Clifford & Mountford
[2006] FMCAfam 450
•25 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CLIFFORD & MOUNTFORD | [2006] FMCAfam 450 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Application to set aside judgment pursuant to Federal Magistrates Court Rules2001, r.16.05(2)(a) – principles to be applied – no reasonable excuse for failure to attend – no material argument that might lead to order different to that set aside – prejudice to the respondent. FAMILY LAW – PRACTICE AND PROCEDURE – Inferior court – power to set aside order made without jurisdiction – principles to be applied. |
| Federal Magistrates Court Rules 2001, r.16.05(2)(a) |
| Taylor v Taylor (1979) 143 CLR 1 Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 State Rail Authority of New South Wales v Codelfa Constructions Pty Ltd (1982) 150 CLR 29 Autodesk v Dyason (No.2) (1993) 176 CLR 300 Del v Director-General, NSW Department of Community Services (1997) 190 CLR 207 Shocked v Goldschmidt [1998] 1 All ER 372 J P Sproule v L E Long (2000) QSC 232 DJL v The Central Authority (2000) 201 CLR 226 Allesch v Maunz (2000) 203 CLR 172 Maher v Commonwealth Bank of Australia Limited [2004] FCA 248 Knight & Andrews [2004] FMCAfam 181 SZCEQ v MIMIA [2005] FMCA 1141 Morrison Motors Pty Ltd v Shah [2006] FMCA 256 Australia Meat Holdings Pty Ltd v Higgs (2006) 27 QL 33 S329 of 2003 v MIMIA [2006] FMCA 303 |
| Applicant: | MR CLIFFORD |
| Respondent: | MS MOUNTFORD |
| File Number: | BRM 3840 of 2001 |
| Judgment of: | Jarrett FM |
| Hearing date: | 12 May 2006 |
| Date of Last Submission: | 12 May 2006 |
| Delivered at: | Brisbane |
| Delivered on: | 25 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Drysdale |
| Solicitors for the Applicant: | Legal Aid Queensland |
| Counsel for the Respondent: | Mr Fisher |
| Solicitors for the Respondent: | Hayley Ritchie Solicitors |
ORDERS
The application filed on 28 February, 2006 is dismissed;
The response filed on 5 April, 2006, is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Clifford & Mountford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM 3840 of 2001
| MR CLIFFORD |
Applicant
And
| MS MOUNTFORD |
Respondent
REASONS FOR JUDGMENT
On 14 August, 2001 Rimmer FM ordered that the applicant[1] pay periodic child maintenance to the respondent[2] of $100.00 per week for each of their two children – a total of $200.00 per week (“the maintenance orders”). The maintenance orders were made in the absence of the applicant. In this application he seeks orders setting aside the maintenance orders.
[1] who was the respondent father in the application before her Honour
[2] who was the applicant mother in the proceedings before her Honour
Since the maintenance orders were made there have been a number of applications to this court. On 4 November, 2004 I delivered judgment in an application prosecuted by the applicant for a discharge or variation of the maintenance orders pursuant to s.66S of the Family Law Act1975 (“the Act”). In that judgment I summarised the history of the matter as follows:
Background
8. The matter before the Court has quite some history. The original orders for maintenance that the [father] now seeks to have set aside, varied or discharged were made on 14 August, 2001. On that day an order was made on the [mother's] application for the [father] to pay to the [mother] the sum of $100 per week per child by way of child maintenance for their two children. Written reasons for judgment were delivered by Rimmer FM. It is worth setting out the history of the matter recorded by her Honour as follows:
2.The mother filed her original application in the Family Court of Australia and she did so by way of an application for maintenance in form 12, some considerable period of time ago, on 4 December 2000. That application was then quickly amended by her on 14 December 2000, and finally she has amended it on one further occasion on 30 July 2001. The original application was before the court on 18 January 2001, and the mother was having some difficulties in service of the application. On 15 March 2001, Registrar Dittman of the Family Court of Australia made an order for substituted service, and that substituted service was upon the father, Mr Clifford and Ms Y, at the residential address of the applicant and Ms Y at [Property W] in the State of Victoria.
3.At the same time he transferred the proceedings to the Federal Magistrates Court and the matter was listed for mention in this court on 14 May 2001. The father did not appear when the matter was before myself on 14 May but he did appear by way of a town agent, a Ms Lilley, who was then acting on behalf as town agents of solicitors who were acting for the father, a Lisa J. Cooke, at Tehan, George and Company at Seymour in the State of Victoria. The matter was allocated for hearing and directions were made to prepare the matter for hearing. The hearing was listed for 2.15 on 20 June 2001. Those orders issued from the court to the solicitors on the record for the father and to the applicant mother personally.
4.On the date for hearing there was no appearance by either party and just after that on 4 July 2001, a notice of ceasing to act was filed by the solicitors, Tehan, George and Company of Seymour, indicating that they were no longer representing the father, Mr Clifford, in the proceedings and that they had sent a notice to him on 18 June by pre-paid post, and that she was instructed that the future address for service of the father was P.O. Box [omitted], in the State of Victoria, 3758. She also indicated at that time that she had notified the father that the matter was before the court on 20 June 2001.
5.The court then listed a further hearing date in relation to the application and that hearing date is today. It was listed for 2.15 pm today, being 14 August 2001. A letter was sent both to the mother at her address for service at P.O. Box [omitted], Queensland, 4505, and to the father, Mr Clifford, at P.O. Box [omitted] in Victoria, 3758, that being the address the solicitors placed on their notice of ceasing to act, as the address for service of the father.
6.The mother now appears and wishes to proceed with her application. The father is not represented nor does he appear. The mother filed an amended application for maintenance on 30 July 2001, together with supporting affidavit. She also filed an affidavit on 20 July 2001. She has provided to the court today two affidavits of service from which I am satisfied she arranged for service on the father by post at his address in [W], Victoria, with the affidavit and also with her amended application and affidavit. I am satisfied in this matter that the father has notice of the proceedings. I am satisfied that he has received all of the documents upon which the applicant relies today. I am satisfied that the notice of the proceedings has come to him in various different ways: firstly, by notice from the court and also a letter from the mother, and service of the amended application which had the date of hearing noted on the front cover sheet as today.
7.The mother's affidavit annexes a letter also, which she sent to the father making an offer to resolve the matter and that letter was dated 26 July 2001 and also says at the end of it:
“ Should you not choose to accept this offer I will proceed with the application and seek the full amount as set out in the application on the date of hearing, 14 August 2001.”
9. No amounts were paid by the [father] pursuant to the orders or at all. The matter next came before the Court on the [mother's] application for enforcement of the child maintenance orders. The [father] did not appear in answer to the application and a warrant for his arrest was issued. The warrant was executed in Melbourne and he was taken before the Court in Melbourne.
