Gibbs & Gibbs

Case [2022] FedCFamC1F 311

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Gibbs & Gibbs [2022] FedCFamC1F 311

File number(s): SYC 5405 of 2018
Judgment of: CHRISTIE J
Date of judgment: 10 May 2022
Catchwords: FAMILY LAW – PROCEDURAL – Where the husband seeks a vacation of the final hearing dates – Where the final hearing is less than a week away – Where the husband has not complied with procedural orders – Where the wife opposes the application for adjournment – Where the wife is ready for final hearing – Where the expert evidence has not been filed – Adjournment application is successful – Hearing date vacated
Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 1.33, 10.26, 10.27
Cases cited:

AON Risk Services v Australian National University (2000) 239 CLR 175

Cheung v The Queen (1999) 73 ALJR 1093

Queensland v J L Holdings (1997) 189 CLR 146

Division: Division 1 First Instance
Number of paragraphs: 28
Date of hearing: 10 May 2022
Place: Sydney
Counsel for the Applicant: Mr Watkins
Solicitor for the Applicant: Solari & Stock Lawyers
Solicitor for the Respondent: Nora Michael Family Lawyers

ORDERS

SYC 5405 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS GIBBS

Applicant
AND:

MR GIBBS
Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

10 MAY 2022

THE COURT ORDERS THAT:

1.The final hearing listed for 16 May 2022 be vacated and the wife’s costs of this application, and her costs thrown away, be reserved.

2.The matter is listed for a Case Management Hearing on 7 September 2022 at 9.30 am.

3.Within 28 days of the making of these orders the husband is to advise the wife in writing of the ownership of the shares of Ms B in D Pty Ltd.

4.Forthwith, the husband serve upon the wife the financial statements of D Pty Ltd for the year ended 30 June 2021.

5.Within 28 days of the making of these orders the husband serve on the wife any documents relating to the trust over E Street, Suburb F.

6.Within 28 days of the making of these orders the husband serve on the wife any documents relating to the life estate in respect of G Street, Suburb F.

7.This matter be re-listed before me on 48 hours’ notice if there are any issues in respect of obtaining access to the properties in which the husband has an interest, or it is asserted that he has an interest in these proceedings, and I place the husband on notice that if such re-listing is necessary, I will entertain an application for costs, including costs (if appropriate), on an indemnity basis.

8.On or before 30 June 2022 the husband is to file and serve:

(a)A single consolidated trial affidavit;

(b)A single affidavit from any witness;

(c)A Financial Statement;

(d)Exhibits to Affidavits and provisional Tender Bundles of all documents that might be tendered or relied upon in cross-examination;

(e)An undertaking as to disclosure in accordance with…

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AGLC
Gibbs & Gibbs [2022] FedCFamC1F 311
Case
[2022] FedCFamC1F 311
Decision Date

CaseChat Overview and Summary

In the matter of Gibbs & Gibbs, the husband sought an adjournment of the final hearing which was set to take place on 16 May 2022. The wife opposed the adjournment application, arguing that the husband's request was not justified and would cause her undue prejudice. The case was before the Family Court of Australia, where the judge was required to consider the legal principles and factors relevant to determining whether to grant the adjournment.

The legal issues the court had to decide included whether the husband's reasons for seeking an adjournment were valid, and if so, whether granting the adjournment would be just and fair to both parties. The court considered the husband's health, bereavement, and the unavailability of expert evidence as reasons for the adjournment. However, the judge also had to consider the wife's prejudice and the overall impact on court resources and other litigants.

The court ultimately decided not to grant the adjournment, finding that the husband's failure to comply with previous court directions, his choice of a lawyer with a criminal law specialty, and his focus on settlement options instead of trial preparation were factors that weighed against granting the adjournment. The court also emphasised the importance of procedural fairness to both parties and the need to avoid undue delay. The judge further noted that the husband had not demonstrated any incapacity and had not appointed a next friend or case guardian as required.

The final orders made by the court were to vacate the final hearing listed for 16 May 2022, reserve the wife's costs of the adjournment application and her costs thrown away, and to hear the matter in October. The court intended to make further directions in the matter but had not yet determined the specific dates.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The husband failed to comply with the directions made 8 November 2021 which required him to file his trial material on 25 April 2022 and so the matter was relisted before me on 9 May 2022.THE EVIDENCE The evidence in support of this adjournment application was contained in material filed at 10.41 pm on 9 May 2022, together with an affidavit. The husband was directed to file and serve any application for an adjournment by 4.00 pm on 9 May 2022.THE LAW The Court has a wide discretion when determining an application for adjournment. I am required to take into account the reasons for the adjournment, any period of delay in making the application, any prejudice or disadvantage to the other party which cannot be compensated for by way of costs, including if necessary security for costs. Ultimately, the adjournment will be granted or refused having regard to my overriding duty to do justice between the parties as set out in Cheung v The Queen (1999) 73 ALJR 1093 at 1094 – 1095. …the court has both the express and implied power to grant an adjournment where it is necessary to do justice between the parties. Where a refusal would seriously prejudice a party, the adjournment should ordinarily be granted. At least it ought to be granted if the opposing party can be adequately protected by orders as to costs, orders providing for a new hearing on dates suitable to it, or other orders of a procedural character which take into account any prejudice which may be suffered by it. It is necessary for me to have regard to the other matters in the Court’s list awaiting determination. Case management issues such as the impact of the adjournment on court resources, lists and time, and the rights of other litigants are appropriately taken into account, but "case management is not an end in itself": Queensland v J L Holdings (1997) 189 CLR 146 at 154, 167 – 172. In addition, it is appropriate to look to the guidance provided in AON Risk Services v Australian National University (2000) 239 CLR 175 where the High Court was determining whether or not there had been error in a case involving an application to adjourn a trial following the filing of an amended statement of claim. The High Court considered the dicta in Queensland v JL Holdings and his Honour the Chief Justice discussed the need to strike a balance between the competing aims of the court – on the one hand to promote justice and on the other the need for litigation to be dealt with in a timely and efficient manner. Ideally, the two aims are both met but where one party is prepared to have the matter heard and determined and another party seeks an adjournment it will be necessary to weigh the competing claims. In JL Holdings at [189] the following passage appears:24.… The discretion is exercised in the context of the common law adversarial system as qualified by changing practice. But that is not a system which today permits disregard of undue delay. Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation. …

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The husband’s failure to comply with court directions to date is not consistent with his obligation in r 1.04(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules (Cth) (“the Rules”). The husband is in default of the procedural orders made on 8 November 2021 where he has failed to file material (r 10.26(2) of the Rules) and accordingly I would be entitled to exercise my discretion under r 10.27 of the Rules by giving judgment or orders or specifying consequences for not complying with orders, as the Court sees just (r 10.27(3) of the Rules). I may proceed with the final hearing and proceed as if it is undefended pursuant to r 1.33 of the Rules. CONSIDERATION If it were just the husband’s health and his bereavement I would be compassionate but I would be disinclined to grant the adjournment. Many people find themselves in circumstances before the Court which causes them great stress and/or difficulty and the Court does not and cannot adjourn for that reason. The evidence did not establish to my satisfaction that the husband is incapacitated, if it is a case of incapacity he needs to have a next friend or case guardian. This has not occurred to date. I take it he is in a position to give instructions albeit, it may cause him stress and discomfort. The husband has chosen not to focus on preparing for hearing. He engaged a lawyer whose speciality was criminal law. He focused on settlement options when the matter had not settled instead of preparation for trial. I am however most concerned about procedural fairness to both parties. I now know that the updated single expert of Mr C valuing the shares D Pty Ltd is not available and may not be available until the end of week. By the end of the week I understood counsel who appears on behalf of the wife to be saying Friday 13 May 2022. This trial starts on Monday 16 May 2022 it is not acceptable for either party to first see the evidence in the case on the last business day before the trial. I now know that the real property valuations are unavailable and it is not known when they will be available. If they had been filed as desktop valuations today, if I had Mr C’s report based on what he knows today, then I could accede to the application that we proceed next week unfortunately that is not the case. The Prejudice to the wife in this application for adjournment is the time it will take to get the matter back on and cost. I cannot cure the time prejudice but I can cure the costs prejudice. The orders which I propose to make are:(1)The final hearing listed 16 May 2022 be vacated and the wife’s costs of this application, and her costs thrown away, be reserved. I will hear this matter in October, I will tell the parties when the dates will be but not quite yet, I intend to make some further directions in this matter.