Brown and ors v Anstis anor

Judgment 1Before the court is an amended notice of motion seeking an order pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 that proceedings pending in this court be transferred to the Family Court of Australia. 2On 5 September 2013, the second defendant (who brings the motion) issued two notices to produce ("the notices"). One was directed to the plaintiff, and the other was directed to the first defendant. The notices, which were tendered and marked exhibits A and B respectively, seek production of a number of documents. 3On 17 September 2013, the day prior to the date on which the second defendant's motion was listed for hearing, the solicitors for the plaintiffs wrote to those representing the second defendant taking issue with the notice served on them and indicating that in the absence of it being withdrawn, a motion would be filed seeking an order to set it aside. Given that the notice itself was dated 5 September, it is unfortunate that almost two weeks was allowed to elapse before the plaintiffs' solicitors set out their position. 4When the notices were called upon by counsel appearing for the second defendant, I was informed by counsel for the plaintiffs, and by counsel for the first defendant, that nothing was produced in response to either of them. Having heard further submissions from counsel for the second defendant, counsel for the plaintiffs indicated that he wished to make an application to have the notice served upon his clients set aside. Counsel for the first defendant gave a similar indication. No prior notice had been given that such applications would be made. However, counsel for the second defendant indicated that he was in a position to deal with them. In order to determine the applications, it is necessary for me to set out some matters by way of background. 5The first and second defendants in the proceedings were formerly husband and wife. They separated on 4 June 2010. Subsequently, orders were made in the then Federal Magistrates Court bringing their marriage to an end. They then entered into a binding financial agreement pursuant to the provisions of s. 90C of the Family Law Act 1975. That document, which is in evidence before me on the hearing of the motion, imposed various obligations upon each of them, some of which were referable to a property at Berry Park which was apparently the matrimonial home. 6The plaintiffs are the trustees of a trust of which the first defendant is a beneficiary. The trustees advanced an amount of money to the first defendant by way of a loan in order to purchase the Berry Park property in 2001. The obligations of the first defendant under that loan agreement were guaranteed by the second defendant and the loan was further secured by way of mortgage over the Berry Park property. 7In 2012 application was made by the first defendant to set aside the agreement reached pursuant to s. 90C. That application is currently pending in the Family Court. Subsequently, and as a result of default under the loan agreement by the first defendant, proceedings were brought in this Court by the plaintiffs seeking orders, amongst other things, for possession of the Berry Park property. The first defendant consented to judgment being entered against him in those proceedings but the second defendant did not. The notice of motion before me today seeks an order that those proceedings be transferred to the Family Court pursuant to the provisions of the Jurisdiction of Courts (Cross-vesting) Act 1987 on the basis that it is in the interests of justice to do so. That order is opposed by the plaintiffs and by the first defendant. 8Against that background, the notices were issued by the second defendant on 5 September 2013. 9Counsel for the plaintiffs submitted, in short, that the documents sought in the notice served on his clients were not relevant to any issue that I was required to determine on the motion. In particular, as to the submissions made by counsel for the second defendant that there had been "collusion" between various parties, counsel for the plaintiffs submitted that there was simply no evidence to support any such allegation. 10Counsel for the first defendant adopted the submissions of the plaintiffs. 11Counsel for the second defendant accepted that the principal issue before me is whether or not it is in the interests of justice that the proceedings brought in this court be transferred to the Family Court. However, he submitted that the documents sought in the notices were relevant because they may evidence conduct on the part of the plaintiffs and the first defendant which had the effect of defeating certain instruments, including the guarantee executed by the second defendant. 12In advancing that submission counsel made reference to "collusion" between the plaintiffs on the one hand and the first defendant on the other. He also submitted that the documents sought may be "colourable" in the sense that they may support the allegation of collusion which was being made. 13Counsel went to some lengths to point out that in making these various assertions he was not suggesting that anything untoward, or dishonest, had occurred as between the plaintiffs and the first defendant. However the word 'collusion', in its general sense, connotes a secret or clandestine arrangement often entered into for some fraudulent purpose. In these circumstances, there appeared to me to be some degree of incongruity between the submissions which were advanced on behalf of the second defendant. In any event, counsel accepted that the purpose of seeking production of the documents was to enable those representing the second defendant to determine whether or not such documents in fact supported the various assertions which were made. 14In the course of submissions I was referred to a number of authorities including Portal Software International Pty Limited v Bodsworth [2005] NSWSC 1115; Patonga Beach Holdings Pty Limited v Lyons [2009] NSWSC 869; The City of Sydney v Streetscape Projects (Australia) Pty Limited and anor. [2011] NSWSC 980; and In the matter of Colorado Products Pty Limited (in provisional liquidation) [2013] NSWSC 392. By reference to those authorities, counsel for the second defendant submitted that the principles relating to notices issued under r. 34.1 were different to those applicable to issues relating to notices issued under Part 21 of the rules dealing with discovery and inspection. In particular, and by reference to the authorities, counsel for the second defendant submitted that the test of relevance for the purposes of a notice issued under r. 34.1 was less stringent than that applicable to a notice issued under Part 21. 15In Portal Software (supra) Brereton J identified the test for relevance in the context of subpoenas and notices to produce as follows (at [23]): "It is necessary then to appreciate what is the test of "relevance" in the context of a subpoena. In many of the cases it has been described as "apparent relevance" in the sense that the documents, production of which is sought, must bear some apparent relevance to an issue in the proceedings." 16Applying that test, I am not satisfied that the documents which have been sought in either of the notices to produce, bear (to use the words of Brereton J) "some apparent relevance to an issue in the proceedings". 17On the assumption that I conclude that the Family Court has jurisdiction to determine the issues which will arise in the proceedings brought in this court, the principal issue for the purposes of the notice of motion is a short one, namely whether or not it is in the interests of justice for those proceedings to be transferred. I was not taken to any part of any of the affidavit material filed by the second defendant in support of that motion which was said to lay any evidentiary foundation at all for the various assertions which have been made to support the notices. 18In the absence of such evidence, I am not satisfied that the documents sought in either notice are relevant. 19Accordingly, the orders that I make are as follows: (i)The notices to produce, each dated 5 September 2013 and issued to the plaintiffs and the first defendant, such notices having been marked exhibits A and B respectively on this application, are set aside; (ii)I reserve the question of costs of the applications until the determination of the notice of motion.