Buljubasic v Buljubasic
[1999] FamCA 474
•11 February 1999
FAMILY LAW ACT 1975
IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA
AT SYDNEY Appeal No.EA73 OF 1998
File No. PA1971 OF 1997
IN THE MATTER OF: BULJUBASIC
MATE
Appellant/Husband
AND: BULJUBASIC
ANDJA
Respondent/Wife
CORAM: LINDENMAYER, FINN & WARNICK JJ
DATE OF HEARING: 11 FEBRUARY, 1999
DATE OF JUDGMENT: 11 FEBRUARY, 1999
JUDGMENT OF THE COURT
Appearances: Mr Black of Queens Counsel with Mr Todd of Counsel (instructed by Stojanovic, Solicitors, 4/220 Northumberland Street, Liverpool, NSW, 2170) for the Appellant/Husband
Mr Sheldon of Counsel (instructed by Kenalo & Ritchie, Solicitors, 96 Moore Street, Liverpool, NSW, 2170) for the Respondent/Wife
LINDENMAYER J:
This is an appeal by the husband against orders made by Waddy J on 6 August, 1998 following a hearing which occurred on 20 July, 1998. The husband did not appear at the listed time for the hearing on 20 July and his Honour ultimately proceeded to hear the matter in his absence, reserved his judgment which, as I have said, he later delivered on 6 August. Some other events occurred in the meantime which I shall refer to later. The substance of his Honour’s orders was that the husband should transfer to the wife his interest in the parties’ former matrimonial home in exchange for the transfer by her to him of her interest in a block of units.
Because this appeal is not so much against the substance of the trial Judge’s orders but rather about procedural aspects of the proceedings before his Honour, it is unnecessary to go into the background facts in too much detail. They may be briefly summarised as follows.
The husband is aged 74 and the wife 44. They met and were married, in Croatia, on 26 August, 1978. There is one child of the marriage currently aged 19. The husband has six now adult children from previous relationships and the wife has one other child from a previous relationship now aged about 26. In 1978, the parties moved to Australia bringing with them the wife’s child, then aged six, and the husbands two younger children, then aged seven and five. The parties ultimately separated under the one roof on or about 1 October, 1995 and the wife ultimately left the former matrimonial home in 1997 and lives elsewhere.
The parties’ property and financial dealings, as found by the trial Judge in his judgment, were that the husband, who had lived in Australia prior to the parties coming here together, owned a farm at Wetherill Park where the parties lived on their first arrival here. They apparently, in the early stages, lived off the farm but, in June, 1979, they purchased a house at Tennyson Street, Wetherill Park for some $39,800 which funds the husband provided, and they leased the farm to friends of the husband, although they continued to maintain it. In 1986, the Tennyson Street property was sold for about $98,000, and with those proceeds and savings the parties purchased, in their joint names, the property at Defoe Place, Wetherill Park, which became their matrimonial home, for about $175,000. At about the same time, the Wetherill Park farm was sold for some $620,000 and, in 1987, the parties purchased a block of units at Smithfield Street for some $636,000. That property was purchased in the parties’ names as tenants-in-common in the shares 75 per cent to the husband and 25 per cent to the wife. The husband, according to his Honour’s findings, always received the rent monies from that property which he fully let, which produced an annual gross income of some $64,000.
His Honour made detailed findings about the work which the wife did during the marriage both in the home and elsewhere but, for the purpose of this appeal, it is not necessary to go into that.
In his judgment, the learned trial Judge referred to the property of the parties and he itemised that property, having a total value of some $1,233,800. Perhaps fortuitously, the former matrimonial home had a value of $400,000 assigned to it by both parties in their material and the Smithfield property had a value of $800,000 assigned to it in the material of both parties.
As I have indicated, the Smithfield property was held as tenants-in-common with the husband having a 75 per cent interest and the wife a one quarter interest, whilst the Defoe Place property was held by them jointly effectively, in equal shares. His Honour ultimately found that the parties’ interests in those properties both recognised and accurately reflected the contributions which they had made to the assets and, in the end, his Honour gave recognition to that fact by, having regard to the relative values of the properties, ordering that the husband transfer his half interest in the Defoe Place property to the wife and the wife transfer her one quarter interest in the Smithfield property to the husband. He also ordered that the husband vacate the matrimonial home so that the wife could live there and the husband, of course, would be able to live in one of the units at the Smithfield property, if he so chose.
Just before I refer to the substance of the appeal and what led to it, it is appropriate to look back a little at some of the history to these proceedings. It is not clear when the property proceedings were first instituted, but it was clearly prior to June, 1997 because at that time the parties attended a conciliation conference and there were some other appearances during 1997 in relation to various aspects of the matter. The wife’s amended application for final orders was filed on 22 January, 1998 and the husband’s amended response to that application was filed on 25 March, 1998. The matter was originally listed for trial in April of 1998 but on 3 April there was an appearance before Coleman J at which the husband sought, effectively, an adjournment of the trial, and that was ultimately consented to by the wife. So his Honour vacated the hearing date which was then set, I think, for 22 April, 1998. On that occasion (3 April, 1998), the husband appeared in person with an interpreter. It is appropriate to note that at an earlier stage in the proceedings the husband had been represented by solicitors but they had apparently ceased to represent him by that time and thereafter his appearances were all in person.
On 14 April, 1998, trial dates were allocated for the matter, namely the three days commencing on 20 July, 1998. Prior to that date arriving, there were a couple of further appearances in the court.
On 22 May there was an appearance before Gee J when the husband appeared in person and an order was made restraining him from proceeding with certain proceedings against the wife in the District Court. The only point of mentioning to note is that the husband appeared in person and to also note that Gee J made a comment to him about the fact of his appearing in person, which appears in the transcript of that day at Appeal Book p.42. It is apparent from that transcript that there was an interpreter present and interpreting to the husband what was being said by Gee J. I think it is of some significance to note that Gee J on that occasion said to the husband through the interpreter:
“He has a choice to come here with a solicitor and my advice to him is that for future appearances he should come with a solicitor. If he chooses not to come with a solicitor then he is burdened with that choice and the court would not be sympathetic to an argument that he can hide behind representing himself. Tell him that so he understands it as distinct from you. I do not want a response. I just want to know that he understands what I’ve said and I further want you to tell him this: in future he should either come with someone who acts merely as an interpreter or nothing more or with himself and an interpreter and a legal representative. He can’t have it both ways, it is one or the other.”
In effect his Honour was saying that the interpreter could not act as his advocate.
So his Honour at least made it clear to the husband that whilst he certainly had a choice to appear for himself, he ought not to expect the court to treat him leniently or differently from other litigants because he chose to do so.
There was a further appearance, then, on 3 July, 1998 before Lawrie J upon an application by the husband for the vacation of the hearing dates for the matter then listed to commence on 20 July. That application was rejected by Lawrie J. The judgment in relation to that appears at Appeal Book pp.43 to 45.
At p.44 her Honour set out what she understood to be the three bases upon which the husband had sought to have the hearing dates vacated - that is, effectively, to have the hearing adjourned from the dates for which it had been set. The first was that he believed he had an argument under s.51 placitum (XXVI) of the constitution in relation to a matter of race. Her Honour indicated that she had already told him that that was untenable.
Her Honour noted that the second basis for his application for an adjournment was that he did not feel comfortable because his wife had not disclosed her full financial position, and her Honour went on to indicate that she had pointed out to him that that was what the trial was about if he contended that that was the case. Thirdly and lastly her Honour said that the husband had said that he had had a dispute with his solicitor in relation to costs and did not have his papers to prepare his case. However, her Honour went on and said this:
“I have been told today that he has in fact struck an agreement with the solicitor for payment to take place next week at which time he will have his papers. That will give him a clear week to consider the papers. It appears that the papers that are in the file, rather than pleadings and so forth are in fact original documents that may be being tendered in the proceedings. The court has offered to enable him to photocopy documents from the file if that will assist him and, again, I do not see that as being a reason to vacate the hearing dates.”
Accordingly, her Honour rejected his application, and the listing of the matter to be heard on 20 July remained.
On 20 July, when the matter was called before the trial Judge, the wife was represented by counsel but the husband did not appear. His Honour, when he became aware of that fact (when the husband was called outside the court and did not appear), noted that he had received adequate notice of the dates for trial when his application to vacate those dates before Lawrie J on 3 July had been refused. His Honour then, however, took the precaution of standing the matter down for a time to enable some attempts to be made by the solicitors representing the wife to contact the husband, as he said in his judgment, “out of courtesy and an abundance of caution”. Those efforts were not successful, and communications which were attempted to be made to the husband at his last known address and telephone number and a facsimile number which he had provided on his notice of address for service, were unsuccessful. In the end, when the matter resumed and his Honour was informed of the inability to make contact with the husband through those methods, he decided that it was appropriate to proceed with the matter in the husband’s absence. He then proceeded to hear submissions and ultimately reserved his decision and indicated that he would give his judgment later.
For what happened thereafter it is probably appropriate to refer to his Honour’s judgment. It appears in what would be regarded as the latter part of his Honour’s judgment, beginning at Appeal Book p.30 (which is p.22 of his Honour’s typed judgment) under the heading “Respondent’s fax to Court Registry”. His Honour there recorded that after the judgment in this matter had been dictated, but before it was engrossed, a document was received by his associate at 9 am on the day following the hearing, that would be 21 July. His Honour noted, there, the facsimile telephone number from which the document apparently emanated, and noted that its date was 20 July, 1998 at 9.07 am. It was also marked “urgent”. His Honour also noted that although it was apparently received on the morning of the hearing in the registry, for various reasons it did not come to his attention until the next day; one reason I think being that it was directed to Gee J. But, in any event, as I have said, his Honour became aware of it the next day and, at that page of the Appeal Book and following, his Honour set out a summary of what was contained in a statutory declaration apparently annexed to the letter which was all included in the facsimile transmission received by the court on the day of the hearing.
His Honour, as I have said, whilst not setting out the document in full, set out what appeared to him to be the salient features of it and there has been no challenge before us to the accuracy or sufficiency of his Honour’s summary of those matters in his judgment. In fact, although the document itself is not contained in the Appeal Books, we discovered, in the course of the proceedings, that it is available in the court file, but counsel for the husband did not seek to see it and we have not looked at it since counsel did not address us on the basis of the contents of the document itself but rather on the basis of his Honour’s summary of it. His Honour’s summary, then is, in these terms beginning at p.30:
“An accompanying document of two pages headed ‘Statutory Declaration NSW Oaths Act 1990’, purportedly sworn by the respondent on 19 July 1998 at Blacktown, inter alia:
·acknowledged that the matter was ‘set down for 20th, 21st and 22nd July 1998’
·referred to ‘notifying the Court that I am unable to attend the Court for the hearing’, (but advanced no grounds or evidence or reason for being unable to attend the court or arrange representation, which, from the duplitude of his admitted assets of income he could readily have done if he so chose.
·claimed because ‘1,000 pages of documents’ had not been translated from English into Croatian between 6 July and 20 July he was ‘unable to represent “himself” at the hearing’
·claimed ‘Ever since I began representing myself in these proceedings from end of March 1998, the Court and the Applicant’s ..... legal representatives have discriminated against me ...’
·complained about his ‘unfair’ treatment by the Court regarding the hearing on 3 July
·gave notice he intended ‘to seek that these proceedings be removed to the High Court of Australia’ and
·made allegations about the motives of the applicant.”
His Honour then continued:
“By the time these two documents reached me, the matter had been heard ex party on the previous day and judgment reserved. The documents took almost 24 hours to reach me from the Registry. The first being endorsed ‘Justice Gee’ may explain why there was such a delay; in fact, the matter was placed in my list.
However, had I received the documents prior to embarking on the hearing, that would not have altered my decision to proceed with it. In my opinion, the matters contained in the Statutory Declaration demonstrate a clear and conscious defiance of the explicit orders of Lawrie J, advanced no reason for the respondent not attending Court in person to make any application for adjournment, and advanced no credible basis for any such adjournment should the respondent have so attended and made an application based on the matter advanced in the Statutory Declaration.
I only refer to the documents for completeness and so that the respondent, who is currently unrepresented, upon whom I will direct a copy of this judgment to be served, will know what happened to them and how the Court has treated his facsimiles.”
His Honour then proceeded to make his orders the subject of the appeal.
The appeal is brought upon five grounds which are set out in the Appeal Book at pp. 4 to 5. Those grounds are as follows:-
“1. The Learned Trial Judge erred in proceeding with the hearing on an ex parte or undefended basis in circumstances where the Trial Judge found or otherwise accepted:-
a. the husband was self-represented.
b. that on a number or prior occasions the husband had appeared in person.c.that the husband had not been represented by a legal practitioner since approximately December 1997
d.that the husband had previously raised with Lawrie J. the issue of his inability to adequately speak or understand the English language to the extent that such lack of understanding would affect his preparation of the case for hearing commencing 20 July 1998.
e.that the confirmation of the hearing dates by Lawrie J. on 3 July 1998 in the presence of the husband constituted sufficient notice to the husband.
f.that the attempts to contact the husband on the morning of the hearing were only as a matter of courtesy.
g.in light of the above circumstances, inter alia, there was no injustice in proceeding in the absence of the husband.
2. The Learned Trial Judge erred in failing to find:-
a.that an ex parte or undefended hearing must inevitably result in some injustice to the husband, and
b.that an adjournment should occur at least to the extent of receiving a satisfactory explanation as to the non-attendance of the husband at the time of the hearing.
3. The Learned Trial Judge erred in failing to relist the matter between hearing and delivery of judgment upon receipt of the appellant’s facsimile dated 20 July 1998 so as to provide an opportunity to the husband or his legal representative to make such application as to any;
a.adjournment on grounds other then, in addition or expanded from those advanced before Lawrie J.
b.an opportunity to be heard in the matter generally.
c.otherwise to afford the respondent an opportunity to consider the facsimile considered in Chambers following the close of evidence.
4. The Learned Trial Judge erred in finding that the said facsimile dated 20 July 1998 constituted without further evidence a clear and conscious defiance of the explicit orders of Lawrie J.
5. The Learned Trial Judge erred in approaching the entitlements of the parties by focussing upon the needs of the respondent as a 74 year of old person with an $800,000.00 rented property having regard to his life expectancy as opposed to the contribution of the parties and in particular the substantial pre-marital contribution of the husband.”
In support of the appeal, senior counsel for the appellant, Mr Black QC, did not address the grounds of appeal individually or specifically but he argued, essentially, that natural justice was denied to the husband by the way that the matter proceeded before his Honour on an undefended basis and by the way that the learned trial Judge dealt with his facsimile transmission which was received on the day after the hearing but before his Honour had pronounced his judgment.
Effectively, it was submitted that upon receipt of that facsimile transmission, given the history of the matter, his Honour ought not to have proceeded to judgment but ought to have directed that the matter be re-listed to make some further inquiries as to the husband’s reasons for not being present on the date of the hearing and, in addition, so that the wife’s representatives might also have an opportunity to hear what was contained in the fax from the husband and to make any submissions that they wanted to make about it.
The first thing I think it appropriate to say about the appeal is to note that it is an appeal from what it essentially an exercise of discretion. The trial Judge initially, when faced with the failure of the husband to appear at the time when the matter was listed for hearing, having made reasonable attempts to contact him or have others contact him to see whether there was any explanation for his failure to appear, and those attempts having been unsuccessful, had little option but to proceed with the hearing in the husband’s absence. The husband was self represented. He had appeared in person on a number of occasions previously and he had taken responsibility for the conduct of the proceedings on his own behalf. So, at that point, in my opinion, his Honour, as I have said, had little option but to proceed with the matter in the absence of the husband.
Senior counsel for the appellant husband referred to various aspects of the transcript of the proceedings before his Honour on 20 July in support of a submission that it was because of the history, and the expressions of surprise by both the trial Judge and the wife’s counsel at the husband’s non appearance, that in some way his Honour ought not to have proceeded even at that stage to deal with the matter in the husband’s absence.
I am unable to see any basis for that submission. As I have said, the husband was responsible for his conduct of the proceedings. He was clearly aware of the hearing date and, indeed, the subsequent facsimile confirms that. If he failed to appear without any explanation, and failed to send anybody to represent him, then the trial Judge could do little but proceed with the matter on ex parte basis. The business of the court would come to an end if people could simply stay away from the court on the listed date for hearing and be assured that their matter would not proceed in their absence, and effectively obtain an adjournment, without merit, merely because the court felt constrained not to proceed with the matter in their absence.
In my view, at that point, clearly, his Honour made no error of discretion in proceeding to entertain the matter and he then reserved his judgment.
The real heart of the appeal, as presented for the appellant, relates to the way that his Honour dealt with the facsimile transmission received by his Honour on the day following the hearing although it had been sent by the husband on the morning of the previous day.
Just before I come to that, I think it is appropriate to observe that in this modern day there seems to be a tendency for people to believe that it is an appropriate way to communicate with courts, or this court at least, by sending facsimile transmissions to the registrar in the belief that they will come to the attention of the trial Judge. Ordinarily speaking, that is not a proper way for any litigant to seek to communicate with the court. Whilst it is appropriate to communicate with the registry about procedural matters in that fashion, no doubt, it is not an appropriate way for a litigant, whether represented or unrepresented, to seek to communicate with the judge who is to hear the case.
Ordinarily speaking, if a party to proceedings, whether represented or otherwise, seeks to have an indulgence from the court in the form of an adjournment or an extension of time for doing something which has been listed to be disposed of on a particular day, the litigant has an obligation either to appear before the court in person to seek that indulgence or to send a legal representative on his or her behalf to make a proper application to the court for that relief. It is not, generally speaking, an appropriate way to seek an adjournment of proceedings which are listed for hearing before the court to send a letter, whether by facsimile or otherwise, to the registry on the morning of the hearing setting forth the request for an adjournment and stating the grounds upon which the application is made.
Leaving that aside, one needs to look at the particular circumstances of this case and the particular communication that was in fact received by his Honour prior to the delivery of his judgment. It is I think important to observe that his Honour says, and it is borne out by the structure of his judgment, that he had in fact dictated his reasons for judgment - that is his reasons in relation to the substantive matter - prior to his receipt of the husband’s facsimile transmission. And it seems to me that what his Honour effectively did, upon receipt of that transmission, was to entertain, albeit in a somewhat informal way, an application by the husband contained in his facsimile transmission for an adjournment of the proceedings. In that sense, it seems to me that it is appropriate to look at the communication, insofar as it is summarised by his Honour in his judgment, and the way his Honour dealt with it, to see whether it was a proper exercise of his Honour’s discretion, in the light of that material, to effectively refuse the adjournment which the communication sought.
I think that the position can be looked at almost as if the husband had sent that facsimile, and it had been received by the court prior to the hearing on 20 July, and his Honour had considered an application for an adjournment at that point. Because, clearly, what his Honour was doing, was revisiting, subsequently to the hearing date, the issue of whether the hearing should have proceeded in the husband’s absence. And I think it is at this point that it is particularly appropriate to remind ourselves, and the parties, that a decision whether or not to grant an adjournment upon application of a party is very much a discretionary matter.
The trial Judge, of course, must exercise his discretion judicially, but it is a discretion which is a very wide one, although if the effect of the adjournment is likely to shut one party out from further contesting the litigation then that is a significant matter to be taken into account in the exercise of the discretion. There is no reason to think that his Honour in this case did not take that serious aspect of the matter into account in the exercise of his discretion.
The summary, or the written outline of argument, I should say, on behalf of the appellant, in paragraphs 2 and 3, sets out what I think is perhaps the crux of the appeal.
In paragraph 2 it is said:
“The principal error complained of by the husband is contained within the third ground namely the failure of the trial Judge to re-list the matter upon receipt of the appellant’s facsimile of 20 July so as to provide an opportunity to the parties to:-
(i) examine the nature of the documents forwarded to the Trial Judge;
(ii)consider whether such documents should be admitted into evidence and otherwise dealt with during the course of the judgment in the manner adopted by the Trial Judge;
(iii)consider the import of the document generally.
Paragraph 3:
“It is axiomatic that a trial judge should not receive into evidence or otherwise treat documents as having been received into evidence without a tender having been made or otherwise ventilating with the parties the use to which such evidence can be put. It may be advanced that as it was the husband’s document he would suffer no prejudice, but this is disingenuous in the circumstances as the facsimile was forwarded solely for the purpose of advancing the adjournment or vacation of the hearing, whereas in fact the document was adopted by the Trial Judge for a wholly different purpose without the apparent opportunity of either party being notified of the Trial Judge’s intention to comment on or make findings in respect of, the document in the course of the judgement. The Trial Judge utilised the document so as to make a prejudicial finding as against the husband –“
[reference is made to a particular passage which I shall refer to in a moment]
“- which represents a finding of flagrant contempt by the husband of the orders of Lawrie J. This was undertaken without offering any opportunity for the husband to explain his position or offer any defence must taint the judgment as a whole and the consequential orders.”
In my opinion there is essentially a misconception in that summary of the argument. It is correct that the husband’s facsimile was forwarded for the purpose of advancing an application, albeit one not made properly, for an adjournment of the hearing and, in my view, that is the whole and sole purpose for which his Honour used it. The husband effectively invited his Honour to have regard to his facsimile transmission for the purpose of considering and deciding his application to adjourn the hearing and, in my view, that is the purpose and the only purpose for which his Honour in fact had regard to it. In my judgment, the husband cannot now complain that his Honour used it for that very purpose for which it was tendered and, having done so, rejected his application.
His Honour, in my view, clearly did not have regard to it in determining what orders should be made in the substantive part of the proceedings and, in the end I do not think counsel submitted that he had. However, as I said, counsel relied particularly upon his Honour’s statement in the passage which I have already quoted, which appears at p.31 of the Appeal Book, in which there appears this:
“In my opinion the matters contained in the Statutory Declaration demonstrate a clear and conscious defiance of the explicit orders of Lawrie J.”
It was submitted that that was an improper finding for his Honour to make, having regard to the husband’s document, and it was submitted that that was a material finding which his Honour made which led to his ultimate rejection of the husband’s adjournment application. It seemed to me that in making that submission counsel was relying, in particular, upon the fact, as noted by his Honour at the bottom of p.30 of the Appeal Book, that in his document the husband claimed to have some 1000 pages of documents which were then not translated from English into Croatian in the period between 6 and 20 July, and that he was therefore unable to represent himself at the hearing.
In my view, that particular statement by his Honour has to be seen in the whole context of the lengthy passage because his Honour went on to say, in effect:
“In my opinion the matters contained in the Statutory Declaration advance no reason for the respondent not attending court in person to make any application for adjournment –“
[and in fact that much was conceded by the husband’s senior counsel]
“- and advance no credible basis for any such adjournment should the respondent have so attended and made an application based on the matters advanced in the Statutory Declaration.”
So, the first thing I would say about that entire passage is that, in my view, it was open to his Honour to infer from the history of the matter, including the husband’s appearance on previous occasions unrepresented, and the fate of his application before Lawrie J on 3 July, notwithstanding his reference to 1000 pages of documents in his facsimile transmission, that the husband was effectively demonstrating a defiance of Lawrie J’s determination that the matter should proceed on 20 July and not be adjourned. But, in any event, I would come to the conclusion that that inference which his Honour drew was not really the basis of his rejection of the husband’s application for an adjournment, because the real substance of his Honour’s determination comes in what follows: namely, his finding that the material in the husband’s transmission advanced no reason for his not attending at the court to make any application for adjournment – and, as I have said, that was not contested - but further it advanced no credible basis for any such adjournment being granted even if he had attended in person and raised the matters set out in his transmission. In my view, that was a conclusion which was well open to his Honour on that material.
The husband’s vague reference to 1000 pages of documents which might need to be translated, on its own, could not, in my judgment at least, amount to a valid reason for the court’s granting an adjournment of proceedings in the circumstances which existed in this case. As I have said, the husband had represented himself previously before the court on a number of occasions. He had been told by Gee J, in effect, that if he chose to do that then he had to take the responsibility for it, and that he would not be treated essentially differently from other litigants. Yet he chose not to attend on the day when he knew the matter was listed for hearing and merely sent a transmission at 9.07 that day in which he made, as I have said, a rather vague assertion that because there was some 1,000 pages of documents which had not been translated he was unable to represent himself at the hearing.
In my view, nothing in the husband’s transmission received by his Honour, and considered by him after 21 July, really advanced any proper basis for the court to adjourn the proceedings which had been set down for hearing so long before and which the husband simply, effectively, ignored. He made an attempt to obtain a further adjournment by staying away, apparently not only staying away from the court but absenting himself from the places where he might, according to the court’s records, be able to be contacted, and sending a facsimile transmission to the court in terms which, as outlined by his Honour, raised insufficient substantive matters to justify the court in granting an adjournment.
In those circumstances, it is my opinion that the husband is the author of his own misfortune, if it be one, and, indeed, there is really nothing in the material to satisfy me that, on a prima facie basis, the result which the trial Judge arrived at on the property matter was, in any event, one which worked an injustice to the husband.
There was some brief discussion about that, and only one ground of appeal, ground 5, purports to say anything about the substantive orders which the trial Judge made. That ground was not really pressed, but there was a general submission made that his Honour, the trial Judge, because the husband was not represented, did not really address the issues - and reference was made to the fact that his Honour did not refer to what the husband’s response in the substantive proceedings was. But we have now a copy of that response before us and all it indicates, really, is that the husband was opposing the wife’s application. He sought the dismissal of her substantive application in relation to property matters. He sought no particular orders himself by way of property settlement or alteration of the parties’ interests in property, and the trial Judge, to his credit I think, had regard to the material which the husband had filed even though he was not there. And, in a very careful judgment, I think he went through all of the history of the matter about the acquisition of property and all of the other relevant matters and came to a conclusion about what was an appropriate order to be made in the exercise of his discretion. So all I am really saying is that there is nothing that appears from any of the material to indicate that it was a seriously flawed judgment or that the ultimate result was one which works any substantial injustice to the husband.
I suppose it could be said that until one hears precisely what the husband wants to say that is a judgment that cannot be made. But I think I have made the point that the husband chose, himself, not to attend the court and in that sense, if there is any injustice to him, he is the author of his own misfortune.
For all of those reasons, I am not satisfied that the trial Judge in any way erred in the exercise of his discretion in refusing to grant the adjournment which the husband was seeking through his informal process of communication with the court, and I am not satisfied that any denial of natural justice has occurred. I would dismiss the appeal.
FINN J:
I, too, would dismiss the appeal and I would do so generally for the reasons given by the presiding Judge.
Two matters, I think require to be stressed. One that the appeal as argued, concentrated on the procedural questions which arise in this case, rather than on any attack on the substance of the property settlement orders. Secondly, the decision to proceed to deliver judgment in the circumstances of this case was a matter in his Honour’s discretion, and I am not satisfied that there was any error in the exercise of that discretion.
I would also want to endorse strongly the comments that have been made by the presiding Judge regarding the importance of adherence to the traditional practice that those who seek from the court an adjournment of their matter, should appear themselves, or by legal representative, to seek the adjournment. I deplore the apparently ever increasing practice of sending letters, faxes and telephone communications to the court for the purpose of seeking an adjournment.
WARNICK J:
I agree with what has been said by his Honour, the presiding Judge, and with what has been said by Finn J. I add reference to merely one matter that was raised by counsel for the appellant. It was submitted that in proceeding with the matter, as it then stood before him on 20 July, that his Honour erred in that because of the prospect or even inevitability of an appeal against orders made in the circumstances with which his Honour was confronted, procedure offended the legal maxim which to large extent is now to be found expressed in s.81 of the Family Law Act in these terms:
“In proceedings under this part other than proceedings under section 78 or proceedings with respect to maintenance payable during the subsistence of the marriage the court shall as far as practicable make such orders as will finally determine the financial relationship between the parties to the marriage and avoid further proceedings between them.”
It is, at least in my view, equally arguable that his Honour would not have been giving effect to that section if he stood over or adjourned the proceedings rather than endeavouring as he did to finally determine the application of the wife. In any event, the prospect of appeal is only one of a number of matters that his Honour properly had to consider in deciding whether to proceed or not. In my view, if it is of relevance and that I doubt, it is of the thinnest relevance and, certainly, its existence is not a matter which renders the decision that his Honour made, discretionary as it was, clearly wrong. I also would dismiss the appeal.
LINDENMAYER J:
The order of the court then is that the appeal be dismissed.
RECORDED : NOT TRANSCRIBED
LINDENMAYER J:
The Court is of the opinion that there are circumstances that justify the making of an order that the appellant husband, who has been wholly unsuccessful in the appeal should pay the respondent wife’s costs of the appeal, and we have had regard to the matters is in s.117(2A) in coming to that conclusion. The assessment put forward on the wife’s behalf appears to us to be a reasonable one in all the circumstances. Accordingly, the further order of the court is that the appellant husband pay the respondent wife’s costs of the appeal fixed in the sum of $3,000.
PRACTICE AND PROCEDURE – Failure to Appear – Ex parte hearing – Injustice to party – Communication with Court via facsimile – Inappropriateness of
This was an appeal by the husband against property orders made by Waddy J on 6 August, 1998 whereby the husband was required to vacate the former matrimonial home and transfer his interest in it to the wife in exchange for the transfer to him of her interest in a block of units.
The husband, aged 74, and wife, aged 44, met in Croatia and were married there on 26 August, 1978. There is one child of the relationship now aged 19 although the husband has six adult children from a previous relationship and the wife has one other child now aged 26.
In 1978 the parties moved to Australia bringing with them the wife’s child, then aged 6, and the husband’s two younger children then aged 7 and 5. The parties separated under the same roof on 1 October, 1995 but the wife ultimately left the former matrimonial home in 1997 and now lives with her fiance.
The husband, who had lived in Australia previously, owned a farm at Wetherill Park where the family lived upon arrival in Australia. In June 1979 the parties purchased a house at Tennyson Street, Wetherill Park for $39,800 and leased the farm but continued to maintain it.
In 1996 the Tennyson Street property was sold for $98,000 and, with those proceeds and savings, the parties purchased, in their joint names and in equal shares, the former matrimonial home at Defoe Place, Wetherill Park for $175,000. Also in 1986 the Wetherill Park farm was sold and in 1987 a block of units at Smithfield Street was purchased in the parties’ names, as tenants-in-common and was held in 75/25% shares in favour of the husband. The husband receives the rental monies from that property which, if fully let, produces an annual income of $64,480.
The matter was listed for trial in April of 1998 but on 3 April, 1998 the husband, who appeared in person with an interpreter, sought an adjournment to which the wife consented. On 14 April, 1998 the matter was listed for 20 July, 1998. On 22 May, 1998 the parties appeared before Gee J and the husband was restrained from proceeding with certain District Court proceedings against the wife. On that occasion Gee J made it clear to the husband, who again appeared with an interpreter, that he would be unable to hide behind his language difficulties and that the interpreter could not act as his advocate.
On 3 July, 1998 the husband sought to vacate the hearing dates on the basis that he had an argument under s.51(xxvi) of the Constitution, that the wife had not disclosed her true financial position and that he did not have the papers to prepare his case following a costs dispute with his former solicitors. On that occasion, Lawrie J dismissed his application and the date of hearing of 20 July, 1998 remained.
On 20 July, 1998 the husband failed to appear and the trial Judge stood the matter down to enable the husband to be contacted and, out of courtesy and an abundance of caution, informed the matter was proceeding. Despite the fact that it was not possible to contact the husband, his Honour determined the husband had notice of the proceedings and there was no injustice in hearing the matter in his absence. The hearing then proceeded, at the end of which the trial Judge reserved his judgment.
The following day, after the judgment had been dictated but before delivery, the trial Judge received a facsimile transmission from the husband, which had been received in the Registry the previous day, acknowledging that the matter had been set down but notifying, without explanation save that he had been unable to get some of his documents translated, that the husband would be unable to attend. His Honour regarded the matters contained in that document to be unpersuasive and in clear defiance of the orders of Lawrie J. His Honour made reference to it only to inform the husband of how his facsimile had been treated.
The trial Judge found that the parties’ contributions to the net assets, which totalled $1,233,800, were reflected in their legal interest in the two main properties (the matrimonial home and the units) and that the wife should retain the matrimonial home (worth $400,000) whilst the husband should retain the units (worth $800,000).
On Appeal, the husband argued that natural justice was denied by the way the matter proceeded on an undefended basis and by the way the trial Judge dealt with the facsimile transmission.
Held, dismissing the appeal:
The trial Judge made no error of discretion in proceeding to hear the matter in the husband’s absence. The husband was responsible for his conduct of the proceedings, he was clearly aware of the hearing date and he failed to appear without any explanation.
It is, ordinarily, improper for litigants to seek to communicate with a trial Judge by sending a facsimile or other communication to the Court or Registrar. A litigant seeking an adjournment or extension of time in respect of a matter listed for hearing must either appear in Court on the listed date or send a representative to make a proper application for relief.
The entertainment of the husband’s application for an adjournment, communicated by facsimile transmission, was within the trial Judge’s wide discretion. Nothing in the husband’s transmission advanced any proper basis for the Court to adjourn the proceedings which had been set down for hearing. There was no evidence to suggest that the ultimate property settlement resulted in any injustice to the husband.
The husband pay the wife’s costs fixed in the sum of $3,000.
REPORTABLE
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