ZHENG & CHEUNG

[2021] FamCA 338

FAMILY COURT OF AUSTRALIA

ZHENG & CHEUNG [2021] FamCA 338

FAMILY LAW – NATIONAL ARBITRATION LIST – directions under s 13F of the Family Law Act.

Family Law Act 1975 (Cth) ss 13F, 121
Family Law Regulations 1984 (Cth) reg 67E

Hearne v Street (2008) 235 CLR 125
Pattison & Loomis [2021] FamCAFC 41

APPLICANT: Ms Zheng

RESPONDENT: Mr Cheung

FILE NUMBER: PAC 2307 of 2019

DATE DELIVERED: 25 May 2021

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Wilson J

HEARING DATE: 24 & 25 May 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P. Schroder

SOLICITOR FOR THE APPLICANT: Rafton Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms L. Clarke

SOLICITOR FOR THE RESPONDENT: J S Pinto & Co

Orders

1. On or before 4pm on 28 May 2021 the applicant must supply to the respondent all documents within the scope of paragraph 1 of the arbitrator’s directions made on 23 February 2021.

2. If the applicant fails to comply with paragraph 1 herein, this proceeding will be listed before me at 9:30am on 31 May 2021.

3. On or before 4pm on 28 May 2021 the applicant must file and serve on the respondent an amended version of her initiating application. 

4. On or before 4pm on 31 May 2021 the respondent must file and serve his response to the applicant’s amended initiating application. 

5. The documents written in a foreign language and exhibited to the applicant’s affidavit made 1 December 2020 and the affidavit of the applicant’s mother Ms B made 15 May 2020, or any other document not properly authenticated are not to be relied upon, tendered or admitted into evidence in the arbitration of this proceeding.

6. The objection to the subpoena issued by the respondent to the applicant on 28 April 2021 is to be listed before a registrar of this court on or before 28 May 2021 and determined on that date.

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 Zheng & Cheung 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 MELBOURNE

FILE NUMBER: PAC 2307 of 2019

Ms Zheng

Applicant

And

Mr Cheung

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. Arbitrations under the Family Law Act are underpinned by the parties’ unequivocal consent to their dispute being determined by their chosen arbitrator[1] and by their ongoing cooperation during the arbitral process.

   [1]Pattison & Loomis [2021] FamCAFC 41.

2. This proceeding has been before me several times despite –

   a)the proceeding having been referred to arbitration by orders of his Honour Judge Myers on 19 October 2020; and

   b)the proceeding having been transferred to my docket for inclusion in the National Arbitration List by order of his Honour Judge Myers on 27 October 2020.

3. The smooth running of the arbitration has been problematic in this case.  In saying that I make no criticism whatever of the arbitrator, who, it seems plain, has endeavoured to progress this case against a degree of reluctance. 

4. In the most recent application before me[2] the respondent applied for directions under s 13F of the Family Law Act.  That section is in the following terms –

   A court that has jurisdiction under this Act may, on application by a party to relevant property or financial arbitration, make orders the court thinks appropriate to facilitate the effective conduct of the arbitration.

   [2] This proceeding has been before me on the hearing of contested applications on 29 January 2021, 12 February 2021 and 26 March 2021, the latter hearing leading to limited consent orders.

5. This proceeding is presently part-heard before the learned arbitrator.  The learned arbitrator has undertaken the arbitration of this proceeding on 15 and 16 December 2020, 22 and 23 February 2021 and the arbitration is scheduled to resume, part-heard, on 1, 2 and 3 June 2021.

