Forster & Forster
[2014] FamCAFC 88
FAMILY COURT OF AUSTRALIA
| FORSTER & FORSTER | [2014] FamCAFC 88 |
| |
| Family Law Act 1975 (Cth) Federal Proceedings Costs Act 1981 (Cth) Real Property Act 1886 (SA) |
Allesch v Maunz [2000] 203 CLR 172
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
DJL v Central Authority [2000] 201 CLR 226
Taylor v Taylor (1979) 143 CLR 1
| APPELLANT: | Mr Forster |
| RESPONDENT: | Ms Forster |
| FILE NUMBER: | ADC | 3359 | of | 2007 |
| APPEAL NUMBERS: | SOA SOA | 91 6 | of of | 2012 2013 2013 2013 2013 |
| DATE DELIVERED: | 15 May 2014 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Bryant CJ, Finn & Thackray JJ |
HEARING DATE: | 10 October 2013 |
| DATE OF LAST FURTHER SUBMISSION: | 11 November 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 November 2012, 23 January 2013, |
| LOWER COURT MNC: | [2012] FamCA 1028, [2013] FamCA 50, [2013] FamCA 47, [2013] FamCA 259 & [2013] FamCA 522 |
REPRESENTATION
| APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms West |
| SOLICITOR FOR THE RESPONDENT: | Catherine Hicks & Co |
Orders
SOA 91 of 2012
The application for leave to appeal Orders 1 to 6 of the orders made on
30 November 2012 by the Honourable Justice Dawe be dismissed.
The appeal against Order 7 of the orders made on 30 November 2012 by the Honourable Justice Dawe be dismissed.
There be no order for costs in relation to this application for leave to appeal and appeal.
SOA 6 of 2013
The application for leave to appeal Orders 1, 3 and 5 of the orders made on
23 January 2013 by the Honourable Justice Cronin be dismissed.
There be no order for costs in relation to this application for leave to appeal.
SOA 9 of 2013
The appeal against Order 3 of the orders made on 31 January 2013 by the Honourable Justice Strickland be dismissed.
The application for leave to appeal Orders 1, 2 and 4 of the orders made on
31 January 2013 by the Honourable Justice Strickland be dismissed.
There be no order for costs in relation to this application for leave to appeal and appeal.
SOA 24 of 2013
The application for leave to appeal Orders 2 and 4(a), 4(b), 4(c), 12 and 13 of the orders made on 28 March 2013 by the Honourable Justice Cronin be dismissed.
There be no order for costs in relation to this application for leave to appeal.
SOA 42 of 2013
The appeal against the orders made on 2 July 2013 by the Honourable Justice Cronin be allowed.
The orders made on 2 July 2013 by the Honourable Justice Cronin be set aside.
The application for property settlement be remitted for rehearing by a judge other than the Honourable Justice Cronin on an expedited basis.
There be no order for costs in relation to this appeal.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 in respect of the costs incurred by the appellant in relation to this appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 in respect of the costs incurred by the respondent in relation to this appeal.
The Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Forster & Forster has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Numbers: SOA 91 of 2012; SOA 6 of 2013; SOA 9 of 2013; SOA 24 of 2013; SOA 42 of 2013
File Number: ADC 3359 of 2007
| Mr Forster |
Appellant
And
| Ms Forster |
Respondent
REASONS FOR JUDGMENT
Introduction and background
These reasons for judgment are concerned with four applications for leave to appeal (SOA 91 of 2012; SOA 6 of 2013; SOA 9 of 2013; SOA 24 of 2013) and one appeal (SOA 42 of 2013) by Mr Forster (“the appellant”). It will be convenient to explain the orders to which these applications and the appeal are addressed after providing some history of the litigation between the appellant and Ms Forster (“the respondent”), who is the respondent to, and who opposes, the applications and the appeal.
Following their separation in May 2007, the respondent commenced proceedings in the Federal Magistrates Court (as it then was) in June 2007 against the appellant for parenting and property settlement orders under the Family Law Act 1975 (Cth) (“the Act”).
On 19 December 2008 Federal Magistrate Lindsay (as his Honour then was) ordered that a litigation guardian be appointed to represent the appellant’s interests in the parenting and property proceedings. The Public Trustee of South Australia was appointed to the role on 16 March 2009.
After a trial extending over some days in 2009-2010, Lindsay FM made property settlement orders on 23 April 2010 which required the appellant to pay the respondent $349,600 and the respondent to transfer her interest in the former matrimonial home to the appellant. The parenting dispute had earlier been settled by consent orders made on 16 March 2009.
On or about 17 June 2010 the litigation guardian instituted proceedings under
s 79A of the Act for variation of the Federal Magistrate’s property settlement orders. These proceedings were settled by consent on 1 October 2010 with the amount payable to the respondent being reduced by $20,000.
On 6 December 2011 Lindsay FM ordered that the appellant pay the costs of the respondent.
On 16 February 2012 the Full Court of this Court heard an appeal by the appellant (which he had been given leave to bring out of time) against the Federal Magistrate’s order of 19 December 2008 appointing the litigation guardian, and on 23 March 2012 the Full Court allowed that appeal and set aside the order providing for the appointment of the litigation guardian. It should be noted that the Full Court did not set aside any of the orders made while the litigation guardian had the carriage of the proceedings on behalf of the appellant.
On 30 November 2012 (by which time the proceedings had been transferred to the Family Court) Dawe J made orders on an application by the respondent (made during the hearing of divorce proceedings on 14 November 2012) for the sale of the former matrimonial home with the proceeds of the sale to be held in trust pending further determination by the Court. The appellant was also ordered to pay the respondent’s costs in relation to the divorce proceedings which Dawe J had heard (on 14 November 2012). The appellant’s oral application for a stay of her Honour’s orders was refused on the day on which the orders were made.
On 17 December 2012 the appellant filed a Notice of Appeal against Dawe J’s orders of 30 November 2012. He then filed an amended Notice of Appeal on
27 December 2012, in which he sought leave to appeal the orders of 30 November 2012, a further amended Notice of Appeal (also seeking leave to appeal) on 27 February 2013, and then a “1st” further amended Notice of Appeal on 9 May 2013 (also seeking leave to appeal). This is the first of the four applications for leave to appeal which are before us for determination (SOA 91 of 2012), although there is no need for leave to be granted in relation to the appeal against the costs orders in relation to the divorce proceedings.
Following the making of the order on 30 November 2012 for the sale of the home, a contract of sale was executed. When the appellant did not produce the certificate of title for the property, Cronin J made orders on 23 January 2013 on an application by the respondent (filed 18 January 2013) directing that the Registrar-General of the South Australian Lands Title Office issue a new certificate of title.
On 28 January 2013 the appellant filed a Notice of Appeal seeking leave to appeal Cronin J’s order of 23 January 2013 for the issuing of a new certificate of title and certain other orders made by his Honour that day. An amended Notice of Appeal (also seeking leave) was filed on 2 April 2013. This is the second of the four applications for leave to appeal before us for determination (SOA 6 of 2013).
Meanwhile on 28 August 2012 Strickland J exercising the appellate jurisdiction of the Family Court (under s 94AAA of the Act) in relation to appeals from the Federal Magistrates Court had heard:
·an application by the appellant filed 27 July 2010 seeking extensions of time to file appeals against the parenting orders made on 16 March 2009 and the property settlement orders made on 23 April 2010;
·an appeal by the appellant filed 14 July 2010 against orders made by Lindsay FM on 22 June 2010 refusing a stay of the property settlement orders made on 23 April 2010 and by way of enforcement;
·an application by the appellant filed 10 August 2010 seeking an extension of time to file a draft appeal index in relation to the appeal filed on 14 July 2010 against the orders of 22 June 2010;
·an appeal by the appellant filed on 13 August 2012 against the costs orders made by Lindsay FM on 6 December 2011.
In reasons for judgment delivered on 19 December 2012 Strickland J identified a number of issues which arose in relation to the appeals and applications which he had heard on 28 August 2012. Included in those issues, and relevant for present purposes, was the issue as to whether following the decision of the Full Court to set aside the appointment of the litigation guardian, the parenting, property settlement, and costs orders made by the Federal Magistrates Court were “void” or “voidable”.
For the reasons which he gave at [14] to [26] of his reasons delivered on
19 December 2012, Strickland J determined that those orders were “voidable” rather than “void” and a declaration was then made to that effect (in orders amended pursuant to the slip rule on 31 January 2013).
His Honour then noted (at [27] of his reasons of 19 December 2012) that there was no application before him to set aside any of the “voidable” orders, and having explained why he could not at that time further determine the appeals or applications which were before him, he adjourned those matters to
15 January 2013. His Honour was, however, prepared for the reasons which he gave (at [31]) to dismiss the appellant’s application to extend time to appeal against the parenting orders made on 16 March 2009.
At an early stage during the adjourned hearing on 15 January 2013, his Honour dealt with an application which the appellant had filed on 11 January 2013 seeking that his Honour disqualify himself. For reasons which his Honour gave ex-tempore on that day, he dismissed the disqualification application (see [8] to [18] of those reasons). His Honour also refused to stay the order dismissing the disqualification application pending an appeal, and he ordered that the appellant pay the respondent’s costs of that application.
For the remainder of the hearing on 15 January 2013, his Honour discussed with the parties the courses open to them both at first instance and on appeal for the setting aside of the “voidable” orders. Those courses were then explained by his Honour in his ex-tempore reasons ([30] to [54]) given that day. At the conclusion of the hearing on 15 January 2013, the applications and appeals which remained to be determined by his Honour were further adjourned to 31 January 2013.
At the further adjourned hearing on 31 January 2013, Strickland J (sitting as a judge at first instance as he made clear in [17] of his ex-tempore reasons for judgment delivered that day) set aside on the application of the respondent (filed 17 January 2013) the relevant paragraphs of:
·the orders for property settlement made on 23 April 2010;
·the orders made under s 79A of the Act on 1 October 2010 varying the amount that the respondent was to receive under the property settlement orders of 23 April 2010; and
·the costs order in favour of the respondent made on 6 December 2011.
His Honour’s orders of 31 January 2013 also contained directions that the respondent’s application (filed on 17 January 2013) in which she sought new orders for property settlement and costs be listed for trial before another judge of the Family Court.
On 25 February 2013 the appellant filed an application in the High Court for special leave to appeal all orders made by Strickland J on 31 January 2013 as well as the declaration concerning the “voidable” orders made on 19 December 2012.
On 26 February 2013 the appellant filed a Notice of Appeal to this Full Court also against all the orders made by Strickland J on 31 January 2013. On
6 August 2013 the appellant filed an amended Notice of Appeal in which he sought leave to appeal the orders of 31 January 2013. This is the third of the four applications for leave to appeal which are before us for determination (SOA 9 of 2013), although we are of the view that leave would not be required to appeal Strickland J’s order which set aside the “voidable” orders (Order 3 of the orders of 31 January 2013).
On 8 March 2013 the appellant filed an amended application for special leave in the High Court. The only order which appears to be the subject of this amended application is Order 3 of the orders made on 31 January 2013 (which is the order setting aside the “voidable” orders). Whether that amended application was in substitution for the application filed on 25 February 2013 is not clear to us.
On 28 March 2013 Cronin J conducted a procedural hearing (by video link between Melbourne and Adelaide) and made orders and directions for the rehearing of the property settlement proceedings by himself “as the first case in the list in Adelaide commencing on 1 July 2013”. His Honour subsequently published reasons for the orders and directions which he had made on
28 March 2013.
On 22 April 2013 the appellant filed a Notice of Appeal in which he sought leave to appeal certain of the procedural orders made on 28 March 2013 (being orders essentially relating to the filing of affidavit material). This is the fourth application for leave to appeal which is to be determined by us
(SOA 24 of 2013). We note that the appellant did not seek to appeal the order listing the property settlement proceedings for rehearing.
On 21 June 2013 the High Court dismissed the appellant’s applications for special leave. It appears from the reasons of Hayne and Crennan JJ that their Honours considered that the applications for special leave were directed to all of the orders made on 31 January 2013 and to the order of 15 January 2013 whereby Strickland J refused to disqualify himself. Their Honours concluded their reasons by saying:
12. None of the orders which the [appellant] seeks to challenge in this Court finally disposes of the property issues that remain pending between the [appellant] and [respondent]. No question of disputed general principle would fall for consideration if special leave to appeal were to be granted.
13. It is not in the interests of justice, whether generally or in the circumstances of this case, that there be a grant of special leave to appeal.
On 1 July 2013 a lawyer appeared for the appellant before Cronin J and applied for an adjournment of the trial listed that day. The adjournment was refused and the lawyer withdrew. The appellant himself then applied for an adjournment which was also refused. The appellant then effectively withdrew from the proceedings and the matter proceeded on an undefended basis.
On 2 July 2013 Cronin J delivered reasons for judgment and made orders which are the subject of appeal (SOA 42 of 2013) which is also now before us for determination. The Notice of Appeal for this appeal was originally filed on 3 July 2013 with an amended Notice of Appeal being filed on 13 September 2013.
We will now deal with each of the applications for leave to appeal or the appeals which are before us in the order in which they were filed.
The application for leave to appeal the orders of
30 November 2012 for the sale of the home and for costs of the divorce proceedings (SOA 91 of 2012)
The orders which were made on 30 November 2012 by Dawe J, which the appellant seeks to appeal, are in their final form (having been amended pursuant to the slip rule on 24 January 2013) as follows:
(1)The property known as [P] Street, [Adelaide Suburb N] in the State of South Australia (Certificate of Title … ) be sold for such price and upon such conditions and by such mode of sale whether private treaty, auction or otherwise as the [respondent] shall determine in consultation with Mr [B] of [C] Real Estate Agents PROVIDED THAT the [respondent] be restrained from entering into any contract to sell the property for a sale price less than FOUR HUNDRED THOUSAND DOLLARS [$400,000.00] unless and until she has given the [appellant] seven [7] days written notice of her intention so to do and provided to the [appellant] at the time of such notice full particulars of the sale price and terms and conditions of sale.
(2)The [appellant] have liberty to apply in respect of any orders relating to the sale of the property upon such notice referred to in the preceding paragraph being given by the [respondent].
(3)The net proceeds of sale of the said property shall be held in an interest bearing deposit account in the [respondent’s] name pending further determination by this Honourable Court.
(4)The [respondent] is restrained and an injunction is granted restraining the [respondent] from dealing with the net proceeds of sale without an order of this Honourable Court.
(5)A Registrar of this Court is authorised to execute on behalf of the [appellant] any document necessary to effect the sale of the property pursuant to these orders.
(6)If the [appellant] proposes to file any proceedings to set aside or discharge the Orders of the Court by way of property settlement (being the Orders of 23 April 2010 varied by the Orders of
1 October 2010) he do so by filing and serving the same before
28 February 2013.(7)Within twenty-eight [28] days from today the [appellant] pay the [respondent’s] costs of and incidental to the divorce proceedings fixed in the sum of FOUR THOUSAND DOLLARS [$4,000.00]
(8)The oral applications of the [appellant] for stays of the above orders are refused.
We do not consider it necessary to set out in full the eight grounds of appeal (being Grounds 1 to 8) which according to the appellant’s written summary of argument he wished to pursue against the order for the sale of the home. It is sufficient to say that the essential complaints which can be drawn from those grounds when considered as a whole, are that it was procedurally unfair and “an abuse” of discretion for orders to be made for the sale of the home at a time when the appellant was still awaiting a determination by Strickland J as to whether he should be granted an extension of time to file an appeal against the Federal Magistrate’s orders for property settlement made when the litigation guardian (whose appointment was subsequently set aside by the Full Court) was representing his interests; and that the reasons for orders for the sale of the home in such circumstances were inadequate.
It is clear from paragraphs [6] and [7] of Dawe J’s reasons for her orders for the sale of the home that she was well aware of the pending proceedings before Strickland J for an extension of time to appeal the original property settlement orders and of the alternative possibility that the appellant could apply at first instance to have those orders set aside. But notwithstanding the possibility that the original orders might be set aside either on appeal or at first instance, her Honour determined that she would permit the house to be sold but with the proceeds to be held in trust, for the following reasons:
8.The material filed by the [respondent], in support of the application for the sale of the former matrimonial home, sets out allegations which have not been the subject of dispute by way of the [appellant] filing any affidavit in response. It suggests that the property has been vacant, is deteriorating, and would be costly to maintain by way of insurance and otherwise maintain the property. The orders that are being sought are not for orders that the [respondent] keep the proceeds, but that the property be sold and the net proceeds invested pending any final determination the Court might make, in relation to any other orders that the [appellant] seeks.
9.Based on the lack of information filed by the [appellant] and the lack of convincing argument put by the [appellant] in these proceedings, I am satisfied that the order which the [respondent] is seeking by enforcement of the orders which continue to exist is appropriate. That is so even in these unusual circumstances, where there is a possible risk of the orders being set aside. The orders are both practical and take into account the principles of what is just and equitable in all the circumstances. The orders also take into account the enforcement provisions of the Act.
10.The other order that is being sought by the [respondent] is that the [appellant] be given a time limit as to any application he wishes to bring to set aside the final orders of the Federal Magistrate, made in relation to the property settlement orders. As I have indicated, the Full Court of the Family Court already indicated to the [appellant], in its judgment of 23 March 2012, that the [appellant] needed to take further steps if he was seeking to set aside the final property settlement orders of the magistrate. I therefore consider it is appropriate for a time limit to be placed upon the [appellant], so that for all persons’ benefits the matters can be clarified. I do that in accordance with the Rules of the Court, which encourage the Court to make orders which would bring an end to ongoing litigation.
When regard is had to these passages from her Honour’s reasons, and it is understood that she well appreciated that the original property orders may well be set aside, there can be no substance in the appellant’s complaints about a lack of procedural fairness, a miscarriage of discretion, or inadequacy of reasons for the orders. There is thus no substance in the grounds of appeal, and accordingly, leave to appeal would not be granted.
There is in addition a further, and very fundamental, reason why leave to appeal must be refused, and which we endeavoured to explain to the appellant at the hearing before us. It is that there could be no point in an appeal against the order for the sale of the home because it has already been sold. According to the respondent, the sale was to a bona fide purchaser and thus such a sale would be protected under the Real Property Act 1886 (SA). It appeared from the appellant’s submissions to us that he may wish to challenge the bona fides of the purchaser of the property. But as we understand it, he has not formally done so, and thus their bona fides must be accepted for present purposes.
As to the appellant’s challenge to the order that he pay the respondent’s costs of the divorce proceedings (fixed at $4,000), his grounds of appeal (Grounds 10 and 11) and his submissions in support of those grounds appear to rely on inadequacy of reasons on her Honour’s part and also on the uncertain state of the parenting orders entered into by the litigation guardian, and thus the capacity of the Court, which granted the divorce, to be satisfied in relation to the arrangements for the children.
Given these complaints, we consider that we have no option but to set out her Honour’s reasons for the costs order which, we observe, are relatively lengthy for such an order, and are as follows:
14.In relation to the question of costs that is before me, the costs of the divorce are set out in the Bill of Costs filed on 23 November 2012 which sets out, in detail, the history of and the basis upon which the costs are sought. The total costs of the divorce sought (including disbursements and GST) is $5404.75. There is a dispute about the time of service and the admission by the [appellant] in a document that is annexed to his own affidavit wherein he says he was served on a particular date. He says that was a mistake by him and he was served at a later date. The costs before me indicate that the [respondent] is seeking costs on the scale for the work actually undertaken rather than the standard application for divorce which would be expected to be an undefended divorce.
15.This is an unusual case in which the matter has been before a Registrar on numerous occasions wherein the amount claimed was $264 for each mention and thereafter before the Federal Magistrate in relation to various applications in the case and then the matter was transferred to this Court. There are also involved in the costs application the costs of the hearing before me in which the divorce was made final.
16.Taking into account the dispute in relation to the service of the proceedings, that would reduce the costs sought if the [appellant] were successful in his allegation in relation to the time of service by either $264 or by $528, if two attendances before Registrar Schulz were taken into account.
17.The divorce was heard by me, the decision made and reasons have been published for the same. The [appellant] says that he is going to appeal that decision. I have indicated I am not now dealing with any appeal from my own decision.
18.The provisions of the Family Law Act 1975 (Cth) (‘the Act’), section 117, make it clear that subject to the provisions of various subsections which are not relevant in this matter, the parties should bear their own costs, subject to subsection (2) of section 117. Where the Court is of the opinion that circumstances justify it in doing so the Court may make an order for costs as it considers just. There are considerations set out in section 117(2A).
19.The significant factors in section 117(2A), the conduct of the parties to the proceedings, including the conduct in relation to pleadings, particulars, discovery, inspections, directions, answers, admission of fact, production of documents and similar matters and whether any party to the proceedings has been wholly unsuccessful in the proceedings. Such other matters as the Court considers just and the financial circumstances of each of the parties are also relevant.
20.In relation to this matter, I consider what the most significant factors are the conduct of the proceedings in relation to the divorce and that the [appellant] was wholly unsuccessful in the proceedings.
21.Taking into account the considerations in relation to the issue about the service of the application upon the [appellant] in the first instance, I consider it would be appropriate to reduce the costs now sought by the [respondent] to take into account the issues in relation to the timing of the service. To avoid the extra costs for the parties in having the costs taxed, I consider that the authorities allow me to allocate a specific figure to the fees to be recovered.
22.Taking into account those factors and the particular factors of section 117, I order that the [appellant] pay the [respondent’s] costs of and incidental to the divorce proceedings fixed in the sum of $4000, such sum to be paid within 28 days from today.
As we have already indicated, her Honour’s reasons are more than adequate for her order, and thus there could be no substance in a complaint that they are not adequate. We also consider that there can be no substance in the complaint that the Court should not have granted the parties’ divorce because of the possibility that the parenting orders might be set aside. Parenting orders made under the Act can always be subject to variation, but in any event it is not necessary that there be an order in place before a court granting a divorce can be satisfied that proper arrangements have been made for the children of the marriage. It must also be borne in mind that the parties’ two children were born in 1990 and 1995 respectively.
The appeal against the costs order is without substance, and will therefore be dismissed.
The application for leave to appeal the orders of
23 January 2013 (including the order for the issue of a new certificate of title) (SOA 6 of 2013)
Of the seven orders made by Cronin J on 23 January 2013 the appellant seeks leave in his amended Notice of Appeal to appeal only the following three:
(1)That notwithstanding the duplicate Certificate of Title Register Book Volume …. Folio … to the real property at [P] Street, [Suburb N] in the State of South Australia has not been produced to the Registrar-General of the Lands Title Office, the said Registrar-General is directed to issue a new Certificate of Title pursuant to s 64 of the Real Property Act 1886 (South Australia) to the purchasers of the said property.
…
(3)That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
…
(5)The response to the [respondent’s] application (although not filed) treated as an oral application by the [appellant] this day is otherwise dismissed.
…
Three of the proposed Grounds of appeal (Grounds 1, 2 and 4) contained in the amended Notice of Appeal do no more than assert that his Honour erred in making each of the three abovementioned orders, and contain no particulars of the asserted error. However, in the appellant’s written summary of argument Grounds 2 and 4, which were directed respectively to Orders 3 and 5, were abandoned, and thus need not be considered further.
Ground 1 is directed to Order 1 which provided for the issue of the new certificate of title. Again as we endeavoured to explain to the appellant when he was before us, leave would not be granted now to appeal that order because the new certificate of title has already been issued and the property transferred.
There is one remaining proposed ground of appeal (Ground 3). It asserts that “the application filed by the [respondent] resulted from dilatory efforts instigated that thus denied [p]rocedural fairness and attainment of natural justice”.
This ground is difficult to understand, and the following submissions made in support of it in the appellant’s written summary of argument do not assist us in understanding this ground:
53.The [respondent’s] solicitor through her solicitor were encouraged through prejudicial process with knowingly filed the false affidavit on the 9 November 2012 application for an order to sell the house, to sell the [appellant’s] property absent input nor valuation and where his Honour Strickland J. intimidate counsel through adherence to his Honour’s instructions.
54. The [appellant] is denied equality under the present judicial process.
Given that we have difficulty in understanding the ground, we are unable to find any substance in it.
Accordingly, the application for leave to appeal Orders 1, 3 and 5 of the orders of 23 January 2013 will be dismissed.
The application for leave to appeal the orders of
31 January 2013 setting aside the “voidable” orders (SOA 9 of 2013)
In his amended Notice of Appeal the appellant seeks leave to appeal all four orders made by Strickland J on 31 January 2013. Those orders are as follows:
(1)Upon the oral application of the [respondent] paragraph 1 of the order sought in the Initiating Application filed on 17 January 2013 be amended to also refer to paragraph 3 of the order made on
1 October 2010 as being sought to be set aside.(2)Upon the oral application of the [respondent] paragraph 2 and the first line of paragraph 3 of the Initiating Application filed on
17 January 2013 be struck out.(3)As sought in paragraph 1 of the Initiating Application filed on
17 January 2013 as now amended, paragraphs 1 to 4 of the orders made on 23 April 2010, paragraphs 1 and 3 of the order made on
1 October 2010 and paragraph 1 of the order made on 6 December 2011 be set aside.(4)The balance of the Initiating Application filed by the [respondent] on 17 January 2013 and the Response filed by the [appellant] on
25 January 2013, SAVE AND EXCEPT insofar as that Response sought the dismissal of paragraph 1 of the Initiating Application, be referred to a Registrar for the purposes of listing for trial before a Judge of this Honourable Court.As we observed in our introduction to these reasons, we do not consider that Order 3, which set aside earlier orders, requires leave to appeal, and we will proceed on that basis.
The amended Notice of Appeal contained forty grounds of appeal. However, in his written summary of argument the appellant expressly abandoned a number of those grounds (being Grounds 7 to 17; 19-21; and 25), and was able to group the remaining grounds into several areas of complaint. Having regard to the appellant’s submissions, the most significant of those complaints, or groups of complaints, was that it was unclear whether in setting aside the “voidable” orders, Strickland J was exercising the appellate or original jurisdiction of the Family Court; but if his Honour was exercising original jurisdiction, he erred in relying on “inherent power” and/or misapplied s 79A of the Act when setting aside the orders.
Before we consider these complaints it is important to observe that notwithstanding that he made them, the appellant informed us that he did not complain about the fact that the original property and costs orders had been set aside, and that his complaint was that his rights of appeal had been taken away from him (Appeal Hearing Transcript page 25-26).
It is unclear to us which appeal rights the appellant considers have been taken away from him. He certainly has the right to appeal Strickland J’s order of
31 January 2013 setting aside the “voidable” orders (which was made in the original jurisdiction), and this is the appeal which we are about to determine.
It is, however, more likely that when the appellant complains that he has lost his appeal rights, he is in fact complaining about losing his rights of appeal against the “voidable” orders themselves.
It is true that once the “voidable” orders were set aside by Strickland J exercising original jurisdiction, those orders could no longer be appealed (and thus set aside on appeal). But we fail to see how that fact can in any way prejudice the appellant. Indeed, it would seem to be to his advantage that the property settlement and costs orders that he told us he wants set aside, have been set aside without the time, costs and other inconveniences of an appeal.
We return now to the principal complaints raised by the appellant in his appeal against Strickland J’s order which set aside the “voidable” orders (Order 3 of the orders of 31 January 2013).
We have earlier outlined the course of the proceedings before Strickland J which began on 28 August 2012 and culminated in the hearing, ex tempore judgment, and orders made on 31 January 2013. It is clear that at the beginning of those proceedings his Honour was exercising appellate jurisdiction in relation to appeals and applications in appeals from orders made by Lindsay FM. Strickland J continued to exercise appellate jurisdiction when on
19 December 2012 he dismissed the appellant’s application to extend time to appeal the parenting orders made on 16 March 2009, and adjourned the other appeals and applications in appeals to 15 January 2013, and then on 15 January 2013 further adjourned those appeals and applications to 31 January 2013.
It is less clear whether his Honour was exercising appellate or original jurisdiction when in his reasons delivered on 19 December 2012 he found (and later declared in his amended orders) that the orders made when the litigation guardian was involved in the parenting and property settlement proceedings were “voidable”. However, such a determination of the status of those earlier orders was clearly necessary if his Honour and the parties were to know what course or courses the proceedings, both appellate and at first instance, could take in the future. For present purposes and particularly as there is no appeal against the declaration that the earlier orders were “voidable”, it matters little, in our view, whether the declaration was made in the appellate or original jurisdiction.
It is, however, clear that after an initiating application had been filed on behalf of the respondent on 17 January 2013 seeking the setting aside of the earlier property and costs orders and seeking new property orders, and that application was listed before his Honour on 31 January 2013, that his Honour would be exercising original jurisdiction in respect of that application.
The transcript of the hearing on 31 January 2013 reveals, however, that his Honour commenced the hearing by discussing appeal matters with the legal representative of the Public Trustee, the former litigation guardian, (as his Honour appears to have confirmed to the appellant on the transcript of that day (at page 5, line 45-46 to page 6, line 12)). His Honour then moved to issues relating to the respondent’s initiating application to set aside the “voidable” orders (Transcript page 6, line 22 to page 23, line 21), and finally returned (at page 23, line 28-29) to what he termed “the outstanding applications in an appeal and appeals”.
We appreciate that the course of the proceedings on 31 January 2013 may well have been somewhat confusing for the self-represented appellant. However, we do not consider that he has been prejudiced by the course of those proceedings.
We turn now to the issue of the power used by Strickland J to set aside the orders which he had found to be “voidable”. It is clear from his Honour’s reasons for judgment delivered on 31 January 2013 that he was exercising what he described as “the inherent jurisdiction” referred to by the High Court in Taylor v Taylor (1979) 143 CLR 1 to set aside orders made in the absence of a party (which can be said to have been the position in this case because of the position of the litigation guardian).
In his written summary of argument the appellant has challenged the existence of the “inherent jurisdiction” relied on by Strickland J on the asserted basis that Taylor no longer represents the law because of the amendments made to s 79A of the Act following that decision, and also on the basis of the observations made about the absence of an “inherent jurisdiction” in the Family Court by the High Court in DJL v Central Authority [2000] 201 CLR 226.
The following comments made by members of the High Court in Allesch v Maunz [2000] 203 CLR 172 (at [25] to [28]) (which was delivered some four months after DJL v Central Authority) suggest that following the amendments made to s 79A after Taylor’s case, there may be little left of the “inherent” or “implied” jurisdiction to set aside property settlement orders made in the absence of a party. But these comments from the High Court also suggest that there is no real distinction between the exercise of the jurisdiction under the amended s 79A and that under the implied or inherent jurisdiction in a case where property settlement orders have been made in the absence of a party:
25There was discussion in the majority judgment of the Full Court as to whether the discretion to set aside the property settlement orders arose under the property settlement orders, themselves, pursuant to s 79A of the Act, or pursuant to the inherent power of the Family Court identified by this Court in Taylor v Taylor [(1979) 143 CLR 1. See further, as to the inherent powers of the Family Court,
DJL v Central Authority (2000) 201 CLR 226]. Section 79A has been amended since the decision in Taylor and, by sub-s (1)(a), the Family Court may now, in its discretion, set aside a property settlement order, if satisfied that “there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance”. [Section 79A was inserted into the Family Law Act 1975 (Cth) by the Family Law Amendment Act 1976 (Cth) (Act No 63 of 1976), s 26 and was further amended by the Family Law Amendment Act 1979 (Cth) (Act No 23 of 1979), s 13. The present subs (1)(a) was introduced into the legislation by virtue of subsequent amendment, namely, the Family Law Amendment Act 1983 (Cth) (Act No 72 of 1983), s 37]. There can be no doubt that the expression “any other circumstance” is wide enough to encompass the situation in which an order has been made in the absence of a party. Accordingly, s 79A must now be construed as applicable to that situation.26Given that s 79A(1)(a) now confers power on the Family Court to set aside an order made in the absence of a party, it may be doubted whether there is any longer any scope for the exercise of inherent power in that regard. And even if the husband's application to set aside the property settlement orders was made pursuant to those orders rather than pursuant to s 79A, the orders could not be set aside on any basis other than that directed by that section, namely, that the Court was satisfied that there had been a miscarriage of justice. However, nothing turns on the nature of the application or the source of the discretion which Finn J was called to exercise and which the Full Court exercised in dismissing the appeal from her Honour's judgment. That is because there is nothing in s 79A to suggest that the discretion thereby conferred is to be exercised on any different basis from that applicable in the case of an inherent discretion.
27 In Taylor , Gibbs J, with whom Stephen J agreed, and Mason J, with whom Aickin J agreed, each viewed the discretion to set aside an order made in the absence of a party as a corollary to the requirement that, before a person can be adversely affected by a judicial order, he or she must be afforded an adequate opportunity of being heard [Taylor v Taylor (1979) 143 CLR 1 at 4, per Gibbs J, referring to Cameron v Cole (1944) 68 CLR 571 at 589, per Rich J; Commissioner of Police v Tanos (1958) 98 CLR 383 at 395, per Dixon CJ and Webb J; Grimshaw v Dunbar [1953] 1 QB 408 at 416, per Jenkins LJ; at 15-16, per Mason J]. In that case the party's failure to appear was due to no fault of his own and Mason J expressed the view that the discretion to set aside the order made in his absence should have been approached “on the footing that it was prima facie the right of each party to have the proceedings heard in his or her presence and that justice to both parties required that each party should be entitled to present his or her case” [Taylor v Taylor (1979) 143 CLR 1 at 15-16]. Murphy J saw the discretion to reopen as an aspect of federal judicial power which was to be exercised “only with caution” [Taylor v Taylor (1979) 143 CLR 1 at 21]. The factors to be considered, in his Honour's view, were “the presence or absence of some real explanation for failure to use the opportunity to be heard, delay, acquiescence, [and] prejudice to the other party” [Taylor v Taylor (1979) 143 CLR 1 at 21] However, nothing presently turns on whether the inherent power to set aside an order made in the absence of a party is a corollary to the right of a party to be heard or is an aspect of federal judicial power.
28The consideration which informs the power conferred by s 79A of the Act is that the court be satisfied that there was “a miscarriage of justice”. And whether exercising inherent power or a power of the kind conferred by s 79A, a court will, ordinarily, be satisfied that there has been a miscarriage of justice if a person has suffered an adverse order in circumstances where his or her failure to appear is adequately explained unless it also appears that no different result would be reached on a rehearing or that a rehearing would work an irremediable injustice to the other side. In this last regard, it should be noted that injustice will often be capable of remedy by the imposition of terms as to costs [See Grimshaw v Dunbar [1953]
1 QB 408 at 416, per Jenkins LJ]. However, where, as here, orders have been carried into effect, injustice may not be capable of remedy except on terms that those orders stand and that the matter be reopened only to a limited extent.Having regard to these comments by the High Court, we do not consider that Strickland J’s reliance on the “inherent jurisdiction” as permitting the setting aside of property orders would, in itself, provide a basis for interfering with his orders. Furthermore, the comments made in the High Court appear to confirm that Taylor would remain good law so far as setting aside the costs order is concerned. In any event, as the appellant ultimately did not complain about the original property and costs orders having been set aside, we would dismiss the appeal against Order 3 of 31 January 2013.
The other orders made by Strickland J on 31 January 2013 are of either a procedural or consequential nature and have no current operation. Accordingly, we would refuse leave to appeal them.
The application for leave to appeal the procedural orders of 28 March 2013 (SOA 24 of 2013)
In his Notice of Appeal filed 22 April 2013 the appellant seeks leave to appeal the following orders made by Cronin J on 28 March 2013 (emphasis in original):
…
(2)That by 4 pm on 20 May 2013 the [respondent] file and serve upon all other parties the affidavits of evidence in chief of all witnesses including the [respondent] relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).
…
(4)That by 4 pm on 27 May 2013 the [appellant] file and serve upon all other parties:
(a)an amended response setting out with precision what orders are being sought (if he considers it necessary to do so);
(b)the affidavits of evidence in chief of all witnesses including the [appellant] relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief);
(c)a financial statement that complies with chapter 13 of the Family Law Rules.
…
(12)If discovery and disclosure has not been completed, each party by 4 pm on 18 April 2013 provide to the other party a list of all documents required for inspection and within 21 days thereafter, subject to any objection on the grounds of privilege, such documents be made available for and be inspected by the other party(ies).
(13)That all documents in future for the purposes of proceedings under the Family Law Act 1975 (Cth) be served by the [appellant] by post upon the address for service for the [respondent] through her solicitors noting that an acknowledgement of service of each of those documents is not required.
As these orders all relate to a trial which has already been conducted, there would be no utility in an appeal against them, and therefore we will dismiss the application for leave to appeal in relation to them.
The appeal against the property settlement and costs orders made on 2 July 2013 (SOA 42 of 2013)
In his amended Notice of Appeal the appellant appeals all of the orders made by Cronin J on 2 July 2013. These orders are:
1. That the [respondent] have the proceeds held in trust in her name.
2.That the [respondent] retain and the [appellant] have no further interest in the motor vehicle in the [respondent’s] name.
3.That the [appellant] indemnify the [respondent] in relation to all outstanding litigation in the United States of America.
4.That the [appellant] pay the [respondent’s] costs fixed in the sum of $48,050 of which $42,200 is satisfied by paragraph 1 of these orders.
IT IS CERTIFIED:
5.That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
6. That all outstanding proceedings are dismissed.
7. That the oral injunctions otherwise made this day are discharged.
8.That the costs orders of 1 November 2010, 30 November 2012,
15 January 2013, 25 January 2013 and 22 February 2013 are all satisfied by paragraph 1 of these orders.9.That the [respondent’s] costs schedule is marked as Exhibit W1 and shall remain on the court file.
The amended Notice of Appeal contained twenty-four grounds of appeal. However, the appellant confirmed to us that apart from the substantive orders (whereby the respondent received most of the parties’ property), his main complaint in this appeal is that Cronin J refused him an adjournment of the trial (see Appeal Hearing Transcript page 42 and again at 57). We will therefore consider this complaint first as our conclusion in relation to it will determine whether it is necessary or appropriate to consider the complaints about the substantive orders.
In his submissions in support of the appeal, the appellant informed us that he had thought that the trial was going to be in Melbourne because it was to be conducted by Cronin J (who is based at the Melbourne Registry of this Court) and that he did not know that the Judge would travel to Adelaide. He had therefore instructed a lawyer in Melbourne. When that lawyer had found out that the trial was to be in Adelaide, he had contacted the appellant to say that it would not make sense for him to come to Adelaide, but that he would arrange for an Adelaide lawyer to appear to seek an adjournment, and that the appellant should meet the Adelaide lawyer at 9:15 am at Court before the trial. According to the appellant, the Adelaide lawyer did not meet him until 10 am on the day of the trial.
The appellant’s version of these events is, in our view, confirmed by the following passage from the transcript of the opening day of the trial:
MS WEST: If the court pleases, West appearing for the [respondent] on instructions from Catherine Hicks, you Honour.
HIS HONOUR: Yes. Thanks, Ms West.
MS TAYLOR: And if your Honour please, my name is Taylor. I appear on instructions from Berry Family Law, on very limited instructions from Berry Family law, your Honour, on behalf of the [appellant].
HIS HONOUR: Thank you. All right. What is the position?
MS TAYLOR: Your Honour, I understand that my instructor and Berry Family Law sent an email through your associate last week on Friday. They have instructed me that they have only just been instructed by the [appellant] on 27 June, Thursday. Initial Instructions were that the [appellant] believed that the trial was to take place in Melbourne commencing tomorrow and they found out on Friday that it was actually commencing in Adelaide today. They’ve informed [the appellant] that their only act that they could undertake would be to apply for an adjournment of the trial to enable them to obtain instructions and familiarise themselves with the issues and obtain documents and the like. And they’ve instructed me to attend this morning to make that application to adjourn the trial and I understand my instructor has provided your Honour with his own availability in that regard. The application is based - - -
HIS HONOUR: Well, that will be the least of my concerns
MS TAYLOR: Your Honour, the application is made on the basis that very very recent instructions received on Thursday last week, the fact that Berry Family Law have only extremely limited documents being provided to them, namely the trial affidavit of the [respondent] and the case outline of the [respondent’s] counsel. They haven’t had an opportunity to meet with their client or obtain his instructions. They haven’t seen any trial material that he has filed; they have not had an opportunity to inspect any of the documents. In short, they haven’t had any opportunity to brief counsel or prepare the matter for trial in any way and the limit of their remit is to apply to adjourn the matter to enable [the appellant] to have legal representation at the trial. I understand he has been unrepresented up to this point. That is my application, your Honour, on behalf of the [appellant].
(Transcript 1 July 2013, page 2)
Ms West then made submissions opposing the adjournment on the basis that the adjournment application was “a ploy to adjourn the trial” and she went on to make some reference to the long history of the proceedings.
His Honour then refused the adjournment application saying:
1.I am going to decline the application for the adjournment. There comes a point in time where everybody is entitled to a hearing. As the High Court said in Aon Risk, it is not just a question of justice. It is a question of use – and proper use – of the community’s resources as well. In this application, [the appellant] has had enormous use of the court’s resources and I repeat what I have said previously about the fact that his pursuit of justice is commendable. But the reality is, there are two parties to these proceedings and the [respondent] is entitled to her day in court.
2.The parties separated six years ago. The proceedings commenced six years ago. They have been virtually in every court in the country, including, as I understand it, a special leave application to the High Court last week which was unsuccessful, by [the appellant]. The fact that [the appellant] has chosen at the last minute might be seen as a ploy, but the reality is that he has persistently made all of the applications in this case himself. He is an articulate man. He is able to adequately put forward his arguments.
3.The fact that he has now chosen to provide instructions to a lawyer is not something that I should take into account. He has had ample time to do that, not only in respect of the overall proceedings but specifically the fact that the case was listed by me in March, and he indeed appealed against those orders of the matter being set down. He knew at that stage that if he was unsuccessful in his appeals that the case would proceed in July. On that basis, the [respondent] is entitled to her day in court and the matter should proceed.
Ms Taylor was given leave to withdraw, and his Honour invited the appellant to take a seat at the bar table. His Honour then engaged in a discussion with
Ms West over some three and a half pages of the transcript about the material which she would be relying on. The following exchange then occurred between his Honour and the appellant:
HIS HONOUR: All right. Well, let’s see what [the appellant] says about what material he’s relying on and we will go from there. …
MR [FORSTER]: Your Honour, I object to this proceeding without having an attorney. I would like to say one thing: that on Wednesday I received your order and I contacted an attorney immediately indicating that they had moved the witnesses out of the city. They moved them to [Town B]. They refused
HIS HONOUR: Who? Who?
MR [FORSTER]: They did. They moved the witnesses that I was supposed to subpoena to [Town B]; they’re not here in Adelaide. And they wouldn’t give me discovery documents. I asked them for 208, the November 2007 documents and all of 2008 financial statements. They didn’t provide those, so when I received your correspondence, I called an attorney. Actually I called attorneys two days before and they didn’t contact me. They usually call the opposition and they, you know – for whatever reason they tell the attorneys the same thing.
HIS HONOUR: I’ve understood that that application was made and I’ve refused it. Now, what I want to know is what documents you are relying on for these proceedings.
MR [FORSTER]: I cannot proceed, your Honour, without an attorney. I
HIS HONOUR: Well, I’ve already indicated you can’t have an adjournment.
MR [FORSTER]: Yes. I cannot proceed, your Honour, without an attorney.
HIS HONOUR: Well, why is it – tell me why you can’t proceed without an attorney.
MR [FORSTER]: Because I’m not treated fairly. I cannot get the opportunities that they get, your Honour. They have all the documents that they requested. I indicated to them that they needed more documents – contact me and I will get those documents.
HIS HONOUR: But Ms Taylor didn’t make an application for an adjournment on the basis that you couldn’t proceed without an attorney.
MR [FORSTER]: I told her that and I told the attorney in Melbourne that. I didn’t even know this trial was taking place here. He asked me to come to Melbourne and I said I would fly there today. I’m sorry, your Honour, but I
HIS HONOUR: [The appellant], you can’t realistically say that, can you, because the order quite clearly said that it was to be heard.
MR [FORSTER]: I didn’t know, your Honour. I’m just – sorry – I know – you’re probably right, your Honour, but I didn’t know the trial was going to be here in Adelaide. I thought that it was going to be – you were going to be in Melbourne. I never knew.
HIS HONOUR: But what difference would that make whether I was sitting in Melbourne
MR [FORTSER]: That’s
HIS HONOUR: The case was going to be heard in Adelaide.
MR [FORSTER]: That’s right, absolutely, and I told the
HIS HONOUR: Okay.
(Transcript 1 July 2013, page 7-8)
The discussion between his Honour and the appellant concerning the material on which the appellant wanted to rely, and some of which he did not yet have, then continued over a further six pages of the transcript with the appellant frequently telling his Honour that he could not proceed without legal representation.
As can be seen from the short judgment which we now set out, his Honour considered that the appellant was continuing to seek an adjournment, which he refused for the reasons which he gave:
4.This is an oral application for an adjournment of the proceedings on the basis that the respondent [appellant] says that he cannot proceed without an attorney. I have earlier rejected an application by the [appellant] represented by counsel for an adjournment on the basis that his lawyers were only just recently instructed. The two grounds that [the appellant] argues here is that he has not had adequate discovery, but as much as I have tried, I have been unable to ascertain exactly what it is that he says is relevant to the documents that he says he has not got.
5.The second is that he feels that there are certain things about the way the trial will be conducted that will ensure that he will not know exactly when to object and what evidence is admissible. In respect of the latter, I will certainly be very vigilant about what the Full Court said in Re F: Litigants in Person. In respect of the former, the matters, as best I can determine them, are matters that can be tested by cross-examination and I note that [the appellant] has had ample opportunity to get discovery, ample opportunity to prepare for this hearing, and indeed has prepared all of the documents all of the way up to the High Court. It seems to me that this is not a case that I ought to adjourn on the basis that someone is not represented. The application to adjourn the proceeding on that ground is refused.
Following that short judgment, the following exchange occurred between his Honour and the appellant:
HIS HONOUR: Now, [appellant], what documents do you want to rely upon?
MR [FORSTER]: I’m not able to proceed, your Honour.
HIS HONOUR: Well, that’s a matter for you. This case is proceeding. If you’re not going to participate, then that’s a matter for you, but Ms West’s client
MR [FORTSER]: Yes, your Honour, I won’t participate. Your Honour, I cannot proceed without an attorney.
HIS HONOUR: All right. Thank you. You can leave. Yes, Ms West, I think we need to find those affidavit materials.
(Transcript from 1 July 2013, page 15)
His Honour then adjourned for about an hour to allow documents to be located. When he resumed, he determined that he should proceed on an “undefended” basis for the reasons that emerge from the following passage of transcript:
HIS HONOUR: Now, Ms West, I’ve had the opportunity to read what I didn’t have before, which is the affidavit of 20 May by your client, and the second affidavit relating to discovery. So I’ve read those. Because [the appellant] is not participating, I should first dismiss his response, shouldn’t I?
