Crowden & Crowden

[1999] FamCA 1992

FAMILY LAW ACT 1975

IN THE FULL COURT  
OF THE FAMILY COURT OF AUSTRALIA  Appeal No EA72 of 1999
AT SYDNEY   File No. SY2211 of 1999

BETWEEN:

MS CROWDEN
Appellant Wife
- and -

MR CROWDEN
Respondent Husband

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  KAY, HOLDEN & DESSAU JJ
DATE OF HEARING:  19 November 1999
DATE OF JUDGMENT:                  19 November 1999

APPEARANCES:  The Appellant Wife in person (B Street, Suburb C, NSW).

The Respondent Husband in person (D Street, Suburb E NSW.

Crowden & Crowden

EA 72 of 1999
Coram:   Kay, Holden and Dessau JJ       
Date of appeal:      19 November 1999
Date of judgment:  19 November 1999

PRACTICE AND PROCEDURE – Appeal from Magistrate to single judge – Failure to properly apply principles on granting adjournments (Cheung v The Queen (1999)) – adjournment refused –appeal dismissed – Failure to consider whether appeal should be heard having refused adjournment 

W brought property proceedings which were heard in the Local Court of New South Wales.  The Magistrate ordered that H transfer the former matrimonial home to W upon payment by her of $16,000, and that the parties otherwise retain property in their possession.

W appealed and the matter came before Moss J.  W explained that she was not ready to proceed and was seeking an adjournment as she was waiting for the return of subpoenaed material, her solicitor had ceased to act for her and refused to release her file until all fees were paid, and because she had an appointment to receive free legal advice in the coming weeks.  H told his Honour that he wanted the matter finalised.  

His Honour said in his reasons for judgment that W was not and would never be in a position to proceed with the appeal.  He ordered that the notice of appeal be dismissed and confirmed the orders of the Magistrate.

On appeal, W sought that there be a retrial of the appeal from the decision of the Magistrate to a single Judge of the Family Court.

Held: Appeal allowed

• The trial Judge should have determined the application for an adjournment as a preliminary matter and, having disallowed the adjournment, should then have heard the appeal. 

• His Honour erred in:

(1)refusing the application for an adjournment without giving proper consideration to the relevant issues, such as whether the request was reasonable and whether prejudice would result (Cheung v R (1999) 73 ALJR 1093), and

(2)having refused the application for an adjournment, failing to enquire of the appellant whether the appeal should be heard on the available material, or else whether the appellant abandoned her appeal.

Appeal allowed
Retrial ordered
Not reportable

1. KAY J:   This is an appeal brought by the appellant wife against orders made by Moss J on 30 July 1999, wherein his Honour dismissed an appeal by the wife from proceedings before a Magistrate and confirmed the Magistrate’s orders. 

1. The background of the matter can be stated fairly shortly.  The parties have been married to each other.  Arising out of the breakdown of the marriage there were property proceedings brought by the wife in the Local Court.  They came on before a Magistrate sitting at F Town in New South Wales on 8 December 1998. 

1. The Magistrate heard the competing claims and made orders to the effect that the husband was to sign the papers necessary to transfer to the wife a property at G Street, Suburb E, upon payment by the wife to the husband of some $16,000.  Otherwise the parties were to retain their own property and if there was a default in the payment by the wife then Suburb E was to be sold and the proceeds divided in accordance with the manner described by the Magistrate. 

1. The wife was aggrieved by the decision of the Magistrate and, as was her right under the provisions of the Family Law Act, she filed a Notice of Appeal within time on 14 January 1999. 

1. The wife then brought an application in the Family Court seeking what is colloquially known as “Barro order” (see Barro and Barro (1983) FLC 91-300), namely the provision of some funds from the husband in order to help her continue her appeal. That application was apparently dealt with by Registrar Northcott. The outcome of that application is not abundantly clear from the appeal book.

1. On 24 May 1999 Registrar Northcott ordered that the Appeal from the Magistrate be set down as a defended matter, for a one day hearing on 30 July 1999, and made directions as to the filing and serving of affidavits and statements of financial circumstances by 30 June 1999. 

1. When the matter came on for trial on 30 July 1999 the appellant wife commenced the proceedings before Moss J by responding to his question “Are you in a position to proceed today?”  She said, “No, what I’ve been doing is waiting for my subpoenas”.  When clarification was sought she said:

“I’m waiting for evidence coming back from a police station of the theft, an inquiry into the theft and relocation and return. 

When are the subpoenas returnable?

I’m not sure, I’m also in a position where, when I first approached the Bench last month I asked for $5000 out of our business so I could pay.”

1. His Honour sought some clarification and Ms Crowden spoke of a file.  She said:

“The file hasn’t come that the evidence that I needed is in so I can’t run the retrial without it.”

1. Mr Crowden was then asked what his view was, and he said that he was happy with the Magistrates’ Court decision.  Ms Crowden was asked some further matters and she said:

“I’ve subpoenaed a black book that cost me $2500.  It’s got all the evidence that I need in there to prove that a lot of allegation that Mr Crowden has made in the Local Court at F Town were fabricated lies.”

1. There was further discussion which indicates that Ms Crowden’s solicitor was no longer acting for her, but was holding on to her paperwork because of outstanding fees.  She said that she was hopeful of getting some legal assistance from some university students and had an appointment with them on 18 August.  She indicated that she also wanted to subpoena the husband’s employers, but was concerned about doing that or because of some other problems.  An exchange then took place in which the trial Judge enquired with Ms Crowden about her application for $5000 as follows:

His Honour:

“Do you think it’s fair that the respondent just wait around while you get ready?”

Ms Crowden:

“No, I don’t think anything about this is fair, no, because I’ve asked the Court to give me 5000 so Mr H could continue.”

His Honour:

“Ask the court to give you 5000?”

Ms Crowden:

“I asked the court.  I applied for 5000 through the Court so Mr H could proceed with the proceedings.”

His Honour:

“Yes, and when was that application?”

Ms Crowden:

“That was made in February and hasn’t been heard.  The jury duty heard that.”

His Honour:

“Who?”

Ms Crowden:

“It was a jury duty that came here, a Registrar.”

His Honour:

“In the duty list?”

Ms Crowden:

“Yes.”

His Honour:

“What, a Registrar?”

Ms Crowden:

“A Registrar heard it.  He agreed with me that I needed the 5000 from the business so I could continue with it.  He stamped the papers and then he said there would be a hearing date.”

His Honour:

“What, a hearing of your 5000 application?”

Ms Crowden:

“No, a hearing date for this one.  He didn’t mention, as he was going through, he didn’t mention anything about my 5000 that I had for help out with the financial.”

His Honour:

“Just a minute.”

Ms Crowden:

“Here they are, that’s why.”

His Honour:

“Just a minute.  No wonder this matter is not ready to proceed when one looks at the orders made on 24 May.”

Ms Crowden:

“I can understand that.  I can understand your decision on that because I really didn’t know what I was doing.  I was only coming here for help.

Well, Madam, I’ve had some sympathy for you.  I don’t want to strike out your appeal.”

1. It is not apparent, when one looks to the orders of 24 May 1999, which I’ve made reference to, what his Honour’s comment was directed to when he said “No wonder this matter is not ready to proceed”.  The order of 24 May is clear, namely that there will be a defended hearing on 30 July 1999 and that any further affidavits were to be filed by 30 June 1999. 

1. The wife’s position before Moss J was that no further affidavits were to be filed and that she was waiting on the return of some subpoenaed material.  Mr Crowden, understandably, said that he had had enough and wanted the matter finalised. 

1. There was then some further discussion about Ms Crowden’s life and she made some general complaints about how hard her life had been, and then his Honour said:

“Well, I’m afraid, Ms Crowden, I will give some reasons, but notwithstanding the sympathy I have for you, I’m afraid I’m going to have to dismiss your appeal.”

1. His Honour then delivered his reasons for judgment. 

1. After setting out the history of the matter his Honour said:

“The problem is that she is here this morning and, as she readily concedes, she is in no position to proceed with her appeal.”

[That ready concession presumably comes from the opening words:

“Are you in a position to proceed today?

No, what I’m doing is waiting for my subpoenas.”]

1. His Honour’s reasons for judgment then continued:

“I have explored with her as best I can where she proposes to go from here in relation to her appeal and with the greatest respect to the appellant, it seems to me that she is in a state of considerable confusion, although she would disagree.