6. On 24 May 2021, counsel for the respondent informed me that this arbitration is in jeopardy unless directions were to be given by the court for the ongoing management of the arbitration, despite the learned arbitrator having embarked upon the reference to arbitration. When this proceeding was last before me leading to consent orders being agreed, an extensive debate unfolded about the propriety (and, dare I say, wisdom) of the court intruding in a part-heard arbitration in which a distinguished arbitrator is currently seized of the matter. Ms Clarke of counsel for the respondent submitted that despite the number of days in which the arbitration has been on foot so far, the case has progressed very little on substantive issues. In essence, she contended that it is appropriate for directions to be made under s 13F. Ms Clarke submitted that the arbitration is at risk of faltering having regard to the applicant’s latest position in which the applicant has abandoned, so Ms Clarke contended, the applicant’s assertions about the existence of one or more constructive trusts. To date, that issue had consumed a large amount of time and accounted for a significant focus of the arbitration. Ms Clarke submitted that the case called out for the articulation of the issues currently falling for determination.

The respondent’s application in a case

1. Pursuant to Regulation 67E, in form 7 dated 4 May 2021 the respondent sought five orders.  They were as follows –

   1.An order pursuant to section 13F of the Family Law Act 1975 (Cth) that the applicant be denied from filing, tendering or relying upon in any manner, any documents purporting to be translations of documents written in a foreign language, that have not been properly authenticated and that do not bear a statement that they are accurate as stated by a competent translator, as provided by the applicant on or before 1 April 2021, and the she be further denied to file, serve, tender or rely upon any properly authenticated document correctly translated after 1 April 2021.

   2.An order pursuant to section 13F of the Family Law Act 1975 (Cth) that the applicant file and serve an amended initiating application pleading the form and nature of the trust she alleges that she holds the property located at C Street, D District, F City on trust for her parents on or before 4pm on 7 May 2021.

   3.An order pursuant to section 13F of the Family Law Act 1975 (Cth) that the respondent be granted leave to file an updating affidavit.

   4.An order pursuant to section 13F of the Family Law Act 1975 (Cth) that the applicant is not to publish, disseminate or otherwise distribute any materials produced under the rules of disclosure, or of the court, or documents produced to the court without first seeking leave of the court to do so.

   5.An order pursuant to section 13F of the Family Law Act 1975 (Cth) that the applicant pay the costs of this application.

2. In support, the respondent relied on two affidavits of his solicitor, Joseph Pinto.  The first was made on 24 March 2021 and the second on 4 May 2021.  The first of Mr Pinto’s affidavits addressed, in large measure, difficulties encountered by the respondent in obtaining documentation supplied by the applicant to the applicant’s expert witness for the purpose of that expert producing his or her expert report.  That expert report addressed the constructive trust issue that the applicant wanted to agitate but which the respondent believes is now abandoned.  For present purposes it is unnecessary to rehearse in exquisite detail the factual evolution of that debate, except to record that the applicant omitted to provide to the respondent in an intelligible and comprehensible form the documents that the applicant submitted to her expert.  The respondent resisted the applicant’s reliance upon the applicant’s expert report.  The learned arbitrator allowed the applicant to rely on her expert’s report upon the applicant’s concession that the respondent should have leave to adduce responding evidence. 

3. On 24 May 2021 I gave the applicant 24 hours to file and serve written submissions in response to the respondent’s contentions herein. Those submissions were duly received at 9:11am on 25 May 2021.  The applicant contended that the orders sought by the respondent could, and should, have been dealt with by the learned arbitrator on transcript and not by me.  The applicant took issue with any assertion by the respondent that the applicant had not complied with the directions of the arbitrator.

4. With the benefit of the applicant’s written submissions in response, I heard further viva voce submissions from the parties at 1:15pm today.

Providing documents

1. On 23 February 2021 the arbitrator gave further directions requiring the applicant to serve her amended expert report on or before 16 March 2021.  Complications arose leading to the parties applying before me for orders in relation to that evidence.  Consent orders were agreed requiring the applicant by 1 April 2021 to provide to the respondent all documents recorded in paragraph 1 of the arbitrator’s directions made 23 February 2021.  The consent orders of 26 March 2021 also contained paragraph 3 pursuant to which the respondent had until 7 May 2021 within which to file any expert evidence. 

2. According to the respondent’s solicitor, the documents that the applicant provided purportedly in accordance with the learned arbitrator’s earlier directions have been defective in that some were not translated or not properly translated or certified as having been properly translated.  The respondent’s solicitor asserted that he does not have properly authenticated documents for submission to the respondent’s expert.