MS WEST: Yes, your Honour.
HIS HONOUR: All right. And you’re asking me to proceed on an undefended basis.
MS WEST: I am, your Honour.
HIS HONOUR: And this is the third application for a ruling in these proceedings this day. [The appellant] indicated some short time ago that, on the basis of my refusal of his application for an adjournment, that he was not going to participate, and it would appear from the body of the court that he has left. He has an extant application for orders in the form of a response filed 27 May 2013. On the basis that he is not prosecuting that application, it’s dismissed. Now, Ms West, I don’t – unless you specifically want to, I don’t need to hear from your client, because your evidence is in the affidavit.
(Transcript form 1 July 2013, page 16)
After a further discussion with Ms West extending over about ten pages of transcript about her client’s case, his Honour adjourned the matter till 10am on the following morning.
At the commencement of his reasons for judgment delivered on the following day, 2 July 2013, his Honour recorded the events relating to the adjournment applications and the appellant’s ultimate non-participation in the trial in the following way:
3.Yesterday, counsel appeared for the first time for the [appellant] with a specific remit. That was to seek an adjournment to enable lawyers to get on top of the material. The [appellant] had instructed them only days ago. For reasons elsewhere given, the adjournment application was refused and counsel withdrew. The [appellant] then applied for an adjournment again. This time, his application was based on the fact that he could not conduct a trial without legal representation. For reasons also given at the time, that application was also refused. Suffice to say, a litigant who has conducted hearings both here and it would appear overseas, prepared documents including a special leave application and appeared before the Full Court would normally be expected to conduct a modest property dispute hearing. An argument that he needed representation to conduct a trial has little substance or merit.
4.One of the issues raised by the [appellant] was that he would not get a fair trial. I advised him that I would ensure otherwise and pointed out my obligation as described by the Full Court in Re F: Litigants in Person Guidelines (2001) FamCA 348.
5.Having refused the [appellant’s] applications, he said he would not participate in the trial notwithstanding he had filed a response seeking orders and an affidavit. He left the bar table but it was noticeable that he did not leave the court room entirely. I dismissed his response and gave the [respondent] leave to proceed on an undefended basis. At no time did the [appellant] seek to again involve himself.
Later in his reasons his Honour made the following comments concerning the appellant’s position:
11.The [appellant’s] response having been struck out, he sought no orders.
…
48.The [appellant] did not stay to rely upon any evidence. …
It is unnecessary that we say more about the remainder of his Honour’s reasons for judgment which were concerned with his determination as to how the parties’ property should be divided between them having regard to the provisions of s 79 of the Act.
Discussion of the trial Judge’s refusal to adjourn the trial
We fully acknowledge that the decision whether or not to grant an adjournment of a trial was a matter very much within the discretion of the trial Judge. We also bear in mind the principles limiting the granting of adjournments which emerge from the High Court decision in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 and on which Cronin J correctly relied when he refused the first adjournment application. However, in our view, and with the greatest respect to his Honour, the adjournment application had to be considered against the background of this most unusual case.
Perhaps the most significant feature of this case is that up until the trial before Cronin J, and despite the long delays (for which the appellant is not totally to blame), the appellant had never had the opportunity to present his own case. That trial would have given him that opportunity, and therefore for him to be denied that opportunity required compelling reasons.
There may have been sufficiently compelling reasons had the appellant not been able to offer a reasonable or convincing excuse for his not being ready to proceed on the day on which the trial was listed. However, he was, in our view, able to offer such an excuse, being that the solicitors whom he had engaged to appear in Melbourne discovered that the trial was to be held in Adelaide too late for appropriate representation to be arranged in Adelaide.
In fairness to the trial Judge, it must be said that the facts that the appellant had engaged solicitors in Melbourne and that they had only realised too late that the trial was to be in Adelaide, appear not to have been so clearly drawn to his Honour’s attention at the beginning of the trial as they were to us at the hearing of the appeal.
His Honour may also have been influenced by the fact that in his order made on 28 March 2013 listing the case for trial, he had expressly provided that it was to be in Adelaide. However, the fact the appellant engaged solicitors in Melbourne provides a reasonable basis for inferring that he honestly anticipated that the trial was to be conducted in Melbourne, clearly not having understood the effect of the order that the matter was to be “the first case in the list in Adelaide commencing on 1 July 2013”. In this context, it must be remembered that the appellant was aware that the trial was to be conducted by Cronin J who, as the appellant correctly understood, is Melbourne based, and that his Honour had been sitting in the Melbourne registry when he made the directions on 28 March 2013 listing the matter for trial.
In connection with the last mentioned matter, and indeed in the overall context of this case, it needs to be remembered that the appellant was a person whom a Federal Magistrate had considered was in need of a litigation guardian. Notwithstanding that fact, his Honour appears to have taken the view that because of the past history of the case the appellant would be able to continue without legal representative.
In relation to the issue of legal representation this seems to have been the first time that the appellant had arranged legal representation, and that is certainly the case in the various proceedings which have given rise to the applications and appeals which are before us. It could not therefore be said that the appellant’s claim that he needed an adjournment so that he could be represented, was just another delaying tactic or “ploy”. Given the history of the matter, it was, in our view, particularly important that the appellant should be legally represented once his case finally came to trial.
It can be seen from what his Honour said when ruling against the adjournment application, that he was particularly, and rightly concerned, about the very long period of time which had elapsed since the proceedings were originally instituted between the parties. But as we indicated early in this discussion, blame for the delay cannot be sheeted home entirely to the appellant. Much of the delay in this case can be sourced to the decision to appoint a litigation guardian, and it need only be said that that appointment was not made on the appellant’s application.
We have therefore concluded that in refusing the adjournment, his Honour’s discretion miscarried, and we consider that there is no option but to set aside his orders with respect to property settlement and costs and to order a new trial. It is because there is to be a new trial that it would be inappropriate for us to consider his Honour’s substantive orders or his reasons for them.
We stress that we have reached this decision with the greatest reluctance because we are well aware of the burden it will place on the respondent and on court resources. But given the very unfortunate history of this case, we consider that we have no other option.
costs
Having regard to the submissions made to us in relation to the costs of the application and appeals which we have determined, we are of the view:
·that in relation to the successful appeal against the orders of Cronin J on 2 July 2013, there should be no order for costs, but that each party should receive the appropriate certificates under the Federal Proceedings Costs Act 1981 (Cth) both in respect of the appeal and the new trial; and
·that in relation to the remaining unsuccessful applications for leave to appeal and appeal against Strickland J’s orders of 31 January 2013, in this case there should be no order for costs because of the history and the complexity of the issues surrounding the setting aside of the “voidable” orders.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn and Thackray JJ) delivered on 15 May 2014.
Associate:
Date: 15 May 2014
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