Daren & Long
[2016] FamCAFC 193
•5 October 2016
FAMILY COURT OF AUSTRALIA
| DAREN & LONG | [2016] FamCAFC 193 |
| FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – PROPERTY – Where the appellant alleges that there has been a denial of natural justice in his counsel not being permitted to complete and to commence cross-examination of the remaining two witnesses – Where a judicial officer has a wide discretion to control the court’s procedures and ensure that proceedings are not unduly protracted – Where there is also an obligation on any court in Australia to provide a proper and full hearing of the parties’ controversy – Where it is plain that the trial judge put counsel on notice of when the hearing would conclude – Where no objection was raised by either counsel, and importantly the appellant’s counsel, to the time limit imposed by the trial judge – Where it was appropriate for the trial judge to impose a time limit – Where it is readily apparent that counsel for the appellant failed to tailor her cross-examination to meet the timeframe imposed by the trial judge – Where the appellant’s counsel failed to object when it was open for her to do so – Where if an objection had been raised the respondent’s counsel would have had the opportunity to make submissions – Where no complaint was raised and no prejudice suggested in the appellant’s final written submissions – Where there has been a waiver of the right to object and the issue cannot be raised on appeal – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent seeks costs – Where the appellant opposes such an order on the basis of his financial circumstances – Where on the morning of the appeal the appellant withdrew 16 of his 17 grounds of appeal – Where the respondent has been put to unnecessary costs in opposing the appeal – Where there are circumstances that justify an order for costs – Costs ordered in favour of the respondent to be assessed in default of agreement. |
| Family Law Act 1975 (Cth) – ss 93A(2), 97(3) Family Law Rules 2004 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172 Collins and Collins (1990) FLC 92-149 |
| APPELLANT: | Mr Daren |
| RESPONDENT: | Ms Long |
| FILE NUMBER: | MLC | 8814 | of | 2013 |
| APPEAL NUMBER: | SOA | 44 | of | 2015 |
| DATE DELIVERED: | 5 October 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 4 December 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 June 2015 |
| LOWER COURT MNC: | [2015] FCCA 1447 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Duckett |
| SOLICITOR FOR THE APPELLANT: | Luat Tran & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr J Hall |
| SOLICITOR FOR THE RESPONDENT: | Croxford Partners |
Orders
The appeal be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal with such costs to be as assessed in default of agreement.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Daren & Long has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
|
Appeal Number: SOA 44 of 2015
File Number: MLC 8814 of 2013
| Mr Daren |
Appellant
And
| Ms Long |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 16 October 2015, Mr Daren (“the appellant”) appeals against the order made by Judge Brewster on 3 June 2015 dismissing the appellant’s application filed on 11 October 2013. The appeal is opposed by Ms Long (“the respondent”).
In the application filed on 11 October 2013 the appellant sought an order under s 79 of the Family Law Act 1975 (Cth) (“the Act”) for adjustment of property. However, as should have been apparent, the reference to s 79 of the Act is incorrect given that the parties were not married. Accordingly, an amended application was filed on 21 November 2014 seeking an order pursuant to s 90SM of the Act instead.
For the Federal Circuit Court of Australia to have jurisdiction to hear and determine that application, the appellant needed to establish that the parties were in a de facto relationship, and that that relationship continued until at least some time after 1 March 2009. Here, there was no doubt that the parties were once in a de facto relationship, but the issue was when that ended, i.e., before or after 1 March 2009. The appellant’s case was that the relationship ended in July 2010, but the respondent’s case was that it ended many years prior to 2009. His Honour determined that the relationship ended well before 1 March 2009, and thus the court did not have jurisdiction. It was on that basis that his Honour dismissed the application.
The appeal
In the Amended Notice of Appeal there were 17 grounds of appeal set out. However, at the commencement of the hearing before this court the appellant’s counsel indicated that the appellant was only pursuing Ground 1, namely:
His Honour erred in not allowing the applicant time or alternatively opportunity to complete cross-examination of Ms. [G] and the cross-examination of the adult child of the parties Ms. [I Long].
The relevant procedural background
The proceedings commenced with the appellant filing the application referred to above on 11 October 2013. As also referred to above, an amended application was filed on 21 November 2014.
In the amended application the appellant also sought leave to file the proceedings under s 44(6) of the Act, given that s 44(5) required such an application to be filed within two years of the end of the relationship, and on the appellant’s case, the relationship ended in July 2010. For completeness I also observe that the appellant sought a declaration in that amended application that a de facto relationship existed between the parties from January 1988 to late 1998, and from 2000 to July 2010.
Thus, there were three issues to be considered, first the question of jurisdiction, and if there was jurisdiction, the issue of leave, and if leave was granted, the issue of adjustment of property interests. All of these issues were contested by the respondent. However, it was only the first two issues that proceeded before his Honour.
The trial was set down before his Honour in the Melbourne Registry of the Federal Circuit Court of Australia commencing on Monday 20 April 2015 with a time estimate of three days. It is relevant to note that at that time his Honour was based in the Canberra Registry of that court.
Apart from the parties there were four witnesses who had filed affidavits and were to give evidence at the trial. However, on the first morning of the trial his Honour gave leave first for the respondent to file five further affidavits, including one by the respondent, and one each by four further witnesses, and secondly, for the appellant to file affidavits by three further witnesses.
The parties gave their evidence through interpreters as did some of the witnesses.
After hearing objections to affidavit material, the appellant commenced giving his evidence at 11:54 am on Monday 20 April 2015.
Unusually, but apparently in an attempt to complete the matter in the time allowed, his Honour required that cross-examination take place first with evidence-in-chief being led as part of any re-examination.
The appellant’s cross-examination continued into Tuesday 21 April 2015 when two of his witnesses were interposed in the afternoon and gave their evidence.
At that time it was recognised by his Honour and counsel that the trial could not finish the next day, and options were discussed. They were, continuing on the Thursday and Friday or adjourning to a later date, depending on everyone’s availability. With the first option, in order to be able to continue and finish in a further two days, the respondent’s counsel indicated that he would look at the affidavits overnight and determine whether he needed to cross-examine all of the witnesses, and both counsel, at the request of his Honour, agreed to consider which parts of the affidavits would not be read. His Honour also indicated that written rather than oral submissions could be given to save time.
The appellant failed to provide the transcript of the hearing on the morning of the third day, namely Wednesday 22 April 2015, but it is a reasonable assumption to make that at that time, following on from the discussion on the Tuesday, his Honour indicated that the trial would continue on the Thursday and the Friday, because that is in fact what happened. Further, it is readily apparent that his Honour intended the trial to finish in that timeframe, given for example what his Honour says in [5]. The appellant attempted to suggest otherwise and submitted that there was nothing before this court that establishes that his Honour directed that the trial conclude on the Friday. However, given that the appellant failed to comply with the order for all of the transcript to be obtained, it is disingenuous for the appellant to make that submission.
The appellant then continued his evidence on the Wednesday, concluding at 3:30 pm that day, and the respondent commenced her evidence.
On the morning of Thursday 23 April 2015, cross-examination of the respondent resumed. It continued all day, and then into the Friday.
At 12:12 pm on the Friday, after being informed by counsel for the appellant that she would be continuing cross-examination after the luncheon adjournment, his Honour indicated that the evidence would finish at 4:15 pm.
At approximately 12:40 pm his Honour confirmed that the evidence would finish at 4:15 pm even if re-examination by the respondent’s counsel took place on a subsequent day by telephone.
Approximately mid-afternoon on the Friday, his Honour again reiterated to the appellant’s counsel that she had until 4:15pm, and he added “to get through the whole of your cross-examination of everyone”. His Honour also stated that how counsel allocated her time was a matter for her. Counsel then continued her cross-examination.
At 4:01 pm counsel completed her cross-examination of the respondent and the second to last witness for the respondent, Ms G, commenced her evidence.
Then, at 4:15 pm his Honour announced that cross-examination of all witnesses was concluded, but he would allow re-examination of the respondent by telephone if that could be arranged subsequently. His Honour then adjourned the court.
During the course of the hearing of the appeal, the appellant sought to tender email correspondence passing between the trial judge’s associate and counsel following the fifth day of the trial. That tender was objected to, and it became necessary to consider on what basis this correspondence could be received. Ultimately the appellant made an oral application to lead it as further evidence under s 93A(2) of the Act, and I heard submissions from both parties as to this.
It seems to me that the correspondence was not strictly of the nature of further evidence, and thus the principles of CDJ v VAJ (1998) 197 CLR 172 need not be referred to. However, I do find that the correspondence is relevant to the appeal. It went to how the trial was to be ultimately concluded, and to the issue of whether there was an objection by the appellant to the course adopted by the trial judge. Thus, I am prepared to receive that email correspondence and I mark it Exhibit 1.
What that correspondence reveals is as follows:
a)On 29 April 2015 his Honour’s associate emailed counsel and requested “a list of dates that both counsel are available to continue the hearing of this matter by telephone from 4:15pm.” It is plain that the purpose of that further hearing was to enable re-examination of the respondent, but counsel for the appellant responded by requiring “one more day to complete all the evidence”. For his part, counsel for the respondent sought clarification of whether it was just for re-examination of the respondent.
b)On 4 May 2015 his Honour’s associate sent the following letter by email on behalf of his Honour to both counsel:
I refer to this matter, the hearing of which concluded on 24 April 2015.
At 12.12pm on the Friday Judge Brewster interrupted Ms Anthanasopulos’ cross-examination and advised her that she had until 4.15pm to complete her cross-examination of the respondent and any other witnesses she wished to cross-examine.
Mr Hall later referred to re-examination of his client. Judge Brewster realised that he had failed to make allowance for re-examination when setting the time limit.
Judge Brewster was reluctant to reduce the time he gave to Ms Anthanasopulos and advised that he would have the court reconvened at a suitable date for the purpose of re-examination. He advised that he did not propose to travel to Melbourne for this purpose and would organise a telephone linkup. Given that he had seen the respondent in the witness box for a period of over two days he felt he did not need to be present at re-examination.
Last week enquires (sic) were made of counsel with a view to fixing a convenient date for this purpose.
Ms Anthanasopulos responded requesting that an additional day be allocated for her to complete her cross-examination.
The court does not propose to accede to that request.
On further consideration Judge Brewster is of the view that, at this stage, there would be insufficient utility in re-examination to justify the expense, both to the court and to the parties, of organising a telephone link up.
The court therefore proposes to proceed as follows:
a)Submissions will be made in writing. In the first instance these should be submissions filed on behalf of the applicant by Tuesday 19 May 2015 and they should, at this stage, be confined to the issues of whether or not the court has jurisdiction to entertain the applicant’s claim.
b)Upon receipt of those submissions the court will consider the issue of submissions by Mr Hall.
Yours sincerely
Associate to
Judge Brewster
In the upshot, the cross-examination of Ms G was not completed, and the last witness, Ms I Long did not give any oral evidence. Previously though there had been considerable discussion about the admissibility of various paragraphs of her affidavit and his Honour struck out many of those paragraphs.
The appellant filed written submissions on 28 May 2015. However, it is not apparent from the first instance file that the respondent filed any written submissions, and on 3 June 2015 his Honour made his order and provided his reasons for judgment.
At this point I note that by his order, his Honour dismissed the application filed on 11 October 2013. However, the application that his Honour should have dismissed was the amended application filed on 21 November 2015. Neither the appellant nor the respondent have raised this issue, but it is readily apparent from his Honour’s reasons that he was dealing with the amended application.
The relevant reasons for judgment
At the commencement of his Honour’s reasons he addressed the conduct of the case, explained what happened on the last day, and commented on the cross-examination by the appellant’s counsel. It is necessary to set out his Honour’s remarks in full as follows:
3.In retrospect I can see that I mishandled the hearing of this case. It had been set down for three days and, given the fact that it proceeded very slowly in part because of the need to use interpreters, this was probably a reasonable estimate. In fact it extended over five days and would have gone longer had I allowed it. The issue of whether the court had jurisdiction was one which required cross-examination. The section 44(6) leave issue however could and should have been dealt with in a much more summary way. See for example Hedley & Hedley (2009) FLC 93-413. An applicant does not have to establish that at a substantive there would be a particular outcome and that depriving him or her of that outcome would constitute hardship. The applicant only has to establish a “prima facie case which is substantial.” See McDonald & McDonald (1977) FLC 90-317. Indeed in Hedley Cronin J at paragraph 220 said that, subject to certain matters being established, even an applicant with a weak case has a right to be heard.
4.I should have bifurcated the case and allowed cross-examination on the jurisdiction issue but not on the leave issue. Of course there would have been difficulties with this as some of the matters relevant to leave, such as contributions made by the parties, could also be relevant to the jurisdiction issue. And there would be dangers involved. I may have jumped in early and disallowed cross-examination on an issue that may ultimately have been relevant. But had I adopted this process, and been more directive as to lines of cross-examination, the hearing would not have gone on for five days.
