Camilleri and Camilleri

[2002] FamCA 1157

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT TOWNSVILLE No. TV2315 of 2000

IN THE MATTER OF:	CAMILLERI	ALFRED MICHAEL	HUSBAND
AND	CAMILLERI	JUNE CLAIR	WIFE

REASONS FOR JUDGMENT

EX TEMPORE

CORAM:	MONTEITH J
DATE OF HEARING:	19 NOVEMBER 2002
DATE OF JUDGMENT:	19 NOVEMBER 2002

APPEARANCES:

MRS PACK	Of counsel for the respondent husband
MR WHITE	Of counsel for the applicant wife

Catchwords

Family Law – Property – Offers of Settlement – Offer made pursuant to sec 117C – followed by written acceptance – Whether binding

Property – Offers of settlement – Section 117C – Whether relevant beyond question of costs

Legislation considered

Cases considered

This is an application made by Mr White, counsel who appears on behalf of the wife in these proceedings, in which he seeks that I make an order in terms of an offer that he tells me was filed by the husband and accepted by the wife, yesterday. This application was made in the face of an objection by Mrs Pack, who appears as counsel for the husband, but I have not been informed as to the contents of the offer or acceptance and the argument has proceeded on the basis of a statutory interpretation of section 117C of the Family Law Act 1975 (Cth).
Although there was no evidence led before me, for the purposes of deciding this issue I will assume that it can be established that the husband filed a copy of a notice of offer pursuant to section 117C(1) and that no withdrawal of that offer took place prior to the wife filing, pursuant to section 117C(2A), a copy of an acceptance of that offer. The question that confronts me is what effect those steps have upon this trial. Mrs Pack argues that the only consequence that can flow from these matters relate to questions of costs. Mr White submits that the effect is that as a result of the acceptance by his client of the offer made by the husband, he is entitled to orders in terms of the offer.
There is a Full Court decision that deals with this issue which was reported in 1994. It is Kowalski v Kowalski (1994) FLC 92-501. I will return to an examination of that case in a moment. There is a further case that I have been referred to which is a decision of Nicholson CJ of Carruthers v Carruthers (1996) FLC 92-707. It must be stated, however, at the outset that both of these cases predate amendments made to section 117C dealing specifically with the issue that I have to determine.
Normally, as a matter of statutory interpretation, if the legislature by changes to the legislation makes it clear that it disapproves of previous Court decisions, then that is an aid to the interpretation of the legislation in that a Court can more confidently find that the legislation was enacted for the purpose of overriding the previous Court decision. However, it is important in relation to interpreting legislation that the legislature has made its will clear.
At the outset it is necessary to refer to section 117C in the context in which it fits into the legislation. It is a section that deals with offers of settlement and in that context deals with costs. It is interdependent on section 117 which is the operating section dealing with the way in which the Court orders costs in Family Law matters. It is one of the matters that the Court must take into account under section 117(2A) whether there has been, pursuant to section 117C, an offer made.
In Kowalski the respondent and her late husband married in April 1974 and separated in September 1974. A decree nisi was pronounced in November 1976. Fogarty J granted the wife leave to institute property proceedings in 1992. In April 1993 the husband died and the appellant executrix became a substitute party.
On 26 November 1993 the appellant filed a notice, pursuant to sec 117C of the Family Law Act, offering to settle the wife's claim. The matter came on for hearing on 14 December 1993. That afternoon, the appellant's lawyers orally withdrew that offer.
On the morning of 15 December 1993, the respondent filed an acceptance of the offer. The appellant then filed a withdrawal of the offer but it was filed later in point of time. The same morning the parties informed the Court what had occurred. The respondent sought orders in accordance with the accepted offer, contending that the proceedings had been compromised. The appellant opposed that course and sought to continue the hearing.
The trial Judge delivered an extempore judgment that day. He held that a filed acceptance of offer made under sec 117C brought an end to the proceedings. He made orders, not by consent, in terms of the November 1993 offer. The executrix appealed.
The appeal was heard before Lindenmayer, Baker and Rowlands JJ and in their joint judgment, their Honours considered at length submissions made by counsel who appeared on the appeal. It is unnecessary for me to deal with all of that but I wish to refer to a part of the judgment which deals with the principles that their Honours thought were applicable in the circumstances.
Their Honours said:
“Subsections 117C(3) and (4) deal with the disclosure of filed offers to a trial Judge. These provisions are reinforced by O.29 of the Rules which require material filed pursuant to s. 117C or that Order to be kept on a separate file. The wording of s. 117C(3) in particular makes it clear that the fact that the offers have been filed, or their terms, are not to be disclosed to the trial Judge except when the time comes for the Judge to exercise the court's discretion as to costs. Therefore, notwithstanding subsection (4), it is difficult to see, given this procedure and the time for disclosure of offers, how s. 117C can be about anything but costs.
