Woley & Humboldt

[2009] FamCA 165

FAMILY COURT OF AUSTRALIA

WOLEY & HUMBOLDT [2009] FamCA 165

FAMILY LAW – RULING – Issue estoppel

Family Law Act 1975 (Cth)

APPLICANT: Ms Woley

RESPONDENT: Mr Humboldt

FILE NUMBER: MLF 1685 of 2009

DATE DELIVERED: 5 March 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J.W. St John SC, with Mr A.I. Strum

SOLICITOR FOR THE APPLICANT: Marshalls & Dent

COUNSEL FOR THE RESPONDENT: Mr B.R. Geddes QC, with Ms K.M. MacMillan

SOLICITOR FOR THE RESPONDENT: Kennedy Wisewoulds

IT IS NOTED that publication of this ruling under the pseudonym Woley & Humboldt is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLF 1685 of 2005

MS WOLEY

Applicant

And

MR HUMBOLDT

Respondent

RULING

1. The issue before me concerns the question of issue estoppel; in other words, whether or not the issue that I am being asked to determine has already been determined by a court.

2. It revolves around, interestingly enough, the definition of the word "document" and surprising as it may seem, there are very few authorities, if any, in relation to exactly what the definition of "document" really means.

3. The husband says he has complied with an order made by the Chief Justice in December 2008 by producing what might be termed a portion of a ledger and the wife responds by saying that the husband was ordered to produce a lot more and has been selective.  Her view is that the whole of the ledger should be produced, not selective parts of it.  She says the Chief Justice has already decided the issue.

4. As I said, I am not aware of any authority that says that the whole of a document as distinct from relevant parts of it or, for that matter, the creation, for example, from a computer, of parts of a document is not permissible.  What is required is that material in documentary form which could be admitted into evidence, be provided.  As such, I see nothing wrong with the husband creating a document from a computer providing that it in fact complies with the order of the court to provide information.

5. I then turn to the order that the chief justice made.  Her Honour's specific order was, leaving out the parts that are not relevant, that the husband was to provide the following document:

   The general ledger of [SN] Management Pty Ltd, being contained in the general ledger for a consolidated account in its capacity as manager of the [N] trust partnership from 1 July 1989 or the earliest point at which the ledger is in existence, whichever is later, to 30 June 2006.

6. Her Honour set out the reasons for making that order but it is important to note that when she did so, she prefaced her remarks that justified the order, with a heading.  The heading “Item 3B” seems completely out of context with what her Honour was talking about until I refer to a document that was a table attached to a letter from the solicitors for the wife dated 4 December 2008.  The solicitors were pursuing documents that ultimately apparently gave rise to the proceedings before the Chief Justice.  That letter and table has to be read in its entirety, but when I look at what was actually sought, it is clear that the wife was pursuing documents to be provided to her forensic accountant, Mr F.  Of the three or four columns of the table, only two are relevant.  The first column that is relevant is the heading which reads “Specific Transactions or Series of Transactions”.  The second column reads “Documents Requested by Mr [F]”.  Item 3 in the table reads:

   UBS bank account that is held in the husband's personal name that the husband asserts he holds on trust as an asset of [SN] Nominees Pty Ltd in its capacity -

   et cetera.

7. The second column, which obviously feeds off the column I have just mentioned reads:

   The general ledger of [SN] Nominees Pty Ltd in its capacity as manager of the [N] trust partnership from July 1989 to 30 June 2007

8. It is those two columns that I have presumed, having regard to the heading in Item 3B that the Chief Justice was ruling upon.  Under the heading of Item 3B before paragraph 33 of her Honour's reasons, the following appears:

   The husband contends that he has provided the general ledger of [SN] Management Pty Ltd from July 2006 to June 2008.  In addition, he contends that Mr [F] has already been provided with financial statements and tax returns -

   et cetera.

9. Her Honour then said:

   The tax returns show the income from that account and indicate that tax has been paid on that account by the trust partnership.  The husband asserts that additional documents requested are simply not relevant to the determination of the issues between the parties.  He contends that the general ledger was only created as a separate general ledger item in the 2006-07 year and he has provided that.  Prior to 1 July 2006, the [SN] Management Pty Ltd account was accounted for as part of the consolidated ledger.

10. Paragraph 35 of her Honour's reasons then reads:

    In having regard to the holding of the UBS account in the husband's name, I see no reason why the husband should only provide the ledger from 1 July 2006 but not earlier and I propose to make an order in the terms sought by the wife.

11. To make sense of that paragraph, two important things need to be considered.  The first is what I have just mentioned about the table and what the wife was seeking and the second is what precedes it.  It is quite clear in my view that what her Honour was talking about was the evidence that could be admitted in the proceedings in relation to the husband's account with UBS and the second relates to the reference in table 3B, relating to the document of SN Management.  It seems to me therefore that there is no issue estoppel in this case.

I certify that the preceding Eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  11 March 2009