10. On 19 February, 2002 the [father] appeared before Rimmer FM by video link from Melbourne. On that day Rimmer FM made some orders that provided for the [father] to file and serve any application for variation of child maintenance (together with a financial statement, an affidavit of evidence-in-chief setting out amongst other things full particulars of his financial position and his capacity to work) no later than 19 March, 2002 in the Brisbane Registry of the Federal Magistrates Court of Australia. In the event that the [father] filed an application for variation, it was listed for determination together with the application by the [mother] for enforcement of the existing maintenance orders. The date fixed for hearing was 9.30 am on 21 June, 2002.
11. On 21 June, 2002 the matter came before the Court in accordance with Rimmer FM’s orders of 19 February, 2002. The [father] had not filed any application for variation or discharge of the August, 2001 child maintenance orders. The [father] did not appear. Orders were made by way of enforcement requiring the [father] to pay a lump sum in respect of each child. The Sheriff of the Federal Magistrates Court was appointed to sell the [father's] real property to satisfy the lump sum orders. Again, her Honour delivered written reasons and it is instructive to record the history set out by her Honour in those reasons:
5.The mother then brought an application for enforcement of that order on 1 November 2001 because she had not received any payments with respect to child maintenance. That application came before me returnable on 14 January 2002. There was evidence of service of the application on the respondent father and a warrant was issued because he failed to appear in compliance with the enforcement summons. The warrant was executed in the State of Victoria and the respondent father was brought to the Melbourne Registry of the Federal Magistrates Court on 18 February 2002 before Chief Federal Magistrate Bryant, who then stood the father over on his own undertaking to appear the following day when the matter was then listed before myself here in Brisbane, with the father to appear in Melbourne by video link.
6.On that day I made very specific orders with respect to the conduct of the matter and spent a considerable amount of time explaining to the respondent, Mr Clifford, the need for him to comply with the orders, the steps he needed to take under the rules, practice and procedure of the Court which were those he as somebody appearing without legal advice, would need to take. I indicated that he would be given time to file an application for variation of the existing child maintenance order and that that application, together with very specific directions with respect to the filing of a financial statement and an affidavit setting out in some precise detail the matters that the Court would require him to cover was to be filed no later than 19 March 2002. I further ordered that any application, if it were filed for variation, was to be heard and determined together with this enforcement application at 9.30am on 21 June 2002, which is today.
7.I then listed the matter for hearing for not more than half a day, commencing at 9.30am on 21 June 2002. I gave the father leave to attend the hearing in Melbourne by way of video link. I directed that the respondent file any response if an application for variation was filed by a particular date. I was very precise in the orders that I made that each party provide to the other certain documents which are set out in par 5 of those orders. I made an unusual order granting leave to both parties who were then self-represented to contact my associate and provided in the orders my associate's telephone number so that if there was any need the matter could be listed urgently before myself because of the difficulties that the parties may have faced in respect of compliance with the orders. I did not specifically, because the father had raised at that time and we had in fact allocated the hearing date giving due consideration to the fact that he raised that he may have to undergo some operative procedure on his back.
8.It was made very clear to both parties that this matter was going to proceed today. It was made very clear to both parties that if either of them sought any order that the hearing not to proceed or there were difficulties in relation to it proceeding because of its history, they were to activate the leave provision in order 6 of the orders I made on that day. It was made abundantly clear to Mr Clifford that he was under the obligation to attend, both with respect to the enforcement summons which had not been heard and determined, and of course the issue of the warrant with respect to his attendance today. He gave me his firm commitment that he would appear in the Melbourne Registry to ensure that this application could be disposed of today.
9.It is important to note that although I do not propose to rely upon it in the proceedings before me there has apparently been a telephone call to the Family Court staff early this morning, the contents of which I am not aware, by the respondent. It is clear from decisions of the Full Court of the Family Court of Australia that the Court cannot receive into evidence nor act upon very late faxes or telephone calls which are made by a party to the proceedings to the Court without proper notice to the other party or without proper documents being filed. It is particularly so in a matter such as this, with the history that I have set out the conduct by the respondent father in not appearing, and also in respect of the care which the Court took in making the orders that it did when it set the matter down for hearing and in providing a very clear explanation. Mr Clifford has not filed any application for variation of maintenance, nor any affidavit of financial circumstances.
10.The resources of the Commonwealth have already been utilised on one occasion to bring Mr Clifford to the Court under a warrant and he assured the Court that the Court would not have to bring him back to Court today under a warrant because he would ensure that he was before the Court. There is now a solicitor appearing for him and he has not appeared in Melbourne Registry, despite the fact that we have this matter being conducted by the video link today and will continue to do so until the conclusion in case Mr Clifford does happen to appear.
8. The [mother] then sought to have the orders enforced again and she commenced further proceedings against the [father]. Those proceedings were mentioned on 21 October, 2002. There was no appearance by the [father]. On 4 November, 2002 the matter was again mentioned and there was no appearance by the [father].
9. By the order of 21 June, 2002 Rimmer FM appointed the Sheriff of the Federal Magistrates Court of Australia to seize and sell the [father's] residential property. At the end of 2002 the Marshal came knocking on the [father's] door.
10. On 30 January, 2003 the [father] applied to this Court on an urgent basis for orders that execution by the Sheriff be stayed and that directions be made as to the filing by the [father] of an application to file a notice of appeal out of time. The [father] sought to have that application dealt with ex parte but that was refused.
11. The matter returned before the Court on 13 February, 2003 at which time only the [father] appeared. It is not clear from the material whether the [mother] had been served with the application for a stay at that time. In any event, the Court ordered that the matter be adjourned to 2.15 on 4 March, 2003 at Brisbane. It was further ordered that should the application be not ready to proceed on the adjourned date, then the matter might be dismissed.
12. On 4 March, 2003 the [mother] appeared but the [father] did not. His application filed on 31 January, 2003 was dismissed with costs. Written reasons were again delivered.
13. Further orders were made on 30 October, 2003 on the application of the [mother] by Baumann FM. Those orders record findings that the [father] had failed to pay the [mother] sums totalling about $43,000. A further order was made appointing the Sheriff of the Federal Magistrates Court trustee for seizure and sale of the [mother]'s interests in his real property and the payment of the outstanding debt to the [mother]. The [mother] also pursued some contempt proceedings against the [father].
14. The present proceedings were commenced, as I said at the outset, by an application filed on 2 April, 2004. The application is not brought on the basis of rule 16.05 of the Federal Magistrates Court Rules 2001, nor is it pursued on the basis of the Court’s inherent power to set aside orders made in the absence of a party (see Taylor v Taylor (1979) 143 CLR 1). Rather, the [father's] application is made pursuant to s 66S of the Family Law Act 1975.
