Woodcock & Woodcock (No 7)
[2025] FedCFamC1F 282
•2 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Woodcock & Woodcock (No 7) [2025] FedCFamC1F 282
File number MLC 13421 of 2020 Judgment of WILSON J Date of judgment 2 May 2025 Catchwords FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – TRIAL SEQUENCE – the applicant submits that the respondent should file his case outline first as the applicant does not understand the case advanced by the respondent – held, case outlines should be filed concurrently.
FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – EXPERT EVIDENCE – the respondent submits that the applicant should be restricted to a single expert witness per issue – held, the applicant should not be so restricted.
Legislation Family Law Act 1975 s 95 Cases cited Kennon v Spry (2008) 238 CLR 366
Tepko Pty Ltd v Water Board (2001) 206 CLR 1
Woodcock & Woodcock (No 2) (2022) 65 Fam LR 333
Woodcock & Woodcock (No 3) [2023] FedCFamC1F 238
Woodcock & Woodcock (No 5) [2023] FedCFamC1F 894
Division Division 1 First Instance Number of paragraphs 38 Date of hearing 31 April 2025 and 2 May 2025 Place Melbourne Counsel for the applicant Mr G. Dickson KC Solicitor for the applicant Lander & Rogers Counsel for the first respondent Mr T. North SC Solicitor for the first respondent Nedovic Lawyers Counsel for the second to fifth respondents Mr C. Shaw KC with Mr R. Minson Solicitor for the second to fifth respondents McNab Lawyers ORDERS
MLC 13421 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MR WOODCOCK
Applicant
AND MS WOODCOCK
First Respondent
B PTY LTD
Second Respondent
F PTY LTD (and others named in the Schedule)
Third Respondent
ORDER MADE BY
WILSON J
DATE OF ORDER
2 MAY 2025
THE COURT DIRECTS THAT the parties must reformulate their directions by noon on Wednesday, 7 May 2025 to reflect these ex tempore reasons for judgment.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Woodcock & Woodcock has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
This proceeding is fixed for trial on 20 October 2025 pursuant to orders made by me on 13 February 2025 on an estimated duration of 15 sitting days. On 30 April 2025 the parties appeared before me in relation to directions for the trial.
Most issues were agreed. However, the parties were unable to resolve –
(a)the sequence of filing of each party's case outline, and
(b)aspects of expert evidence to be adduced in the proceeding.
These reasons address both.
SEQUENCE OF CASE OUTLINES
On behalf of the husband and the second to sixth respondents (the trustees of the family trusts involved in this case) it was put that the wife should be ordered to file her case outline ahead of all other parties because she is the putative plaintiff in this litigation, despite being the first respondent. That was said to be important to the husband and the trustees because –
(a)the husband said he did not understand the case advanced by the wife;
(b)the trustees said the wife's case in this litigation had been defined by a statement of claim filed 20 January 2025 and the case had subsequently become one involving difficult legal propositions advanced by the wife together with complicated forensic accounting evidence;
(c)without learning how the wife casts her case, the trustees and the husband contended they were unable to know how to respond and may not join issue with key points of concern in this case; and
(d)in the interest of efficient case management the wife should be required to put her case first.
In debate, I raised with Mr Dickson KC and Mr Shaw KC that common law principles of considerable antiquity have consistently held that a plaintiff is entitled to run his, her or its case in such manner as that party chooses, without, for example, there being any compulsion to split quantum from liability.[1] In response they argued that in reality, the wife was the plaintiff in this litigation and that she should go first. I asked Mr Dickson what he did not understand from the wife's statement of claim. He did not have a persuasive answer to that question.
[1] See Tepko Pty Ltd v Water Board (2001) 206 CLR 1.
All counsel agreed that this case raised utterly novel propositions of fact and law for family law purposes.
There is nothing new in that observation. I said as much in Woodcock & Woodcock (No 2).[2] In that decision I also reasoned why this case may (repeat, may) turn out to be an extension of the observations in Kennon v Spry,[3] to the effect that ascribing an amount to a beneficiary's rights to due consideration and due administration may not be beyond the actuarial arts.
[2] (2022) 65 Fam LR 333.
[3] (2008) 238 CLR 366.
