Warin & Warin (No 8)
[2023] FedCFamC1F 362
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Warin & Warin (No 8) [2023] FedCFamC1F 362
File number MLC 7368 of 2020 Judgment of WILSON J Date of judgment 11 May 2023 Catchwords FAMILY LAW – PRACTICE & PROCEDURE – last minute application to join a party, to obtain leave to issue, filed and serve subpoenae and for disclosure – leave for subpoenae granted – disclosure ordered – joinder application ordered to be brought forthwith – trial date maintained. Legislation Evidence Act 1995 (Cth) s 38
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Part 6.5
Cases cited Warin & Warin [2020] FamCA 796 Division Division 1 First Instance Number of paragraphs 30 Date of last submissions 10 May 2023 Date of hearing 10 May 2023 Place Melbourne Counsel for the applicant Mr J. Forrest Solicitor for the applicant Vadarlis & Associates Solicitor for the first and third respondents Sebastian Rubera & Associates Solicitor for the fourth, fifth and sixth respondents McNab and Associates ORDERS
MLC 7368 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MS WARIN
Applicant
AND MR WARIN
First Respondent
MR STANTON & MR BASFIELD IN THEIR CAPACITY AS TRUSTEES IN BANKRUPTCY OF THE BANKRUPT ESTATE OF THE RESPONDENT HUSBAND
Second Respondent
MS INSTON (and others named in the Schedule)
Third Respondent
order made by
WILSON J
DATE OF ORDER
11 MAY 2023
THE COURT ORDERS THAT:
1.Leave is granted to the applicant to issue a subpoena against Mr Winsor, Mr JJ and Mr KK.
2.Discovery is required by the first respondent, forthwith, of -
(a)the husband's retained interest in Warin Nominees Pty Ltd;
(b)the "capital funds advance" to LL Pty Ltd or MM Pty Ltd;
(c)the receipt/banking/repayment of any of the capital funds advance; and
(d)any other documents related to those matters.
3.I will entertain an application to join Ms E, once issued, filed and served.
4.The trial remains fixed for 26 June 2023.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
The trial of this proceeding is fixed for 26 June 2023, a little over a month away.
On 10 May 2023 Mr Vadarlis, the solicitor for the applicant wife applied for orders –
(a)granting his client leave to issue subpoenae to attend and to give evidence in relation to three persons;
(b)for disclosure from the husband; and
(c)granting leave to apply to join Ms E as a party to the proceeding.
Needless to say, those applications were brought unsatisfactorily late for which no proper explanation was offered. When I put to Mr Vadarlis that if any of his late applications are granted the commencement of the trial may well be jeopardised, he acknowledged that such a result may follow.
LEAVE TO ISSUE SUBPOENAE
Initially Mr Vadarlis formulated a draft order pursuant to which he sought leave to issue a subpoena to give evidence against seven persons. They were –
(a)Ms E;
(b)Mr Winsor;
(c)Ms AA;
(d)Mr JJ;
(e)Mr Warin;
(f)Mr KK; and
(g)Mr NN.
By the end of the debate on 10 May 2023 Mr Vadarlis modified his client’s list of proposed subpoena recipients such that he no longer pressed for orders in relation to Ms AA, Mr Warin and Mr NN.
Mr Vadarlis pressed for orders against Mr Winsor, Mr JJ and Mr KK.
In submissions dated 10 May 2023, Mr Vadarlis recorded the role each proposed recipient of a subpoena occupied in this litigation. The following is a précis distillation of those submissions –
(a)Mr Winsor is said to be a long time friend to and accountant of the husband, a director of or shareholder in various corporate entities with which the husband has been associated, the husband of Ms E and the author of a statement to the mortgagee of B Street, D Town that the husband’s annual income was $230,000;
(b)Mr Winsor is or was at all relevant times a director of H Pty Ltd, MM Pty Ltd, LL Pty Ltd and OO Pty Ltd;
(c)Ms E (the proposed party to be joined) is alleged to be “warehousing” the sum of $200,000 (the word “warehousing” was Mr Vadarlis’s);
(d)Mr JJ is or was at all relevant times a director of or shareholder in various companies in which the bankrupt has or once had an interest; and
(e)Mr KK is or was at all material times in the employ of MM Pty Ltd.
In respect of each person to whom a subpoena is proposed to be issued, Mr Vadarlis made a broad submission allegedly underpinning the wife’s last minute request for the issue of the relevant subpoena. It was as follows –
GENERAL
All of the above persons are interconnected in business dealings with the Husband and his de-facto wife, the Third Respondent.
It is not feasibly possible for the Wife to obtain statements or affidavits of evidence from the above persons as they fall in the Husband’s and Third Respondent’s camp.
The Wife seeks the court’s leave to subpoena the above persons and examine them at trial as to matters related to the Husband’s business dealings and affairs both before and after his bankruptcy and in order to determine the matrimonial pool.
It is submitted that in the interests of justice and equity such leave should be granted.
