Weng and Wah & Ors

[2018] FamCA 1169

FAMILY COURT OF AUSTRALIA

WENG & WAH AND ORS [2018] FamCA 1169

FAMILY LAW – PRACTICE AND PROCEDURE – Applications – Where the first respondent wife and second respondent adult son filed various applications in this Court after the applicant father commenced private criminal prosecutions against them both on the second day of the trial without informing or consulting his own legal representatives – Where the Court orders an anti-suit injunction against the husband restraining him from taking further steps in the conduct of such proceedings – Where the Court requires the wife and son to give evidence as to the factual matters that may tend to prove they committed such alleged offences given their potential relevance in determining property adjustment orders and whether such orders are just and equitable.

Criminal Code 1899 (Qld)
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: Mr B Weng

FIRST RESPONDENT: Ms Wah

SECOND RESPONDENT: Mr C Weng

THIRD RESPONDENT: D Pty Ltd

FOURTH RESPONDENT: E Pty Ltd

FIFTH RESPONDENT: F Pty Ltd

SIXTH RESPONDENT: G Pty Ltd

SEVENTH RESPONDENT: The Mr C Weng Family Trust

EIGHTH RESPONDENT: The H Family Trust

NINTH RESPONDENT: The J Family Trust

TENTH RESPONDENT: K Pty Ltd

ELEVENTH RESPONDENT: L Pty Ltd

FILE NUMBER: MLC 9718 of 2014

DATE DELIVERED: 11 September 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 11 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Geddes QC
with Mr Glezakos

SOLICITOR FOR THE APPLICANT: Herald Legal

COUNSEL FOR THE FIRST RESPONDENT: Mr Alexander

SOLICITOR FOR THE FIRST RESPONDENT: Crouch & Lyndon

COUNSEL FOR THE SECOND AND THIRD RESPONDENTS: Mr Drysdale

SOLICITOR FOR THE SECOND AND THIRD RESPONDENTS: Hopgood Ganim

Orders

1. That leave be granted to the legal representatives of all the parties to inspect the documents that were produced pursuant to those subpoena for which leave to inspect was restricted or refused in the first instance by Registrar Brooks on 3 August 2018, with leave to the legal representatives to inspect all of those documents and to cause photocopies to be taken of any that are necessary for the preparation and conduct of their client’s respective case in this matter.

2. That the husband, Mr B Weng, be restrained pending the final determination of all proceedings in matter no. MLC9718/2014 in the Family Court of Australia in Brisbane (including the determination of any appeal), from taking any steps in proceedings commenced by him in the Magistrates Court against the first respondent, Ms Wah, and the second respondent in these proceedings, Mr C Weng, pursuant to Form 3 Queensland Justices Act Complaints sworn and Summons filed in the Magistrates Court this day seeking to prosecute private criminal complaints against each of the parties, other than discontinuing those or causing them to be adjourned until the determination of these proceedings, including the determination of any appeal.

IT IS NOTED

(A) It is the Court’s expectation that each of the legal representatives of each of the parties in these proceedings will advise their respective clients of the implied undertaking against the use of any documents obtained pursuant to subpoena for an ulterior purpose.

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 Weng & Wah and Ors 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: MLC 9718 of 2014

Nr B Weng

Applicant

And

Ms Wah

First Respondent

And

Mr C Weng

Second Respondent

And

D Pty Ltd 

Third Respondent

And

E Pty Ltd 

Fourth Respondent

And

F Pty Ltd

Fifth Respondent

And

G Pty Ltd

Sixth Respondent

And

The Mr C Weng Family Trust

Seventh Respondent

And

The H Family Trust

Eighth Respondent

And

The J Family Trust

Ninth Respondent

And

K Pty Ltd

Tenth Respondent

And

L Pty Ltd

Eleventh Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are proceedings brought by the Applicant Husband pursuant to s 79 of the Family Law Act 1975 (Cth). He seeks orders against his former wife, their adult son and numerous companies and family trusts which are controlled, ultimately, by the adult son and or his former wife, or in which the adult son or his former wife have interests.

2. Factually, there is a complicated web of interconnection between these entities and a business that was run by a now non-existent company that was owned and/or controlled by the husband, his former wife and their adult son at the time of the breakdown of the marriage between the husband and the wife and their final separation in the early part of 2012, over six years ago.

3. A five day trial in the proceedings commenced on Monday, 10 September 2018 after the matter had been in the Court's list since 2014.

4. Extraordinarily, particularly considering the fact, readily conceded by the legal representatives for the wife and the adult son, that Senior Counsel for the husband and his junior, had no knowledge or forewarning that it was to happen, on the morning of the second day of the trial, the husband with the assistance and advice of his solicitors filed Court proceedings in the Magistrates Court commencing private criminal prosecutions against both the wife and the adult son for various offences he alleges they have committed against s 408C(l) of the Criminal Code 1899 (Qld).

5. On the applications of the wife and the adult son, I granted an anti-suit injunction against the husband restraining him from taking any further steps in the conduct of those private prosecutions until the completion of these proceedings, including any appeal against any orders I might make in them and I determined to continue to hear this case until its conclusion.

6. The wife and the adult son then made further oral applications for an order restraining the husband, through his counsel, from asking them any questions in cross-examination about matters touching upon the issues arising in the private prosecutions. They submit that it would prejudice them in respect of their defence of those prosecutions in the future.

7. Legal privilege against being required to give self-incriminating evidence is an old and well known principle of the common law applied in this country.

8. In terms of Commonwealth law and the law of various States the common law has been statutorily modified. Relevantly, in these proceedings in this Court, that modification can be found in s 128 of the Evidence Act 1995 (Cth). It sets out a process that is to be followed if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness has committed an offence against or arising under an Australian law, or, in other words, if a witness claims the privilege against self-incrimination.

9. Firstly, the Court must determine whether or not there are reasonable grounds for the objection. Then, if the Court determines that there are, the Court is not to require the witness to give the evidence but is to inform the witness that she need not give the evidence unless required by the Court to do so and if so required the court will give a certificate under the section if the witness either willingly gives the evidence without being required to do so or the witness gives the evidence after being required to do so.

10. The Court may require the witness to give the evidence if the court is satisfied that the evidence does not tend to prove that the witness has committed an offence against or arising under a law of a foreign country and the interests of justice require that the witness give the evidence.

11. The Court must cause the witness to be given a certificate under the section if either the witness gives the evidence voluntarily or is required to do so under the section.

12. In any proceeding in an Australian Court including relevantly, the private prosecution launched by the husband in the Magistrates Court, evidence given by a person in respect of which a certificate under this section has been given and evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence cannot be used against the person.

13. The respective complaints contain two specific and distinct alleged commission of offences against the wife and the son.

14. Against the wife it is alleged that between 11 April 2012 and 8 November 2012 she defrauded the husband of an interest in properties in breach of s 408C(1). It is also alleged  that on or about 22 October 2010 she defrauded the husband by causing him to be indebted to Westpac bank in breach of s 408C(l ).

15. Against the son it is alleged that between 11 April 2012 and 8 November 2012 he defrauded the husband of an interest in properties which were the subject of the Mr C Weng Family Trust in breach of s 408C(l) and also that between 11 April 2006 and 14 February 2011 he defrauded the husband of an interest in monies which were owned by N Pty Ltd in breach of s 408C(l ).

16. I cannot make a property adjustment order pursuant to s 79 of the Family Law Act unless I am satisfied, in all of the circumstances, it is just and equitable to do so.

17. In property adjustment proceedings there is an obligation on all parties to make full and frank disclosure of all of their current financial circumstances and any relevant past financial affairs. Their duty to make this disclosure is owed to the other party and to the Court.

18. At this stage, I consider that the factual matters that may tend to prove that the respondents committed offences as alleged could well be relevant to, perhaps significantly so, determining property adjustment orders pursuant to s 79 and whether they are just and equitable. Accordingly, I expect it will be in the interests of justice for them to be required to give such evidence even if they object. They would, of course, give that evidence with the benefit of a certificate under s 128.

19. I will not at this point, make an order that prevents Senior Counsel for the husband asking any questions that might elicit answers that might attract the objection. I will deal with them as they come.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 11 September 2018.

Associate: 

Date:  5 December 2019