On behalf of the wife, Mr North SC made a collection of submissions. Relevantly synthesised, they were as follows –
(a)the wife's statement of claim has not been struck out nor has any application been made for such an order and defences have been filed in answer to the statement of claim;
(b)all parties should be ordered to file and serve their case outlines at the same time; and
(c)the contention that the husband and his legal advisors do not know what the wife is alleging in her statement of claim should be rejected.
On behalf of the trustees, Mr Shaw KC additionally submitted that the sequence of the parties’ filing and service of their case outlines is a matter of procedural fairness. He may be correct in that, although the point was not developed, no authorities were cited and the contrary position was not argued so it is unwise for me now to express any observations on point.
It must not be forgotten that the debate which consumed so much time on 30 April 2025 related to the sequence of filing of case outlines, not written openings. In my experience, case outlines in the cases I have decided over 10 years have left a lot to be desired. In this case, the debate about whether a beneficiary's dual rights to due consideration and to due administration can be valued was argued at length (obviously inconclusively) when canvassed before me by Mr A. J. Myers AC KC and by Mr L. Glick KC ahead of my decision in Woodcock & Woodcock (No 2).[4] Whether Mr North SC supplements the decided authorities on point in his case outline remains to be seen.
[4] (op cit).
I will expect each party's case outline to be detailed as to fact and as to law.
As to the submission that the applicant or the trustees are unable to discern what the wife is saying in her statement of claim two responses emerge. First, in the Major Complex Financial Proceedings List parties are expected to cooperate to get to the heart of the matter as quickly and as efficiently as time permits. I will not tolerate an attitude of wilful blindness. If a party takes the view that he, she or it is truly disadvantaged by not understanding the way another party has pleaded his, her or its case, then common sense – to say nothing of the operation of s 95 of the Family Law Act – requires the party allegedly in the dark to confer with his or her opposite counsel to endeavour to understand the case put against the party allegedly in the dark.
To say that a party does not know the case put against him when he has taken no step to strike out the statement of claim is a large submission and one I reject.
Returning to the sequence of the filing of case outlines, in my view they should be concurrent. They must address matters of fact and law. At the trial of this proceeding I will expect detailed openings, fully supported by applicable legal principles. In more complicated commercial trials in commercial courts of State Supreme Courts it is commonplace for parties to prepare for provision to all other parties and for the judge an opening book containing all key documents and the authorities on which the parties rely in support of their contentions.
A non-suit application is a rarity in this court yet that is not to say that a submission cannot be made in final addresses that a particular pleaded proposition or cause of action has not been proved or that such non-proof bears upon a particular just and equitable determination.
THE EXPERT EVIDENCE
The second issue debated on 30 April 2025 related to expert evidence. The orders proposed by Mr Dickson KC related to both adversarial evidence as well as to single expert evidence.
In Woodcock & Woodcock (No 5)[5] between paragraphs 21 and 23 I held that litigation (inferentially, involving evidence of the sort Mr T is giving) is not amenable to single expert evidence for the reasons there expressed. I made those observations in October 2023. On 30 April 2025 (16 months later), the husband produced draft minutes of orders for trial for which provision is made for single expert evidence as well as adversarial evidence. The husband's minutes provide for 14 July 2025 for the husband and the trustees to file any valuation and affidavit evidence in answer to the valuation evidence of Mr T in his 4 December 2024 affidavit. The husband and the trustees recognise that any evidence in opposition to Mr T's evidence will take the form of adversarial evidence. That was entirely consistent with the observations in Woodcock & Woodcock (No 3).[6]
[5] [2023] FedCFamC1F 894.
[6] [2023] FedCFamC1F 238.
In his proposed orders the husband suggested that one month after the adversarial evidence was filed, that is to say on 15 August 2025, the parties arrange for all adversarial witnesses to confer so as to prepare a joint statement setting out the matters on which they agreed and, in respect of which they disagreed, why each says his or her opinion is to be preferred.
Further, the husband proposed an order for the appointment of a single expert to report on taxation implications on distributions to the husband by the trustees. Today, all parties informed me that that was an agreed position.