3. Paragraph 1 of the arbitrator’s directions made on 23 February 2021 was plain on its face.  It was as follows –

   The applicant is to provide the respondent with a list of documents that have been provided to their expert and provide the translated documents in the format of translated document followed by original document.

4. That required translated documents to be provided “in the format of translated document (sic) followed by original document (sic).”  It seemed to me to be readily apparent that the arbitrator was keen to ensure that the respondent was armed with precisely the same documents that were provided to the applicant’s expert.  That accorded with conventional orthodoxy in relation to the supply of documentation to an expert, reflective of a long practised custom that all parties must know on what precise instructions and material an expert has proceeded when expressing his or her opinion.  The applicant appears to have been dilatory in the provision of that material.  I will make an order requiring it to be supplied by 4pm on 28 May 2021.  If the applicant fails to do so I direct this proceeding be listed before me at 9:30am on 31 May 2021, that is to say, the day before the resumption of the arbitration.

5. It follows that the applicant should not be permitted to rely on any documents exhibited to affidavits that are written in a foreign language and not properly translated and authenticated.  I make an order to that effect.

An amended initiating application

1. In her affidavit made 20 May 2021 the applicant conceded that the question of a constructive trust was no longer being pursued.  The respondent argued that a revised version of the initiating application should be prepared requiring the precise version of the initiating application to be put forward.  I agree.  There is force in the contention that the respondent should not be required to guess at the case the applicant advances, especially when this case is part-heard.

2. I direct that the applicant files and serves on the respondent an amended version of her initiating application by 4pm on 28 May 2021.  The respondent must file and serve his response thereto by 4pm on 31 May 2021. 

Costs

1. Costs consequences occasioned by these orders are for the arbitrator to assess.

Updated affidavit

1. No details were given in relation to the order sought in paragraph 4 of the respondent’s application in a case.  The respondent provided a document on 24 May 2021 headed “respondent’s proposed minute of order”.  Paragraph 6 of that document confined any updating affidavit to the “production of bank statements previously annexed to the respondent’s consolidated affidavit and an updated medical report”.  In my view the ongoing conduct of this arbitration including any additional affidavits on which either party wishes to rely should be determined by the arbitrator.  The same must be said for paragraph 3 of the document dated 24 May 2021 in respect of granting leave to the respondent to file and serve an expert opinion report.

Ongoing arbitration

1. This proceeding should recommence before the arbitrator on 1 June 2021.

Restricting documentation to non-parties

1. The respondent sought orders requiring the applicant to not produce documentation in this proceeding to any other person without leave. Several things must be said about that application. First, s 121 of the Family Law Act already imposes certain restraints on parties in relation to the dissemination of information in a proceeding in this court.  The parties are bound by that provision.

2. Second, parties to litigation are bound by an implied undertaking not to use documents produced in the litigation for a purpose other than for the purpose of that litigation.[3]  The applicant acknowledged the import of that obligation.

   [3]Hearne v Street (2008) 235 CLR 125.

3. If the respondent conceives of a specific instance in which an identified person is to be enjoined by attachment to that undertaking in relation to a specific threatened disclosure, then no doubt the learned arbitrator will hear and determine any such application.  For present purposes I decline to make the order proposed by the respondent at paragraph 5 of his application in a case.

Subpoena

1. Documents produced to the court in response to a subpoena directed to the applicant dated 28 April 2021 are the subject of an application by the respondent for inspection and copying (if necessary).  Mr Schroder did not advance any submissions on point.  The respondent stated that he was informed by the court that a notice of objection had been provided to the court in relation to that subpoena, however he had not been served with a copy of that notice of objection.  Upon investigation, registry informed my associates that the applicant prepared a notice of objection on 10 May 2021.  It follows that prior to the release of any documentation the objection to the subpoena must be determined.  I refer the objection to the subpoena to a registrar of this court for determination of that objection on or before 28 May 2021.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 25 May 2021.

Associate: 

Date:  25 May 2021