5.As it was counsel for the parties took full advantage of the latitude I gave them and, as I have indicated, the hearing extended over five days. Cross-examination of the respondent commenced on the morning of the Thursday. It continued all day and into the Friday. I became concerned that the case would not finish that day. It would have been an expensive exercise for me to travel from Canberra (where I am based) to Melbourne where the case was heard to resume a hearing, leave alone the cost to the parties. At 12.12pm on the Friday I told Ms Athanasopoulos, who appeared on behalf of the applicant, that she would have to conclude her cross-examination of the respondent and all the respondent’s witnesses whom she wanted called by 4.15pm. This would give her a little over three hours for that purpose which, in normal circumstances, I would have considered ample. Mr Hall, who appeared on behalf of the respondent, at a later stage referred to his re-examination and I realised that I had not factored this into my calculations. I thought it unfair to truncate the time I had given Ms Athanasopoulos and told Mr Hall that I would hear re-examination by telephone link up. There was no need for me to see the respondent as I have had ample opportunity to assess her in the witness box. As it turned out I decided that any value in re-examination was outweighed by the expense and inconvenience, both to the court and to the parties, and did not allow it to occur.
6.Ms Athanasopoulos concluded her cross-examination of the respondent at 4.00pm. I asked her which of the remaining two witnesses, Ms I Long and Ms G, she wished to cross-examine and after some delay she said that it “probably be Ms G”. I told her there was no “probably” about it and she indicated she would cross-examine Ms G.
7.At 4.15pm, during the course of Ms G’s cross-examination, I announced that all cross-examination in the case was concluded. Ms Athanasopoulos exhibited surprise and dissatisfaction with this ruling. In a later email she requested that another day be set aside to complete the evidence. I refused that request.
8.It is most unusual for me to comment on how a case was conducted by counsel but in case it is felt that I was unfair to the applicant I feel compelled to make certain observations as to Ms Athanasopoulos’ cross-examination.
9.The first is that it was often repetitive in that she would return to the subject she had cross-examined on some time before.
10.Next a lot of it was of little relevance to a property settlement case let alone a leave case. For example she cross-examined at some length about the minutiae of contributions made in the early 1990’s. Of course I have to take some of the blame for this as I have already indicated.
11.The cross-examination was notable for the many lengthy pauses. Not infrequently Ms Athanastopoulos would take some time looking through her papers before asking a question. At other times she conferred with her instructor at some length. This delay in asking questions even occurred when the court resumed after a break. One would have expected that in this situation at least she would know precisely what questions she was going to open with. I have to say that in all my years in practice I have never seen cross-examination of this nature by a lawyer.
12.I have power to make orders restricting the length of evidence. See section 62 of the Federal Circuit Court of Australia Act. I rarely exercise that power and I would not normally do so at such a late stage in the proceedings. But, as I have indicated, in my opinion the three hours given to Ms Athanasopoulos was more than enough to conclude her cross-examination of all witnesses had she proceeded at a reasonable pace and confined it to matters of significance.
13.As it turns out however I am able to resolve this case without relying on the evidence of Ms [I Long]. I therefore do not have regard to her evidence. In so far as Ms [G] is concerned her evidence was not crucial to the case, dealing only with events in the 1990s.
It is with that background, and in that context, that the appeal is brought and Ground 1 is pursued.
Discussion
The issue squarely raised by Ground 1 is whether there has been a denial of natural justice in the appellant’s counsel not being able to finish the cross-examination of Ms G and to cross-examine Ms I Long.
As referred to already, at 12:12 pm on the Friday, his Honour announced that the evidence was to finish at 4:15 pm that day, and when that time arrived his Honour called a halt to the cross-examination.
His Honour, and indeed any judicial officer, has a wide discretion to control the court’s procedures, and particularly to ensure that proceedings are not unduly protracted (e.g., see s 97(3) of the Act, and s 62 of the Federal Circuit Court of Australia Act 1999 (Cth)).
However, the obligation of any court in Australia is to provide a proper and full hearing of the parties’ controversy (the audi alteram partem principle), and the question here is whether his Honour in imposing a time limit in the way that he did, amounted to such a denial of natural justice as to lead inevitably to an order for a retrial.
On the other hand, as the respondent contends, if it was inappropriate in the circumstances for his Honour to call a halt to the cross-examination when he did (which was not conceded by the respondent), did the appellant waive his right to object to the course such that he is estopped from pursuing the complaint on appeal.