There is no discussion of s. 117C in the Second Reading Speeches in relation to the Bill for the 1983 amending Act in the debates in either the Senate or the House of Representatives. It was counsel for the appellant's submission that comments made in the Report of the Joint Select Committee on the Family Law Act (July, 1980), which formed the basis of many of the reforms embodied in the 1983 amending Act, furthered his interpretation. In particular, paragraph 11.50 (p. 195, Volume 1) and Recommendation 67 (paragraph 11.52, p. 196, Volume 1), of the passages referred to, are of value. The following passage appears at the former reference:
'11.50 The Committee considers that in maintenance and property settlement matters there is a need for importance to be attached to the concept of a proposal for settlement, ie. an offer to settle on a certain basis. It is not envisaged that a party would ask for judgment but that an offer to settle would be made which would bear certain consequences.' (The emphasis is ours).
See also, generally, paragraphs 1135-1152.
The jurisdiction of this Court to have regard to such extrinsic evidence about the meaning of a section comes from s. 15AB of the Acts Interpretation Act 1901 (Commonwealth). Reference to reports of this nature is specifically permitted under subparagraph (2)(g) of that section. In subsection (1) of s. 15AB, such reference is permitted in attempting to ascertain the meaning of a provision in the following cases:
(a)        to confirm that the meaning of the provision is the ordinary meaning conveyed by the test of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b)      to determine the meaning of the provision when:
(i)        the provision is ambiguous or obscure; or
(ii)       the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
Only the first of these subparagraphs is relevant here, and this Court need only have reference to the cited report on that basis. It is our view, given what we have said above, that the above Joint Select Committee report, while helpful, merely confirms the plain and ordinary meaning of s. 117C and its purpose, which is also clear, namely, that it creates a system to facilitate the documentation of evidence relevant to the exercise of a court's discretion as to costs, and nothing more.
The Explanatory Memorandum which accompanied the Bill for the amending Act is in similar terms to the Report. At p. 33 it says:
'New Section 117C: offers of Settlement: The new section will provide a procedure for the filing in court of offers of settlement in financial proceedings under the Act (other than proceedings to enforce a decree in such proceedings) which may be taken into account by a Court in making an order for costs.'
Again, for the same reasons stated above; it merely confirms the plain and ordinary meaning of the section.
Many of the appellant's other grounds of appeal, with which, for the reasons we have already given, it is now unnecessary to deal, were directed at the power of the court to stop the trial and impose property orders without the consent of the parties. Nevertheless, the following observations should be made.
It is now beyond doubt that parties to a marriage cannot, by their own agreement (except one approved by the Court pursuant to s. 87 of the Act), oust the jurisdiction of the court under s. 79 to make an order in relation to the property of the parties which, in accordance with s. 79(2), is just and equitable.”
Their Honours then cite a number of authorities in support of that proposition which I do not find it necessary to repeat here. Their Honours then went on:
“Further, the High Court in Harris v. Caladine (1991) FLC 92-217; (1990-1991) 172 CLR 84 has emphasised the need for the requirements of s. 79 to be met in every case; even where there is consent between the parties.
Therefore, to read into s.117C an alternative system for the settlement of property disputes that disregards both the requirements of s. 79 and the status of the parties' consent at the time orders are made runs counter to the whole tenor of the legislation as it has been interpreted in the past.”
In Carruthers v Carruthers the facts were that on 5 March 1996 the parties attended an Order 24 conference. They agreed to, and signed, draft orders which were submitted to the Townsville Registry. These were not submitted to the registrar for consideration and the registry staff issued sealed copies of what purported to be orders, mistakenly believing that the orders had been made.
Some weeks later it was realised by the Registry that no orders had been made. A Deputy Registrar wrote to the parties' solicitors on 23 April to advise them of the situation. The Deputy Registrar also advised the solicitors that written confirmation was required from both parties that an order was still required as agreed in the terms of settlement. It was as a result of the wife's refusal to give that confirmation that the matter proceeded to trial.
The trial was conducted before Nicholson CJ and his Honour gave judgment on 9 September 1996. For my purposes, it is sufficient for me to refer to what his Honour said at page 83,483. His Honour said, having previously referred to these cases in detail:
“There are clear decisions of the Full Court which are binding upon me sitting at first instance, which make evidence of this type of agreement admissible, and in the present case this is further strengthened by the fact that the agreement has been acted on, in part at least, and thus forms part of the financial history of the parties.
This still leaves the question of weight to be considered, but in this regard I think it clear that the correct approach is that stated by the Full Court in Candlish and Pratt (supra) in the passage to which I have referred and I propose to approach the matter in that way.
This means that I have to consider the matter in the light of s. 79 in the usual way, treating the agreement as one factor to be considered, together with the fact that it has been in part acted upon by them.”
As I have said, both of those cases predated amendments to the Act which were enacted in the year 2000. Section 117C(2A) was inserted by s 3 and Sch 3 [99] of Act No 143 of 2000. It provides as follows:
“If a party files a copy of an offer and, before any notice of withdrawal is filed, the party to whom the offer is made files a notice that the offer has been accepted, the proceedings end (so far as they concern the party who accepted the offer) when the court makes an order giving effect to the terms of that offer.”
There is no discussion that can be found either by counsel or myself in the Second Reading Speech with respect to that amendment. However, in the Explanatory Memorandum with respect to the Family Law Amendment Bill 1999 which contained this amendment under Item 99 and under the heading: After section 117C(2) reads as follows:
“Item 99 will insert subsection 117C(2A) that will provide that if a party files an application of offer of settlement and that offer is accepted by the other party before it is withdrawn, that acceptance brings the proceedings to an end.”
Having regard to the cases to which I have just referred and the Explanatory Memorandum, it is clear enough that the legislature intended to change the Law. The question is was the Law changed by the amendment that was in fact inserted? Considerable difficulties arise in relation to interpreting section 117(2A) in the light of its context. Section 117(1) provides insofar as relevant that:
“Where a party to proceedings under this Act has made an offer in the form prescribed by the applicable Rules of Court to the other party to the proceedings to settle the proceedings on terms specified in the offer, the first-mentioned party may file, in the court to which the proceedings are being heard, a copy of the offer.”
Section 117C(2) provides:
“If a party to proceedings withdraws an offer a copy of which as been filed as mentioned in sub-section (1), that party shall file, in the court referred to in sub-section (1), notice that the offer has been withdrawn.”
Section 117C(2A) provides:
“If a party files a copy of an offer and, before any notice of withdrawal is filed, the party to whom the offer is made files a notice that the offer has been accepted, the proceedings end (so far as they concern the party who accepted the offer) when the court makes an order giving effect to the terms of that offer.”
Section 117C(3) provides:
“The fact that an offer has been made as mentioned in sub-section (1), or the terms of such an offer, shall not be disclosed to the court except for the purposes of the consideration by the court of whether it should make an order as to costs under sub-section 117(2) and the terms of such order.”
Section 117C(4) provides:
“A judge of the court mentioned in subsection (1) is not disqualified from sitting in proceedings only because the fact that an offer has been made is, contrary to subsection (3), disclosed to the court.”
It is hard to understand how the legislature expected section 117C(2A) to operate in the face of section 117C(3). The two really cannot comfortably sit together. Further, the terms of section 117C(2A) do not reflect what the Explanatory Memorandum suggests was intended. Precisely what is intended by the words "the proceedings end (so far as they concern the party who accepted the offer)", I am at a loss to understand.
Further, it is clear enough that the proceedings do not end until an order is made giving effect to the terms of that offer. Perhaps it was intended to convey that a person who had accepted an offer could only end the proceedings by applying to the Court to make an order giving effect to the terms of that offer. That is one possible reading of section 117C(2A).
However, having regard to the general scheme of the Act and in particular the provisions of section 79 and the way in which the Court has, up until now, interpreted its role in relation to making orders for property settlement, in my opinion it would be necessary for the legislature to make much clearer than it has by the insertion of this sub-section an intention to change the whole fabric of the way in which the Law is interpreted by this Court in relation to property settlements.
I think it is clear enough that the legislature intended to attempt to make these offers final once accepted, but I think having regard to the fabric of the legislation and the previous case Law, it is difficult to come to the conclusion that the legislature has been successful in achieving that result. It would, in my opinion, require much clearer words than those that have been used.
______________________

[2002] FamCA 1157

19 NOVEMBER 2002

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Appeal

Jurisdiction

Costs