Forster & Forster & Anor
[2013] FamCAFC 20
•15 January 2013
FAMILY COURT OF AUSTRALIA
| FORSTER & FORSTER AND ANOR | [2013] FamCAFC 20 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – DISMISSAL – where the applicant seeks that the appeal judge disqualify himself – where the wife opposes the application – where the test of apprehended bias is not satisfied – application dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – CONSEQUENTIAL ORDERS – where the applicant seeks a stay of the orders made pending appeal to the appropriate jurisdiction – where the applicant seeks that the respondent bear the costs of the application – where there is nothing in the applicant’s affidavit nor in oral submissions made that would support such orders being made – applications dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – RESPONDENT’S COSTS – where the respondent seeks costs in the sum of $900 plus GST – where the applicant opposes the order sought – where the applicant has been wholly unsuccessful in his application – where there are circumstances justifying an order for costs – costs order made as sought by the respondent. FAMILY LAW – APPEAL – RESPONSE TO APPLICATION IN AN APPEAL – where the wife seeks an order adjourning consideration of the husband’s applications in an appeal and his appeals to enable her to file an application to set aside the orders found to be voidable – where the husband opposes that application – application granted – orders made. FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – where the applicant seeks to file applications in an appeal seeking a stay of orders made by Dawe J on 30 November 2012 and expedition of the appeal filed against those orders – applications received but adjourned to enable the respondent to consider the applications and address them. |
| Family Law Act 1975 (Cth) ss 79A, 117 |
| Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 |
| APPLICANT: | Mr Forster |
| FIRST RESPONDENT: | Ms Forster |
| SECOND RESPONDENT: | Crown Solicitor’s Office |
| FILE NUMBER: | ADC | 3359 | of | 2007 |
| APPEAL NUMBER: | SOA | 44 & 46 | of | 2010 |
| SOA | 60 | of | 2012 | |
| SOA | 91 | of | 2012 |
| DATE DELIVERED: | 15 January 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 15 January 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 November 2012 |
| LOWER COURT MNC: | [2012] FamCA 1028 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATES: | 23 April 2010 22 June 2010 6 December 2011 |
| LOWER COURT MNC: | [2010] FMCAfam 395 [2010] FMCAfam 755 [2011] FMCAfam 1310 |
REPRESENTATION
| FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mrs West |
| SOLICITOR FOR THE FIRST RESPONDENT: | Catherine Hicks & Co Lawyers |
| SOLICITOR FOR THE SECOND RESPONDENT: | Ms Watson |
Orders
The application in a case filed by the husband on 11 January 2013 be dismissed.
The husband pay to the wife costs in the sum of SEVEN HUNDRED AND FIFTY DOLLARS [$750] plus GST such payment to be made within twenty-eight [28] days of the date hereof.
The husband’s applications for leave to appeal and Notices of Appeal SAVE AND EXCEPT his Notice of Appeal filed on 17 December 2012 be adjourned to 10:00am on Thursday 31 January 2013.
By close of business on Friday 18 January 2013 in file number ADC 3359 of 2007 the wife file and serve an Initiating Application seeking that the orders for property settlement made on 23 April 2010 (as varied by order made on
1 October 2010), and the order for costs in favour of the wife made on
6 December 2011, be set aside, and seeking such orders for property settlement and costs as she may be advised, with such application to be listed before the Honourable Justice Strickland at 10:00am on Thursday 31 January 2013.
The husband’s applications in an appeal tendered today and filed on 15 January 2013 in appeal file number SOA 91 of 2012 be adjourned to a directions hearing at 10:00am on Thursday 31 January 2013.
Reserve the question of costs.
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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Numbers: SOA 44 & 46 of 2010, SOA 60 of 2012 & SOA 91 of 2012
File Number: ADC 3359 of 2007
| MR FORSTER |
Applicant
And
| MS FORSTER |
First Respondent
And
| CROWN SOLICITOR’S OFFICE |
Second Respondent
EX TEMPORE REASONS FOR JUDGMENT
The application filed by the husband on 11 January 2013
Introduction
I have before me an application in an appeal filed by Mr Forster on 11 January 2013. In paragraph 1 of that application, Mr Forster seeks, in effect, that I disqualify myself.
I do not understand the order sought in paragraph 2, and Mr Forster has not enlightened me. Thus I do not propose to deal with it.
With paragraph 3, as I understand it, that is an application that if I refuse to disqualify myself, all orders be stayed pending appeal to the appropriate jurisdiction. I assume what Mr Forster is seeking there is that if I do not disqualify myself he is foreshadowing that he wants to appeal against that decision, and pending that appeal, he seeks that all orders, be stayed. I will come to that application once I have dealt with the primary application, which is that I disqualify myself.
Paragraph 4 I do not understand entirely, but trying to make the best of it that I can, it seems that Mr Forster is seeking an order that the wife in these proceedings meet the costs of this application. I do not quite understand on what possible basis that order could be made, but that is the order that
Mr Forster seeks.
Paragraph 5 is what I will call a “catch-all” wherein Mr Forster seeks, “[a]ny other order by the Court that is fair and just”. I am not going to delve into that; I am only going to deal with the actual orders that Mr Forster seeks in his application to the extent that I need to.
The application is supported by a lengthy affidavit also filed on 11 January 2013.
I have invited Mr Forster to make any further submissions that he wishes to in support of that application, and he has taken up that offer. He has relayed to me difficulties that he says he has experienced in obtaining transcripts of hearings, and more significantly, he has indicated that once he has obtained transcripts, those transcripts have not accorded with his own notes and his own memory of what was said at those hearings. I note that Mr Forster has annexed only one transcript to his affidavit, and that is an extract from the transcript of the hearing on Wednesday 19 December 2012, and it seems to be relied on particularly for a comment made by me as to where I should be looking when I speak to Mr Forster.
Background
This is not the first application that Mr Forster has made that I disqualify myself. He made an application to that effect on 28 August 2012, and I dismissed that application on the same date. As I recall, Mr Forster was also raising in relation to that application difficulties that he had in obtaining transcripts, and he conceded that without transcripts he was not able to identify the complaints which he makes in relation to any comments that I might have made in Court on previous occasions. I note that there was also an affidavit in support of that application.
I found that there was no basis that Mr Forster was able to set out in his affidavit, or in his oral submissions on that occasion, as to why I should disqualify myself. I said that as far as I was concerned, there was nothing that I had done or said in any hearing in this case which would raise the spectre of apprehended bias or, using the words that Mr Forster used in his affidavit at the time, the spectre that I “cannot be impartial in deciding further issues in his case”.
In the affidavit in support of the application today Mr Forster has ranged far and wide and included a number of historical issues, many of which do not relate to me at all, and instead relate to the early history of this case, and in particular, the handling of it by Lindsay FM. He also makes general allegations about how he says he has been treated along the way, not only in this Court or in these proceedings.
The application is opposed by the wife.
The legal principles
The law concerning disqualification on account of apprehended bias is well settled. In the High Court decision of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 the High Court said this:
6Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
…
19Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
…
21It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.
22The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.
23Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence.
24In Webb v The Queen (1994) 181 CLR 41 at 74, a case concerning a juror, Deane J identified four distinct, though overlapping, categories of case involving disqualification by reason of the appearance of bias: interest; conduct; association; and extraneous information. It is not necessary to decide upon the comprehensiveness of such categorisation, and its utility may depend upon the context in which it is employed. However, it provides a convenient frame of reference.
[Footnotes omitted]
The effect of that decision and the principles emanating from it are confirmatory of what was determined in an earlier decision of the High Court in Johnson v Johnson (2000) 201 CLR 488. The principle that sprang from Johnson v Johnson, and which was confirmed in Ebner & Official Trustee in Bankruptcy, is that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias, is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. I note also that in the case of Johnson v Johnson, the High Court said this, at 493:
12The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
[My emphasis]
Finally, I refer to the High Court decision in Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342, where Mason J said, at 352,
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. … [D]isqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”.
[My emphasis]
Discussion
In this case, Mr Forster says that he relies on comments that I have allegedly made during previous hearings. He has indicated though, and I have already referred to this, that he has had difficulty in obtaining transcripts. Thus, I informed him that I would be prepared to adjourn the application if he wanted more time to sort out the difficulties he was having with transcripts, and to then present the transcripts to this Court on which he would want to rely in support of his application. Mr Forster chose to not take up that opportunity, and has indicated that I should determine his application on the material before me today.
As I have said, the only transcript that Mr Forster has put before me is an extract from the hearing on 19 December 2012. There is no transcript before me in relation to any other hearing, and thus it simply cannot be said that the allegations and claims by Mr Forster have been, to use the phrase of Mason J, “firmly established”.
I repeat what I said in my reasons for judgment delivered on 28 August 2012, that as far as I am concerned, there is nothing that I have done or said in any hearing in this case which would satisfy the test of apprehended bias. I also add that there is nothing whatsoever set out in the affidavit in support of this application which indicates in any way that that test is satisfied.
In those circumstances, I propose to dismiss the application that I disqualify myself.
I then need to address briefly the consequential order Mr Forster seeks, namely to stay the orders that I have made pending an appeal to the appropriate jurisdiction. As I have indicated to Mrs West, and I now indicate to
Mr Forster, there is absolutely nothing in his affidavit which would support such an order being made, and nor has there been any further oral submission today which would support such an order being made. On that basis, I also propose to dismiss that application.
Paragraph 4 of the orders sought, as I have said, is an order that the costs of this application be borne by the wife. To repeat, there is no basis for making such an order, and again I propose to dismiss that application.
As a result of what I propose to do, I now have before me an application for costs by the wife.
Mrs West seeks a total of $900 plus GST, and that is split up as to solicitor’s fees for one hour, and counsel fees for the hour spent in court.
Mr Forster opposes that application. He says though that if there is to be an order for costs, that it should be calculated on the basis of 30 minutes spent in Court, and not one hour.
In relation to the latter issue, I did not make a note of precise time that the disqualification application took. I know that we have been in Court for a total of an hour and a quarter, in approximate terms, and I take Mr Forster’s point that at the start of the case I spent some time in identifying what was before me, before then moving to the application for disqualification. It seems to me though that 45 minutes certainly would have been spent on the application for disqualification which has been dismissed.
In any event, back to the first issue; should there be an order for costs?
The principles which govern an application for costs in proceedings under the Family Law Act 1975 (Cth) (“the Act”) are set out in s 117 of the Act. The relevant subsections provide as follows:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
Thus the general rule is that each party should bear his or her own costs of proceedings under the Act. However, the court is empowered to make an order for costs if it is of the opinion that there are circumstances which would justify such an order, and s 117(2A) sets out the range of matters to which the court should have regard in considering whether to make an order for costs, and, if so, how much that order should be.
In this case, I have dismissed the application. Mr Forster, therefore, has been wholly unsuccessful and on that basis there are circumstances that justify an order for costs, and I propose to make one.
In terms of the amount sought, I am told that it is an amount that has been calculated in accordance with the scale of costs, in other words, on a party/party basis, and that seems to be correct. However, as I said, I am only going to allow 45 minutes hearing time, as opposed to one hour. Thus, I propose to order the husband pay to the wife costs in the sum of $750 plus GST.
The husband’s applications in an appeal and his Notices of Appeal
On 19 December 2012 I delivered my reasons for judgment wherein I found that the orders made with the involvement of the Litigation Guardian were voidable. I then adjourned the matter to 15 January 2013 to consider the husband’s application in an appeal filed on 27 July 2010 seeking an extension of time to file an appeal against the final property settlement orders made on
23 April 2010. I also ordered the husband to file and serve any further affidavits and any Amended Draft Notice of Appeal on which he intended to rely by 8 January 2013, and the wife to file and serve any affidavit in response by 11 January 2013.
The husband did not file any relevant document within that timeframe, but the wife sought to file documents by 11 January 2013. The Response of the wife dated 11 January 2013 was sought to be filed in the Adelaide Registry of the Family Court, but because it related to an appeal it could not be received by the Registry and needed to be filed in Melbourne. However, it was not able to be filed in Melbourne before today. Its current status is that it has been forwarded to the Court and a copy has been provided to Mr Forster who tells me that he found it in his letterbox on Saturday 12 January 2013.
Mr Forster also tells me that because of other matters that he has had to attend to, he was not able to read all of the documents sent to him by the wife. Today I have at least once asked Mr Forster whether he wants time to complete reading those documents. He has indicated that he does not want that time and has said that if I receive the Response it should be dealt with today. In the circumstances I have received the Response; it has been tendered by Mrs West on behalf of her client and it is now before me and I have read it as well as the supporting affidavit.
The first order sought in the Response is that the husband’s applications for leave to appeal and Notices of Appeal be adjourned, pending the wife filing an Application in a Case within 28 days, seeking to set aside the orders made for property settlement dated 23 April 2010.
The second order sought is that the wife be granted leave to file an Application in a Case to set aside the orders for property settlement made on 23 April 2010.
As a result of exploring certain aspects of that Response the order now sought by the wife is that the husband’s applications for leave to appeal and Notices of Appeal be adjourned to 31 January 2013 to enable the wife to file an Initiating Application in which she will seek as the first order an order setting aside the order for property settlement made on 23 April 2010, and the costs order made on 6 December 2011 and, as a second and subsequent order, orders for property settlement yet to be framed. I am told that that application can be filed by close of business this Friday, 18 January 2013.
As Mrs West has also correctly put to me, under the Rules there would need to be a Financial Statement filed. However, that rule can be waived in appropriate circumstances and Mrs West has indicated that her instructing solicitor will do her best, if I allow this, to file a Financial Statement. If not, then when the matter is next before the Court an extension of time, or a waiver of that requirement will be sought, whatever Mrs West’s instructions are at the time.
That application is opposed by the husband.
In his submissions Mr Forster initially concentrated on what he says would be a further delay, and he implied that this was a deliberate attempt by the wife to delay the finalisation of this matter. He made subsequent submissions but I confess to being somewhat perplexed and frustrated by those submissions because Mr Forster put to me that in my judgment delivered on 19 December 2012 I indicated that the preferred course was for an application to be made pursuant to s 79A of the Act. I assume he makes that submission because that is in fact not what the wife is intending to do; she is not intending to make an application pursuant to s 79A.
The fact of the matter is that I made no such finding, or comment, or observation in my reasons for judgment delivered on 19 December 2012. I have read out to Mr Forster paragraph 28 of those reasons in which I said this:
It was suggested during the hearing that an application pursuant to s 79A of the Act may be the appropriate application to make in relation to the issue of property settlement. Although it could be said that there has been a miscarriage of justice within s 79A(1)(a) of the Act, a s 79A application is not available in relation to the parenting or the costs orders. However, apart from that, it seems to me that in the circumstances of the decision of the Full Court it is unnecessary to go to the extent of instituting an application pursuant to s 79A of the Act, and a straightforward application to set aside is the application that should be made. Of course though that would still be a matter for the husband.
In summary, I made it quite clear that a s 79A application was unnecessary and that what should be filed was a straightforward application to set aside. To put that into context, in my reasons for judgment delivered on 19 December 2012, I found that the orders made whilst a Litigation Guardian was in place were voidable. In other words, again as I set out in my reasons for judgment, such orders are valid and enforceable until and unless they are set aside.
One of the issues in the case was if I did find that the orders were voidable how they would be set aside. Mr Forster indicated that he wants to appeal against those orders and in that way have the orders set aside. I said though in my reasons for judgment that it is beyond doubt that the preferred course is an application to set aside. However, again as I indicated in my judgment, there are authorities which allow for the setting aside of voidable orders by way of an appeal. On that basis I gave Mr Forster an opportunity to indicate whether he wished to file an application to set aside or whether he wished to proceed with his appeals.
He indicated quite clearly that he wished to proceed with his appeals and on that basis the matter was set down today to hear and determine his application to extend time to file a Notice of Appeal against the orders for property settlement made on 23 April 2010.
That is the context of this issue. What has now happened is that the wife has determined that she will make an application to set aside the voidable orders. It is apparent from the affidavit and in the submissions made to me by Mrs West today that the reasons for that are first, such an application can be made by her. There is no requirement that it only be made by the husband; it can be made by any of the parties to the order concerned. Secondly, such an application can be heard and determined far more expeditiously than an appeal, and thirdly, it is apparent from the documents filed by Mr Forster and his submission to this Court that by pursuing an appeal he seeks to raise more than just the setting aside of the voidable orders. These are not Mr Forster’s words, but mine; it seems to me that Mr Forster wants to air his concerns about how the appointment of the Litigation Guardian came about; he wants to air his concerns about the alleged conduct of the Litigation Guardian, and he seeks to be vindicated in terms of his position that there was no basis for a Litigation Guardian to be appointed; and, perhaps I can add, he seeks justice.