As to the first question, that involves a consideration of the conduct of the trial and, if possible, an assessment of the importance or otherwise of the evidence that was not able to be presented.
To repeat, the trial was listed before his Honour with a time estimate of three days. At the end of the second day though it was recognised by his Honour and counsel that the trial would not finish in that timeframe, and in the end result it is apparent that his Honour made the decision to continue on the Thursday and the Friday to complete the hearing. There was no objection to that course by either counsel, and particularly by counsel for the appellant, and as I have referred to above, overnight, counsel were to look at the affidavits of the remaining witnesses and determine which parts thereof need not be read, counsel for the respondent indicated he would determine which witnesses needed to be cross-examined by him, and his Honour also indicated that written submissions would be able to be done, rather than oral submissions.
It is readily apparent from the transcript that we do have, and from his Honour’s reasons for judgment, that on the Wednesday morning the decision was made that the trial would continue on the Thursday, and conclude on the Friday.
Thus, it is plain that counsel were put on notice by his Honour of the timeframe in which the trial had to finish, and the appellant could not refer me to any objection to that course by either counsel, but in particular, counsel for the appellant.
It seems that nothing further was said about that issue until his Honour’s announcement at 12:12 pm on the Friday, and it is necessary to set out precisely what his Honour said at that time. Counsel for the appellant was cross-examining the respondent on certain cheque books, and the following exchange occurred:
MS ATHANASOPOULOS: Your Honour, if I could, over lunch, have a look at the rest of those - - -
HIS HONOUR: I’m sorry. I didn’t catch what you said.
MS ATHANASOPOULOS: I believe - - -
HIS HONOUR: You want to have a look at the cheque books again over lunch?
MS ATHANASOPOULOS: No, if – if I could go back to this issue after lunch. I want to look through these cheque butts - - -
HIS HONOUR: All right. I can tell you now – I can tell you I’ve got a ….. at 2.15, but I’m not going to hear it. If it’s not settled, I’m going to defer it for a phone hearing next week. It wasn’t in my list ….. But this case is finishing. The evidence is finishing at quarter past 4. So you’ve got to – you’ve got to – that’s that.
MS ATHANASOPOULOS: Yes, your Honour. I’m wary of that. It’s just that I was handed these, like, just sort of now and I - - -
HIS HONOUR: Well, yes, I know. Well, the - - -
MS ATHANASOPOULOS: I will just go over them at lunchtime and - - -
HIS HONOUR: Why the – why they emerged on day 5 of the hearing is a mystery. But anyway, I’m not going to go into - - -
MS ATHANASOPOULOS: Yes, But I will complete that - - -
HIS HONOUR: The evidence finishes at quarter past 4.
MS ATHANASOPOULOS: Yes, your Honour.
HIS HONOUR: Yes.
(Transcript 24.4.2015, page 10, line 37 to page 11, line 22)
Importantly, there was no objection by counsel for the appellant to his Honour’s direction, and cross-examination continued. Then, at approximately 12:30 pm the following exchange occurred between his Honour and initially counsel for the respondent and then counsel for the appellant:
MR HALL: There is an assumption in the question, your Honour, but that will be sorted out, hopefully, in re-examination.
HIS HONOUR: I forgot about re-examination. I’m going to still say quarter past 4. If necessary, we will have to re-examine by phone link some other time. It’s very difficult to set time limits when you’re setting time limits for two people.
MR HALL: Yes.
HIS HONOUR: And I’m doing it late in the piece.
MR HALL: Yes.
HIS HONOUR: Times are really best set right at the beginning of a case, and I wish I had.
MR HALL: Yes.
HIS HONOUR: In fact, there are a lot of ways I wish I had handled this case better. I would have – as I’ve indicated, I would have – should have run it as a – sort of bifurcated: (1) was as to the court’s jurisdiction, and that requires evidence, but only evidence as to the jurisdictional issue, and (2) the leave, which would have been done virtually on the papers. I should have done that. I didn’t. I got rather confused by the fact that this had two arms to it, and look at the result. I’ve brought it on myself. So I can’t now shorten that time limit, I’m afraid.
Hopefully Ms Athanasopoulos will have finished her cross-examination of all witnesses long before that, and one thing I notice about your cross-examination, Ms Athanasopoulos, is you’ve got long pauses between questions, not just today but yesterday as well. If you looked at the transcript, it wouldn’t seem a very long cross-examination at all, if you just count up the number of questions, but there is long pauses – long periods when you get instructions from your solicitor. Really, this is unusual, in my experience.