It is my assessment of the situation that even though she would hold a different and a strong view, that she will never be in a position to proceed with this appeal.

The respondent's attitude is, I think understandably, that he is not prepared to consent to any further adjournment of these proceedings and in the event that it's not ready to proceed his submission, as I understand it, is that the appeal should be dismissed. 

It seems to me that the justice of the case does require that the appeal be dismissed.  The matter was set down for hearing today.  It is clearly nowhere near ready to proceed from the appellant's point of view, so that the order that I somewhat reluctantly make is that the applicant's notice of appeal filed herein 14 January 1999 be dismissed and I confirm the orders made by the Magistrate on 18 December 1998.”

1. His Honour was dealing with two litigants each of whom was acting in person.  The appellant was never asked as to the extent of the adjournment she sought.  She did indicate that she was anticipating some legal assistance would be made available to her through a free legal service within a modestly short period of time after the date upon which the matter was set down, somewhere within three weeks time. 

1. No indication was sought from the respondent as to the prejudice that he might suffer as the result of an adjournment being granted.  No attempt was made to inform the appellant that the effect of a refusal of the adjournment, as far as his Honour was concerned, would be the dismissal of her appeal.  She was not invited to ask his Honour to adjudicate the appeal itself on the material then available to his Honour, which was of course the task that he had to perform.

1. In Cheung v The Queen (1999) 73 ALJR 1093, Kirby J considered the principles applicable to granting an adjournment, saying at 1094-5 (footnotes omitted):

“The Court has both the express and implied power to grant an adjournment where this is necessary, to do justice between the parties.  Where a refusal would seriously prejudice a party, the adjournment should ordinarily be granted.  At least it ought to be granted if the opposing party can be adequately protected by orders as to costs, orders providing for a new hearing on dates suitable to it, or other orders of a procedural character which take into account any prejudice which may be suffered by it.”

1. His Honour had before him an appeal from a Magistrate’s decision.  He was merely ruling on a preliminary application for an adjournment.  Once having ruled against the adjournment, his Honour’s next task was to then deal with the appeal.  At no point did his Honour turn to Ms Crowden and say, in my view in the manner he ought to have, “Well, Ms Crowden, as I am refusing your adjournment are you now ready to proceed or will you abandon your appeal?” 

1. In those circumstances, in my view, his Honour’s discretion in respect of this matter has miscarried in two respects. 

1. When assessing the issues appropriate to the determination of whether or not to grant an adjournment his Honour ought to have enquired: 

• Whether the adjournment was sought for a reasonable period of time? 

• Was there an adequate reason given for the adjournment? 

• What prejudice would either party suffer as a result of the adjournment?  Could that prejudice be met with a costs order? 

1. In my view, when one assesses the nature of the proceedings, and the fact that, as the parties were unrepresented, no costs were being incurred, the potential loss to the wife of a hearing in circumstances where the legislature had given her a right to appeal outweighed the necessity for the husband to have the proceedings terminated, especially when this was, effectively, their first date for which the trial was coming on.  There was no apparent history of delay.  Had there been at least one previous occasion where the matter was set down and an adjournment was sought, then one may have more sympathy for the position of the trial judge. 

1. The second aspect is one I have already identified, that having dealt with the adjournment application it was incumbent then upon the trial judge to invite the litigant in person to give consideration as to whether or not the trial should go ahead, absent an adjournment, and that course was not adopted. 

1. In my view, this appeal should succeed.  The orders of the trial judge should be set aside and the matter remitted for trial at such convenient date as the Registry can determine.

1. HOLDEN J:   I too would allow the appeal for the reasons given by the presiding judge and I agree with the orders that he proposes.

1. DESSAU J:   I also agree with the reasons and proposed orders of the learned presiding judge and have nothing further to add.

1. KAY J:           The formal orders of the court will be as follows:

1.That the appeal be allowed.

2.That the orders made by the Honourable Justice Moss on 30 July 1999 be set aside.

3.That the appellant’s Form 43 Notice of Appeal filed 14 January 1999 be remitted to a single judge for hearing in the Sydney Registry.

I certify that the preceding 28 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Kay
The 20th day of January 2000

Associate: