Allesch v Maunz [2000] HCA 40 3 August 2000 C15/1999
ORDER
Appeal allowed.
Set aside the orders of the Full Court of the Family Court dated 26 November 1998.
Remit the matter to the Full Court of the Family Court for further hearing and determination in accordance with the reasons of this Court.
Each party to bear his or her own costs of the proceedings in this Court.
On appeal from the Family Court of Australia
Representation:
Appellant appeared in person
M D Broun QC for the respondent (instructed by Ken Cush & Associates)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Allesch v Maunz
Family Law – Family Court of Australia – Appeals – Nature of an appeal to the Full Court of the Family Court – Discretion to set aside an order made in the absence of a party – Miscarriage of justice where a party suffers effect of an adverse order and that party's absence adequately explained.
Family Law – Family Court of Australia – Appeals – Appeals by way of rehearing from discretionary judgments – Appellate court seeking to re-exercise discretion by reference to circumstances as they presently exist – Parties must be given an opportunity to adduce evidence as to circumstances as they presently exist in such cases.
Practice and Procedure – Appeal – Discretion to set aside order made in absence of a party.
GAUDRON, McHUGH, GUMMOW AND HAYNE JJ. This is an appeal from a decision of the Full Court of the Family Court of Australia (Lindenmayer, Kay and Brown JJ) dismissing an appeal from a decision of Finn J. Her Honour had dismissed an application to set aside orders for property settlement in proceedings between the appellant ("the husband") and his former wife ("the wife"), the respondent to this appeal.
History of proceedings
So far as concerns this appeal, the history of the proceedings begins on 18 May 1995 when an officer from the Registry of the Family Court delivered a letter to the husband's home informing him that, if he did not appear or arrange to be represented at a directions hearing the next day, 19 May, the wife's application for final property settlement orders could well be listed as an undefended matter. The husband, who did not then have legal representation, did not appear. In consequence, on 19 May, Finn J ordered that the wife's application be listed for an undefended hearing on 14 June 1995. Her Honour also ordered that a copy of the orders then made be served on the husband.
The orders made on 19 May were served on the husband on 22 May. When the matter came on for hearing on 14 June 1995,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Allesch v Maunz [2000] HCA 40
Case
[2000] HCA 40
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Full Court of the Family Court concerning an application to set aside property settlement orders. The dispute originated from the husband's failure to comply with initial orders, leading to further orders for the sale of a property and preservation of the proceeds. The husband sought to set aside the property settlement orders made in his absence, arguing his illness prevented his attendance and participation.
The central legal issue before the High Court was the proper approach to an application to set aside a court order made in the absence of a party, particularly when that absence is explained by illness. The Court was required to consider the criteria for setting aside such orders under section 79A(1) of the *Family Law Act 1975* (Cth), specifically the concept of a "miscarriage of justice" and the dual considerations of a reasonable explanation for the absence and the potential for a different outcome if the party's arguments were heard.
The High Court reasoned that while there is no special rule universally applicable to setting aside orders made in a party's absence, the court must conform to the statutory provision. The critical considerations are whether a reasonable explanation for the absence is provided and whether the party has a material argument that might affect the outcome. The Court found that Finn J had accepted the husband's illness and the potential for a substantially different property settlement if his evidence were heard. However, Finn J was not satisfied that the husband lacked the capacity to seek an adjournment. The Full Court had upheld Finn J's decision. The High Court concluded that the Full Court erred in its approach and that the matter should be remitted for further hearing.
The High Court allowed the appeal, set aside the orders of the Full Court of the Family Court, and remitted the matter to the Full Court for further hearing and determination. Each party was ordered to bear their own costs of the proceedings in the High Court.
Orders
Orders of the court
1.
Appeal allowed.
2.
Set aside the orders of the Full Court of the Family Court dated 26 November 1998.
3.
Remit the matter to the Full Court of the Family Court for further hearing and determination in accordance with the reasons of this Court.
4.
Each party to bear his or her own costs of the proceedings in this Court.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
HUGH, GUMMOW AND HAYNE JJ
KIRBY J
(dissent)
The husband did not pay the wife the sum of $87,513 as required by the primary orders and it seems that he did not take the steps required by the secondary orders to make that payment. In consequence, Finn J ordered, by consent, that a property at Fyshwick, owned by EBMA Investments Pty Limited, be sold. On 18 March 1998, Finn J ordered that the proceeds of that sale be preserved in an interest bearing account pending the husband's application to have his appeal reinstated. Apparently, the proceeds have not yet been disbursed.The decisions of Finn J and of the Full Court In her decision refusing to set aside the property settlement orders made on 10 August 1995, Finn J accepted the evidence of the husband as to his illness. Her Honour also accepted the submission that: "if all, or perhaps even some, of the evidence which the husband ... wishe[d] to put before the Court regarding his financial affairs, was accepted by the Court in a re-hearing of the wife's property settlement application, then the result of that application may well be substantially different than that embodied in the [property settlement] orders of 10 August 1995."In that context, her Honour indicated that, but for two other matters, she may well have taken the view that "the interests of justice required the matter to be re-opened". The other two matters were "the wife's state of health, and the protracted nature ... of the property settlement proceedings". Finn J noted that the matter, which was commenced in August 1993, had been listed for final hearing in September 1994 but could not proceed until June 1995 because of action taken by the husband and, also, because of his failure to appear on two separate occasions. Her Honour also noted that there was evidence from the wife's treating doctor that the "protracted proceedings ... '[were] having a detrimental effect on her mental health'" and indicated that she accepted and gave "great weight" to that evidence. Although Finn J indicated the countervailing matters to be taken into account were the wife's health and the protracted nature of the proceedings, she also expressed the view that an important consideration was the husband's explanation for his non-appearance. In that regard, her Honour repeated an earlier conclusion that, although she accepted that "the husband was seriously ill", she was not "satisfied that he did not have the capacity to take the necessary steps to obtain an adjournment of the proceedings on account of his ill-health at some time in the period 1 May 1995 to 14 June 1995". Ultimately, Finn J expressed the view that the husband's application to set aside the property settlement orders presented: "a choice between permitting, on the grounds of the husband's ill-health in May/June 1995, a re-hearing ... in which the husband's foreshadowed evidence might be accepted, thus resulting in a significantly different property settlement, and a decision that this protracted litigation should now be held to have been finalized in the interests of the wife's mental health and ... also of the general public interest in the finalization of litigation."Against the background of her lack of satisfaction that "it was not possible for the husband to take the relatively small step of applying in the proper way for an adjournment of his case", her Honour concluded that the interests of justice were best served by dismissing his application.
Ratio Decidendi
Legal Principle Established
Established by:
HUGH, GUMMOW AND HAYNE JJ,
Section 79A(1) of the Family Law Act 1975 (Cth) ("the Act") provides, relevantly:"Where, on application by a person affected by an order made by a court under section 79 in proceedings with respect to the property of the parties to a marriage or either of them, the court is satisfied that:(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance;…the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside."The dual considerations for reopening: explanation and utility It has been suggested that there is a particular rule that governs the setting aside of a judicial order made in the absence of a party (or perhaps a witness) where that absence is adequately explained and promptly brought to the notice of the court concerned[41]. In such a case it is said justice ordinarily "demands" a rehearing.[41] eg Grimshaw v Dunbar [1953] 1 QB 408 at 414-415. Special rules are also propounded where a judgment or order is made by consent or where it is tainted by fraud or illegality: Coles v Burke (1987) 10 NSWLR 429; Paino v Hofbauer (1988) 13 NSWLR 193; Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691. I am not inclined to approach the matter as if a special rule of law, universally applicable, solves the problem presented by every such case. First, the ultimate duty of a court, where a legislative provision exists which governs the circumstances of reopening, is to conform to that provision. The court must endeavour to fulfil the expressed requirements and the implications derived as to the purposes for which the power has been provided[42]. Secondly, the considerations that inform a decision permitting, as here, repair of a "miscarriage of justice" are so many and varied that it is impossible to narrow them down to the "demands" of a single consideration unless it be that connoted by the very phrase used in the statute itself. Thirdly, it is desirable, as it seems to me, to treat the considerations applicable to such decisions conceptually and to classify them as impinging upon the two criteria that have for a very long time been viewed as critical to an affirmative decision to set aside a judicial order made in default of the appearance of a party. These are:(1)that an explanation, reasonable to the circumstances, is provided for the party's absence or other default; and(2)that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order[43]. [42] cf Jackamarra v Krakouer (1998) 195 CLR 516.[43] Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239; Rosing v Ben Shemesh [1960] VR 173; Surfers Paradise International Convention Centre Pty Ltd v National Mutual Life Association of Australasia Ltd [1984] 2 Qd R 447; cf Macquarie Bank Ltd v Beaconsfield [1992] 2 VR 461.