Gadzen & Simkin

In Gadzen & Simkin, the appellant, Gadzen, appealed against orders made by the Federal Circuit Court allowing the respondent, Simkin, to bring property settlement and maintenance proceedings seven years out of time. The trial judge concluded that Simkin would suffer hardship within the meaning of s 44(6) of the Family Law Act 1975 (Cth) if leave were not granted. Gadzen contended that the trial judge erred in law by failing to undertake any analysis of Simkin's potential claim and the likely costs of pursuing that claim and by applying the wrong legal test to determining the question of hardship.

The Full Court found that the trial judge correctly identified the authorities relevant to the question of hardship but failed to undertake any analysis of Simkin's potential claim and the likely costs of pursuing that claim. The Full Court held that an analysis of the potential claim of Simkin was necessary to determine whether or not hardship would be occasioned to Simkin if she were not granted leave to pursue that claim. The Full Court further held that the trial judge gave no consideration to the prospective legal costs of pursuing Simkin's claim, which is an essential element in determining hardship. The Full Court concluded that the trial judge applied the wrong legal test to determining the question of hardship and failed to consider and determine whether or not Simkin had a prima facie or arguable claim that was substantial having regard to all the circumstances of the case, including her potential costs in pursuing that claim.

The Full Court granted leave to appeal, allowed the appeal and set aside the orders made on 3 May 2018. The Full Court held that it was appropriate to re-exercise the discretion in relation to Simkin's application and dismiss it. The Full Court held that it was not satisfied that Simkin established hardship within the meaning of s 44(6) and dismissed Simkin's Initiating Application. The Full Court also made orders as to costs of the appeal and granted costs certificates to both parties pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth).