F Solicitors Pty Ltd and Spence (No. 2)

[2007] FamCA 1174

FAMILY COURT OF AUSTRALIA

F SOLICITORS PTY LTD & SPENCE     (NO. 2) [2007] FamCA 1174

FAMILY LAW – PRACTICE AND PROCEDURE – application by respondent to have applicant’s amended application dismissed – application dismissed

Family Law Act 1975 (Cth)

APPLICANT: F Solicitors Pty Ltd  

RESPONDENT: Ms Spence

FILE NUMBER: ADF 3013 of 1999

DATE DELIVERED: 4 September 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 4 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Holland

SOLICITOR FOR THE APPLICANT: F Solicitors Pty Ltd

COUNSEL FOR THE RESPONDENT: In person

Orders

1. That the respondent’s oral application to dismiss the amended application in a case be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym F Solicitors Pty Ltd and Spence is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 3013 of 1999

F SOLICITORS PTY LTD 

Applicant

And

MS SPENCE

Respondent

EX TEMPORE REASONS

1. This matter has proceeded today having been adjourned from 1 August 2007.  On that date Mr Holland, who appeared for the applicant, tendered an Amended Application in a Case.  It was alleged that Ms Spence had previously had notice of this amended application, indeed back as far as when it was prepared and signed in 2005.

2. As I noted in my reasons for judgment delivered on 1 August 2007, a lot of time was spent in trying to trace through what in fact happened at previous hearings about this and whether in fact Ms Spence did or did not have notice of this amended application.

3. At the end of the day I decided that the way forward would be to receive the amended application but to give Ms Spence time to consider it and to respond to it.  I asked her how long she needed and she told me she needed a month and I indicated I was prepared to allow that time.

4. I then made orders giving leave to the applicant to file the Amended Application in a Case on 1 August.  I ordered that the respondent, Ms Spence, file and serve a response and any affidavit in support by 4 pm on 3 September 2007 and I adjourned the matter for further consideration to a date to be fixed in the first two weeks of September.

5. It seems from the court file that what happened on 1 August is that that amended application, which was originally tendered, has remained with the court.  That is an application dated 16 August 2005, signed by Ms F as solicitor.  Ms Spence received a copy of that on 1 August 2007.

6. Unfortunately though, what has happened since has created confusion in Ms Spence’s mind as to what specific application is before the court and what application she needs to meet.  I am not sure that I have the sequence of events perfectly correct, but, looking at the court file at least, on 6 August 2007 an Amended Application in a Case seeking orders precisely in the same terms as the amended application handed up on 1 August 2007 was faxed to the Family Court.  It was unsigned and undated but whoever received that at the Family Court then stamped it as being filed on 1 August 2007. 

7. Presumably there was a covering letter or some such document from Ms F's office referring to the leave granted on 1 August 2007 and this being the application filed as a result of that order.  That would be a reasonable explanation of why an officer of this court has stamped it 1 August as opposed to precisely when it came in, namely, 6 August.

8. As far as the court file is concerned there has been no further document filed by Ms F. However, I have now been provided with a document which for some reason has not reached the court file but has the Family Court of Australia stamp on it.  It is a copy of the Amended Application in a Case, again in precisely the same terms and seeking the same orders.  It is signed by Ms F and dated 1 August 2007.  In any event it seems that Ms F filed this further amended application on 28 August 2007, and, by letter of 29 August 2007, she sent it to Ms Spence.

9. This was prompted by Ms Spence contacting the court, being confused as to what application was before the court, and Ms F, in an attempt, as I understand it, to clarify the position, then filing this document and sending it to Ms Spence so there could be no confusion about it.  Unfortunately, as I say, it seems to have created confusion rather than solved the confusion.

10. Ms Spence received a copy of the facsimiled Amended Application in a Case of 6 August 2007.  She complains, quite properly, that it is not signed.  She has now received that application of 28 August 2007 which is signed.  She also has had the application that was dated August 2005 that was signed.

11. Despite the confusion, Ms Spence has not brought any application to this court to adjourn the proceedings or to dismiss any of the applications currently before the court.  Ms Spence determined, on the face of it at least, to file her response as ordered on 1 August 2007 and to appear today to oppose the application.

12. Nothing was raised about this at the start of the case today and I have heard the submissions of Mr Holland in support of the application.  Ms Spence, upon being invited to provide her submissions to me, has spent an inordinate amount of time querying why there is an application on file which is not signed, why it is dated 6 August when it should be 1 August and why she has received three different applications.  As a result, she now makes an application to dismiss the Amended Application in a Case.

13. As far as I am concerned that is an entirely sterile debate.  I am perfectly satisfied that Ms Spence knows what orders are being sought.  To repeat, the same orders are in each of the documents that Ms Spence has received.  I am not going to let this matter be delayed any further because of a procedural issue relating to whether a document is signed, whether it is properly dated, whether the Family Court has put the right date on it or not.  All of those things, it seems to me are readily explained. 

14. I sympathise with Ms Spence if she has become confused with the applications but as far as I am concerned all Ms Spence needed to be concerned about is the orders that were being sought.  Ms Spence understands those orders and it has been clarified again today, indeed Mr Holland has indicated that his client no longer seeks all of the orders sought in the amended application.

I certify that the preceding 14 numbered paragraphs are a true copy of the reasons herein of the Honourable Justice Strickland.

Associate

4 September 2007