Zha & Wun (No 3)

[2023] FedCFamC1F 670

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Zha & Wun (No 3) [2023] FedCFamC1F 670

File number(s):	SYC 4269 of 2020
Judgment of:	SCHONELL J
Date of judgment:	11 August 2023
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Injunctions – Where the respondents sought to discharge injunctions made on an ex parte basis – Where a court in Country AD has also made ex parte injunctions similar to those in Australia – Where judgment in the respondents’ application for discharge of the injunctions in Country AD is expected to be delivered by the end of August 2023 – Where court’s should endeavour to ensure that there are not inconsistent determinations in different jurisdictions between the same parties – Application adjourned to await outcome of the Country AD Court’s determination.
Division:	Division 1 First Instance
Number of paragraphs:	11
Date of hearing:	11 August 2023
Place:	Sydney
Counsel for the Applicant:	Mr White SC with Mr Richardson
Solicitor for the Applicant:	Pickering Pendleton
Solicitor for the First Respondent:	Barkus Doolan Winning (Did not participate)
Counsel for the Second to Fourth Respondents:	Ms Painter SC with Mr Turnbull
Solicitor for the Second to Fourth Respondents:	David H Cohen & Co.

ORDERS

SYC 4269 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ZHA

Applicant

AND:

MR WUN

First Respondent

MR A WUN

Second Respondent

MS YANG (and another named in the Schedule)

Third Respondent

ORDER MADE BY:	SCHONELL J
DATE OF ORDER:	11 AUGUST 2023

THE COURT ORDERS THAT:

1.The Application in a Proceeding filed 18 July 2023 is adjourned to 20 September 2023.

2.Each party’s costs of the hearing today are reserved.

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 the pseudonym Zha & Wun has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

SCHONELL J:

1. Listed for hearing before me today is an application by the second, third and fourth respondents to discharge various injunctions that were made by a senior judicial registrar on an ex parte basis on 10 March 2023.

2. In the applicant’s wife’s (“the wife’s”) affidavit filed 9 August 2023, she records the following:

   22. On 13 March 2023, the [Country AD] Courts made ex parte injunction orders in support of the Australian March 2023 injunctions against both [AB Pty Ltd] and the Second Respondent (“the [Country AD] March 2023 Injunctions”). The orders also required [AB Pty Ltd] and the Second Respondent to provide disclosure. This is in addition to the existing disclosure order against the Husband, which remains outstanding. … The matter was subsequently adjourned to […] May 2023 for further inter partes hearings.

   23. It was not until four days before the hearing (i.e., on [..] May 2023), that [AB Pty Ltd] filed a summons in which it sought, among other things, for the [Country AD] March 2023 injunctions be discharged or otherwise varied to enable the release of funds for legal fees and business expenses. …

   24. [In] May 2023, the [Country AD] Court dealt with a directions hearing related to my summons for the continuation of the [Country AD] injunction and [AB Pty Ltd 's] summons to discharge the injunctions against it. The [Country AD] Court declined to discharge or make any of the proposed variations to the [Country AD] injunction as sought by [AB Pty Ltd] and ordered for the [Country AD] March 2023 Injunction to continue. It was drawn to the [Country AD] Court’s attention that there was still disclosure outstanding in Australia and [Country AD], as at the time [AB Pty Ltd] had taken no steps in Australia in relation to the Australian March 2023 injunctions and, the otherwise belatedly taken steps in [Country AD]. Furthermore, I had not been given an opportunity to respond to [AB Pty Ltd] Summons seeking a discharge and/or variation of the [Country AD] March 2023 Injunctions. The matter was subsequently adjourned for substantive argument (later fixed to […] August 2023) and directions were given for the filing of evidence by [AB Pty Ltd] and me in the lead up to the substantive hearing. …

   25. On 12 July 2023, the Second Respondent filed a summons in which he sought the [County AD] March 2023 injunctions affecting his personal [Z Bank] accounts be discharged. …

   26. Subsequently my [Country AD] solicitors and the [Country AD] solicitors for [AB Pty Ltd] and the Second Respondent, wrote to the [Country AD] Court, seeking to clarify status of the hearing on […] August 2023, how the Court wishes to deal with Second Respondent's Summons and whether the hearing on […] August 2023 should be postponed pending the application recently made in Australia for the discharge of the Australian Injunction. In correspondence dated […] July 2023, the [Country AD] Court confirmed the hearing on […] August 2023 would proceed and only deal the summons filed by [AB Pty Ltd] on […] May 2023. It would not deal with the Summons the Second Respondent had filed on […] July 2023 on a substantive basis. After being informed about the hearing on […] August 2023 in the Australian Proceedings, in correspondence dated […] August 2023 the [Country AD] Court wrote to all parties and invited submissions as to whether an adjournment of the hearing on […] August 2023 for a period of no more than 3 months. As at the date of swearing this affidavit, I am unaware as to whether the hearing on […] August 2023 in [Country AD] will proceed.

3. I am informed today by senior counsel for the wife that the Country AD Court heard the application by the respondents for the discharge of the injunctions in August 2023.

4. I am also informed by senior counsel for the wife that the judge hearing the matter in Country AD indicated that judgment would be delivered at the end of August, with the likelihood that any determination would be stayed pending a determination of what happened with the current application before this Court; such stay to be of a period of approximately 14 days.

5. Senior counsel for the wife also advised from the Bar table that he understood the Court in Country AD would be greatly assisted by knowing what the attitude of this Court was to a continuation or otherwise of the current ex parte injunctions.

6. Senior counsel for the respondents, again from the Bar table, indicated that she understood that the Court in Country AD would make its own independent judgment on the merits of the injunctions that were made by that Court.

7. I make no criticism of either counsel’s submissions in circumstances where they are both acting on representations from others. I am greatly concerned that there is a potential for an inconsistent determination on this issue.

8. Senior counsel for the respondents did not resist the continuation of the injunctions in the event that I determined that I should await the outcome of the Country AD Court’s determination.

9. I am not satisfied that there is a prejudice to the position of the wife by adjourning this application to a date after the expected date of delivery of judgment in Country AD. In circumstances where the respondents’ conceded that the injunctions should continue, then any prejudice to the respondents was clearly acknowledged within the concession made by their senior counsel.

10. Courts should endeavour to ensure to the extent that it is possible that there are not inconsistent determinations between the same parties in different jurisdictions, albeit acknowledging that that outcome is not always possible.

11. I am satisfied that it is proper that this matter be should adjourned to await the outcome of the Country AD Court’s determination and accordingly, on my own motion, I adjourn the determination of the Application in a Proceeding filed 18 July 2023 to a date yet to be determined and I reserve each party’s costs of today.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell.

Associate:

Dated:       14 August 2023

SCHEDULE OF PARTIES

SYC 4269 of 2020
Respondents
Fourth Respondent:	AB PTY LTD