL:	J F Chapple, solicitor - Plaintiff M Paul, solicitor - Defendant
SOLICITORS:	Newnhams - Plaintiff Paul & Paul - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL JA

WEDNESDAY 21 FEBRUARY 2007

4946/04 JOHN ANTHONY VARLEY v ALEXANDRIA MARGARET VARLEY

JUDGMENT – Ex Tempore

1 HIS HONOUR: In this matter some accounting questions have been submitted to a referee for inquiry and report. That referee, Ms Jennifer Exner, is an accountant with Horwath. The questions are questions that involved accounting matters.

2 In November of last year I extended the time for the defendant to lodge submissions with the referee, on the basis of a then estimate that three weeks, or thereabouts, would be needed for the defendant to lodge those submissions. The defendant has still not lodged any submissions.

3 The solicitor for the defendant comes to court today saying that various documents that have been served by the plaintiff are not adequate or comprehensible and that I should give directions that, in effect, set up the evidentiary framework in which the referee does her job, by specifying the kinds of information that the parties should be directed to provide to the referee, and by what date that information should be provided.

4 While the Court has power to give directions with respect to a reference (Uniform Civil Procedure Rule 20.21), it is contrary to the policy on which the Court conducts references for there to be the degree of involvement in a reference that the solicitor for the defendant seeks. The referee is in the best position to know what sort of material she needs to be able to complete her task and she can give directions for the parties to provide that material. Her power to conduct the proceedings in such manner as she thinks fit (UCP Rule 20.20) includes a power to direct particular parties to supply her with particular types of material by a particular time. She is entitled to complete her report on the basis of such material as is provided in accordance with her directions. If either party provides a referee with material that is in any way inadequate, and that inadequacy results in the reference report eventually not being adopted, the party who has provided the inadequate material might be at risk as to the costs of the reference.

5 The referee is confronted with a situation where, through no fault of hers, the time for the reference has blown out beyond what was initially anticipated. In my view, it is appropriate to recognise that reality, to a limited extent. I propose to extend the time for the referee to complete her report to Monday, 16 April 2007. It is a matter for the referee as to whether she wishes to give any further directions. If either of the legal advisors want to make submissions to the referee about directions they wish her to give, it would be sensible, in their client’s interest, for those submissions to be made promptly. It is a matter for the referee what she does in response to any such submissions.

6 I do not propose to interfere in the conduct of the reference, at the present time, to any greater extent than I have done by extending the time for completion of the report.

7 I stand the matter over for mention, before me, at 9.30 am on Tuesday, 1 May 2007.

8 I reserve the costs of today’s appearance.

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