Dhaliwal & Suri (No 2)
[2023] FedCFamC1F 125
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dhaliwal & Suri (No 2) [2023] FedCFamC1F 125
File number(s): SYC 6206 of 2019 Judgment of: CAMPTON J Date of judgment: 6 March 2023 Catchwords: FAMILY LAW – PROPERTY – PRACTICE AND PROCEDURE – Application for an adjournment made on the first day of the trial – Where the wife asserts she requires an opportunity to recast her case and adduce relevant evidence not currently before the Court – Proceedings commenced nearly three and a half years ago – Wife had ample opportunity to set out her case – Application dismissed. Legislation: Family Law Act 1975 (Cth)ss 79, 106B
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Dhaliwal & Suri [2022] FedCFamC1F 876
Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 6 March 2023 Place: Sydney Counsel for the Applicant: Mr Gardiner Solicitor for the Applicant: Toronto Legal Counsel for the First Respondent: Mr O’Brien Solicitor for the First Respondent: Brydens Lawyers Counsel for the Second Respondent: Ms Coulton Solicitor for the Second Respondent: Buckley Lawyers Pty Ltd ORDERS
SYC 6206 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DHALIWAL
Applicant
AND: MS SURI
First Respondent
MR A DHALIWAL
Second Respondent
order made by:
CAMPTON J
DATE OF ORDER:
6 March 2023
THE COURT ORDERS THAT:
1.The wife’s Application in a Proceeding filed 3 March 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dhaliwal & Suri has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
INTRODUCTION
These are substantive property proceedings between Mr Dhaliwal (“the husband”) and Ms Suri (“the wife”) pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). The husband’s father, Mr A Dhaliwal (“the paternal grandfather”) is the second respondent to the proceedings.
The paternal grandfather was born in Country D in 1946. He is presently 76 years of age.
The husband was born in Country D in 1972 and is presently 50 years of age. The wife was born in Australia in 1979 and is presently 45 years of age.
The husband and wife were married in Country D in late 2000. They came to Australia in early 2021. The wife contends they separated in September 2015. The husband contends they separated in June 2019. They have three children, namely:
(a)X (“X”), who was born 2009; and
(b)Y (“Y”), who was born 2012; and
(c)Z (“Z”), who was born 2013.
HISTORY OF THE LITIGATION
These proceedings have a somewhat tortuous history, which has at times been characterised by the parties failing and neglecting to comply with procedural and other orders of the Court and allegations made by each against the other of a failure to comply with their obligations of disclosure.
The proceedings were initiated by the husband filing an Initiating Application on 16 September 2019 in what was then the Federal Circuit Court. The proceedings were transferred to what was then the Family Court by way of orders made on 19 October 2021. The paternal grandfather was joined as the second respondent to the proceedings, over objection, on 18 February 2021.
The matter first came before me as part of my docket on 28 April 2022, approaching 12 months ago. An extensive case management hearing was conducted on that day as to the outstanding issues as to parenting and property settlement, including the relief sought by the wife as against the paternal grandfather by way of equitable principles and pursuant to s 106B of the Act. Notations were made on that occasion requiring each party to be in a position to advise the Court at the next listing of the agreed matters (if any) and matters in dispute for the purpose of trial. The parties were also put on notice as to what were potentially defective aspects of the wife’s pleaded case against the paternal grandfather and other matters relating to the identification of the property of the parties, both legally and beneficially held.
Upon the matter coming before me again for further case management on 12 August 2022, the husband and wife had reached a resolution of some aspects of their parenting dispute. Notations were made in respect of the financial case that if, at the closure of amended pleadings, the paternal grandfather determined it was appropriate to file an application for summary relief, pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), leave was granted to file such application. An application to that effect was not pursued by the paternal grandfather.
The matter came before me again for hearing of the balance of the parenting issues on 20 October 2022. The proceedings as to parenting were finalised by way of reasons for judgment delivered and orders made on 11 November 2022 (see Dhaliwal & Suri [2022] FedCFamC1F 876).
Also on 11 November 2022, the financial aspects of the matter was listed for trial over three days commencing in the Sydney Rolling List today. Directions were made requiring the wife to file an Amended Response to an Initiating Application, attaching an Amended Points of Claim identifying the foundations of the relief she sought against the paternal grandfather, and for the paternal grandfather and the husband to thereafter file any Defence to the wife’s Amended Points of Claim. Further directions were made as to the filing of affidavit evidence, and specifically:
39.Except as already provided by these orders, the parties will not be permitted to file any further affidavits and may not rely upon any past affidavits at trial without the leave of the Court.
…
42.In the event that either party becomes aware of any matter that would prevent the proceedings commencing on the first date allocated or continuing to conclusion on the last date allocated, that party is to forthwith restore the proceedings to the list on 48 hours’ notice to the Court and to each other party.
43.No later than 21 days prior to the trial date, each party is to file and serve the other parties with a document setting out with precision the factual findings that party will contend should be made by the Court, and for each factual finding sought, the document shall identify the reference to a paragraph number of the relevant affidavit and/or a precise reference to the document in the annexures or exhibits that supports the making of that factual finding.
54.That in the event that there is no valuation report available at the commencement of the hearing then it is likely that an order shall be made that any property not agreed as to value or subject of a single expert opinion be sold.
The parties, in general terms, complied with the directions as to filing affidavits. I have been unable to identify whether they have filed an updated balance sheet in compliance with the trial directions.
THE WIFE’S APPLICATION IN A PROCEEDING
At 4.35 pm on 3 March 2023, being the last business day prior to the listing today, the wife filed an Application in a Proceeding seeking the following orders:
1. That the proceedings listed in the rolling list commencing 6 March 2023 be adjourned to a date convenient to the court but no earlier than 1 May 2023
2. That the parties do all acts and things necessary for [Mr F] to complete valuations for the property at [G Street, H Town] and [J Street, Suburb K] NSW.
3. That the wife file and serve further evidence and amended points of claim within 28 days.
4. That the [paternal grandfather] file and serve any additional evidence and any amended points of defence 28 days after being served with an amended points of claim and any evidence in support of same.
5. That the [paternal grandfather’s] and [husband’s] costs be reserved.
The reality is that the wife’s application to adjourn the trial is made on the first morning of the trial.
The wife sought to rely upon an affidavit filed on 3 March 2023 in support of the Application in a Proceeding. I am told from the bar table and accept that the single expert valuation reports identified in Order 2 of the wife’s Application in a Proceeding as to the value of G Street, H Town (“the H Town property) and J Street, Suburb K (“the Suburb K property”) have been produced, such that the wife does not contend the availability of single expert evidence grounds her application for an adjournment of the trial.
The application to adjourn the trial is opposed by both the husband and the paternal grandfather.
In support of the application for adjournment, counsel for the wife candidly and properly conceded that upon his review of the case prosecuted by the wife, there was material that he identified “needs to be placed before the Court for consideration” that has not been identified in the wife’s material filed thus far and has not been the subject of documents already produced on subpoena. In her affidavit filed in support of her Application in a Proceeding, the wife said she requires:
11. … an opportunity to reconstruct and recast the orders that I am presently seeking from the Court and the relief associated with these orders in respect of the [paternal grandfather].
She said that she intended to put on evidence as to “the full extent of the marital issues in 2007” between she and the husband, being the period when the husband transferred some of his legal interests in the Suburb K property to the paternal grandfather. She further seeks to adduce evidence explaining why she remained separated under the one roof with the husband and the paternal grandfather between 2015 and September 2019. Part of that further evidence she says would be as to:
12. (b) (iv)…the circumstances and conversations between 2015 and 2019 in which I was gradually asserting my freedoms against the [husband] which seems to correspond with his gradual reduction in his interests in the [Suburb K] property, [the [H Town] property] and the disposition of the [L Business] in 2018 /2019.
The wife identifies that she has not had a consistent barrister in these course of these proceedings and has concerns that her case has not been presented as clearly as it needs to be insofar as it relates to the paternal grandfather. She contends significant prejudice in circumstances where she has been separated, on her case, from the husband for approaching a period of four years. That said, she concedes that she has had an opportunity to recast her case insofar as it relates to the paternal grandfather on numerous occasions prior to the first day of the trial as identified earlier in these reasons.
The husband opposes the adjournment of the trial and the substantive relief sought by the wife. As I read the material filed by the husband for the purposes of the trial, it is his contention that, at least on a primary basis, there is no warrant for adjustment of property as between he and the wife.
The paternal grandfather identifies his age and the absence of his consent to being engaged in the litigation in opposing any adjournment. The circumstances of the litigation is that the wife is, in effect, a plaintiff for financial relief, and the husband and the paternal grandfather the defendants. It is significant that the wife has had the benefit of her current solicitors throughout the proceedings. To my mind, it is also significant that the wife, while giving some summary of the nature of the further evidence she will seek to rely upon should her adjournment application be granted in her affidavit filed on 3 March 2023, failed to:
(a)provided a full proof of that evidence; and
(b)exhibit to that affidavit her proposed Amended Points of Claim establishing the recasting of her case; and
(c)identify the currently unavailable documents she would seek to source.
In those circumstances, there is little wonder as to why, at least implicitly, the husband and the paternal grandfather, as well as the Court, remain in the dark as to what the proposed amendments to her claim would be. It is difficult for the Court to have any realistic appraisal as to how the wife would be denied fairness should the matter proceed at this time in circumstances where, by way of her instructing solicitors, she has had ample opportunity, as recorded earlier in these reasons, to set out clearly her case.
She even has, as at today, the capacity to place before the Court for consideration the additional affidavit evidence that she would seek to rely upon to ground her case. She has not done so. She has the opportunity to put before the Court today her amended pleading for consideration. She has not done so. She has not identified what further material she has not been able to obtain by way of subpoena to date. She has the opportunity, should the trial proceed, to obtain concessions, as she would consider appropriate, by way of cross-examination.
I am mindful as to the mandatory provisions identified in the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) in that the Court has a responsibility to ensure that management of litigation and its workload occurs, according to law, as efficiently and as inexpensively as possible. There is absolutely no doubt that an adjournment of this trial will occasion substantial costs to all of these parties, including the necessity to recast, potentially, the single expert evidence as to real property and to file further affidavit and other updating evidence.
The Court is required to efficiently use its judicial and administrative resources and to exercise its business to ensure the disposal of all proceedings in a timely manner that is proportionate to their complexity. So that it is clear, there is nothing particularly complex or unusual about this matter. In the event the Court does not allocate its resources to hear this matter today, it is important to take into account:
(a)the fact that the Court would not be able to allocate further hearing dates for this matter until 2024, a delay of a further 12 months; and
(b)the deleterious effect not only on these parties but all the other litigants and stakeholders to which the Court becomes an integral part.
These are all very important considerations to take into account. As identified in the course of submissions, the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (“Aon Risk”) said:
217.…delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants… It was significant that the effect of its delay in applying would be that a trial was lost and litigation substantially recommenced. It would impact upon other litigants seeking a resolution of their cases.
The decision of the High Court in Aon Risk provides authority for courts to take into account case management principles when exercising discretion in procedural applications to adjourn a trial such as this even to the prejudice of a party to a particular proceeding. Specific reference was made in Aon Risk as to the role courts must play in ensuring the disposal of litigation. The High Court emphasised that it is not sufficient just to pursue just and procedural outcomes merely by reference to the interests of the parties to the particular proceedings.
The effects of the procedural decision sought by the wife fails to take into account the notion that parties to a proceeding are not entitled to consume an limited amount of public resources in the pursuit of their own interests.
The wife has not explained why, in all the circumstances, she failed to avail herself as to the capacity to relist these proceedings, pursuant to Order 42 made on 11 November 2022, and seek a vacation of this trial earlier than the first morning it was listed. The wife ought to be bound by the case she has constructed to this time, including omissions.
To my mind, refusing the wife’s application for an adjournment is consistent with the obligations imposed on this Court, as contained in the FCFCOA Act, and ensures that the management of this matter can occur, according to law, as efficiently and inexpensively as possible. If the matter was not to proceed today, a prejudice as identified earlier in these reasons exists that is greater than merely costs thrown away. Costs are not a sufficient remedy for disruption to the Court, these litigants and other litigants.
In the event the wife is aggrieved by the circumstances of her belated Application in a Proceeding accompanied by what is, in reality, only a broad summary of matters that she would seek to amend and to place, by way of further evidence, before the Court, it is a matter for her to pursue those grievances by way of avenues in another place.
For the reasons identified, the wife’s Application in a Proceeding filed 3 March 2023 is dismissed.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 6 March 2023
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