MS ATHANASOPOULOS: I’m one of a kind, your Honour. What can I say?
HIS HONOUR: Well, I’m not much more. Yes. Let’s move on. I should try to restrain myself from interrupting, because they just take time.
MS ATHANASOPOULOS: Thank you, your Honour.
(Transcript 24.4.2015, page 19, line 31 to page 20, line 22)
Again, there was still no objection by counsel to the time limit imposed by his Honour.
The cross-examination of the respondent by the appellant’s counsel proceeded into the afternoon when his Honour said this at an indeterminate time:
HIS HONOUR: And put them to her one by one, otherwise – well, it’s a matter for you. I suppose, it doesn’t matter. I shouldn’t have intervened. You’ve got till quarter past 4 to get through the whole of your cross-examination of everyone. How you allocate your time is a matter for you. So, I withdraw what I said. If you wish her to have all the books, you’re welcome.
(Transcript 24.4.2015, page 31, lines 6 – 10)
Again, at this point, there was still no objection to the time limit imposed by his Honour, and cross-examination proceeded until approximately 4:00 pm when the next and second to last witness for the respondent, Ms G, was called and commenced her evidence. I observe that in [6] his Honour records that he asked counsel for the appellant which of the two remaining witnesses she wanted to cross-examine, and counsel indicated Ms G. It is not apparent that in that context there was any objection by counsel to his Honour’s rulings. Then, at 4:15pm his Honour said this:
HIS HONOUR: It’s quarter past 4. Okay. Cross-examination of all witnesses is concluded. I will allow you to re-examine by telephone if that can be arranged.
(Transcript 24.4.2015, page 45, lines 42 – 43)
And the witness withdrew.
There was then discussion between his Honour and counsel for the respondent as to the arrangement for re-examination to take place, and for the tendering of certain documents. There was then this exchange between his Honour and counsel for the appellant:
MS ATHANASOPOULOS: Your Honour, can I just clarify – so I can’t cross-examine, like - - -
HIS HONOUR: No.
MS ATHANASOPOULOS: - - - so, the other witness that’s left as well?
HIS HONOUR: No. No. You were told a little before half past 12 that your cross-examination had to conclude by quarter past 4.
MS ATHANASOPOULOS: Well, there was a delay which was not my problem – sorry, not my fault, I was - - -
HIS HONOUR: Your cross-examination - - -
MS ATHANASOPOULOS: - - - taken outside - - -
HIS HONOUR: Your cross-examination of the respondent was – was overly long and punctuated all the time by lengthy moments of hiatus when you would - - -
MS ATHANASOPOULOS: And this morning – there was that incident about the letter.
HIS HONOUR: - - - either look through your documents or confer with your solicitor. You were given – I’m allowed to set time limits. You were given them. You were given plenty of time to organise yourself and to decide your priorities. The court is now adjourned.
(Transcript 24.4.2015, page 46, line 29 to page 47, line 7)
Thus, it was only when his Honour was true to his word and concluded the cross-examination that counsel queried that outcome. Importantly though I do not consider that what counsel said can be categorised as an objection to his Honour’s ruling; it was little more than seeking clarification. Nor can the subsequent email from the appellant’s counsel be described as raising an objection. It was a request for one more day to complete the evidence, and his Honour refused to accede to that request. Moreover, if it was an objection it should have been made at 4:15 pm on the Friday to enable the respondent to be heard. Further, there was no complaint in the written submissions filed by the appellant’s counsel about the imposition of a time limit by his Honour, and nor was there any submission made therein suggesting that the appellant was prejudiced because of the inability to complete cross-examination of the second to last witness, or to cross-examine the final witness.
As indicated already, it is apparent that from at least the morning of the third day, counsel was on notice that the hearing would conclude on the fifth day, and thus they needed to tailor their cross-examination of the parties and the witnesses to meet that timeframe. However, it is readily apparent that the counsel for the appellant, in cross-examining the respondent, failed to do that. Indeed, as recorded in his Honour’s reasons set out above (see [29]) he felt compelled to comment on the unnecessary amount of time that counsel for the appellant took in cross-examination. Importantly though, that was not an afterthought by his Honour, his Honour raised his concerns directly with counsel at approximately 12:30 pm on the Friday, as can be seen above. Yet, nothing seemed to change.