What the wife says about that, and I have commented on this in my reasons for judgment of 19 December, is that it is highly likely that all the appeal court will do is set aside the voidable orders and not go beyond that.
If that is correct, and the Full Court will do nothing more than set aside the orders, then that can be achieved, as I said in my reasons for judgment delivered on 19 December 2012 far more expeditiously by an application being made to set aside the orders.
Addressing the second reason proffered by the wife as to why she should be able to undertake this course, namely, that an application to set aside can be heard more expeditiously than an appeal, I am aware, being the appeal court judge effectively in charge of the Southern Region Appeals, that if Mr Forster proceeded with his appeals they would not be heard before October 2013, and there is a possibility that they would not be heard until 2014, whereas an application to set aside the orders can be heard within a matter of weeks.
As I have said, Mr Forster initially challenged the motives of the wife in seeking this order and suggested that it was just another delay in finalising these proceedings. However, as I have outlined, the wife no longer seeks an adjournment of in excess of 28 days, and if I granted the application the application to set aside would be heard on 31 January 2013. That should assuage any concerns that Mr Forster has about any further delay in this matter.
I am favourably disposed to make the orders sought by the wife. I confirm that it is clearly open to the wife to make such an application, I accept that such an application can be dealt with far more expeditiously than an appeal, and as I have indicated in my reasons for judgment, I would be particularly concerned about that given that the appeal would achieve nothing more than an application to that effect will achieve. Thus, if Mr Forster is truly interested in there being no further delay in this matter, and that it be finalised as soon as possible, the course proposed by the wife is the obvious one. I am comforted in making that observation by again referring to my reasons for judgment delivered 19 December 2012 wherein I made it quite clear that in my view on the authorities, the preferred course in matters such as this is an application to set aside the orders.
Before leaving this topic I also mention that I raised with counsel for the wife why an application to set aside had not been prepared for the purposes of tendering it today. Mrs West in response indicated to me quite correctly that it was not until 19 December 2012, when I delivered my reasons for judgment, that it became clear as to what course of action may be required. Unfortunately, between 19 December 2012 and 15 January 2013 there has been the intervention of Christmas and New Year, and inevitably solicitors’ offices are closed during that period of time, and holidays occur, and the proof of that can be seen by the fact that I was unable to adjourn the matter to any earlier date than today. Thus I understand entirely why it was not possible for
Mrs West’s client to have prepared and have available for today the foreshadowed application.
In any event, for such an application to be now filed, as it will be, by Friday this week, again takes away any concerns that might be raised about that issue.
In terms of what I am intending to do on 31 January 2013, I intend to hear and determine the application to set aside those orders. I will not be dealing with any application for property settlement, save and except to make procedural orders to move that along the case management pathway. I will also deal with any application that may be brought by the Public Trustee on that day.
Perhaps I should also indicate, out of abundant caution, that if I refuse to set aside the orders on that day and then Mr Forster’s application in an appeal and appeals were to proceed, I would be looking to deal with his application to extend time on that day, which is of course what was intended to be dealt with today.
Finally, Mr Forster has also sought to file two applications in an appeal. One seeking a stay of orders made by Dawe J on 30 November 2012, and the other seeking to expedite the appeal that he has lodged against those orders, that appeal being filed on 17 December 2012. These applications, with their supporting affidavits, were sent to the Southern Appeals Registry at 2.12 pm on 14 January 2013, namely, yesterday. I am aware that at 4.22pm an email was sent to Mr Forster by the Southern Region Appeals Registrar acknowledging receipt of the email, noting though, that the applications and supporting affidavits had not been listed, and indicating that if Mr Forster was seeking a listing of the new applications he would need to seek leave from me at today’s hearing.
Now, I am prepared to receive these two applications and treat them as being filed today. However, I am not satisfied that they have been served, and in any event, there has been insufficient time for Mrs West’s client to consider these applications and supporting affidavits, such that they could be dealt with today. I therefore propose to list them on the next date that I have available, which is 31 January 2013, being the date to which I have adjourned other applications made by Mr Forster.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
15 January 2013.
Associate:
Date: 25 February 2013
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