On behalf of the bankrupt and Ms Inston, Mr Rubera provided written submissions opposing the grant of leave to issue the subpoenae sought. He argued –
(a)an unacceptably large number of subpoenae had been issued already in this litigation and an end had reached for the grant of leave to issue further subpoenae;
(b)no allegation is raised in the applicant’s trial affidavit about the proposed recipients of subpoenae; and
(c)granting leave to subpoena any of the witnesses sought by the applicant will not advance any issue to be determined at trial.
THE APPLICABLE LEGAL TEST
In Warin & Warin[1] I surveyed the relevant legal test to be applied when assessing the breadth of a subpoena to produce documents. The subpoenae on this application do not relate to the production of documents. They related to each witness being required to attend court, to enter the witness box and to respond to questions. Ordinarily, the party who issues the subpoena and calls a witness pursuant to subpoena renders the witness who gives the evidence a witness in the case of the party calling that witness. On that supposition, each witness who gives evidence in response to the subpoena for which leave is presently sought will become a witness as part of the applicant’s case. While I cannot definitively state as much ahead of the trial, cross‑examination of that witness by the wife will not be permitted for the simple reason that a party does not cross-examine his or her own witness.
[1] [2020] FamCA 796.
Mr Vadarlis confidently asserted that at trial he will obtain leave to cross-examine each witness who receives a subpoena in pursuance of the unfavourable witnesses provisions of s 38 of the Evidence Act.
Whether an order is made under s 38 of the Evidence Act remains to be seen.
In considering whether leave should be granted to issue any one of the subpoenae, Part 6.5 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 is silent about the grounds to be satisfied before a subpoena is issued. It seemed to me that so long as each witness who will give evidence pursuant to a subpoena is to give relevant evidence, that witness should be heard, provided no disentitling circumstances tell against that.
Pleadings define relevance. Pleadings have closed.
Mr Winsor appears capable of giving relevant evidence on the funding of the Suburb PP property.
Mr JJ appears capable of giving relevant evidence about the bankrupt’s sources of evidence since his bankruptcy. Mr KK is in the same category.
If Ms E becomes a party, she is likely to give evidence herself without the need for a subpoena.
MS E’S JOINDER
Mr Vadarlis informed me that his client will be seeking orders against Ms E in relation to her warehousing of certain funds. I told Mr Vadarlis that in those circumstances the appropriate way to proceed involved the wife applying for the joinder of Ms E and the amendment of the wife’s statement of claim (plus relief sought) and for Ms E to file a response giving whatever disclosure she has on the issues raised against her.
She must have the right to be heard and as relief is claimed against her, she should be a party.
Mr Vadarlis must, if he wishes to seek orders against Ms E, bring an urgent joinder application. If he fails to do that, insufficient time will remain before the start of the trial.
DISCOVERY
The wife sought disclosure orders against the bankrupt. After debate involving Mr Vadarlis as well as Mr Rubera it became apparent that enormous uncertainty still exists about the bankrupt’s standing to agitate about anything in this case other than accumulated superannuation entitlements.
The wife sought details of the bankrupt’s “retained interest” in Warin Nominees Pty Ltd. Mr Rubera was unable to explain what that meant. He said it may be a loan. If it was a loan to which the bankrupt was entitled to repayment, then the debt was an asset that probably vested in the trustee-in-bankruptcy. Disclosure was required.
So too was disclosure required of what Mr Rubera called the “capital funds advance” to LL Pty Ltd, although Mr Rubera was unable to say what was the nature of the capital funds advance. He said that if disclosure existed about it (whatever it was) it would be provided.
The documents that met the description of “receipt, building/repayment of any capital funds advance” fitted into the same category. Discovery must be given on that.
THE POSITION OF MR CC
Mr CC is the sixth respondent. He is represented by Mr McNab. Mr CC’s neurologist and clinical neuro-physiologist provided a report to QQ Health about Mr CC’s medical conditions which include a degenerative disease. The report was dated 28 March 2022, 14 months ago. It was said that by reason of Mr CC’s physical condition, he may only be capable of participating in the trial of this proceeding remotely.
Until the upshot of the joinder application is known and the impact that orders made concerning Ms E have on the trial, it is too early to be making provision for Mr CC to be giving evidence remotely.
ORDERS
Leave is granted to the applicant to issue a subpoena against Mr Winsor, Mr JJ and Mr KK.
Discovery is required by the first respondent, forthwith, of –
(a)the husband’s retained interest in Warin Nominees Pty Ltd;
(b)the “capital funds advance” to LL Pty Ltd or MM Pty Ltd;
(c)the receipt/banking/repayment of any of the capital funds advance; and
(d)any other documents related to those matters.
I will entertain an application to join Ms E, once issued, filed and served.
The trial remains fixed for 26 June 2023.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Wilson. Associate:
Dated: 11 May 2023
SCHEDULE OF PARTIES
MLC 7368 of 2020 Respondents
Fourth Respondent
WARIN PTY LTD
Fifth Respondent
BB NOMINEES PTY LTD (FORMERLY KNOWN AS WARIN NOMINEES PTY LTD)
Sixth Respondent
MR CC
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