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QRS v ZFB [2015] FJMC 156; File No 14-SUV-0308 (17 December 2015)


IN THE FAMILY DIVISION OF THE MAGISTRATE’S COURT AT SUVA


FILE NO.: 14/SUV/0308


BETWEEN


QRS

Applicant


A N D


ZFB

Respondent


APPEARANCES/REPRESENTATIONS

Mr. Niubalavu for the Applicant


Mr. Singh K. for the Respondent


RULING


INTRODUCTION

  1. This is an application for Discovery.
  2. The applicant is seeking disclosure of certain documents from the Respondent. The respondent in this case has repeatedly said that they will not disclose those documents sought by the Applicant as the Applicant is not entitle to it.
  3. Further, the Applicant by way of 12 form 23 seeks the following, which I wish to quote in verbatim;
    1. “The Respondent to provide and disclose to the Applicant and to the Court a Current ANZ bank statement for the period of January 2014 to date and
    2. Respondent to provide and disclose to the Applicant all documents pertaining to the Joint application made by both parties to the Australian grant of permanent residence visa.”

CASE BACKGROUND


  1. The parties had been married for 9 years.
  2. The parties got married on 21st August 1998 and they have no children from marriage.
  3. On 19th August 2005, the Respondent together with the Applicant was approved for a
    grant of Australian Permanent Residencies (PR).
    1. The Respondent visited Australia and his applicant condition for the grant of the PR was
      approved.
    2. In 2006 the Respondent got accepted to a position to Sudan as a security consultant;
    3. Sometimes in May 2007, the Respondent moved out of Fiji on his PR Status for greener pastures and during his movement he made it clear to the Applicant that he did not want to be with the Applicant as the Respondent also had a child outside of the marriage.
    4. Since moving out of Fiji in 2007, the Respondent has not visited Fiji or resumed his relationship with the Applicant.
    5. On 4th May 2015, the Dissolution of Marriage between the Applicant and the Respondent was finalised.

Reason for Objection;

  1. That after separation in June 2007, the Applicant has not physically, mentally or financially provided/contributed towards the Respondents progress in life and or towards his assets.
  2. That the Respondent does not have in his possession any documents from the Immigration Department in regards to his PR Status in Australia. All he has is a file reference No. OSF000, which the Applicant already has. Should the Applicant require documentation, she can seek the same from the Australian Immigration Department.

RELEVANT DOCUMENTS

  1. The Applicant submitted both the form 12's and 23’s filed on 03th June 2015 and 04th June 2015.
  2. The Respondent is opposing this application and has filed in response a Form 13 and 23 on the 29th September 2015.
  3. At the hearing both parties submitted their respective written submission.

THE LEGISLATURE


  1. The law to be applied in recovery proceedings is found in Subdivision 8 of the Family Law Rules and Division 8, Subdivision B of the Family Law Act.
  2. Rule 8.29 of the Family Court Rules 2005 provides under the heading of Full and frank disclosure that “ Aon who is required by thes these Rules to file a financial statement in accordance with rule 8.28 must make in the financial stat a full and frank disclosure of the person’s financial circumstance.”

  3. Order XXV provides for - Interrogatories, Discovery And Production Of Documents as follows.

When interrogatories may be delivered.

Appendix A Form 13


  1. Any party may, by leave of the court (but, if he is required to deliver any pleading, not until he has delivered a sufficient pleading), deliver interrogatories in writing for the examination of the opposite party, upon any matter as to which discovery may be sought.

Amendment


  1. The court may strike out or permit to be amended any interrogatory which, in the opinion of the court, is scandalous or irrelevant, or not put bona fide for the purposes of the action, or not sufficiently material, or in any other way objectionable.

Answer


3. The party interrogated shall answer the interrogatories subject to just exceptions.


If answer insufficient

4. If any party interrogated omits to answer or answers insufficiently, without having just cause, the party interrogating may apply to the court for an order requiring him to answer or to answer further. Thereupon, or upon the court's own motion, if the court thinks fit, an order may be made requiring him to answer, or to answer further, either by affidavit or by viva voce examination, as the court may direct.

Discovery of documents

  1. The court may order any party to the suit to make discovery, upon oath, of the
    documents which are or have been in his possession or power relating to any matter in question in the suit.
  2. As noted Order 25 Rule 05 and 06 of MCT Rules denotes Discovery and Production of Documents in the Magistrate Court:

Rule 5 provides that the court may order any party to the suit to make discovery, upon oath, of the documents which are or have been in his possession or power relating to any matter in question in the suit.


Production of documents:


Rule 6 provides that the court may, at any time during the pendency therein of any suit or proceeding, order the production by any party thereto, upon oath, of any documents in his possession or power relating to any matter in question in such suit or proceeding, and the court may deal with such documents, when produced, as shall appear just.

Family Law Rules provides under the heading of “Documents to be produced” as follows;

Rule 9.04.—(1) Eachy whonds a cs a conferenference in relation to proceedings with respect to financial matters must produce all relevant and significant documents in the party&#8 possn, custody or control, or which, with reasonable able diligdiligence, the party can obtain, about—

(a). the financial matters referred to in a financial statement filed by the party in accordance with Division 8.7 in so far as they are relevant and in dispute;

(b) the value of any item of property in which any party attending the conference has an interest in so far as the value of that property is relevant and in dispute; or


(c) any other financial matter in dispute between the parties.

(2) Earty ttends a cs a conferenference in relation to proceedings with respect to children must produce all relevant and significant documents in the party’s possession, custody orrol, r which, with reah reasonabsonable diligence, the party can obtain, that are relevant to any matter in dispute between the parties concerning children.