With this background I find that it was well open to his Honour, at 12:12 pm on the last day of the trial to indicate that the evidence would conclude at 4:15 pm that day, and for his Honour to act on that ruling. Indeed, that was nothing more than confirmation of what it is apparent that his Honour said on the morning of the third day.
In Collins and Collins (1990) FLC 92-149, at 78,038 the Full Court said that, “in ordinary circumstances the imposition of an arbitrary time limit upon the presentation of a party’s case” would require appellate intervention, but as can be seen, that proposition depends on the circumstances of each case, and plainly allows for the imposition of time limits where appropriate. Here, the circumstances leading up to the imposition of the time limit are such that it was appropriate for that to be done. Further, it is arguable that this was not the fixing of a “arbitrary” time limit. To repeat, it is apparent that counsel were on notice from at least the morning of the third day that the case was to conclude by the end of the fifth day, and what occurred at 12:12 pm on that day was confirmatory of that.
The Full Court in Collins (at 78,042) also suggested that where there has been “a curtailment of counsel’s entitlement to fully cross-examine the last witness”, whether that justifies a further trial depends on whether the evidence excluded “might have affected the result”.
In the appellant’s written submissions before this court, it is submitted that the evidence that would have been adduced in completing the cross-examination of the second to last witness, and in cross-examining the last witness, might have affected the result. However, given that it is impossible to be definitive here as to what evidence (if any) would have been elicited in cross-examination, it would be mere speculation on my part to reach that conclusion. His Honour, was alive to this issue as well, and he addressed it at [13] quoted above in [29]. I am not in a position to find that his Honour erred in that regard.
In any event, as was the case in Collins (see 78,042), the success of this ground really turns on whether counsel for the appellant waived her right to complain.
As was said in Collins (at 78,042-3)
As the High Court pointed out in the Vakauta case, counsel in civil proceedings cannot stand by, accepting a particular procedure, and after use that as a point of appeal if the result is adverse. Such a situation gives that party in effect a “free hit”, that is they can await the outcome and if it is adverse take the point. Such an approach is highly prejudicial to the wife. In a situation where no objection has been taken she now finds herself in a position that the matter is raised on appeal and if successful will result in a new trial, carrying with it considerable further delays and a high level of expense. She was entitled to expect the husband’s representatives to object at the trial if they did have an objection. Had they objected her counsel may have joined in such an application. Certainly the position would then have been clear beyond controversy to everybody. In addition, as appears from transcript reference, at the very end of the trial counsel for the husband relied upon his adherence to the trial Judge’s ruling as a basis for objecting to evidence which counsel for the wife sought to tender.
Even if it could be said that in the confusion of the last few hours counsel for the husband may be excused from taking objection, a further five weeks elapsed to the presentation of final submissions and that would and should have given the husband ample opportunity to raise this critical issue if it was seen to be important at that point. The matter was not raised at all, even in an oblique way, with the result that both parties completed their final submissions and in due course the trial Judge delivered his judgment.
This is plainly the case here as well; counsel failed to object when it was open to her to do so, and if she had objected, counsel for the respondent would have had the opportunity to make submissions, but that did not arise. Further, no complaint was raised in the final written submissions of the appellant. Thus, there has been a waiver, and if I am wrong in finding that it was appropriate for his Honour to impose the time limit, that issue cannot be raised on appeal.
Conclusion
Having found no merit in the ground of appeal relied upon, the appeal must be dismissed.
Costs
At the conclusion of the hearing I sought and received submissions from counsel as to the question of the costs of the appeal depending on the result.
In the event that the appeal was dismissed, the respondent sought an order for costs. That order was opposed by the appellant primarily on the basis of his financial circumstances.
The financial circumstances of the parties are of course relevant and are required to be taken into account in determining whether there should be an order for costs. Here, it is apparent that the respondent’s financial circumstances are far better than those of the appellant, the appellant only being in receipt of a Centrelink pension. However, not only has the appeal been wholly unsuccessful, but of course it was only on the very morning of the appeal that the appellant withdrew 16 of the 17 grounds of appeal that had been relied upon up to that point. As a result, the respondent has been required to incur unnecessary costs in opposing the appeal, and in the exercise of my discretion I find that there are circumstances that justify an order for costs and such an order should be made.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 5 October 2016.
Associate:
Date: 5 October 2016
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