Gibbs & Gibbs
[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 Rule 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; and
(f)A Case Outline document.
THE COURT NOTES THAT:
A.The matter will be listed for final hearing in October with exact dates to be advised.
B.If I do not have valuation of pieces of real property and it is within my power, I will listen to an application to sell each piece of property about which I do not have valuation evidence.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gibbs & Gibbs has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
This is an application for final property orders brought forward by Ms Gibbs (“the wife”). The respondent in these proceedings is Mr Gibbs (“the husband”). This matter is listed for final hearing in respect of property adjustment commencing 16 May 2022 (“the final hearing”).
The husband did not comply with the Federal Circuit and Family Court of Australia Division 1 (“the Court”) directions to file and serve the material he was ordered to file and serve in anticipation of the final hearing dates.
I relisted the matter to provide the husband with notice of my intention to hear and determine the matter on the allocated dates irrespective of whether material had been filed.
I indicated an intention to direct that material be filed by 12.00 pm on Wednesday 11 May 2022 after which time material would not be accepted for filing but the matter would proceed.
The husband had engaged lawyers to seek an adjournment in relation to the final hearing. His lawyer appeared at the mention before me on 9 May 2022.
The husband, by his lawyer, foreshadowed an application for adjournment. I indicated that any such application should be filed by 4.00 pm on 9 May 2022 and the matter would be listed on 10 May 2022.
The husband seeks an adjournment. If this matter is adjourned it will not be heard until October this year.
This matter was filed in 2018.
Discussion of the desirability of the parties mediating in this matter, is in those circumstances, whilst well intentioned, way too late. This matter is listed for hearing for four days commencing 16 May 2022 (next week). The parties are at all times free to resolve their matter on their own terms, but when they do not, the Court should stand ready, willing and able to hear their matter.
The matter came before the Court for case management on 8 November 2021, I made directions for trial.
On 28 March 2022 the husband’s solicitor’s filed a Notice of Ceasing to Act and so when the matter was listed for further case management on 21 April 2022, at the relisting organised by the wife, the husband appeared on his own behalf.
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. …
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.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justices Christie. Associate:
Dated: 10 May 2022
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