I dismissed the application. Although commenced, no appeal against my judgment was prosecuted by the applicant.
The current application was filed on 28 February, 2006 and amended on two occasions since. By his further amended application filed by leave on 12 May, 2006 the applicant seeks the following orders:
1.That pursuant to Rule 16.05(2)(a) of the Federal Magistrates Courts Rules 2001 the decision of Rimmer FM made 14 August 2001 be set aside.
2.That the Application in Form 12 for Child Maintenance filed 4 December, 2000 and Amended Application in Form 12 filed 14 December 2000 be dismissed.
3.Such orders as to costs as the Honourable Court deems meet.
By her response filed on 5 April, 2006 the respondent seeks orders that:
1. That the Amended Application of the Applicant Father filed on 29 March 2006 be dismissed.
2. That the Applicant Father vacate the property situated at [Property W] in the State of Victoria (“the Property’) within 14 days from the date of these Orders.
3. That the Court declares that the date of separation of the Applicant Father and Respondent Mother is and has been for all relevant purposes 28 July 1989.
4. That the Applicant Father by himself, and his employees or agents or otherwise be restrained from committing any act of trespass which does or which is likely to cause any damage or waste to the Property pending the final determination of all matters between the Parties.
5. That if the Applicant Father fails to appear any return mention or hearing of the Amended Application the Respondent Mother be at liberty to apply for final orders in terms of this Response.
6. That the Applicant pay the Respondent’s Costs.
Apart from the express application under r.16.05(2)(a) of the Federal Magistrates Court Rules 2001 (“another two bases were identified in argument as supporting the setting aside of the maintenance orders. The first was that the maintenance orders were made without jurisdiction and should be set aside for that reason alone. The second, perhaps more implicit than explicit, was that the orders had been obtained by fraud or false evidence on the part of the applicant and therefore liable to be set aside pursuant to r.16.06(2)(b).
Federal Magistrates Court Rules 2001, r.16.05(2)(a)
Rule 16.05 is in the following terms:
16.05 Setting aside
(1) The Court may vary or set aside its judgment or order before it has been entered.
(2) The Court may vary or set aside its judgment or order after it has been entered if:
(a) the order is made in the absence of a party; or
(b) the order is obtained by fraud; or
(c) the order is interlocutory; or
(d) the order is an injunction or for the appointment of a receiver; or
(e) the order does not reflect the intention of the Court; or
(f) the party in whose favour the order is made consents.
(3) This rule does not affect the power of the Court to vary or terminate the operation of an order by a further order.
There are a number of decisions of this court upon applications under r.16.05(2)(a). Many decisions approach the relevant discretion on the basis that there are two matters to be considered. The first is whether there is an adequate or satisfactory explanation for the failure to appear. The second is whether the applicant demonstrates any reasonably arguable case on the merits of the substantive application[3].
[3] see for example MZWZC v MIMIA (No. 2) [2006] FMCA 228, SZFNB v MIMIA [2005] FMCA 1440, SZGDZ v MIMIA [2006] FMCA 604, MZWFZ v MIMIA [2005] FMCA 1479, SZCGQ v MIMIA [2005] FMCA 666
Others approach the relevant discretion on the basis that in the absence of an adequate or satisfactory explanation for the failure to appear the relevant judgment should not be set aside[4].
[4] MZWRW v MIMIA [2005] FMCA 1493
Others yet approach the matter on the basis that the discretion to set aside orders made in the absence of a party is an exceptional jurisdiction that should only be exercised with great caution or where "exceptional circumstances" can be demonstrated[5]. Invariably in those cases consideration is also given to whether there is some merit in the proposed claim or defence that is sought to be reinstated.
[5] NAJN v MIMIA [2003] FMCA 414, SZCEQ v MIMIA [2005] FMCA 1141, Morrison Motors Pty Ltd v Shah [2006] FMCA 256
In Morrison Motors Pty Ltd v Shah [2006] FMCA 256, Barnes FM summarised the relevant principles as follows[6]:
3. The respondent now seeks an order under Rule 16.05 of the Federal Magistrates Court Rules 2001 setting aside the orders of 9 February 2006. It emerged in submissions that the ground relied on is that the order was made in the absence of the respondent under Rule 16.05(2)(a). Rule 16.05 is, relevantly, in the same terms as Order 35 Rule 7 of the Federal Court Rules.
4. The power to set aside an order or judgment is to be exercised with great caution and generally is not to be done unless, where an applicant is relying on the fact that an order was made in his or her absence, the applicant can show that by accident and without fault on his or her part, the order was made without the applicant being heard: Autodesk v Dyason (No.2) (1993) 176 CLR 300 and Theo v Official Trustee in Bankruptcy [1998] FCA 862.
5. It is necessary to look at the whole of the relevant circumstances and to consider whether there is an adequate explanation for the non-appearance and also whether there is an arguable case or question raised by the person seeking to set aside the orders. It was said in K M & A Chadwick Pty Limited v Yeung (unreported Federal Court 2 June 1995) that the "relevant touchstone" was whether there was an arguable case or question raised by the party seeking to set aside the order.
[6] see also NAJN v MIMIA [2003] FMCA 414
In Autodesk v Dyason (No.2) (1993) 176 CLR 300 the High Court was asked to re-open an appeal that had been heard and determined by the Court[7]. It is clear from the judgments in that case that the Court was asked to exercise a power, not to be found in the rules of the High Court, but a power it inherently possessed, particularly as a Court of last resort, to re-open an appeal. Although Mason CJ and Deane J would have allowed the application, the majority (Brennan, Dawson and Gaudron JJ) found that there was no occasion to exercise the power available to the court to reopen an appeal. Two identifiable bases in principle were identified in the judgments that could, in an appropriate case, lead to a re-opening. The first was that a party had not been given an opportunity to be heard on a particular matter. The second was where "… a judgment has apparently miscarried for other reasons…"[8], such as the Court having proceeded to judgment on a misapprehension of the law or the facts.
[7] Autodesk v Dyason (1992) 173 CLR 330
[8] per Mason CJ at 302
In Autodesk the judgments drew upon earlier decisions of the High Court, particularly those in Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 and State Rail Authority of New South Wales v Codelfa Constructions Pty Ltd (1982) 150 CLR 29. In Codelfa Mason and Wilson JJ examined the power of the High Court to re-open an appeal in respect of which judgment has been pronounced in the following terms (at p39):
Counsel for the Authority referred the Court to many cases to establish the jurisdiction of the Court to entertain the present application. We have no doubt that such a jurisdiction exists: Rajunder Narain Rae v. Bijai Govind Sing (1839) II MooIndApp 181 (18 ER 269). See also Vienkata Narasimha Appa Row v. Court of Wards (1886) 11 AppCas 660 ; In re Harrison's Share Under a Settlement (1955) Ch 260 . Nevertheless, it is a power to be exercised with great caution. There may be little difficulty in a case where the orders have not been perfected and some mistake or misprision is disclosed. But in other cases it will be a case of weighing what would otherwise be irremediable injustice against the public interest in maintaining the finality of litigation. The circumstances that will justify a rehearing must be quite exceptional. In Rae's Case, Lord Brougham said, in words which the Authority claims are apposite to the present case (1839) II MooIndApp, at p 220 (18 ER, at p 284):
"It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of the last resort, where by some accident, without any blame, the party has not been heard, and an Order has been inadvertently made as if the party had been heard."
In Venkata's Case (1886) 11 App Cas, at pp 663-664 , Lord Watson, delivering the opinion of the Judicial Committee of the Privy Council, referred to Lord Brougham's words in Rae's Case and continued:
"Even before report, whilst the decision of the Board is not yet res judicata great caution has been observed in permitting the rehearing of appeals. In the last case to which we were referred, that of Hebbert v. Purchas (1871) L.R. 3 P.C. 664 where a litigant alleged, before report and approval, that he had been disabled by want of means from appearing and maintaining his case, the Lord Chancellor said:- 'Having carefully weighed the arguments, and considering the great public mischief which would arise on any doubt being thrown on the finalty "[sic]" of the decisions of the Judicial Committee, their Lordships are of opinion that expediency requires that the prayer of the petitions should not be acceded to, and that they should be refused.' There is a salutary maxim which ought to be observed by all Courts of last resort - Interest reipublicae ut sit finis litium. Its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a tribunal as this."
It is apparent from an examination of the foregoing passages that the power the High Court was asked to exercise in AutoDesk was a power that it inherently possessed because of its position at the apex of the court hierarchy in Australia. Indeed, Mason CJ expressly acknowledged that proposition. After referring to three examples his Honour said, at 302:
These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment.
(my emphasis)
Similarly in their Honour's joint judgment in Del v Director-General, NSW Department of Community Services (1997) 190 CLR 207 Toohey, Gaudron, McHugh, Gummow and Kirby JJ pointed out, at 215:
"The power of the Court to reopen its judgments or orders is in no doubt. The Court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded "on a misapprehension as to the facts or the law, where "there is some matter calling for review", or where "the interests of justice so require. It has been repeatedly said that a heavy burden is cast upon the applicant for reopening to show that such exceptional course is required ‘without fault on his part’, ie without the attribution of neglect or default to the party seeking reopening. By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice. In the case of a final court of appeal, such as this Court, that injustice may be irremediable, unless the Court itself, acting promptly, is persuaded to reopen its orders so as to afford relief in the exceptional circumstances of the case"
(my emphasis, footnotes omitted)
Despite some suggestions to the contrary[9] it is now probably the case that the principles discussed in the cases above only apply to the High Court. In DJL v The Central Authority (2000) 201 CLR 226 the issue before the Court was whether the Full Court of the Family Court had power to "re-open" an appeal that had been finalised by a perfected order. The High Court, by majority, determined that the Family Court had no power to re-open a final order after its entry. In doing so, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said at 247:
Likewise, in the present litigation, clarity of thought and the isolation of the true issues have not been encouraged by submissions expressed in general terms respecting the position in "intermediate courts of appeal". In the case of each such court, State or federal, attention must be given to the text of the governing statutes and any express or implied powers to be seen therein. Nor is it of assistance to consider the position with respect to this Court in the exercise of its entrenched jurisdiction as a court of final appeal under s 73 of the Constitution, or with respect to the Privy Council or the House of Lords after R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 2), a decision referred to by the Solicitor-General of the Commonwealth.
We would add that the statement in De L v Director-General, NSW Department of Community Services [No 2] that the power of the High Court to re-open its judgments and orders is not in doubt should not be misconstrued. In that case and in all of the authorities respecting orders of this Court which were referred to in that passage, the applications were to re-open final orders and were made before entry of the orders in question. There is, as yet, no decision of this Court which turns upon the position after entry of its final orders.
The Family Law Act in its text and structure provides no express conferral of the power sought to be exercised in the present case. Nor is there an inherent power by reason of the description in the statute creating the court of it as "a superior court of record". Further, no such power is derived by necessary implication from the statutory structure, in particular from the exercise of the appellate jurisdiction conferred by Pt X of the Family Law Act.
(footnotes omitted)
[9] Wentworth v Rogers(No. 9) (1987) 8 NSWLR 388 at 394; Haig v The Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143; Australian Fisheries Management Authority v. P.W. Adams Pty Ltd(No.2) (1996) 66 FCR 349; WATI v MIMA (1997) 148 ALR 578
In my view the principles that emerge from AutoDesk and De L are of no particular assistance when determining an application pursuant to r.16.05(2)(a). Each deals with the ability of the High Court to set aside orders previously made by it, in circumstances where it is the final arbiter on the issue at hand. The principles are not analogous to the principles to be applied on an application pursuant to r.16.05(2)(a).
Absent r.16.05(2)(a) there could be no question, I think, that this Court has implied power to set aside a judgment made by it in the absence of one of the parties to the judgment. In Taylor v Taylor (1979) 143 CLR 1 the High Court made it clear that notwithstanding that the Family Court was a court of limited statutory jurisdiction, it nonetheless had inherent power to set aside a judgment made by it in the absence of one of the parties. Mason J (as his Honour then was) described the relevant principle as follows at 16:
Although the Family Court is a court created by statute it none the less possesses an inherent jurisdiction to set aside a judgment obtained by default. Three members of this Court (Latham C.J., Rich and Williams JJ.) concluded in Cameron v. Cole that the Federal Court of Bankruptcy had an inherent jurisdiction to set aside its orders, notwithstanding that it was a statutory court and, further, that it was a court of limited jurisdiction. A jurisdiction to set aside its orders is inherent in every court unless displaced by statute. In my opinion the jurisdiction extends not only to the setting aside of judgments which have been obtained without service or notice to a party (Clifford v. Kanssen) but to the setting aside of a default or ex parte judgment obtained when the absence of the party is due to no fault on his part. I can find no indication in the Family Law Act of an intention to displace this inherent jurisdiction.
(footnotes omitted)
Although I was referred to no authority on the point, and I could find none myself, in my view, the discretion conferred by r.16.05(2)(a) is to be exercised on the same basis as the implied power described in Taylor v Taylor. That approach is consistent with the approach in Allesch v Maunz (2000) 203 CLR 172. Further, given that there is an express rule that provides power to set aside orders or judgments given in the absence of a party, there is probably no room for the operation of the inherent power spoken of in Taylor v Taylor[10].
