Sun & Yeng (No 3)

[2023] FedCFamC1F 944

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Sun & Yeng (No 3) [2023] FedCFamC1F 944

File number	SYC 8025 of 2022
Judgment of	WILSON J
Date of judgment	2 November 2023
Catchwords	FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – urgent application to rely on evidence of foreign Country B law – leave granted to the applicant and second respondent to rely on reports from Country B law experts.
Legislation	Family Law Act 1975 (Cth)
Division	Division 1 First Instance
Number of paragraphs	8
Date of hearing	2 November 2023
Place	Melbourne
Counsel for the applicant	Mr L. Glick KC with Mr J. Mellas
Solicitors for the applicant	Lander & Rogers
Counsel for the first respondent	Mr G. Stapleton
Solicitors for the first respondents	Longton Legal
Counsel for the second respondent	Mr D. Brown KC with Mr D. Edney
Solicitors for the second respondent	XR Consulting Pty Ltd

ORDERS

SYC 8025 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN

MS SUN

Applicant

AND

MR YENG

First Respondent

MS HAU

Second Respondent

ORDER MADE BY	WILSON J
DATE OF ORDER	2 NOVEMBER 2023

THE COURT ORDERS THAT –

1.Leave is granted to the applicant wife to rely on the report dated 2 October 2023 of S Lawyers at the trial of this proceeding, such report to found submissions without need for filing an affidavit.

2.Leave is granted to Ms Hau to rely on the report of Ms T dated 1 November 2023 of U Lawyers at the trial of this proceeding, such report to found submissions without need for filing an affidavit.

3.On or before 12pm on Monday 6 November 2023 the wife must file and serve any amendment to her initiating application.

4.The trial of this proceeding is to resume on Wednesday 8 November 2023 in accordance with paragraph 2 of my orders made on 4 October 2023

5.Costs of and incidental to this application are reserved including King’s Counsel.

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

EX TEMPORE REASONS FOR JUDGMENT

WILSON J

1. The trial of this proceeding resumes next Wednesday in accordance with orders made on 11 October 2023.  The circumstances against which this most recent application is set were recorded in a little detail in my reasons 11 October 2023.  Since then two reports have been prepared although not pursuant to Court order. 

2. The first is from S Lawyers dated 2 October 2023 and the second is from Ms T of U Lawyers in a report dated 1 November 2023.  Mr Brown and Mr Glick, on behalf of their respective clients, have got to the point of submitting that each report should be received into evidence without the need for a formal affidavit to verify the document. 

3. Each contends that the report should provide the foundation for submissions.  There is a live debate about the evidentiary use to which the contents of each report might be put in the form of cross-examination of one or more witnesses.  Mr Stapleton has powerfully submitted that his client will or may be prejudiced, having regard to the way the case has been cast thus far and that the receipt of these reports does little more than provide some sort of evidentiary foundation for what he characterises as a false issue in the case.

4. I am not able to form a concluded view about the import of the evidence at this stage, other than to say that the parties have obviously taken a view that it is sufficiently significant to retain foreign lawyers to express opinions on the point.  Where exactly the evidentiary direction of this case goes based on the receipt of these reports is at large at this stage and it seems to me to be premature to make any decision on the issue.  Still less is it highly desirable to provide prescriptive restraints on the use to which the evidence might be put.

5. It seems to me to be purposeful to say no more than to grant leave to the wife to rely on the report dated 2 October 2023 of S Lawyers law Offices, if such report to found submissions there being no need to file an affidavit verifying the report. 

6. I also grant leave to Ms Hau to rely on the report of Ms T dated 1 November 2023 of U Lawyers, if such report to found submissions without the need for her to file a formal affidavit verifying the document. 

7. Mr Stapleton quite properly has asked for and is entitled to insist upon (it seems to me) a formal calibration of the import of this evidence and at Mr Glick's suggestion I will require by noon on Monday 6 November 2023 the wife to file and serve an amendment to her initiating application to make plain the precise terms of the wife's contention in respect of the funds the subject of each of the new witness’s reports. 

8. Finally, the trial of this proceeding will resume on 8 November 2023 in accordance with paragraph 2 of my orders made 4 October 2023.  I reserve the costs of and incidental to this application, including the costs of King’s Counsel.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Wilson.

Associate:

Dated:       2 November 2023