EADY & RADCLIFF
[2020] FCCA 436
•28 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EADY & RADCLIFF | [2020] FCCA 436 |
| Catchwords: FAMILY LAW – Section 79A application – inherent/implied jurisdiction of the Court – exercise of jurisdiction. |
| Legislation: Family Law Act 1975 (Cth), ss.79, 79A Federal Circuit Court of Australia Act 1999 (Cth) |
| Cases cited: Johnson & Johnson (1997) FLC 92-764 Re: F: Litigants in Person Guidelines [2001] FAMCA 348 Merribee Pastoral Industries Pty Limited & Anor v Australia and New Zealand Banking GroupLimited (1998) 193 CLR 502 |
| Applicant: | MR EADY |
| Respondent: | MS RADCLIFF |
| File Number: | SYC 7014 of 2016 |
| Judgment of: | Judge Kemp |
| Hearing date: | 18 February 2020 |
| Date of Last Submission: | 18 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Batey |
| Solicitors for the Applicant: | Commisso & Associates |
| Counsel for the Respondent: | Mr Coleman SC |
| Solicitors for the Respondent: | Kydon Segal Legal Lawyers |
THE COURT ORDERS THAT:
The husband’s application for leave to amend his Amended Response filed on 15 April 2019, in terms of the matters particularised in Exhibit “A” tendered on 18 February 2020, be granted.
The husband’s application for leave to amend his Amended Response filed on 15 April 2019, in terms of the matters particularised in Exhibit “B” tendered on 18 February 2020, be refused.
The matter be listed for further directions on 14 May 2020 at 9.30am.
THE COURT NOTES THAT:
On 18 February 2020 it reserved both parties’ costs in respect of that day and the leave questions identified in orders 1 and 2, above.
IT IS NOTED that publication of this judgment under the pseudonym Eady & Radcliff is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7014 of 2016
| MR EADY |
Applicant
And
| MS RADCLIFF |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings involve the wife’s Application in a Case filed on 25 May 2018 and her further Application in a Case filed on 8 May 2019, whereby she seeks to uphold the enforcement of property orders made, by consent of the parties, on 28 July 2017 (“the final property orders”) pertaining, inter alia, to the distribution of sale proceeds from the sale of real property at A street, Suburb B NSW (“the Suburb B property”) and to dismiss the husband’s Amended Response filed on 15 April 2019.
The husband’s said Amended Response sought an order, pursuant to s.79A of the Family Law Act 1975 (“the Act”), that order 11 of the final property orders be set aside and that further orders be made in respect of the distribution of the proceeds of sale of the Suburb B property together with other orders relating to property and superannuation and costs.
Order 11 of the final property orders was to the following effect:
11. The sales proceeds from the sale of the Suburb B property to be distributed as follows:
11.1 In payment of any outstanding Council rates, insurances, taxes, levies and adjustments on settlement;
11.2 In payment of the amount required to discharge any mortgage over the Suburb B property;
11.3 In payment of the sale agent's fees and commission, including advertising expenses relating to the sale of the Suburb B property;
11.4 In payment of the legal fees relating to the sale of the Suburb B property;
11.5 In reimbursement to the husband or the wife of any agreed upon (in writing) costs incurred in preparing the Suburb B property for sale.
11.6 In reimbursement to the husband or the wife of any upfront marketing fees incurred in relation to the sale of the Suburb B property;
11.7 In payment of the balance as:
11.7.1 50% to the Wife; and
11.7.2 50% to the Husband;
11.8 And within 28 days thereafter, the parties do all acts and things and sign all documents to deregister from ASIC, the company C Pty Ltd.
On 15 November 2019, at a call over, this matter was listed for a one (1) day hearing on 18 February 2020 of the husband’s said s.79A application, as referred to in paragraph 2, above. Various directions were made in relation to the filing of affidavit material and the provision of case outline documents.
On 18 February 2020, the hearing commenced with Mr Batey of Counsel representing the applicant husband and Mr Coleman of Senior Counsel representing the respondent wife.
Mr Coleman SC sought clarification of the grounds upon which the husband maintained his s.79A application. Mr Batey conceded that his client’s reliance on s.79A(1)(a), which required the Court to be satisfied that there had been a miscarriage of justice by reason of “any other circumstance”, needed some further particularisation. Mr Batey also advanced a further ground being as based on the Court’s inherent jurisdiction to discharge its own orders where there had been a lack of jurisdiction to make such orders. The Court directed that Mr Batey, that day, prepare a document further particularising both of his client’s claims, as articulated by him.
The Court then received Exhibit “A” in terms of the particulars of “any other circumstance” under s.79A(1)(a) of the Act. That exhibit recorded the basis of “any other circumstance”, as being:
a)There was incomplete financial disclosure by the wife, thereby creating a void of financial information, which resulted in the Court making orders that were not just and equitable.
b)That the parties entered into consent orders in the belief that what had been agreed to was an equal distribution of the net assets of the Suburb B property after the repayment of mortgages and loans raised to purchase that property.
c)When the merits of the husband’s claim assume a significance that is far outside the ambit of what is just and equitable – namely that the orders resulted in a difference of $800,000.00 in favour of the wife when the orders on their face provided for an equal division.
The Court received as Exhibit “B” the particulars of the claim under the Court’s asserted inherent jurisdiction to discharge its own orders. That exhibit recorded the basis of this jurisdiction, as being:
a)The parties were self-represented litigants and the Court did not follow the guidelines for self-represented litigants as required in Johnson & Johnson (1997) FLC 92-764 and later clarified Re: F: Litigants in Person Guidelines [2001] FAMCA 348 in seeking clarification of the particulars of the orders or the basis for such orders.
b)That the Court was unable to exercise its discretion due to the paucity of relevant or any financial information as to the s.79(4) factors and was, therefore, unable to discern that the orders would be just and equitable as between the parties.
Mr Coleman SC agreed that he had no difficulty in meeting the particulars of the claim proposed to be amended and particularised, as set out in Exhibit “A”.
Given Mr Coleman SC’s concession, in terms of Exhibit “A”, the Court will deal in these reasons only with the proposed amendment based on Exhibit “B”. The Court will make an order providing for leave to the husband to so amend his Amended Response in accordance with Exhibit “A”.
Mr Coleman SC, however, submitted that he did have difficulties in meeting the particulars of the claim proposed to be amended and particularised, as set out in Exhibit “B”. Mr Coleman SC raised 2 matters, in that regard. The first was that the Court lacked jurisdiction to make orders in terms of an inherent jurisdiction arguing, primarily, that the Court lacked any inherent jurisdiction and secondarily that, if the Court did have such jurisdiction, it should not be exercised as the matters particularised in Exhibit “B” far exceeded the compass of any jurisdiction, in that regard. Further, Mr Coleman SC submitted that the Court should decline the husband’s proposed amendment, as particularised in Exhibit “B”, as that would expose his client to not simply a technical pleading point but to a real prejudice which would require a forensic evidentiary inquiry including the potential issuance of subpoenas to obtain the production of the husband’s solicitors file, noting that it would appear that the husband’s solicitors had drafted a form of minute which formed the basis of the final property orders and that this proposed amendment raised an entirely different case than that which was postulated within the provisions of s.79A, as now particularised in Exhibit “A”. Mr Coleman SC submitted, in that regard, that the husband in seeking his proposed amendment had, in effect, waived his legal professional privilege. Mr Batey did not submit to the contrary in relation to that aspect. However, Mr Batey submitted that the Court did have jurisdiction and should exercise it to allow for an amendment to be made.
The Court then received the parties’ oral submissions in respect of the jurisdictional argument raised in terms of Exhibit “B”.
The Court was taken to a number of authorities (referred to below) and to an article by Ms Wendy Lacey entitled “Inherent Jurisdiction, Judicial Power and Implied Guarantees under Chapter III of the Constitution” [2003] Fed Law Review 2 (“the article”), the production of which occurred late in the day. Both parties asked the Court to consider that article in full, noting that each had referred to parts of it and each had made the submission that the part referred to by the other party had to be read in terms of the context of the article in its entirety so as to consider whether to adopt or discount the part so relied upon.
In respect of the article, Mr Coleman SC submitted the following:
a)Under the heading (at page 6 of 33) “The Meaning, Nature and Scope of Inherent Jurisdiction”, there is a discussion referencing the extra-curial writings of H Jacob, K Mason and the former Chief Justice of the Supreme Court of Queensland, His Excellency Mr Paul de Jersey (writing when he was the Chief Justice), with a quotation from H Jacob as follows:
…the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very life-blood, its very essence, its imminent attribute. Without such a power, the court would have form but would lack substance. The jurisdiction, which is inherent in a superior court of law, is that which enables it to fulfil itself as a court of law. The juridical basis of this jurisdiction is, therefore, the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner.
b)Having considered the above, the inherent power of courts created by statute, such as the Family Court of Australia, is a power with respect to procedures. It is about governing the integrity of procedures. It is not a like the common law courts of Westminster. See Merribee Pastoral Industries Pty Limited & Anor v Australia and New Zealand Banking GroupLimited (1998) 193 CLR 502 (Kirby J). It is not an unconstrained power and it is limited to the ability by way of “ancillary or incidental powers”, which are suggested to be procedural in nature.
c)In terms of the nature of the procedure, as referred to in the article, Abernathy in “The Status of the District Court” [1990] New Zealand Law Journal 360 described the inherent jurisdiction as:
... the power to decide the manner in which the court will adjudicate upon a subject matter, adjudicate between parties, decide upon relief or decide upon any combination of these factors.
d)It has been widely accepted in the authorities that the High Court of Australia, the Federal Court of Australia and the Family Court of Australia, all of which are superior courts of record, possess limited jurisdiction granted by either the Constitution or statute. As Lacey states in the article:
The general jurisdiction of each federal court, unlike the state Supreme Courts … is not defined by reference to the jurisdiction of the common law courts of Westminster. Accordingly, problems arise when attempting to apply the notion of “inherent jurisdiction” to Australia’s federal courts.
e)In Jackson & Sterling Industries Limited (1986-87) 162 CLR 612, the High Court of Australia (Wilson and Dawson JJ) stated:
In this respect, federal courts differ from the supreme courts of the States which, although of statutory origin, are truly designated superior courts because they are invested with general jurisdiction by reference to the jurisdiction of the courts at Westminster.
f)Further, their Honours in their joint judgment, stated as follows:
Ordinarily, a superior court of record is a court of general jurisdiction, which means that, even if there are limits to its jurisdiction, it will be presumed to have acted within it. That is a presumption which is denied to inferior courts and is denied to a federal court such as the Federal Court.
g)In that same case, Deane J agreed with the following comments of Bowen CJ in his judgment in that matter below, as follows:
In relation to a statutory court such as the Federal Court it is wise to avoid the use of the words “inherent jurisdiction”. Nevertheless a statutory court which is expressly given certain jurisdiction and powers must exercise that jurisdiction and those powers. In doing so it must be taken to be given by implication whatever jurisdiction or powers may be necessary for the exercise of those expressly conferred. The implied power for example to prevent abuse of its process, is similar to, if not identical with, inherent power.
h)Accordingly, the distinction between supreme courts of the States and perhaps the Territories and courts such as federal courts created by statute, including the Federal Circuit Court of Australia, becomes relevant.
i)The decision of Taylor v Taylor (1979) 143 CLR 1 points to the distinction between superior courts of record and the Federal Circuit Court of Australia. Taylor involved what in substance was a denial of natural justice. The inherent power of a court to protect its processes is the power to set aside orders made by default or in breach of the requirements of natural justice. The final property orders made in this matter were not made by default. The parties appeared and the final property orders were made by consent of the parties.
j)In DJL & The Central Authority (2000) 201 CLR 226, in their joint judgment, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ recorded that:
The Family Court is thus not a common law court, as were the three common law courts at Westminster. Accordingly, it is “unable to draw upon the well of undefined powers” which were available to those courts as part of their “inherent jurisdiction”. The Family Court is a statutory court, being a federal court created by the Parliament within the meaning of s.71 of the Constitution. A court exercising jurisdiction or powers conferred by statute “has powers expressly or by implication conferred by the legislation which governs it”, and “[t]his is a matter of statutory construction”; it also has “in addition such powers as are incidental and necessary to the exercise of the use the term “inherent jurisdiction” here and the term should be avoided as an identification of the incidental and necessary power of a statutory court.
k)Section 21(2) of the Act records that:
The Family Court of Australia is a superior court of record.
l)Section 8 of the Federal Circuit Court of Australia Act 1999 (Cth) states:
The Federal Circuit Court of Australia is a court of record and is a court of law and equity.
m)As such, the Federal Circuit Court of Australia does not have inherent or implied jurisdictional power.
n)That if the Federal Circuit Court of Australia does have such jurisdiction, as referred to in (m) above, then the scope of its power does not extend to the kind of relief which was sought to be enlivened by Exhibit “B”. This was, particularly so, because the drafting of Exhibit “B” sought to raise a head of power beyond that in s.79A(1) where there needed to be established a miscarriage of justice and a causal connection between the circumstances and the alleged miscarriage of justice and where no causal connection was arguably established. This being a matter of substance and not procedure and beyond the Court’s jurisdiction.
o)Further, the Court’s power to discharge/vary orders pursuant to s.79A was very limited. In terms of the decision of the High Court of Australia in Mullane v Mullane (1983) 158 CLR 436, it was said that the Act reveals:
… the intention of the Parliament that if the court, in proceedings with respect to the property of the parties to the marriage or either of them, makes an order “altering the interests of the parties in the property”, and the making of that order has not been attended by any circumstance amounting to a miscarriage of justice, then such order is not open to any review or variation.
Accordingly, the husband was, in effect, seeking in terms of Exhibit “B”, to attempt to avail himself of “a backdoor method of seeking a form of relief” not expressly available, within the parameters of s.79A of the Act.
p)That if this Court found that it did have jurisdiction, such jurisdiction should not be exercised, in any event, in light of the well-known principles referred to in the High Court of Australia’s decision in Aon Risk Services Pty Limited v Australian National University (2009) 239 CLR 175, referred to further below.
In respect of the article, Mr Batey submitted:
a)Under the heading “Conclusion”, this Court would be relieved to see that the author does not necessarily tie the many ribbons of the article into a conclusion that the Court does not have inherent power. In fact, the opposite is the case. Adopting Mr Coleman SC’s submission that the inherent power relates to procedures, the procedure in question here was that adopted by the Court in its pathway in making the final property orders.
At the conclusion of the parties’ submissions on the jurisdictional question, it became apparent that this matter could not then conclude in the remaining allocated time on 18 February 2020, as Mr Batey indicated that, even if leave was refused in terms of Exhibit “B”, there would be some cross-examination of the wife in reference to the matters set out in paragraph (c) of Exhibit “A”, as referred to in paragraph 7, above.
In those circumstances, and noting that each party wanted to consider his/her position following the Court’s determination on the leave to amend question, the Court reserved its decision and reserved each party’s costs in respect of that argument.
The parties also invited the Court to provide its decision and a directions date so that they could, further, consider the same, prior to the allocation of a further one (1) day event to conclude the hearing of the matter.
The Court has had specific regard to the decision of the High Court of Australia in Aon Risk Services Pty Limited v Australian National University (2009) 239 CLR 175, as referred to above, wherein the High Court of Australia allowed Aon’s appeal holding that to allow ANU to amend its pleadings would have had too great a prejudicial effect on Aon after considering a number of matters including the substantive nature of the amendments sought, the fact that a trial date had already been set and no explanation had been offered for the late amendment. Further, it was considered that costs were an inadequate remedy. The High Court of Australia made a number of general statements of principle concerning applications for leave to amend which included the requirement for an explanation as to any delay, noting that a party has an opportunity and not a right to change pleadings and taking into account the effect on other litigants and the public of the potential loss of hearing dates which may arise as a result of a successful application for leave to amend. Accordingly, the High Court of Australia considered that courts should not approach such applications on the basis that a party is simply entitled to raise an arguable claim provided that there is a payment of costs to the other party by way of compensation.
When asked for an explanation as to delay in proposing this late amendment, Mr Batey was not able to offer any explanation save for his recent briefing in the matter. That position weighs against leave being given. Mr Batey, in this regard, submitted, further, that:
a)In Aon the majority (Gummow, Hayne, Crennan, Kiefel and Bell JJ) quoted (at paragraph 73) a statement from a very early decision by Bowen LJ in Cropper v Smith (1884) 26 Ch D 700 to the following effect :
Now, I think it is a well-established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights.
b)The thrust of the above case was to suggest that, where there were important matters that required adjudication, then the rules should not stand in the way of that adjudication, particularly where that was at the “nub of the case”.
c)The High Court of Australia went on to state (at paragraph 74) the following:
Much of what Bowen LJ said to this point was relevant to the discretionary aspect of the Rule under which the application was brought. As earlier explained, that Rule also required consideration of whether amendment was necessary to determine the “real questions in controversy between the parties”. Bowen LJ went on:
“It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.”
d)As such, the real question of controversy in this matter was the circumstances surrounding the making of the final property orders and the inherent jurisdiction argument would “get to that issue”.
e)If the Court was not to allow the amendment, then a significant issue in dispute would not be fully ventilated before the Court and, therefore, the Court should grant leave to make the amendment sought. That submission, however, is based on the assumption that the significant issue is one that should be determined by the Court. For the reasons referred to herein, the Court is of the view that it is not.