Further, the husband sought an order for the appointment of a single expert to provide valuation evidence about two parcels of real estate, motor vehicles and artwork. Likewise, today all parties agreed that that appointment of such a single expert was by consent.
Mr North SC, on behalf of the wife, submitted that the husband should be confined to one expert per issue.
It was not stated in express terms by Mr North but his contention that there should be one adversarial witness to each issue was presumably underpinned by the rationale that Mr T was the sole adversarial witness on the main issue in the case so other parties should not be permitted to overwhelm and displace the veracity and import of Mr T's evidence by the sheer volume in numbers of contradictory evidence. Today a debate emerged about whether the trustee and the husband should be constrained in the evidence they seek to adduce in the nature of adversarial evidence in opposition to Mr T's evidence. Having heard Mr Dickson KC and Mr Shaw KC on point I take the view that the trustees and the husband should not be so restricted and a decision about the consequences of the nature, import and volume of the adversarial evidence in opposition to Mr T's evidence can be assessed in due course.
Controversy surrounding evidence about the value of real estate, motor vehicles and artwork is unlikely. Those assets should be the subject of evidence to be adduced by a single expert as all parties today agreed.
The identity of each single expert should be agreed between the parties as well as the usual terms of engagement and a joint letter of instruction to go to each. I expect that to be done in the usual manner by competent legal practitioners in this jurisdiction as I have been favoured with in this case.
As far as expert evidence to provide taxation evidence is concerned, the parties agreed that that is to take the form of single expert evidence, as was debated this morning.
PROPOSED ORDERS SOUGHT BY THE HUSBAND
The husband proposed orders which were styled as if they were consent orders. Only some were by consent. I will require the parties to reformulate their directions by noon on Wednesday, 7 May 2025 to reflect these reasons.
Paragraph 1 which provides for the husband and the trustees by 14 July 2025 to file valuation evidence in answer to Mr T's valuation evidence dated 4 December, can stand. No party protested about that order. An order in those terms should be made. The parties should be permitted to adduce such evidence as they are advised in opposition to Mr T's evidence, unconstrained.
Paragraph 2 of the husband's proposal provided for adversarial witnesses to be "arranged" to confer by 15 August 2025.
Paragraph 3 of the husband's proposal required the adversarial witnesses to confer and prepare a joint statement regarding the matters set out above. No party submitted that such an order was inappropriate or should not be made. In those circumstances, I make an order in terms of paragraphs 3 and 4.
Paragraphs 5, 6 and 7 related to reports of single experts to provide evidence on –
(a)taxation implications arising from distributions to the husband;
(b)two parcels of real property;
(c)motor vehicles of the parties; and
(d)artwork.
Paragraph 7 proposes that a nominated entity, BA Pty Ltd is appointed as the relevant expert. No party opposed an order in those terms. I will make an order in the terms set out in paragraphs 5, 6, and 7 of the minute submitted by Mr Dickson.
So far as paragraph 8 was concerned, the parties sought orders conferring upon them liberty to apply on issues relating to the engagement of single and adversarial witnesses. Several things must be said on that. First, in its current form I will not make it for the simple reason that cases in the Major Complex Financial Proceedings List do not require an order for liberty to apply. The parties always have liberty to apply. Second, letters of instructions will need to be formulated very soon for the evidence of all experts to be filed well in advance of the trial in accordance with the rules.
Paragraphs 8 to 12 were not the subject of objections, so I will make those orders.
The sequence of filing of case outlines has already been determined. It must be concurrent. The date for that will be 6 October 2025 for all parties. All parties must file a responsive case outline, limited to joining issues with the propositions of fact and law set out in the case outlines of other parties, as are appropriate.
Paragraphs 14 to 18 of the proposals otherwise should be ordered, which I now do.
A direction has already been made for the date by which a revised version of the orders are to be produced. I expect to receive that document by the date previously stated.
The trial will proceed as fixed.
This proceeding will be listed for further hearing on 27 August 2025 at 10.00am, after the husband has filed his evidence.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Wilson. Associate:
Dated: 7 May 2025
SCHEDULE OF PARTIES
MLC 13421 of 2020 Respondents
Fourth Respondent
E PTY LTD
Fifth Respondent
C PTY LTD
Sixth Respondent
P PTY LTD
0
4
1