Venter & Venter (No 6)

Case [2024] FedCFamC1F 94

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE

Venter & Venter (No 6) [2024] FedCFamC1F 94

File number: BRC 10651 of 2021
Judgment of: CAREW J
Date of judgment: 28 February 2024 
Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Application by the husband to restrain the wife from engaging or instructing her current and previous solicitors and counsel – Where there are deficiencies in compliance with the duty of disclosure by the wife and husband, but where the wife’s failures have been more monumental – Where the solicitors and counsel for the wife have or likely have reviewed material subject to the husband and/or other respondent’s legal professional privilege – Where there is a very real prospect that the wife obtained some forensic advantage from accessing privileged material – Court orders that the wife is restrained from engaging or instructing further her current and previous solicitors and counsel – Court orders that the wife destroy all copies of the privileged documents and be restrained from disseminating or using information derived therefrom.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for summary dismissal of claims against the other respondents or, in the alternative, supporting the husband’s application for restraint of the wife’s current and previous solicitors and counsel – Where dismissing the wife’s case without a hearing on the merits must be an option of last resort – Where summary dismissal would effectively bring an end to proceedings in circumstances where the husband is impecunious – Application for summary dismissal is dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Referral to the Australian Securities and Investment Commission – Where the referral is temporarily stayed.   
Legislation:

Evidence Act 1995 (Cth) s 125

Family Law Act 1975 (Cth) s 45A

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.01, 6.03, 6.04, 6.06, 6.09, 6.17, 10.09

Cases cited:

Bahonko v Nurses Board of Victoria (No 3) [2007] FCA 491

Balabel v Air India [1988] Ch 317

Barnes and Another v Commissioner of Taxation (Cth) (2007) 242 ALR 601

Charisteas & Charisteas (2022) FLC 94-109

Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278

Crittenden and Collins [2017] FamCA 716

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543

Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641

Equititrust v Equititrust (No 3) (2016) 341 ALR 301

Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49

Grant v Downs (1976) 135 CLR 674

Kadlunga Proprietors and Others v Electricity Trust of South Australia and Others (1985) 39 SASR 410

Kallinicos v Hunt (2005) 64 NSWLR 561

Kennedy v Wallace (2004) 142 FCR 185

Kenquist Nominees Pty Ltd v Campbell (No 5) [2018] FCA 853

Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58

Li v Jin Lian Group Pty Ltd [2018] NSWSC 479

Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357

Malpass & Mayson (2000) FLC 93–061

Myers v Elman [1940]…

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AGLC
Venter & Venter (No 6) [2024] FedCFamC1F 94
Case
[2024] FedCFamC1F 94
Decision Date

CaseChat Overview and Summary

The case of Venter & Venter (No 6) involves the husband's application to restrain the wife from engaging or instructing her current and previous solicitors and counsel. The parties were married in 1985, separated in 2017, and divorced in 2020. They have three adult children. The dispute centres around the husband's concerns that the wife's legal team may have reviewed privileged documents, potentially giving her an unfair advantage in the proceedings. The court was required to decide on the husband's application to restrain the wife's legal representatives and on the application for summary dismissal of claims against other respondents.

The court found that there were deficiencies in compliance with the duty of disclosure by both parties, but the wife's failures were more significant. The wife's legal representatives had or likely had reviewed material subject to the husband's legal professional privilege. There was a real prospect that the wife had obtained some forensic advantage from accessing privileged material. The court ordered that the wife is restrained from engaging or instructing her current and previous solicitors and counsel and that she destroy all copies of the privileged documents and be restrained from disseminating or using information derived therefrom. The application for summary dismissal of claims against other respondents was dismissed as dismissing the wife's case without a hearing on the merits must be an option of last resort, especially given the husband's impecunious status.

The court also dismissed the referral to the Australian Securities and Investment Commission as temporarily stayed. The matter is listed for a further case management hearing on 28 March 2024 at 10.00am (Brisbane time) and all parties have leave to appear via Microsoft Teams. The Principal Registrar of the Federal Circuit and Family Court of Australia (Division 1) is directed to provide specific documents to the Australian Securities and Investment Commission, with the operation of this direction temporarily stayed for seven days. The first, second, third, fifth and/or seventh respondents have liberty to apply for an urgent listing.

Orders

Orders of the court

1. The application by the second, third, fifth and seventh respondents for summary dismissal of the claims against them is dismissed.

2. Ms Venter (“the wife”) is restrained from further engaging or instructing any of the following legal firms or legal practitioners in respect of the proceedings the subject of matter number BRC10651/2021:

(a) GG Lawyers;

(b) MM Lawyers;

(c) Each of the following barristers:

(i) Mr E;

(ii) Mr O;

(iii) Mr P;

(iv) Ms OO;

(v) Mr WW; and

(vi) Ms XX.

3. The wife is restrained from:

(a) Discussing or communicating to any other person the contents of:

(i) Any of the recordings identified at sub-paras 46(b) ‘[…]’ and 46(d) ‘[…]’ of the affidavit of Ms AL filed 27 July 2023 (“the recordings”);

(ii) The email chain identified in paragraph 23 of the affidavit of Ms AL filed 27 July 2023 and described as:

A. ‘[Mr UU] of [VV Lawyers] to Husband, Second Respondent, [Mr J] and [Mr HH] dated 14 December 2012’;

B. ‘The Husband to [Mr UU] of [VV Lawyers], Second Respondent and [Mr J] dated 21 December 2012’; and

C. ‘[Mr UU] of [VV Lawyers] to the Husband, the Second Respondent and [Mr J] on 23 December 2012’;

(“the email chain”)

(iii) The additional emails identified in annexure “A” to the affidavit of Ms AL filed 27 July 2023 numbered 5, 57, 63, 68, 97, 103, 130 (already referred to in (ii) above) and 131 (“additional emails”);

(b) Making any use for the purpose of these proceedings of any information derived from the recordings or the email chain or the additional emails; and

(c) To the extent not already destroyed by the wife and her agents by or at the direction of the wife, the wife shall forthwith destroy all hard copies and electronic copies of the recordings and the email chain and additional emails within her possession or control and direct any of her agents or legal representatives (including previous legal representatives) to also do so and confirm in writing to the lawyers for all other parties when the same has been done.