When responding to the question of prejudice to the wife, Mr Batey suggested that there was no real prejudice as the wife’s legal team knew “all along” that what the husband was seeking was to set aside the final property orders based on “any other circumstance” and that such “any other circumstance” was applicable to both the claims raised under s.79A(1)(a) (Exhibit “A”) and the inherent jurisdiction argument (Exhibit “B”). The same argument and the same factors would come to bear and that Mr Coleman SC could, he thought, have been able to deal with that “on his feet”. Mr Batey, however, accepted that that was not “evidently” the case, as referred to below.
In response, Mr Coleman SC submitted as follows:
a)When Mr Batey submitted that there was no prejudice that was an understatement of considerable magnitude because, unlike the other prayers in Exhibit “A”, the relief prayed for in Exhibit “B” clearly raised the question of the waiver of legal professional privilege (as referred to in paragraph 11, above), the necessity to secure the file of the husband’s former solicitors and involved very different issues, noting that nowhere in the 2 grounds set out in Exhibit “B” was there any reference to a miscarriage of justice. Exhibit “B” being no more and no less than an attempt, under the guise of an implied or inherent power, to circumvent the need to establish a miscarriage of justice and the causal connection required under s.79A of the Act.
The Court notes that, if it had been able to dispose of the jurisdictional argument more quickly than the timing of the parties’ legal submissions allowed it to do, then the matter could, potentially, have proceeded for determination on 18 February 2020. However, by the time the parties’ legal submissions concluded, there was no reasonable likelihood of the case concluding that day, noting Mr Batey’s view that some cross-examination of the wife would be required. In those circumstances, if the Court was against Mr Batey there would be an argument for costs. If the Court was in favour of Mr Batey an adjournment would, potentially, allow for the wife to carry out the forensic exercise contemplated by Mr Coleman SC. The Court, in considering its resources, is of the view that if the amendment was refused it was more likely than not to be able to offer the parties a quicker hearing date than if the amendment was allowed. That is a matter which the Court has had regard to in terms of its case management considerations, within the Aon principles and weighs against leave being given.
Returning to the legal argument before it, Mr Coleman SC submitted that the Federal Circuit Court of Australia, as an inferior Court of record, does not have an inherent or implied jurisdiction. Mr Coleman SC was of the view that, similarly, the Family Court of Australia, albeit a superior court of record, also lacked that inherent or implied jurisdiction given that it was a creature of statute. Mr Coleman SC submitted, however, that if the Court did find that it had a “so called” inherent or implied jurisdiction it was, substantially, related to ensuring that its orders could be implemented as a procedural matter and that the claim sought to be particularised in Exhibit “B” went well beyond the exercise of that more limited jurisdiction. In that regard, the Court accepts that it does have jurisdiction (whether it be called inherent or implied) but is of the view that such jurisdiction should not be exercised here given that it accepts that the matters raised in Exhibit “B” go well beyond the exercise of that more limited type of jurisdiction as submitted by Mr Coleman SC. That view weighs against leave being given.
The Court accepts that it has a jurisdiction sufficient to ensure that its own orders and procedures are managed and are not the subject of abuse and that all hearings before it are conducted in accordance with the principles of natural justice. See Cameron v Cole (1944) 68 CLR 571. Whether that power is described as implied or inherent it follows from the Court’s position in Australia’s judicial hierarchy, established as it is as a Chapter III Court under the Australian Constitution. As discussed above, the Federal Circuit Court of Australia is a court of record and a court of law and equity but unlike the Federal Court of Australia and the Family Court of Australia is not, expressly, said to be a superior court of record.
Accordingly, the Court accepts that its “implied/inherent” power to make orders necessarily incidental to its express powers may not be as broad as that of the Federal Court of Australia or the Family Court of Australia because those Courts are expressed by statute to be superior courts. Nevertheless, this Court notes that it and the Family Court of Australia have concurrent jurisdiction in many areas and, in particular, under s.79A of the Act. Further, the exercise of any implied or inherent power of a federal statutory court is, always, subject to relevant statutory provisions.
By way of further distinction, the judgments and orders of a superior court may be considered, even in excess of jurisdiction, to be voidable and valid unless and until set aside. The High Court in Re Macks: Ex Parte Saint (2000) 204 CLR 158, unanimously, rejected a proposition that orders made in the exercise of jurisdiction conferred by a statute which was found to be invalid for constitutional reasons were nullities and could not be saved by the doctrine that orders of superior courts made in excess of jurisdiction were merely voidable. That proposition would appear to apply to any orders made by a court including this Court. However, in the case of a superior court, there may be a distinction between irregularities which would be so fundamental as to create an unconditional right to have a judgment set aside and non-fundamental irregularities as to which a superior court would have the discretion not to so set aside. The Court notes that both it and the Family Court of Australia would possess an inherent/implied jurisdiction to set aside a judgment by default notwithstanding that both courts are statutory courts and no statute has displaced that jurisdiction.
Further, an examination of the particulars, set out in Exhibit “B”, appear to focus on matters which Mr Batey said went to a miscarriage of justice but also appeared to go to the Court’s own responsibility in terms of it following guidelines, seeking clarification of the particulars of orders and being able to exercise its discretion based on the information before it so as to discern whether the final property orders were just and equitable as between the parties. Those matters appear, substantially, “dressed up” as matters going to the Court’s exercise of its jurisdiction to discharge orders. The Court is, however, of the view that the matters raised in Exhibit “B” fall well beyond the protection of the Court’s procedures and relate to an assessment by the judicial officer involved in the making of the final property orders as to whether that judicial officer had, himself, been involved in a miscarriage of justice. That is something which appears, save for a reference to “any other circumstance” in s.79A(1), as being outside the matters set in out in that section empowering the Court to set aside its own orders and has the flavour, as Mr Coleman SC submitted, of being “an appeal from Caesar to Caesar”. The Court, in this regard, has considered the transcript of its exchange with both parties on 28 July 2017 at the time of the making of the final property orders. The contents of that transcript are incorporated as if fully set out herein.
Generally, the Court accepts it has no jurisdiction once its orders have been made and entered, it becoming “functus officio”. Section 79A of the Act is a statutory exception to this principle. The Court, further, accepts that outside s.79A of the Act, the Court would have very limited jurisdiction to set aside its own orders. The Court accepts that where it had been led to purport to determine a matter in which there had been a failure to observe the principles of natural justice then that may be one example of this limited jurisdiction. Mr Batey made no such submission as to the parties’ own behaviour or conduct, instead focusing on the Court’s own exercise of its judicial function in terms of the substantive nature of the claim now sought to be progressed. Given that position, the Court is of the view that that also weighs against leave being given.
It must also be remembered that orders, once made, are prima facie correct. A party with the benefit of those orders is entitled to rely on that correctness. On an application for a stay pending appeal, the Court is obligated to consider when exercising its discretion, the likelihood of any appeal grounds being successful. That is, however, a completely different exercise of judicial discretion than that which Mr Batey submits the Court should now have regard to in terms of Exhibit “B”.
The Court accepts the submissions of Mr Coleman SC that what it is being asked to do here is tantamount to considering an appeal as against the judicial officer who made the final property orders. It raises issues of evidence in terms of that which was inquired of the self-represented litigants, both in terms of the transcript as to what passed on the day when the final property orders were made and of the other evidentiary material before that judicial officer so as to enable a satisfaction as to the justice and equity of the final property orders made. All of those matters are matters which properly should have been raised in an appellate forum rather than before the judicial officer concerned.
In those circumstances, the Court is of the view that it will not exercise any jurisdiction to hear an argument for the discharge of the final property orders in terms of the particulars, as set out in Exhibit “B”, and to that extent no amendment should be allowed to raise that claim as so particularised.
The Court will provide a further directions date as sought by the parties.
The Court will note that on 18 February 2020 it reserved both parties’ costs of the day and of the leave questions so identified.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Associate:
Date: 28 February 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Costs
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