(3) The documents me t bducroduced—

(a) at the conference; or

(b) if ordered or directed by the court, at an earlier time.

Case Law


The Respondent draws the Courts attention to High Court cases that have dealt with issues of Specific Discovery. The case is of Singh v Minjesk Investment Corporation Ltd. & Anor- High Court Civil Action No. HBC 148 of 2006 has been widely used when a particular party makes an application of discovery of some documents.
  • The High Court has stated the onus initially is on the applicant to establish the following
    by way of affidavit evidence:

    • (i) Identify clearly the particular document or documents or class of documents that he seeks from to be discovered by the opposing party

    (ii) Show a prima facie case that the specific document or class of documents do in
    fact exist or have existed

    (iii) establish that these documents are relevant in the sense that they relate to the matter in question in the action. In other words, the information in the document must either directly or indirectly enable the applicant either to advance his own case or to damage the case of his or her adversary. Alternatively, it is sufficient if the information in the document is such that it may fairly lead to a train of enquiry which may have either of these consequences. The relevance of a document is to be tested against the issues and/or questions raised by the pleadings (see A.B Anand (Christchurch) Ltd -v- ANZ Banking Group Limited (1997) 43 FLR 22 30 January 1997).

    EVIDENCE AND ANALYSIS

    1. I will not reiterate the entire evidence on the court but reference would only be made to the relevance of evidence to the present application and for analysis purpose. Also I wish to emphasis some portion of evidence with intention of analysing the same potions later without reproducing the same.
    2. As noted the Applicant is specific in his Application for discovery of PR Application Documents to Australia and specific bank statements, however they have not specified in their Affidavit in Support if the documents in particular, the documents of PR application still exist and their relevance to the matter. Also failed to show that how PR application documents are relevant to the property distribution case.
    3. In all the circumstances it is not justifiable to order the Respondent to provide and disclose to the Applicant all documents pertaining to the Joint application made by both parties to the Australian grant of permanent residence visa. On the same token I also note that the Respondent stated that he does not have any other documents other than a file reference no. OSF000, which the Applicant already has. In her application which deals with discovery of the PR documents, the Applicant fails to show in her Affidavit that the documents she needs still exist,
    4. Also I observe that this issue was a curable one and should have addressed by the lady by requesting from the Australian Immigration Department. I agree with the Respondent that should the Applicant require documentation, she could have sought from the same from the Australian Immigration Department.
    5. More importantly, the applicant failed to provide a solid legal background for this application. Parties are already divorced and the man moved on with his life and hence it is difficult for this court to justify ‘the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life as submitted by the lady pursuant to Section 26 of the Family Law Act including the other provisions of the section 26.
    6. I also wish to note that the Respondent argued that after separation in June 2007, the Applicant has not physically, mentally or financially provided/contributed towards the Respondents progress in life and or towards his assets. In these circumstances I wish to highlight that the Registrar and the Court will take into account the factors that are necessary to be dealt with before altering property interest and those factors are out lined in s. 162(1) of the FLA. But as noted above “A person who is required by these Rules to file a financial statement in accordance with rule 8.28 must make in the financial statement a full and frank disclosure of the person’s financial circumstance.” Therefore The Respondent providing and disclosing to the Applicant and to the Court a Current ANZ bank statement for the period of January 2014 to date is relevant to the property distribution proceedings. The husband is entitled to give evidence of what his contribution are that should be considered for alteration in the assets but must make in the financial statement a full and frank disclosure of the person’s financial circumstance.
    7. With the above observation, I wish To Conclude the Decision with the below Mentioned Rule Division 9.3—Rule 9.08. provides &#16a conciliation conferenference, all issues relating to the following matters must be considered, if appropriate:

    (A) DIVISION 9.3—CONCILIATION CONFERENCES

    Mati>Matters to be considered

    9.08. At a conciliationerence, ale, all issues relating to the following matters must be considered, if appropriate:

    (a) the possibility of settlement of any issue or i in the proceedings;

    (b) the defining of issf issues and orders sought;

    (c) amendment of documents;

    (d) issues (if any) as to valuation;

    (e) the filing and service of affidavits;

    (f) discovery and inspection;

    (g) interrogatories;

    (h) notices to admit facts or documents;

    (i) issue of subpoenas or witness summonses;

    (j) if there is more than one application in the proceedings that has not yet been determined—the possibility of applications being heard at the same time;

    (k) which party is to have carriage of the proceedings;

    (l) any directions necessary to ensure that the proceedings are ready for a pre-hearing conference;

    (m) the date for a pre-hearing conference.


    1. So the above Rule indicated that the Registrar has powers (must consider) about “discovery” and other requirements as per the Rule. Sometimes the A/Registrar may conveniently refer this matter to be dealt in the court without following Rule 9.8.

    NOW THEREFORE BE IT ORDERED BY THE COURT THAT:

    1. In the light of the above discussed, I grant the relief sought by the applicant in her form 12 and 23 as noted above only limiting for the discovery that the Respondent to provide and disclose to the Applicant and to the Court a Current ANZ bank statement for the period of January 2014 to date.
    2. I refuse her application that the Respondent to provide and disclose to the Applicant all documents pertaining to the Joint application made by both parties to the Australian grant of permanent residence visa
    3. Relying on this Rule I refer back to the Registrar for “any directions necessary to ensure that the proceedings are ready for a pre-hearing conference; and (m) the date for a pre hearing conference” and also to follow the above quoted Rule 9.8. and Magistrate Court Rules as above discussed.


    30 days to appeal.


    LAKSHIKA FERNANDO
    RESIDENT MAGISTRATE

    On this 17th day of December 2015

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