[10] cf. Allesch v Maunz (2000) 203 CLR 172 at 182
In Allesch v Maunz the High Court had occasion to discuss the principle from Taylor v Taylor and the power of the Family Court to set aside property orders pursuant to s.79A(1)(a) of the Family Law Act1975. In their Honour's view, s.79A(1)(a) was broad enough to permit the Court to set aside property orders where those orders were made in the absence of one of the parties and a "miscarriage of justice" had occurred. In the course of their judgment, Gaudron, McHugh, Gummow and Hayne JJ said, at 182 – 183:
The consideration which informs the power conferred by s 79A of the Act is that the court be satisfied that there was "a miscarriage of justice". And whether exercising inherent power or a power of the kind conferred by s 79A of the Act, a court will, ordinarily, be satisfied that there has been a miscarriage of justice if a person has suffered an adverse order in circumstances where his or her failure to appear is adequately explained unless it also appears that no different result would be reached on a rehearing or that a rehearing would work an irremediable injustice to the other side. In this last regard, it should be noted that injustice will often be capable of remedy by the imposition of terms as to costs. However, where, as here, orders have been carried into effect, injustice may not be capable of remedy except on terms that those orders stand and that the matter be reopened only to a limited extent.
Kirby J suggested that: "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 [conferring to power to set the judgment aside] itself"[11]. His Honour went on to point out[12]: "… 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". Those remarks, and the passages that follow in his Honour's judgment, suggest that both criteria need to be made out before an applicant could expect a favourable exercise of discretion.
[11] at 188
[12] at 188
In Knight & Andrews [2004] FMCAfam 181 Baumann FM was confronted with an application to set aside an earlier order made by his Honour which dismissed the applicant’s substantive application for want of prosecution. In the course of his Honour’s reasons he said:
13. In my view, however, the mere fact that the husband did not appear is not sufficient to automatically set aside the order of 22 October 2001. Rule 16.05 is discretionary. A similar rule is found in Order 35 Rule 7(2)(a) of the Federal Court Rules 1979 (Cth). It was considered by RD Nicholson J in the case of Registrar of Aboriginal Corporations v Murnkuri Womens' Aboriginal Corporation (1995) 58 FCR 125.
14. Although that case involved a winding up order made in the absence of the party, the Court (after consideration of authorities relating to setting aside a default judgment and similar summary applications) found that even if the non appearance was explained the Court should still consider whether there is an arguable defence or action.
15. A similar situation was considered by Driver FM in Nadar v Australian Electoral Commission (2002) FMCA 83 who, although finding the applicant's explanation for non attendance was "neither sufficient or plausible" still turned his mind correctly in my view to whether the application "would have reasonable prospects of success" or whether the order for dismissal "caused injustice."
16. I agree that these factors should be considered before exercising the discretion contained in Rule 16.05.
In SZCEQ v MIMIA [2005] FMCA 1141 Nicholls FM was asked to set aside an order dismissing an application for review made in the absence of the applicant pursuant to r.16.05(2)(a). It was suggested to his Honour that there was a distinction to be drawn between the approach of Barnes FM in NAJN and a “lesser test which requires an "explanation" by the applicant for failure to attend, coupled with "showing [an] arguable case"[13].” In the result, his Honour was not satisfied that either test had been met and so the application to set aside was dismissed.
[13] SZCEQ v MIMIA [2005] FMCA 1141 at [10]
In S329 of 2003 v MIMIA [2006] FMCA 303 Baumann FM suggested that on an application under r.16.05(2)(a) the Court should consider at least:
a)The reasons for the failure to appear;
b)The prospects of success of the substantive application (in the context of an application that has been dismissed because the applicant failed to appear); and
c)Whether any prejudice to the respondent is likely to occur.
Rules similar to r.16.05(2)(a) exist within the rules of most courts in Australia[14]. The relevant Federal Court rules are O 32 r2(2) and O 35 r7(2)(a). The trend of authority in that Court[15] is to the effect that two matters are relevant, namely whether the applicant has an adequate explanation for the failure to appear and whether the applicant can show an arguable case on the merits (be that by way of claim or defence).
[14] for a list of the rules in each State and Territory Supreme Court see Cairns, B Australian Civil Procedure 6th ed Lawbook Co, Sydney, 2005
[15] eg. K M & A Chadwick Pty Limited v Yeung (unrep. Federal Court of Aust., Tamberlin J, 2 June 1995); Registrar of Aboriginal Corporations v Murnkuri Womens' Aboriginal Corporation (1995) 58 FCR 125
Maher v Commonwealth Bank of Australia Limited [2004] FCA 248 suggests, however, that the matters identified by the High Court need not all be established for an applicant to obtain a favourable exercise of discretion. Mr Maher was both an applicant and cross-respondent in proceedings against the CBA. The matter was called for hearing and the Mr Maher failed to appear. His claim was dismissed. The cross-claim was stood over, but ultimately judgment on the cross-claim went against him. Finkelstein J. set out the principles as follows:
2. Mr Maher now applies for the judgments given on 2 and 5 February 2004 to be set aside. He also seeks an order that a new trial be granted. His application is opposed. In Evans v Bartlam [1937] AC 473, 482 Lord Russell said that a judge who was called upon to consider such an application (here it is brought under O 32 r 2(2)) must consider two issues, viz (1) whether there is some purpose in setting aside the judgment: there will be none if the claim sought to be prosecuted or defended (as the case may be) is hopeless; and (2) how it came about that the applicant was bound by a regularly obtained judgment. In the same case Lord Wright said (at 489) that the principal consideration was whether the applicant had a case with merits to which the court should pay heed. It did not matter that the case is weak because, as Winneke P explained in Lau v Citic Australia Commodity Trading Pty Ltd [1999] VSCA 34 at [8] "that is not to say that, when all the facts are exposed, it [in that case a defence] will not turn out to be a good one."
His Honour considered, however, that the more important of the two factors was whether the applicant might have an arguable claim against the bank or an arguable defence to the claim in respect of which judgment was given against him. His Honour said:
17 With this history in mind, I am in no doubt that Mr Maher made a deliberate decision not to attend the hearing on Monday 2 February 2004 in the expectation that the case would not go on in his absence and that he would thereby obtain the adjournment he was refused on the preceding Friday. I am convinced that Mr Maher intended to take whatever steps were necessary to defer the hearing while he continued his attempts to obtain pro bono counsel.
18 Moreover, I simply do not accept Mr Maher’s claim that he was physically unable to attend the hearing on 4 or 5 February 2004. The medical certificates are unconvincing. And, I suspect that Mr Maher did not obtain an affidavit from his doctor, or secure his attendance by subpoena, because the doctor’s evidence would not have assisted his cause.
