Davey & Davey and Anor
[2008] FamCAFC 196
•11 December 2008
FAMILY COURT OF AUSTRALIA
| DAVEY & DAVEY AND ANOR | [2008 ] FamCAFC 196 |
| FAMILY LAW – APPEAL FROM FEDERAL MAGISTRATE – Appeal from interlocutory orders made in respect of the payment of security for costs by the husband for the costs of the two respondents – Where appellant failed to attend a conciliation conference – Whether security for costs should be ordered before the conciliation conference – Whether security for costs is appropriate before the trial – Appeal allowed in part FAMILY LAW - APPLICATION IN A CASE – Application to the Full Court to join a party – Where that party is unconnected to the appeal – Application dismissed FAMILY LAW - APPLICATION IN A CASE – Application to adduce further evidence – Where the evidence is entirely contentious – Application dismissed FAMILY LAW - COSTS – Appellant and respondents granted a cost certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth), s 6, 9 |
| Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170 |
| APPELLANT: | MR DAVEY |
| FIRST RESPONDENT: | MS DAVEY |
| SECOND RESPONDENT: | MR E DAVEY |
| FILE NUMBER: | BRC | 6122 | of | 2007 |
| APPEAL NUMBER: | NA | 75 | L | of | 2007 |
| DATE DELIVERED: | 11 December 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 31 January 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 8 October 2007 |
| LOWER COURT MNC: | [2007] FMCfam 790 |
REPRESENTATION
| ADVOCATE FOR THE APPELLANT: | Mr Bell – appearing by leave of the court. |
| SOLICITOR FOR THE 1ST RESPONDENT: | Smith & Stanton |
| SOLICITOR FOR THE 2ND RESPONDENT: | Harrington Family Lawyers |
Orders
That the husband be given leave to appeal from the orders made 8 October 2007.
That paragraph 2 of the application filed 13 November 2007 and paragraph 2 in the application filed 4 January 2008 be dismissed.
That the appeal be allowed in part.
That paragraphs (1), (2), (3), (4), (5) and (6) of the orders made 8 October 2007 be dismissed.
That in lieu of paragraph (4) the husband pay the costs of the first and second respondent’s of and incidental to the applications for security for costs fixed at $2,000 for each of the respondent’s within 60 days.
That the matter be remitted to the National Case Management Co-ordinator of the Federal Magistrates Court, Federal Magistrate Baumann, for further directions.
That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by him in relation to the appeal.
That the Court grants to the first respondent a costs certificate pursuant to the provisions of s6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by her in relation to the appeal.
That the Court grants to the second respondent a costs certificate pursuant to the provisions of s6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent son in respect of the costs incurred by her in relation to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Davey & Davey & Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 75 L of 2007
File Number: BRC 6122 of 2007
| MR DAVEY |
Appellant
And
| MS DAVEY |
First Respondent
And
MR E DAVEY
Second Respondent
REASONS FOR JUDGMENT
Introduction
I mention at this introductory stage that this appeal is to be determined by me as a single Judge of the Family Court pursuant to arrangements made under section 94AAA(3) of the Family Law Act 1975 (“the Act”).
In an Application in a Case filed 13 November 2007, the husband seeks leave to appeal from the interlocutory orders of Federal Magistrate Wilson made on 8 October 2007. Leave is necessary as the Notice of Appeal is out of time (pursuant to rule 22.46(1) of the Act) and the order is an interlocutory order (pursuant to section 94AA of the Act). In a further application filed 4 January 2008 the appellant seeks to adduce further evidence and has filed an affidavit.
In paragraph 2 of both applications, the husband asked that Mr B be joined as a party. In the second application it is asked that other persons and companies be joined. This is not an appropriate order to be made by the Full Court, especially as these persons are unconnected with the appeal. That part of the applications are dismissed. Such an application could ultimately be made in a contested hearing in the Federal Magistrates Court or simply by serving Mr B and the other named third parties with the amended application.
The parties to the appeal are the husband who is the applicant, the first respondent who is the wife and the second respondent who is their son. The issue between the parties involves the legal and equitable interests in a house in the north of Brisbane. The immediate issue in relation to the application and proposed appeal is the imposition by the Federal Magistrate of a costs order against the husband at several stages to secure the other parties costs.
The order made by the Federal Magistrate provided for security for costs to be paid by the husband for the costs of the two respondents for several court events. The orders required the husband to provide $1,250 for each of the respondents for a conciliation conference, such sum to be paid within 28 days of the order (that is, by 5 November 2007).
In addition the husband was ordered to pay a sum fixed at $2,000 each for the first and second respondents’ security for costs of their application for security.
The order provided that upon the husband paying both the security for costs and the respondents’ costs, a date for a conciliation conference would be set. If the husband failed to make either payment then the proceedings brought by the husband against both parties pursuant to s 78 and s 79 would be stayed.
The second stage of the orders, commencing at paragraph (7), provided that should the conciliation conference proceed and be unsuccessful, the husband provide security for costs of the respondents each in the sum of $4,695 for the matter to proceed to final hearing. These monies were to be paid within 56 days of the conciliation conference and if not paid then the proceedings be stayed.
Order (11) provided:
If the proceedings herein are stayed, each of the first respondent and the second respondent shall thereupon be released from the undertakings given by them to the court on 20 June 2007.
The relevant parts of the orders made on 20 June 2007 were as follows:
AND UPON THE UNDERTAKING OF THE FIRST RESPONDENT that she will continue to make financial contributions to the household of the Second Respondent and will not further encumber the property at […] [north Brisbane (“property A hereafter”)].
AND UPON THE UNDERTAKING OF THE SECOND RESPONDENT that he will not sell, mortgage, encumber or deal with his property at [property A].
THE COURT ORDERS:
1.That the applicant and the first respondent (and the second respondent, if reasonably required) attend a Conciliation Conference in relation to the matters to which the proceedings relate in the presence of a Registrar of this Court and make a bona fide endeavour to reach agreement on relevant matters in issue between them, such Conference to be held at 2.00pm on 27 August 2007 at the Family Court of Australia, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane.
2.That the applicant and both respondents each make, file and serve a list of documents to be disclosed to the other party including but not limited to those documents to be disclosed to the other party including but not limited to those documents listed in Annexure “A:” to this order, no later than 28 July 2007.
…
10.That the matter be adjourned to 14 August 2007 at 9.30am in the Federal Magistrates Court of Australia at Brisbane.
It was recorded that the appearances on that day were Ms Ammala solicitor, appearing for the applicant and Ms Barnes appearing for the first respondent and the second respondent appearing for himself. It is accepted that the husband was present in court on that occasion.
The orders of 8 October 2007, the subject of this application were made on the application of the two respondents.
Background
The parties were married in Bosnia. They fled that country in 1993 with their children. The husband was an architect in Bosnia. His business was conducted through a corporate structure.
His Honour in the reasons for judgment set out the relevant background to the dispute:
23.In his affidavit the husband says that in 1998 he set up a company, [D] Limited, to operate an import/export business for timber products between Bosnia and Australia. The husband alleges that [D] Limited lent the wife $100,000 to purchase property in Australia. Apparently, the husband had a business partner, [Mr B]. [Mr B] was a director of [D] Limited. Another company, [D Design] (Aust) Pty Ltd was incorporated in Australia to operate the import/export business here, and to enable the husband to practise as an architect in Australia. [Mr B] was also a director of this company. It is now in liquidation, and the husband’s evidence is that there is unlikely to be any distribution to creditors or shareholders. The husband’s evidence was that the wife lent the $100,000 advanced to her by [D] Limited to [Mr B] or to entities with which he was associated. The husband alleges that the wife has brought proceedings against [Mr B] to recover those monies.
24.The husband’s evidence just referred to establishes two things. First, no property was purchased by the wife with the monies allegedly provided by [D] Limited. Secondly, in any proceedings between the husband and the wife, it is likely that there will be evidence required from [Mr B]. It is evident that there is a commercial dispute between him and the husband, and perhaps also the wife. Property settlement proceedings between the husband and the wife are not an appropriate forum in which to resolve that commercial dispute. Accounting evidence, likely to be costly, may be required to sort out the flow of funds between various corporate entities and the husband and wife. Given the pool of assets available, even including the net value of […] [property A], it is unlikely to be commercially viable to fully litigate the commercial dispute in the property settlement proceedings.
25.The matter is further complicated because the wife alleges that [Mr B] lent her the monies used to provide a deposit on a property purchased in the wife’s name at [property B, also in a suburb north of Brisbane]. This property was purchased in 2002. The husband alleges that he provided the deposit monies. This factual dispute cannot be determined on this application. What is clear is that [property B] was registered in the name of the wife. She says that she serviced the mortgage on the property from her earnings. The husband contends that he met the mortgage payments. Again, it is not possible to resolve this conflict, at this stage
26.The parties separated in early 2004. Following separation, the husband and the wife entered into a contract whereby the husband purchased [property B] from the wife. The wife says that this was done to implement an informal property settlement made between the husband and herself. The husband denies that there was a property settlement, but has not offered any other cogent reason as to why such a transaction would have been entered into. [Property B] remained in the name of the husband until it was sold by the mortgagee exercising its power of sale.
27.After discharging debts, the wife made two payments from the proceeds of sale of [property B]. One was to her daughter, and the other to her son, the second respondent. The husband has not sought to impeach the payment to the daughter. The payment to the son was for $40,000.
28.The payment to the son was used by him to enable the purchase of [property A]. In addition, because the property was purchased in his name, he received a grant from the government as a first time home buyer. The balance purchase monies were borrowed, in the name of the son. He is liable for the mortgage repayments, although, as I have said, the wife makes payments to him to defray this liability. The loan secured against the property was subsequently refinanced.
29.The husband seeks a declaration that the son holds [property A] on trust for the wife or for both the wife and the husband, because the wife contributed towards the purchase monies. Obviously such a claim is overly simplistic. On any view of the evidence, the wife has not contributed all of the purchase monies. Even if successful in his contentions, the husband could not obtain a declaration other than that the wife has an interest in the property commensurate with her financial contributions.
Procedural History
The husband filed an application on 17 May 2007 seeking orders pursuant to sections 78 and 79 of the Act against the first respondent wife and the second respondent son. The husband apparently seeks a declaration that the son holds property A on trust for either the wife or for both the wife and the husband.
The first respondent filed a Response on 30 July 2007 asking that the application be dismissed and for costs. On an interim basis the first respondent asked for security for costs. In her supporting affidavit, the wife alleged that she and the husband had already effected an informal property settlement which included that the husband would transfer to the first respondent property B. The contract of sale for this property signed by them on 13 April 2004 was attached to her affidavit.
In a further affidavit filed on 4 September 2007, the wife states that her legal expenses to that date were $3,826.53. Furthermore, in support of the security for costs application she acknowledged that her solicitor has informed her that the costs of a property trial would be approximately $10,000.
The second respondent filed a Response on 10 August 2007 asking that the application be dismissed and that the husband pay the costs of the proceedings. Further, the son sought, on an interim basis, security for costs for his solicitors. In essence the son says that the property is his and that it was not purchased with monies from the husband. The son acknowledges that he was assisted by a gift from the wife, his mother.
On the 20 June 2007, the matter came before the Federal Magistrate. All the parties were present at this time. Reference has already been made to parts of the order.
The matter was again mentioned before the Court on 14 August 2007, at which time disclosure had not been completed. The husband was present in court on this occasion.
A Notice of Ceasing to Act was filed by the husband’s solicitor on 23 August 2007. The document referred to the upcoming conciliation conference.
The failure of the husband to attend the conciliation conference on 27 August 2007 is a central fact in the decision made by the Federal Magistrate.
The husband complained to the Federal magistrate on 4 September 2007 that his solicitor either did not understand his case or refused to follow his instructions.
On 4 September 2007, when the interlocutory applications of the first and second respondents regarding costs and security for costs were heard by the Federal Magistrate, the husband sought an adjournment of the hearing of the applications owing to his lack of legal representation. It seems that his only hope of being legally represented was through Legal Aid as he could not afford his own solicitor. It was unknown whether Legal Aid would be forthcoming.
Wilson FM reached the view that it was inappropriate to grant the husband’s application for an adjournment as such delay would expose the wife and son to further expense. Costs had already been incurred by them and wasted as a result of the failed conciliation conference. It is the orders made by the Federal Magistrate including the refusal to adjourn the matter which the husband wishes to appeal.
The husband filed a proposed Notice of Appeal, dependent on leave being granted. There are sixteen grounds of appeal, which will be considered below in the context of deciding both the leave applications and the merits of such an appeal.
The husband wishes to appeal all the orders made by the Federal Magistrate and asks that the orders made by him be dismissed or stayed. As mentioned, the husband also seeks other orders which could not be a consequence of an appeal being allowed. The supporting affidavit of the husband filed 13 November 2007 is mostly directed to the financial arrangements with Mr B and is irrelevant to the appeal.
On 21 November, 2007 this matter first came before me. At that time, the husband made an oral application seeking leave for a Mr Bell to appear for him as an advocate. Mr Bell has not been admitted as a solicitor or as a barrister and does not hold a practising certificate. He has completed a law degree. The husband’s reasons for such an application were that although he can speak English, he has some difficulties with the intricacies of the language. For reasons given ex tempore on 21 November 2007, I allowed Mr Bell to appear on the husband’s behalf.
Reasons for Judgment of the Trial Judge
Before considering the husband’s application for leave to appeal and the proposed appeal, it is important to appreciate Wilson FM’s reasons for the orders he made.
As already mentioned his Honour first considered the husband’s request for an adjournment which, as noted above, was denied. In particular, Wilson FM referred to the conciliation conference on 27 August 2007 which the husband did not attend.
At the time of the hearing, the trial judge permitted the husband to give oral evidence and put to the court all the matters which the husband considered relevant. As noted by the Federal Magistrate, the husband’s request for an adjournment was “for the purpose of securing new legal representation.” Having considered the husband’s evidence and the submissions of the wife and son, the trial judge concluded:
9.…[I]n my view the outcome of the security for costs application is clear, and it is unlikely that even if the husband secured an adjournment, and obtained further legal representation, that the outcome of the application could be any different.
His Honour correctly set out the principles governing a security for costs order for a trial, and referred to the decision of the Full Court in Luadaka & Luadaka (1998) FLC 92-830. At paragraph 11 of his reasons for judgment his Honour said:
11.… Regard must be had to the provisions of s.117(2A) of the Act, and other relevant matters to be taken into account include:
a)The means of the applicant to satisfy an order for costs if unsuccessful;
b) The prospects of success of the application;
c) Whether the applicant’s claim is made bona fide;
d)Whether an order for costs would be oppressive or stifle the litigation;
e)Whether the litigation involves a matter of public importance;
f)Whether there has been delay in bringing the application for security;
g) Any difficulties in enforcing an order for costs;
h) The amount of costs to be incurred.
His Honour considered that the proper course was to consider each applicant separately:
12.It seems to me that the two applications for security must be considered separately. In each case, the applicant for security is forced to defend proceedings brought against them by an impecunious applicant. However, the making of an order for security may itself prevent the husband from pursuing his claim. Section 117(1) of the Act seems to me to be of lesser weight when considering the claim brought against the son. He is only a party to the proceedings because property is registered in his name. In the case of both applications, it must borne in mind, as the Full Court said in Luadaka, that the purpose of an order for security is to secure justice between the parties by ensuring that an unsuccessful party does not occasion injustice to the other. The mere fact that a litigant is impecunious is not a basis for making an order for security for costs.
Wilson FM then considered each of the factors enumerated in section 117(2A) in turn. He noted that there is some overlap between the matters to which the Court must have regard under section 117(2A) and the additional factors identified by the Full Court in Luadaka (supra), as listed above. He concluded:
13....None of the parties are in strong financial circumstances. The husband’s financial statement filed 17 May 2007 asserts that he is a disability support pensioner, earning $267 per week. His only disclosed asset is household contents valued at $1,000. He discloses a credit card debt of $14,883. He is 56 years of age. The wife is employed as a flight coordinator by [an airline company]. Although her income is greater than that of the husband, her financial statement discloses that little is left after the payment of weekly expenses, which includes an amount paid to the son by way of rental, which he uses to defray part of the monthly mortgage payment he is required to meet. The son is a labourer by occupation. He is 22 years of age. His only asset is the property, the subject of the husband’s application. It is heavily encumbered. The matter in s.117(2A)(a) does not weigh in any party’s favour.
14.The husband was in receipt of legal assistance. However, subject to the husband’s application for a review, that assistance has been terminated. There is no evidence that either the wife or the son are in receipt of legal aid. The matter in s.117(2A)(b) does not weigh in any party’s favour.
15.The proceedings are still at an early stage. The husband has, as I have already said, failed to attend a conciliation conference. It seems from the husband’s evidence in the proceedings before me that there may be further disclosure that has to be made in the proceedings. However, at the present time, the matter in s.117(2A)(c) does no more than support the making of an order for costs in favour of the wife and son in respect of their costs thrown away by reason of the husband failing to attend at the conciliation conference. Otherwise, it does not support either party on the application for security for costs.
His Honour noted that the matters referred to in section 117(2A)(d) and (e) were not relevant during the interlocutory stage of the proceedings. Additionally, there was no evidence to suggest that section 117(2A)(f) was relevant.
Pursuant to section 117(2A)(g), his Honour then considered whether there were other relevant factors. The trial judge, having considered the husband’s financial statement and qualification for legal aid, was satisfied that:
18.… the husband does not have sufficient means to meet an adverse order for costs made in favour of the wife or the son.
The trial judge noted that any order for security would “…most likely stifle the further prosecution of the proceedings by the husband. That factor weighs against the making of an order for security.” (reasons para 19).
His Honour determined that the most relevant matters to be considered were the likelihood of the husband’s case succeeding and whether the proceedings are bona fide. The trial judge noted that the other matters (including public importance, delay and difficulty in enforcement) were not relevant to these proceedings (reasons para 20).
Wilson FM then proceeded to describe the background and the positions of the parties, as he understood it, much of which has been reproduced above. He noted correctly that it would be inappropriate for this court to determine any commercial dispute between the husband, the wife and Mr B in a property settlement proceeding.
The solicitor for the son submitted to the Federal Magistrate that, in the absence of any contrary intention, the court would not make a declaration in favour of the wife holding an interest in the property because the payment made could be presumed to be for the son’s advancement. The trial judge considered the decision of the High Court in Nelson v Nelson (1995) 184 CLR 538, where the presumption of advancement was held to apply in the case of gifts by mothers to their children.
Applying this doctrine to the present case, his Honour concluded:
32.In the present case, both the wife and the son contend that the payment of $40,000 attracts the operation of this principle. The wife would therefore have no claim to an interest in […] [property A]. Such a contention is open to challenge by the husband. However, he would have to persuade the court that the transaction whereby the property was purchased in the name of the son, was done with the intention that the wife would retain an interest in the property. In the face of contrary evidence from both the wife and the son, the husband’s prospects of success, in his claim against the son, must be seen as marginal at best.
33.In my view, because of the limited prospects of success of the husband obtaining the declaration he seeks against the son, this factor strongly favours the making of an order for security for costs in favour of the son.
34.As against the wife, the husband faces the additional argument that the proceeds of sale of [property B] were acquired by her consequent upon an informal property settlement. As I have said, the husband has not given any another explanation as to why the transaction was entered into. Further, even if that transaction was ignored, it seems that the wife received about $70,000 from the sale of [property B], which she paid to her children. She also discharged debts that were incurred during the course of the marriage.
Wilson FM noted that the property pool available for apportionment between the parties is very small, and concluded:
35.… In circumstances where the husband must be regarded as facing a considerable forensic hurdle in persuading a court to put a different complexion on the April 2004 transaction involving [property B], it seems that the husband should not be permitted to litigate the property settlement proceedings against the wife without providing security for her costs of defending the claim.
36.This conclusion is fortified when regard is had to the husband’s evidence (at T27.32) that the reason he has brought these proceedings is to determine whether any part of [property A] is matrimonial property, so that he can ultimately bring proceedings against [Mr B]. Whilst the logic of the husband’s contention is difficult to follow, it seems to support the argument made on behalf of both the wife and the son that these proceedings are brought for an ulterior purpose, and accordingly are not bona fide.
37.The conclusion is also fortified when regard is had to the delay on the part of the husband in bringing the proceedings. The application for property settlement orders was filed very close to the expiry of one year from the divorce of the husband and wife. It was filed more than three years after the conveyance of [property B], and almost three years after the purchase of [property A]. In that intervening period, each of the wife and son have made financial commitments without the husband ever challenging the efficacy of their transactions. The husband also had the benefit of owing the [property B] land, and waited until after his mortgagee sold that property before commencing these proceedings.
In light of such conclusions, the Federal Magistrate ordered that the husband provide security for the costs of the wife and the son:
38.… In my view, if that security is not provided, the husband’s proceedings should be stayed and the undertakings given to the court by the son and the wife not to deal with […] [property A] should be discharged. The only remaining question is the amount of security that should be ordered. Security can be ordered in instalments so that the matter can move forward to the next stage if security is provided for that stage by the husband. In my view that is appropriate in the present case. The parties should have the opportunity of at least trying to resolve their disputes at a conciliation conference. If they cannot do so, then the husband should provide security for the respondents’ costs of proceeding to a final hearing. (emphasis added)
The remarks in the last two sentences about appear at odds with the order requiring security for costs for the conciliation conference.
The quantum provided in the orders was that prescribed by the Family Law Rules 2004 (Cth) “the Rules”.
In relation to the costs of the application his Honour said:
40.The husband should also pay the costs of this application. It seems that each of the respondents is entitled to claim $1250 plus a half day hearing fee of $750, a total of $2,000. Those costs should be paid as a condition of the husband being permitted to further prosecute his claim.
Leave to Appeal
As already indicated, leave to appeal is necessary because the husband’s application is out of time and he is appealing against an interlocutory order.
With respect to the late filing of the application, in his amended outline of argument, the husband asserts that his application for leave to appeal was submitted to the registry on 5 November 2007 and therefore within time. Any delay between the receipt of the application and formal filing he says, was caused by administrative delay within the registry, and through no fault of the husband.
Furthermore, in his written outline of argument, the husband asserts that the registry stamped the back of his application for leave to appeal on 5 November 2008, proof that the husband filed within time. He says, it was only at the insistence of the registry staff that the husband later amended his application seeking leave to be heard out of time.
The fact that the husband filed out of time is not of any great consequence in this case. The application was not substantially out of time, being only eight days late. As to the husband’s submissions regarding administrative delay in the registry, although I acknowledge that such events can occur, there is no evidence to substantiate the husband’s assertions. Indeed, having reviewed the original application for leave to appeal, there is no date stamp on the back of the application, and both the application and affidavit filed in support of the application is signed and dated by the husband on the 13 November 2007. The registry receipt of the documents, a copy of which was given to the husband when he filed his material, is dated 13 November 2007.
In any event, leave to appeal is still necessary as this case concerns an appeal from an interlocutory order. The power to grant leave to appeal an interlocutory order is contained in section 94AA of the Act. The Full Court of this Court discussed the principles appropriate to leave to appeal, in Rutherford & Rutherford (1991) FLC 92-255. Their Honours followed the High Court decision in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170 at 177 in which, in relation to appeals from interlocutory orders, that court said that, for such leave to be granted, there needed to be an error of principle and/or a substantive injustice demonstrated.
Consequently, whether leave to appeal should be granted in each case is tied up with whether the husband raises any appealable issues of substance. Given that he has filed a proposed Notice of Appeal, I will consider the merits of the issues raised in the proposed grounds of appeal in order to determine whether leave should be granted.
The Appeal
Applicable Law
It is appropriate at this stage to identify the principles governing an appeal such as this from a discretionary judgment. The law in this respect is not in doubt.
In Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627, Kitto J described the appropriate level of restraint that an appellate court should exercise in respect of discretionary matters as follows:
[T]here is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.
It was clearly enunciated in House v The King (1936) 55 CLR 499, at 504-505 that:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
In Gronow v Gronow (1979) 144 CLR 513 Stephen J said at 519:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.
Thus, as a matter of firmly established appellate process it is necessary first to establish whether there is any recognised ground for reviewing the Federal Magistrates discretionary decision consistent with these principles. It is also appropriate to refer to what Kirby J said in AMS v AIF (1999) 199 CLR 160 at 211:
[A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.
In Fox v Percy (2003) 214 CLR 118 Gleeson CJ, Gummow & Kirby JJ as part of a discussion in relation to the powers and functions of courts of appeal said:
22.The nature of the "rehearing" provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The "rehearing" does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
23.The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
Grounds of Appeal
In the proposed Notice of Appeal dated 5 November 2007, the husband alleges that the trial judge erred both in law and in the exercise of his discretion. The sixteen grounds of appeal concern five broad areas. Consequently, I will summarise the grounds of appeal within these five groups.
The first head of appeal concerns the trial judge’s conclusions regarding the failed conciliation conference. The husband submits that Wilson FM erred in law and in the exercise of his discretion by giving weight to the assumption that the husband had notice of the scheduled time for the conciliation conference and failed to appear, such assumption giving rise to the imposition of the security for costs orders made. The husband alleges that the trial judge had a duty to be satisfied that the husband had notice of the conference and failed to attend. It was said that any such presumption by the trial judge was an error of law. It is the husband’s position that the Federal Magistrate ignored the husband’s unequivocal statement that he had no such notice. [Grounds 1 and 7].
Furthermore, the husband argues that the trial judge erred in law and his discretion miscarried by finding that the husband’s presumed wilful absence from the conciliation conference was the only factor in favour of granting a costs order, and that such reliance on that factor led to an order effectively preventing the appellant from proceeding further. [Ground 12].
The second broad area of appeal concerns the scope and effect of the security for costs orders made by the trial judge. Firstly, the husband submits that Wilson FM erred in law by failing to proceed on the unrebutted statutory presumption that, in Family Court proceedings, each party is to bear their own costs. Secondly, the husband asserts that the trial judge erred by making effectively prohibitive security for costs orders when the relative merits of the parties’ cases had yet to be adjudicated. [Grounds 6 and 8].
Moreover, the husband asserts that the trial judge erred in law by presuming that impecuniosity alone is a ground for a security for costs order, notwithstanding that the known effect of such an order would be to prevent the husband from pursuing his case. In support of this ground, the husband refers to paragraph 18 of Wilson FM’s reasons, where his Honour said that the husband would not have sufficient means to meet an adverse order for costs and that his qualification for legal aid suggests that his financial circumstances are dire. This, his Honour concluded, was a factor which “weighs in favour of making an order for security.” [Ground 13].
The husband also asserts that the trial judge erred in law by presuming to pre-emptively prevent the husband from pursuing his case by making prohibitive security for costs orders. The husband referred to paragraph 35 of the reasons, which have been reproduced above. [Ground 15].
The final ground of appeal in relation to the security for costs asserts that the trial judge erred in law by presuming to guess the motivation of the appellant in bringing the proceedings. This refers to paragraph 36 of his Honour’s reasons, where the trial judge considered whether the proceedings were bona fide. During the trial, Wilson FM put it to the husband that his reason for bringing the proceedings against the wife and the son was to determine whether part of property A was matrimonial property, with a view to ultimately bringing proceedings against Mr B, to which the husband replied “Exactly.” (T/S 27.33-37). [Ground 16].
The third broad area of appeal concerns property A. The husband asserts that the trial judge erred in law by not securing for disposition by the court part of the marital property pool, namely the wife’s alleged interest in property A. The husband asserts that it is likely that a court would determine that the wife’s gift to the son was “an attempt by one party to dispose of marital assets before this court could adjudicate a proper property settlement.” [Ground 4]. Furthermore, the husband argues that the trial judge erred in law by presuming that a gift from the wife to the son could be a gift for the son’s advancement, particularly since that claimed gift was from undistributed marital assets. [Ground 14]. In relation to the characterisation of the issues before the court, the husband alleges that Wilson FM erred in law and in the exercise of his discretion by failing to recognise that property A (at least in part) would properly be characterised as part of the marital pool of assets, and not held pursuant to some form of trust. As part of the asset pool, the Court had the capacity and duty to trace and secure such property for the disposition by the Court in property proceedings. [Ground 3]. This part of the argument clearly misunderstands the reasons.
The fourth broad area of appeal refers to the trial judge’s treatment of the husband as an unrepresented litigant. Firstly, the husband argues that the trial judge erred in not adequately and appropriately assisting the husband as an unrepresented litigant to understand the issues before the court and the relevant law. [Ground 2].
The husband asserts that Wilson FM should have advised the husband as to where to find the law applicable to a security for costs application and allowed him sufficient time to address the relevant issues and prepare submissions. [Ground 11]. His Honour’s failure to do so it was said amounts to an error in the exercise of his discretion.
The husband also argues that the trial judge erred in law and in the exercise of his discretion by dismissing the husband’s application for an adjournment. By doing so it is contended that Wilson FM failed to consider the husband’s difficulty with English and his status as an unrepresented litigant. This it was said forced the husband to make representations without notice on the legal issues for determining a security for costs application. [Ground 10].
The final broad ground of appeal concerns two miscellaneous matters. Firstly, the husband argues that the trial judge erred in the exercise of his discretion by assuming that it was sufficient for him to observe that there had been a “falling out” between the husband and his former legal representative. The husband asserts that the Federal Magistrate was under a duty to consider the husband’s statement that his former representative had not understood his case and failed to implement his instructions. It is argued that those failures may have substantially prejudiced the husband which the trial judge should have considered. [Ground 5].
The final ground of appeal seems to have little merit, but for completeness must be reproduced here. The husband argues that “[A]t paragraph 7 of His Honour’s Reasons, His Honour errs in Law in that the paragraph is a non sequitor [sic].” [Ground 9]. The paragraph in question states:
7.I therefore reached the view that, provided the husband was able to adduce evidence to support his submissions as to why security for costs should not be ordered, it would be inappropriate to expose the wife and son to further expense by adjourning the application.
The orders sought by the husband are that the orders of Wilson FM be dismissed, or in the alternative, stayed pending further orders. The husband also seeks orders that his applications for joinder of a third party, discovery of the location, value and disposition of all marital assets and issuance of third party subpoenas be listed for hearing as the registry directs. He also asks that costs be reserved.
Submissions of the Applicant
In a written outline of argument (filed 21 November 2007) and an amended outline of argument (filed 30 January 2008), the husband provides a comprehensive summary of his arguments. During the appeal, Mr Bell, the husband’s advocate, expanded upon these points. For the sake of convenience, I will deal with the relevant submissions under the various heads of appeal as identified above.
With respect to the conciliation conference, the husband submits that his failure to attend on the 27 August 2007 is, in part, attributable to Ms Ammala. Ms Ammala filed a Notice of Ceasing to Act on the 23 August 2007. It is the husband’s contention that he only received this, and advice that he had to attend the conciliation conference, sometime between 3:00 - 4:00pm on 27 August 2007, two hours after the conference was scheduled to take place.
In oral evidence before Wilson FM, the husband stated that Ms Ammala failed to tell him when the conciliation conference was occurring. The husband submits that a party should not be disadvantaged because of “inadequate conduct by their own lawyer” (Written Outline, para 15).
In oral submissions, Mr Bell acknowledged that the husband stated during the trial that he had received the Notice of Ceasing to Act on the 24 August 2007. However, the husband had previously testified that he did not receive the Notice of Ceasing to Act until 27 August 2007 (T/S 2.6; T/S 23.16-23). Mr Bell argued that the husband was mistaken when he stated he had received the Notice on the 24 August 2007, being overwhelmed by the trial process and recovering from a nervous breakdown. There was no evidence before Wilson FM that the husband had suffered a nervous breakdown.
It was also submitted that although the husband was present on the 20 June 2007 (when the conciliation conference was ordered) and 14 August 2007 (during a directions hearing when the conciliation conference was mentioned), he did not understand that he had to attend the conference because he is not a fluent English speaker and he was relying on Ms Ammala to keep him informed as to the particulars of his case.
Regarding the scope and effect of the security for costs orders, the husband submits that the orders made by Wilson FM prohibited the husband as an impecunious applicant from proceeding at all and constitute a total and needless bar to proceedings. The trial judge acknowledged at paragraph 19 of his reasons that such orders would “most likely stifle further prosecution proceedings by the husband”. In oral submissions, Mr Bell argued that Wilson FM erred in the exercise of his discretion by giving insufficient weight to this consideration.
Mr Bell also made oral submissions regarding the trial judge’s conclusion that the husband had an ulterior motive for bringing proceedings against both the wife and the son. He submitted that any claim that the husband’s application was “misconceived or vexatious” was spurious. Any statement by the husband that he wanted to ultimately proceed against Mr B was the result of an “unfortunate choice of words” by an unrepresented litigant, and does not represent the true reason for the husband’s application (T/S 43.20).
Mr Bell orally submitted that when the husband said he did not have any assets, he was drawing a distinction between himself and the corporate entities of the D companies. Consequently, the Federal Magistrate erred in concluding that the marital property pool was very small. However, this argument it seems must be dependent on the husband ultimately succeeding in a court against Mr B.
There were extensive and comprehensive written and oral submissions made about the treatment of the husband as an unrepresented litigant and the refusal of Wilson FM to grant an adjournment. Firstly, it was submitted that the Federal Magistrate owed a duty to the husband as an applicant in person and that duty was not met. In written submissions, the husband submitted that the Full Court in Johnson & Johnson (1997) FLC 92-764 provided clear guidance as to the extent and scope of the duty owed by a judicial officer to an unrepresented party. Their Honours stated:
116.The question of the extent to which a Court should give advice or assistance to a self-represented litigant was considered by the New South Wales Court of Appeal in the case of Rajski v Scitec Corporation Pty Ltd (unreported, 16 June, 1986 - see: Butterworths Unreported Judgments BC8600928).
117.In that case Samuels JA, after observing that the self-represented litigant in that case was “entitled to that degree of protection and advice which the Court ordinarily affords to litigants in person” and, that the “extent depends upon the assistance to which the litigant appears to stand in need”, proceeded to clarify the position thus:-
“In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent.”
118. On the same topic, in the same case, Mahoney JA said this:-
“When a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.”
Some submitted examples of Wilson FM’s alleged failure to accord procedural fairness to the husband included: his refusal to allow the husband to respond to erroneous assertions by the respondents’ solicitors; and his Honour’s failure to provide “useful and effective assistance to remove from [the husband] the severe disadvantage that he had not only as a self-represented applicant, but also with the language problems that he had” (T/S 15.46).
In support of this argument, the husband referred to the headnote from Re F: Litigants in Person Guidelines (2001) FLC 93-072. Of particular relevance is guideline 8, which states:
8. A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott (1994) 121 ALR 148 at 150).
Mr Bell, in oral submissions, was unable to specifically state what action Wilson FM should have taken, but argued that justice was the overriding feature and Wilson FM should have done what he could to ensure that the husband was accorded procedural fairness and afforded justice.
Extensive written submissions were directed to the trial judge’s refusal to adjourn the hearing. It was argued that had such an adjournment been granted, enabling the husband to acquire legal representation, procedural fairness would have been accorded to the husband. In support of this submission, Mr Bell cited the High Court’s decision in Dietrich v R [1992] 177 CLR 292.
It was submitted that Wilson FM erred in the exercise of his discretion by not providing the husband with an opportunity to secure legal representation. In support of his oral application for an adjournment, the husband intimated that he had secured the services of a solicitor and was waiting for some assistance from Legal Aid Queensland to finalise an arrangement. This, it was argued, was ignored by his Honour, who stated that the husband would have little chance of securing legal representation.
Furthermore, it is the husband’s position that the trial judge erred in his exercise of discretion by giving undue weight to the complaints by the respondents about the costs of returning to court if an adjournment was granted, and too little weight to the reasons in favour of granting an adjournment. The husband asserted that any complaint as to his impecuniosity was not, in itself, sufficient to justify the curtailment of his access to justice.
Further written submissions were directed to the likely outcome of the matter if the adjournment had been allowed and the husband had secured legal representation.
Finally, with respect to the last miscellaneous matters, little was submitted in support of these grounds of appeal. In written submissions, the husband argued that he was entitled to rely upon Ms Ammala as his legal representative, and therefore was depending on her to keep him informed as to the progress of his case and the conciliation conference. It was submitted that the husband’s statement to Wilson FM that Ms Ammala did not understand his case should have put the Court on notice that what had been presented so far might not be representative of the true position of the applicant.
Submissions of the First Respondent
In written submissions, the solicitor for the wife firstly addressed whether leave to appeal should be granted to the husband pursuant to section 94AA of the Act. It was submitted that the reasons for judgment of Wilson FM contained no error of principle; the orders were an exercise of his discretion. This submission is central to the real issue as the husband must show an error of principle and/or that the decision appealed from caused substantial injustice.
The solicitor for the wife submitted that the husband, although alleging a substantial injustice, fails to provide any precise evidence. Contrary to the husband’s position, it was submitted that the effect of the security for costs orders do not summarily dismiss the husband’s application, but rather ensure that there is no prejudice to either of the respondents by securing costs in advance on the continuation of proceedings. Consequently, there is no substantial injustice to the husband. Indeed, it was submitted that any orders to set aside the decision of Wilson FM would create an injustice for both respondents, who are impecunious themselves.
With respect to the first broad area of appeal, being the conciliation conference, the solicitor for the wife submitted that Wilson FM did not err in law and nor did his discretion miscarry by concluding that the husband had notice of the scheduled conciliation conference. The evidence provided by the husband indicated that he was present in court when the conference was ordered on 20 June 2007. The husband also confirmed that he appeared in court on 14 August 2007. That appearance was to confirm that everything was in order for the conciliation conference to be heard. In oral submissions, the solicitor for the wife claimed that a discussion about the upcoming conference occurred on that day and that the scheduled date and time of the conference was made very clear. Transcript was not provided by the appellant in relation to those occasions.
Furthermore, the solicitor for the wife submitted that the husband’s failure to attend the conciliation conference was not the only fact militating in favour of making a security for costs order. The substantive reasons for judgment of Wilson FM clearly indicate that his Honour dealt with the likely success of the husband’s application and the reasons behind the application. This submission is clearly correct.
Turning to the security for costs orders, the solicitor for the wife submitted that there was no error in law by His Honour with respect to his decision to order costs and security for costs. The Reasons for judgment clearly set out all the considerations made by the trial judge. In support of this submission, the solicitor for the wife referred to the decision of the Full Court in Penfold v Penfold (1980) FLC 90-800.
In her oral submissions, the solicitor for the wife submitted that there had been no error with respect to the statements of fact determined by Wilson FM, as such conclusions were available to his Honour in light of the evidence and the testimony during the hearing. The trial judge clearly considered that the crux of the matter was the likelihood of the husband’s application succeeding, and his Honour gave clear and valid reasons for drawing the conclusions that he did. Wilson FM clearly followed the principles as set out in Luadaka & Luadaka (supra.).
In response to the husband’s assertion that the trial judge ordered security for costs based solely on the husband’s impecuniosity [Ground 13], the solicitor for the wife submits that it is clear that his Honour did not make the orders on a solitary basis. Furthermore, it was argued that his Honour has not pre-emptively prevented the husband from prosecuting his case, as Wilson FM made no order dealing with the substantive issues of the matter. Rather, it was said, the security for costs orders merely prevent any prejudice to the respondents.
The solicitor for the wife submits that the trial judge did not err in law by presuming to guess the motivation for the husband’s application. Rather, such conclusions with respect to Mr B were clearly open to the Federal Magistrate in light of the husband’s evidence. During his testimony, the husband stated (T/S 26.5-8):
“…[W]hat is the most important to me, to establish what is matrimonial money in order to sue Ms and Mr [B] to get the money back because, you know, he is confusing all things, you know, with matrimonial and - we have to clarify what is matrimonial money in order to get [D] Design money back...”
In response to the husband’s assertion that Wilson FM should have recognised that property A partly formed part of the property pool, the solicitor for the wife submitted that the trial judge clearly considered the contributions of all the parties towards the property in paragraphs 21 to 35 of his judgment. His Honour came to his conclusions based upon the evidence in affidavits filed by all the parties and the oral evidence adduced by the husband during the hearing.
In oral submissions, the solicitor for the wife argued that the crux of the husband’s appeal concerns the Federal Magistrate’s treatment of the husband as an unrepresented litigant. It was argued that the trial judge made no error in law nor did his discretion miscarry in not offering assistance to the husband. Rather, Wilson FM provided the husband with abundant time to state his position and give evidence from the witness box. Indeed, the lawyers for the first and second respondents were not permitted to cross-examine the husband during the interlocutory hearing.
It was submitted that the judge acted in accordance with the principles set out in Re F: Litigants in Person Guidelines (supra). In oral submissions, the solicitor for the wife pointed out that Wilson FM did provide some guidance to the applicant with respect to his evidence about his former lawyer and himself, briefly explaining the concept of legal professional privilege.
In response to the husband’s argument that the failure to adjourn constituted an error in law and a miscarriage in the exercise of discretion, the solicitor for the wife emphasised that Wilson FM in fact allowed the husband to speak extensively on his case. The husband never requested any assistance with translation and repeatedly indicated that he understood the questions put to him by the trial judge. For that reason, it was argued, the husband’s submissions regarding his language difficulties is not supported by the evidence.
Submissions of the Second Respondent
The solicitor for the parties’ son firstly addressed the husband’s application for leave to appeal. In written submissions, it was argued that the husband had not given a credible reason for filing out of time and therefore his application should be dismissed. Additionally, it is submitted that the husband does not have a substantial ground of appeal and therefore his application should be dismissed and an order for costs made in favour of both the respondents.
The solicitor for the second respondent largely agreed with the submissions of the wife concerning the sixteen grounds of appeal. Consequently, I will only briefly outline these submissions.
It was submitted that the husband’s presence in court on the 20 June and 14 August 2007 meant that he had notice of when the proposed conciliation conference was to take place, or at least that knowledge could be inferred. I accept that it important to note that paragraph 15 of the reasons for judgment of Wilson FM clearly indicate that the husband’s failure to attend the conciliation conference was merely one factor to be considered when applying the guidelines set out in Luadaka & Luadaka (supra).
In response to the husband’s submissions concerning the scope and effect of the security for costs orders, the solicitor for the son cited the decision of Stephen, Mason, Aicken and Wilson JJ in Penfold v Penfold (supra), where their Honours noted at 75,053:
It is an accurate description of sec. 117(1) to say that it expresses a general rule, provided that it is firmly understood that the subsection is not paramount to sec. 117(2). As subsec. (1) is expressed to be subject to sub sec.(2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Subsection (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under sec. 117(2) in "a clear case".
Subsection (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent (1970) 92 W.N. (N.S.W.) 503, at p. 505 ).
It is submitted that Wilson FM appropriately tested the factors set out in Luadaka & Luadaka (supra) and exercised his discretion accordingly. The husband’s impecuniosity was merely one factor that his Honour considered in applying the appropriate law.
The orders also provided the husband with time in which to provide the further sums to protect the respondents, being 56 days. This it was said indicates that Wilson FM carefully considered all the relevant matters and made orders which were appropriate in the circumstances.