4. The matter is listed for a further case management hearing before the Honourable Justice Carew on 28 March 2024 at 10.00am (Brisbane time) and all parties have leave to appear via Microsoft Teams.

5. The Principal Registrar of the Federal Circuit and Family Court of Australia (Division 1) is directed to forthwith provide the following documents to the appropriate officer of the Australian Securities and Investment Commission:

(a) The Statement of Agreed Facts in the matter heard by the Federal Court of Australia in Australian Securities and Investment Commission v V Pty Ltd [2015] FCA 648;

(b) The agreement dated 23 September 2010 between Mr HH, Mr B Venter, V Pty Ltd and F Company;

(c) The agreement dated 6 March 2013 between V Pty Ltd and F Company, Mr HH, Mr B Venter, Mr J, Mr Venter, YY Pty Ltd (in its own right and as trustee for Superannuation Fund 1) and ZZ Inc;

(d) The recording made on 6 March 2013 of a conversation between Mr Venter, Mr B Venter, Mr HH and Mr J;

(e) The agreement dated 16 April 2013 between Mr AB and Ms Venter in her capacity as the sole director of EE Pty Ltd as trustee for the EE Family Trust;

(f) The share transfer form signed by Mr AB dated “2013”;

(g) The emails between Mr J and Mr Venter dated 27 April 2013;

(h) The email from Mr J to Mr Venter dated 29 November 2013;

(i) The emails between Mr J and Mr Venter including attachments dated 20 May 2014;

(j) Paragraphs 33, 40, 43, 99.5.4 of the husband’s trial affidavit filed 20 June 2023.

6. The Principal Registrar of the Federal Circuit and Family Court of Australia (Division 1) is further directed to give notice of paragraph 5 of this Order to the following persons:

(a) Mr J by posting a copy of this Order (with all paragraphs save for paragraphs 5 and 6 redacted) to him at his address at AC Street, Town AD, Qld;

(b) Mr AB by posting a copy of this Order (with all paragraphs save for paragraphs 5 and 6 redacted) to him at his address at AE Street, Suburb AF, Qld; and

(c) F Company by posting a copy of this Order (with all paragraphs save for paragraphs 5 and 6 redacted) to the proper officer at its registered address at AH Property, Suburb AJ. Qld.

7. The operation of paragraphs 5 and 6 herein are stayed for seven days.

8. The first, second, third, fifth and/or seventh respondents have liberty to apply upon the giving of 48 hours written notice to each other party to request that the matter be listed before the Honourable Justice Carew as a matter of urgency.

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

Before embarking on a consideration of the applications, it will be helpful to first set out some background. BACKGROUND The wife and husband were married in 1985, separated in 2017, and divorced in 2020. The wife and husband have three adult children. Relevantly, Mr B Venter, the second respondent, is 35 years of age and Mr C Venter, the third respondent, is 33 years of age. As already mentioned, Ms Glynn has taken no part in the proceedings to date. The family are originally from Country M but moved to Australia, via Country N, in 2001. In about 2007, the husband set up a business which involved lending small sums of money to people short of cash between pay days. The family were in dire straits at the time. The wife was unwell. The husband was working full time for a company on a wage of $700 per week. Mr B Venter had to leave university, where he was only halfway through a degree, because the family could not afford the university fees. Mr C Venter was a talented sportsman and received a scholarship to continue at his private school. Ms Glynn had to leave her private school. All three children contributed what they could to the family finances from part-time jobs. A family friend, Mr HH, initially provided some modest capital for the business, about $30,000. F Company was incorporated and Mr B Venter was the sole director, secretary, and shareholder. Neither the husband nor the wife could hold a credit licence or hold the position of a director in a company as they had both been bankrupt and indeed, the wife was not discharged from bankruptcy until 2010. The business traded as V Company and involved the sourcing of borrowers to whom F Company would lend money. Initially it was a very small family affair operating from the former matrimonial home. In early 2010, the V Company business commenced to operate via V Pty Ltd, a company already in existence by another name and owned by Mr HH. Mr B Venter was appointed sole director and joined the business full time. Mr HH took over as director of V Pty Ltd until 2012, when another family friend, Mr J was appointed sole director until 2019. V Pty Ltd was deregistered in 2019. The business operation came to the attention of the regulatory authorities, namely, the Australian Consumer and Media Authority (“ACMA”) and ASIC in about 2010 and was the subject of several investigations into potential breaches of the National Credit Code and the Spam Act 2003 (Cth). Consequently, there have been several proceedings in the Federal Court of Australia over several years. It is common ground that the husband, at least, knew by about 2009 or 2010 that the lender of the funds (F Company) had to be at arms-length from the facilitator of the loans (V Pty Ltd), or as explained by the husband in his affidavit filed 2 November 2023 – “it was necessary that there be a strict legal separation between the entity that performed the role of lender ([F Company]) and the entity that performed the role of an associate or agent for the consumer ([V Pty Ltd])”.

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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