19 Mr Maher’s cavalier attitude is inexcusable. There is no reason why a person who is hell-bent on delaying a proceeding in this way should be indulged. I suspect that if a new trial is ordered and Mr Maher still does not have counsel to assist him, he will renew his efforts to have the trial delayed. Tempted as I am to simply dismiss his motion out of hand, I accept that the more important consideration is to determine whether his own claim or his defence of the bank’s claim has any merit. If either has merit then it is best left to go to trial. Mr Maher can be suitably punished by an appropriate order in relation to costs, although even that may not put an end to his humbug.
His Honour concluded that Mr Maher’s claim against the bank might have had some merit, but his defence to the Bank’s claim did not. His Honour ordered that the judgment dismissing Mr Maher’s claim against the Bank be set aside (on certain conditions). The judgment on the counter-claim stood. Thus, notwithstanding the absence of one of the criteria, namely a reasonable explanation for the failure to appear, Mr Maher nonetheless received a favourable exercise of discretion.
Of the rules of the various Supreme Courts of the States and Territories, r.16.05(2)(a) is almost identical to rule 667[16] of the Uniform Civil Procedure Rules (Queensland) 1989 ("UCPR"). Both counsel referred me to the decision of Mackenzie J in J P Sproule v L E Long (2000) QSC 232. In that case Ms Sproule commenced proceedings for an order for sale of co-owned property pursuant to s.38 of the Property Law Act 1974 (Qld). Ms Long did not appear, but on the morning of the hearing she telephoned the registry and sent a letter by facsimile asking for the matter to be adjourned. The judge before whom the application was heard, knowing of the request for the adjournment, made the orders sought by Ms Sproule. She did, however, give
Ms Long liberty to apply within seven days to set the orders aside if she so desired.
[16] 667 Setting aside
Mackenzie J had regard to Wilkinson v Wilkinson (1963) P 1 and the determination in that case that “absence” meant physical absence from the relevant hearing. His Honour considered that there was no real explanation for Ms Long's delay in applying to set the orders aside under the liberty to all provision, but ultimately he determined that the application should be dealt with under that reservation rather than the UCPR 667.
Shocked v Goldschmidt
[1998] 1 All ER 372 is a case decided by the Court of Appeal, Civil Division (Leggatt, Roch and Morritt LJJ).
In that case the plaintiffs’ suffered judgment upon a counter-claim made against them because they did not appear on the days fixed for hearing of the counter-claim. Subsequently, they applied to have the judgment set aside. At first instance, they succeeded, but the defendant (who had the benefit of the judgment on the counter-claim) appealed. The judgment of the Court of Appeal was delivered by Leggatt LJ. Roch and Morritt LJJ agreed. In the course of his Lordship’s judgment, he pointed out the following, at 377:
The cases about setting aside judgments fall into two main categories: (a) those in which judgment is given in default of appearance or pleadings or discovery, and (b) those in which judgment is given after a trial, albeit in the absence of the party who later applies to set it aside. Different considerations apply to these two categories because in the second, unless deprived of the opportunity by mistake or accident or without fault on his part, the absent party has deliberately elected not to appear, and adjudication on the merits has thereupon followed.
His Lordship then considered a number of cases, some of which dealt with applications to set aside judgments in default of appearance and others which dealt with applications to set aside judgments in the absence of a party at trial. His Honour then continued, at 381:
These authorities about setting aside judgments after a trial indicate that each case depends on its own facts and that the weight to be accorded to the relevant factors will alter accordingly. But from them I derive the following propositions or 'general indications' as Lord Wright might have called them. (1) Where a party with notice of proceedings has disregarded the opportunity of appearing at and participating in the trial, he will normally be bound by the decision. (2) Where judgment has been given after a trial it is the explanation for the absence of the absent party that is most important: unless the absence was not deliberate but was due accident or mistake, the court will be unlikely to allow a rehearing. (3) Where the setting aside of judgment would entail a complete retrial on matters of fact which have already being investigated by the court the application will not be granted unless there are very strong reasons for doing so. (4) The court will not consider setting aside judgment regularly obtained unless the party applying enjoys real prospects of success. (5) Delay in applying to set aside is relevant, particularly if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it. (6) In considering justice between parties, the conduct of the person applying to set aside the judgment has to be considered: where he has failed to comply with orders of the court, the court will be less ready to exercise its discretion in his favour. (7) A material consideration is whether the successful party would be prejudiced by the judgment being set aside, especially if he cannot be protected against the financial consequences. (8) There is a public interest in there being an end to litigation and in not having the time of the court occupied by two trials, particularly if neither is short.
Contrasting the cases in the two categories it seems to me that whereas in the first the court is primarily concerned to see whether there is a defence on the merits, in the second the predominant consideration is the reason why the party against whom judgment was given absented himself.
The distinction referred to by his Lordship has little relevance to this Court. The Federal Magistrates Court Rules 2001 does not provide for a respondent to enter an appearance, and makes no provision for a judgment in default of an entry of appearance in the traditional sense[17]. An application, when filed, is fixed with a first court date. At that first court date, the Court may make such directions as it thinks appropriate[18]. It may also hear and determine the all or part of the proceedings[19]. A respondent is not required to appear in the sense of filing a formal notice of appearance. The Federal Magistrates Court Rules 2001 simply requires a response and an affidavit[20].
[17] see for example Evans v Bartlam [1937] AC 473
[18] FMCR 10.01(3)
[19] FMCR 10.01(2), see also FMCR 13.03A
[20] FMCR 4.03, 4.04 and 4.05
From the abovementioned authorities, it seems to me that the following principles emerge in respect of applications under r.16.05(2)(a):
a)The discretion to be exercised is unfettered, but nonetheless to be exercised judicially and bearing in mind the public interest in there being an end to litigation.
b)There are three criteria, each of which should usually be demonstrated before a judgment or order is set aside under r.16.05(2)(a), namely:
i)a reasonable explanation for the applicant's absence at the trial or hearing;
ii)material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside; and
iii)no prejudice to the party with the benefit of the orders sought to be set aside that is not able to be adequately addressed by the Court.
c)Matters relevant to the three criteria set out above will include, but will not necessarily be limited to:
i)Whether a party with notice of proceedings disregarded the opportunity of appearing at and participating in the trial;
ii)Delay, if any, in bringing the application to set aside and whether, if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it;
iii)the conduct of the applicant since the judgment or order sought to be set aside was made.
The Applicant's Case
In his affidavit filed on 26 April, 2006 the applicant swears that:
7. In relation to the Respondent's initial Application, I can recall becoming aware of it at some stage prior to the hearing date but I cannot recall how I became aware. At that time all my mail was sent to PO box [omitted]…
8. I cannot recall exactly why I did not attend the hearing before Federal Magistrate Rimmer on 30 August 2001. I am aware that immediately prior to and during this period I was also involved in any other proceedings with the Respondent relating to contact and contravention. I recall that I was represented by solicitors in both these proceedings up until July 2001 but I was unable to afford to retain them any further and so was compelled to deal with those proceedings as a self represented litigant. I also recall that I made an application for legal aid but this was refused on the basis of merit. Annexed hereto and marked with the letter "DC1" is a true copy and correct copy of the letter from Legal Aid Queensland dated 19 May 2001 refused my application for aid.