With respect to the husband’s submissions regarding his treatment as an unrepresented litigant, the solicitor for the son argued that most of the guidelines contained in Re F: Litigants in Person Guidelines (supra) were not relevant, given that this matter concerns an interlocutory application and not a trial. Nevertheless, the judge clearly sought to clarify the substance of the submissions of the husband as evidenced by the ample opportunity provided to the husband to ventilate his concerns. Furthermore, his Honour correctly identified the crux of the issue in paragraph 27 of his reasons, where he considered the nature of property A.
There was no particular obligation on the judge to draw attention to the law which was to be applied in determining the security for costs application before him. This is a matter of discretion open to Wilson FM, in accordance to guideline 9 of the Re F guidelines, which states (at 253):
9. Where the interests of justice and the circumstances of the case require it, a judge may:
·draw attention to the law applied by the Court in determining issues before it;
·question witnesses;
·identify applications or submissions which ought to be put to the Court;
·suggest procedural steps that may be taken by a party;
·clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.
The solicitor for the son made few submissions about the trial judge’s conclusions regarding the husband’s relationship with Ms Ammala. It was submitted that Wilson FM was clearly concerned to ensure that there was no waiver of privilege by the husband as to the discussion he had with his solicitor. This is evident in the transcript, where his Honour refused to accept the husband’s disclosure of correspondence between himself and Ms Ammala (T/S 22.26).
Finally, with respect to Ground 9, the solicitor for the son argued that this was a reasonable inference drawn by his Honour in light of the conduct of the husband, including his failure to attend the conciliation conference. Indeed, his Honour was clearly not expressing a concluded view at that stage or disposing of a substantive issue.
Application to Adduce Evidence
It is necessary to deal finally with the husband’s application to adduce further evidence. In an affidavit which accompanied the husband’s application (filed on 4 January 2008) it was said by him after referring to his previous affidavit:
2.The information contained in my affidavit was as precise as I could make it at that time. Subsequent research has yielded more evidence, some of which I produce here. However, locating the substantial marital assets will require the joinder of and discovery by the four parties named in my application for Leave to Adduce Further Evidence. To avoid any future contention or needless delay and the costs implications of that in these proceedings, I here give adequate evidence to allow this Full Court at hearing of my appeal to direct the requested joinder of the additional parties.
The husband refers to only part of the evidence which he seeks to rely on. The bulk of the affidavit relates to the D companies and the dealings between the parties and Mr B.
In an amended outline of argument (filed 30 January 2008), the husband submits that leave to adduce further evidence should be granted as it would reveal the “…untrue set of sworn assertions [by the wife and son] as to the real situation, which the respondents have mendaciously sought to put to the court and maintain as fact.” (Outline of Argument, para 9). Specifically, such evidence would determine whether the monies given by the wife to the son amount to a gift for the son’s advancement or the improper disposal of marital funds for the purposes of avoiding this Court’s jurisdiction.
In a different category, during the appeal, Mr Bell proposed to adduce a copy of an email dated 24 August 2007 from the husband to his legal representative, Ms Ammala, and a letter from Ms Ammala to the husband dated 11 September 2007. The email concerns the husband’s complaint that Ms Ammala did not understand his case. The letter acknowledges that Legal Aid have provided the husband with a copy of his file as requested.
Both respondents oppose the application to adduce further evidence. The solicitor for the wife submitted that much of the affidavit material is background information only which would have little impact on the outcome of the appeal if leave is given.
The evidentiary value of some of the exhibits is questionable. For example, some of the letters of demand, supposedly written under the wife’s instructions (she contests this), are draft copies only; there is no evidence that those letters were ever sent. The solicitor for the wife also disputes the value of two letters annexed to the affidavit, which were allegedly signed by the wife. The wife claims that she never signed them and the carbon copy on the bottom of the letter to Smith and Stanton Lawyers was never received by the firm. Consequently, any evidence in the affidavit would need to be substantiated to be of any evidentiary weight. It is all highly controversial.
The solicitor for the second respondent agreed with the arguments of the solicitor for the wife in their entirety.
Section 93A(2) confers on the Full Court an express power to receive further evidence upon questions of fact. In CDJ & VAJ(No 1) (1998) FLC 92-828, which was a parenting case, the High Court said of the admission of further evidence under the heading of s 93A(2) at 104:
In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion.
And at 109:
One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellant procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
And in 111, and I quote in part from that paragraph:
…The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
In this case, the subject matter is orders of the Federal Magistrate related to security for costs. Although the decision was, to some extent, based on the likelihood of the husband’s case succeeding it could not be said that the further evidence would demonstrate that the order was erroneous. The evidence is intended to illustrate that the husband’s chances of success at a trial were in fact greater then first appreciated by the trial judge. As this evidence in itself is entirely contentious it could not be said that there would have been a different result. The application to adduce further evidence should be refused.
Conclusions
The Federal magistrate ordered that the husband pay security prior to the conciliation conference. Whether this was a mistake is not apparent. However, his Honour was entirely correct in paragraph 38 where he said:
38.…The parties should have the opportunity of at least trying to resolve their disputes at a conciliation conference. If they cannot do so, then the husband should provide security for the respondents’ costs of proceeding to a final hearing.
It was not a proper exercise of his Honour’s discretion to make the order requiring security for the conciliation conference particularly in view of his findings as to the husband’s financial position.
In addition, it was not proper to order that without paying the costs of the hearing before his Honour the conciliation conference could not proceed.
The orders made commencing from paragraph (8) are in a different category. For the reasons explained by the Federal Magistrate the success of the husband against the wife and his son seem to have limited prospects. The trial judge had the benefit of the affidavit of the wife filed 30 July 2007 which included a reply to the husband’s affidavit. These documents set out the parties positions in relation to the contentious issues. He also had the benefit of the sons affidavit filed 10 August 2007. Thus, his Honour was in a good position to make some assessment of the likelihood of success of the husband’s application
The husband’s poor financial circumstances coupled with his conduct of the proceedings so far properly led to an order for security for costs of the trial.
Recognising that these orders have serious consequences but remembering that this is an appeal against costs orders, it cannot be said that the reasons provided by his Honour were incorrect as a matter of law or that his discretion miscarried.
As merit has been found in part of the appeal, leave is given out of time to file the appeal as is given to file an appeal from interlocutory orders.
The matter should be remitted to the Federal Magistrates Court for further directions.
I certify that the preceding one hundred and twenty seven (127) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May.
Associate:
Date: 11 December 2008
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