I am prepared to assume that the reference to 30 August, 2001 in paragraph 8 extracted above is intended to be a reference to the hearing before Rimmer FM on 14 August, 2001 Apart from the above evidence, there is no other evidence going directly to the issue of the reason for the applicant's failure to appear on 14 August, 2001. The evidence clearly demonstrates that he knew of the hearing before the day of the hearing, but he offers no explanation for his failure to attend.
There are other considerations that tend to show that the applicant has no reasonable explanation for his failure to attend on 14 August, 2001. There is no adequate explanation for his delay in commencing this application. The orders sought to be set aside were made in August, 2001. The present application was commenced in February, 2006. In the intervening period, on 2 April, 2004 the applicant commenced his own application for maintenance with the assistance of legal advisers[21]. He also commenced an application to set aside some of the orders made to enforce the maintenance orders. His variation/discharge application was prosecuted to judgment before me. The applicant had legal representation at the trial of that application before me. The present issue about the date of separation was not raised, and it seems to me that it ought to have been[22].
[21] exhibit 10
[22] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
The applicant alleges that the significance of the date of separation was never brought to his attention by his legal advisors, nor was it realised by him. As I have set out below, however, because he was demonstrated to have sworn that the date of separation was 1989, I cannot accept his evidence that the date of separation was a serious issue that he would have raised had his legal advisors made him aware of its significance. Indeed, at the time he commenced his variation/discharge application, he had the respondent's material that led to the making of the maintenance orders, he knew those orders had been made, yet in his own supporting material swore that the date of separation was in 1989.
There is simply no explanation, reasonable or otherwise, for the applicant's failure to attend the hearing on 14 August, 2001.
The applicant argues that he has a good defence to the respondent's claim for child maintenance in her original application. He asserts that those orders were made without jurisdiction. He says that they were made without jurisdiction because:
a)Rimmer FM found that the parties had separated in December, 1990;
b)the Child Support (Assessment) Act1989 ("the Child Support Act") commenced operation on 1 October, 1989;
c)the parties and their children are subject to the provisions of the Child Support Act by reason of the operation of s.20 thereof[23];
d)by s.66E(1) of the Family Law Act1975 this court was prohibited from making a child maintenance order such as that sought by the respondent.
[23]20 Children of parents who separate on or after commencing day
The applicant urges that I should make my own finding that separation occurred in August, 1990 and thereby find that the maintenance orders were without jurisdiction. Both parties urged me to treat this hearing as a hearing of the application to set aside the maintenance orders and the rehearing of the respondent's maintenance application if I was minded to set aside the maintenance orders. That is to say, the parties have led all of the evidence they wish to lead on the question of the date of separation. It is against that background that I will consider the applicant's claim to a material argument that might lead to a different order than that which he seeks to set aside.
The starting point for the applicant's contention is Rimmer FM's reasons for judgment. The applicant contends that her Honour found that the parties separated in December 1990. What her Honour said was:
8. The mother in her material has established the following facts: the parties did not marry, they cohabited from 1985 to 1990. There are two children of the relationship, namely [X] born [in] 1986 who is now almost 15 years of age, and [Y] born [in] 1989 who is now aged 12½.
I harbour grave doubts that the above passage constitutes a "finding" that the date of separation was in 1990. At best it could be a finding that the parties lived together (cohabited) for the stated period, but that says nothing about when they "separated" for the purposes of s.20 of the Child Support Act.
Given the orders that the applicant seeks about the respondent's maintenance application in the event that I am minded to set aside the maintenance orders I have had regard to the documents filed by the respondent and that were before her Honour on 14 August, 2001. Leaving aside formal documents such as Notices of Address for Service, affidavits going to service and the like, those documents were:
a)Application for Maintenance filed 4 December, 2000;
b)Information Sheet filed 14 December, 2000;
c)Financial statement filed 14 December, 2000;
d)affidavit of Ms Mountford filed 14 December, 2000;
e)Amended Application for Maintenance filed 14 December, 2000;
f)affidavit of Ms Mountford filed 20 July, 2001;
g)Further Amended Application for Maintenance filed 30 July, 2001;
h)affidavit of Ms Mountford filed 30 July, 2001.
From the above documents, the following allegations concerning the date of the parties' separation appears:
Document Paragraph Date of Separation alleged Application for Maintenance filed 4 December, 2000 10 07/89 Information Sheet filed 14 December, 2000 8 /89 Amended Application for Maintenance filed 14 December, 2000 10 /89 Further Amended Application for Maintenance filed 30 July, 2001 10 /89
Apart from that evidence, the parties tendered in the present proceedings a family report prepared by Ms Susan Lewis, signed on
31 August, 2000and filed in the Family Court on 5 September, 2000[24]. It seems that some regard was had to that document by Rimmer FM in the course of the hearing on 14 August, 2001[25]. Relevantly, the family report records:
4.1 The background information was gained primarily from the parties, who had some difficulty in clearly recalling details of events. Ms Mountford and Mr Clifford met in 1985 and cohabited "on and off" until final separation on 16 August, 1990. They had the 2 subject children to this relationship and resided in Melbourne until final separation.
[24] exhibit 6
[25] see paragraphs 9, 22 and 28
According to her Honour's reasons for judgment, she had recourse to that report in so far as it contained reports of conversations between
Ms Lewis and the applicant about his financial circumstances.
Her Honour's reasons make it clear that the respondent "relies on portions of those family reports in relation to establishing the father's capacity to pay"[26]. Its use before her Honour therefore was limited and, in any event, it is not a document sworn by the parties unlike the three applications for maintenance filed by the respondent.
[26] paragraph 9 of her Honour's reasons
On the evidence before Rimmer FM, no conclusion other than that the date of separation was in 1989 or July 1989 was open. To the extent that her Honour's reasons refer to the cessation of cohabitation in 1990 and that thereby there is a "finding" that the parties separated in 1990, the reasons are not supported by the evidence. The evidence before her Honour about separation[27] establishes that the date of separation was in July, 1989. To the extent, therefore, that the applicant's case rests solely on the notion that the orders made by Rimmer FM are not available given her reasons for judgment, what is revealed is perhaps an error in her reasons, rather than an error in the orders.
[27] that is, the sworn statements in the applications for maintenance and in particular the application filed on 4 December, 2000
At the hearing before me it was proved that the respondent has sworn affidavits in the past wherein she deposed that the parties separated in August, 1990. Exhibits 1 – 5 all contain statements by her to that effect. They are all plainly inconsistent with what she swore in the applications for maintenance to which I have earlier referred.
Equally, it was proved that the applicant has sworn statements to the effect that the parties cohabited between 1985 and 1989[28], contrary to what he now swears. He also stated (although it is not sworn) that the date of final separation was 1989[29]. On 17 February, 2004 he swore that: "The applicant mother and I were in an "on again off again" relationship from approximately 1986 to 1989. The mother then moved from Victoria to Queensland with the children [X] and [Y] in 1990…"[30].
[28] exhibit 10
[29] exhibit 9
[30] affidavit of applicant filed on 4 April, 2004.
Both parties were cross-examined before me. Neither was an impressive witness – each having sworn previously to facts contrary to those that they now allege.
I agree that if the applicant's present version of events is to be accepted, arguably the orders of 14 August, 2001 were made without jurisdiction. But the onus is on him to establish on the balance of probabilities that separation was at some time other than that alleged by the respondent before Rimmer FM. On the evidence, he does not discharge that onus. In the past, he has alleged that separation occurred in 1989. There is no reason, in my view to accept his uncorroborated testimony over the respondent's uncorroborated testimony. He fails to discharge the onus of proof on him.
Both parties relied upon evidence from other witnesses about the date of separation of the parties. The applicant relied upon evidence from his brother Mr J and Mr J's partner Ms S. The respondent relied upon evidence from Ms W and Ms T. None of those witnesses were cross-examined before me. None of the evidence contained in those affidavits is particularly helpful, because none of it demonstrates the case to be made by the party relying upon each particular affidavit. On the parties own cases, their relationship was chaotic and described by them as "on again, off again". At best, the evidence from Ms W and Ms T demonstrates an occasion of separation, not necessarily the final separation. The evidence of Ms T is so brief as to be of no probative value. The evidence of Mr J, whilst a little more detailed, is nonetheless of general import and of little probative value.
My finding that the applicant has not discharged the onus of proof upon him is not intended to signify that I am of the view that the maintenance orders should be set aside and that there should now be a determination of the merits of the respondent's maintenance application. Rather, I make that finding bearing in mind the way in which the parties sought for me to conduct this application. Having arrived at that finding, I am not satisfied that the applicant demonstrates that there are material arguments available to him that might reasonably lead to the making of an order different to that sought to be set aside.
Moreover, there will be prejudice to the respondent if the orders of
14 August, 2001are set aside and her application reheard. If it is re-heard, her claim must fail in large measure. One of the two children whose maintenance was dealt with in the maintenance orders is now an adult. The other is about 17½ years of age.
Maintenance orders are made with an eye to the future. The enforcement of arrears is not generally to be seen as some form of lump sum compensation or windfall that can be pursued by the beneficiary of such an order who does nothing to enforce the orders for lengthy periods. But that is not the case here. The respondent has diligently pursued the benefits of the maintenance orders and the applicant has at all relevant times been aware of their existence.
His application to have them discharged or varied failed.
The application pursuant to r.16.05(2)(a) must fail because none of the relevant criteria essential to the exercise of the discretion conferred by that rule is demonstrated by the applicant.
Orders made without jurisdiction
For reasons that I hope I have made plain, I am not persuaded that the maintenance orders were made without jurisdiction. In any event, if I am wrong about that, I am not persuaded that I should set them aside.
Recently, McGill DCJ of the District Court of Queensland had reason to consider the power of an inferior court to set aside orders made by it without jurisdiction. In the course of his Honour's reasons in Australia Meat Holdings Pty Ltd v Higgs (2006) 27 QL 33 he said (at 13):
It is unnecessary for me to decide, for present purposes, in the light of the authorities to which I have referred, whether my [earlier] decision was void or voidable. It follows that I do not accept the submission advance by counsel for the applicant. In either case, I am satisfied that on the authorities there is an inherent jurisdiction in this court to set aside the order. That jurisdiction should be exercised with considerable care; in particular if there is some doubt or dispute as to the matter, in my opinion this court should not decide the question, but leave the matter to be determined by the Court of Appeal, which has undoubted jurisdiction to determine the matter authoritatively.
The applicant contends that on the basis of her Honour's reasons for judgment, the orders that she made were without jurisdiction. That is a matter of dispute, and having regard to the evidence before her Honour, may be explained by there being an error in her reasons. As McGill DCJ suggests in AMH v Higgs that controversy is better left to a court of appeal "which has undoubted jurisdiction to determine the matter authoritatively". I am aware, of course, that the applicant would have to secure an extension of time within which to appeal from the Full Court.
My finding that the applicant has not discharged the onus of proof upon him is also relevant to the third basis of the applicant's claim, namely that I should set aside the maintenance orders because they were secured by the respondent's fraud. Whilst it is true that on other occasions the respondent had sworn to different dates of separation, I am not able to find that the parties did not separate in July 1989 as she alleges in her maintenance application filed on 4 December, 2001.
Conclusion
In my view it is important to understand the nature of the right that is intended to be protected by the rule in Taylor v Taylor and r.16.05(2)(a) and similar rules. Kirby J explained the nature of that right in the following passage from Allesch v Maunz (above) at 185 – 186:
It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as "an indispensable requirement of justice". It is a rule of natural justice or "procedural fairness". It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
…
Having regard to the circumstances in which the initial proceedings took place in the absence of Mr Allesch (the appellant), it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
(footnotes omitted)
The application filed on 28 February, 2006 must be dismissed.
The respondent applies for orders about the applicant delivering up vacant possession of the property that has been ordered to be sold. As that property is now vested in the appropriate officer of this Court, it is a matter for that officer to seek such orders as he might see as necessary to enable him to complete his statutory and other obligations. Save for the question of costs, the response filed on 5 April, 2006, be dismissed.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate: S. Haysom
Date: 25 August 2006
(1) The court may vary or set aside an order before the earlier of the following—
(a) the filing of the order; or
(b) the end of 7 days after the making of the order.
(2) The court may set aside an order at any time if—
(a) the order was made in the absence of a party; or
(b) the order was obtained by fraud; or
(c) the order is for an injunction or the appointment of a receiver; or
(d) the order does not reflect the court’s intention at the time the order was made; or
(e) the party who has the benefit of the order consents; or
(f) for a judgment for specific performance, the court considers it appropriate for reasons that have arisen since the order was made.
(3) This rule does not apply to a default judgment.
are eligible children
(1) Where:
(a) the parents of a child born before the commencing day have
cohabited; and
(b) the parents separate on or after the commencing day;
the child is an eligible child.
(2) Subsection (1) applies in relation to the child whether or not the
parents:
(a) are or were at any time legally married; or
(b) have separated on an earlier occasion; or
(c) have resumed cohabitation.
27
24
1