GILDAY & NUGENT - [2009] FamCAFC 29

FAMILY COURT OF AUSTRALIA

GILDAY & NUGENT

[2009] FamCAFC 29

FAMILY LAW - APPEAL – Appeal against orders made by a Federal Magistrate dismissing the husband’s contravention application pursuant to section 112AB of the Act – Not established that that the learned Federal Magistrate erred in her construction of the trial Judge’s orders – Not established that the learned Federal Magistrate’s decision was contrary to the evidence before her – Not established that the learned Federal Magistrate denied the husband the opportunity to adduce evidence – Further evidence considered – Not established that the learned Federal Magistrate’s exercise of discretion miscarried as there was no evidence before her Honour capable of establishing the husband’s assertion, even at a prima facie level – Appeal dismissed.

Family Law Act 1975 (Cth) s 112AB; s 93A; s 117(2)
CDJ v VAJ (1998) 197 CLR 172

APPELLANT:

MR GILDAY

RESPONDENT:

MS NUGENT

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

PAC

3896

2008

APPEAL NUMBER:

126

2008

DATE DELIVERED:

5 March 2009

PLACE DELIVERED:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

11 February 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

2 October 2008

LOWER COURT MNC:

[2008] FMCAfam 1163

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Self Represented

SOLICITOR FOR THE APPELLANT:

COUNSEL FOR THE RESPONDENT:

Mr Givney

SOLICITOR FOR THE RESPONDENT:

MCG Lawyers

Orders

That the appeal be dismissed.
That within 28 days the husband file and serve financial or other evidence in opposition to the wife’s application that he pay the costs of the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Gilday & Nugent is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EAA 126 of 2008
File Number: (P) PAC 3896 of 2008

MR GILDAY

Appellant

And

MRS NUGENT

Respondent

REASONS FOR JUDGMENT

By Notice of Appeal filed on 2 December 2008 pursuant to leave earlier granted, Mr Gilday (“the husband”) appealed against orders made by Federal Magistrate Walker on 2 October 2008 in proceedings between the husband and Ms Nugent (“the wife”).
On 2 October 2008 the learned Federal Magistrate dismissed the husband’s application pursuant to section 112AB of the Family Law Act 1975 (Cth) (“the Act”) filed on 14 August 2008. Her Honour ordered that the husband pay the wife’s costs of such application assessed in the sum of $500, such sum to be payable within 6 months.
The husband’s application filed 14 August 2008 asserted that the wife had, without reasonable excuse, contravened orders made in 2004 in proceedings between the parties with respect to settlement of property.
The wife resisted the husband’s appeal.

Background

On 7 June 2004, after a trial earlier that year, Stevenson J made orders determining proceedings for settlement of property between the parties. Relevantly for present purposes, on that date her Honour made a declaration in the following terms:
4. That the husband be declared to be the solely entitled to:
…
2)all motor vehicles registered in his name and/or in his possession or under his control
3)all motor vehicle parts, components and accessories located at the [D property], not being the Ford or any motor vehicle which is the property of a child of the parties
…
6)653 IAG shares in his name
7)money lodged to his credit in any bank, building society or credit union account [Appeal Book, page 39].
Also relevantly for present purposes, her Honour ordered;
7.That the husband remove all motor vehicle parts, components and accessories referred to in order 4 hereof from the [D property] within 8 weeks of the date of these orders or such further period as the parties may agree in writing. [Appeal Book, page 39]
Whilst, by majority, other orders made by Stevenson J on 7 June 2004 were subsequently varied by the Full Court as a consequence of the husband appealing against such orders, the declaration and order made by her Honour on 7 June 2004 were not disturbed.
There is no suggestion that the entitlement of the husband pursuant to the Stevenson J’s declarations and orders of 7 June 2004, or the wife’s obligations pursuant to them, were stayed during the pendency of the husband’s appeal to the Full Court.
On 14 September 2008, more than 4 years after Stevenson J’s orders were made, and more than 2 years after the Full Court determined the husband’s appeal with respect to such orders, the husband filed his application which Federal Magistrate Walker dismissed on 2 October 2008.
In support of his application in the Federal Magistrate’s Court, the husband filed two affidavits. The first, sworn 14 August 2008, asserted:
Respondent took out AVO which was unproven and vexatious for the express purpose to stop my access to retrive [sic] property at [D property]. Tried to have court orders altered outside court duarstiction [sic] to suit her own agenda!
Made access impossible to property and totally refused access to under house to 7 rooms/ w/shops where bulk of parts and workshop machinery stored.
As of 8^th July I accessed property and discovered everything in backyard and shed gone. Police @ scene advised sherifs [sic] orders which was not contested by 12/8/08. [Appeal Book, page 28].
Attached to the affidavit were documents relating to apprehended violence proceedings between the parties which pre-dated Stephenson J’s orders of 2004 and correspondence which post dated Stevenson J’s orders, and commenced on 16 August 2004.
In a second affidavit upon which the husband relied before the learned Federal Magistrate, sworn 11 September 2008, additional correspondence was attached together with emails which post dated Stevenson J’s orders by some years and further documents with respect to apprehended violence proceedings which had been annexed to the husband’s earlier affidavit.
In essence, the husband asserted in his application filed 14 August 2008 that the wife had denied him access to the premises referred to in Stevenson J’s June 2004 orders for the purpose of recovering from those premises the property to which he was entitled pursuant to those orders without reasonable excuse.
The husband, who represented himself before the learned Federal Magistrate, has represented himself on the hearing of his appeal to this Court.
Despite his considerable experience of litigation in this and other courts, the husband has a limited understanding of the principles which govern adversarial litigation and appeals to this Court. His appeal must be determined according to well established legal principles.

The Trial Judge’s Judgment

The learned Federal Magistrate published brief reasons for her dismissal of the husband’s contravention application. Her Honour identified, accurately, the terms of the husband’s application and the relevant orders made by Stevenson J in 2004 upon which such application was based.
Her Honour made accurate observations as to the nature and effect of proceedings pursuant to section 112AB of the Act. Having done so, the learned Federal Magistrate considered the orders made by Stevenson J and “the extent to which a person is bound given the terms of the orders”.
The learned Federal Magistrate recorded that “in the hearing of this matter [Mr Gilday] was given an opportunity to consider the terms of relevant Order 7, the matters referred to in his contravention application and also to consider further the material in the affidavits filed by him”. Those affidavits her Honour accurately identified.
Her Honour added “I drew these matters to [Mr Gilday]’s attention because I wanted him to have the opportunity to indicate whether he could further particularise the nature of the contraventions and the specific details of those contraventions alleged in the terms of Order 7”.
Her Honour referred, accurately, to the agreement between the parties that the 8 week period referred to in Order 7 of Stevenson J’s June 2004 orders had expired on 2 August 2004. There is no suggestion of any resiling from such agreement in the appeal to this Court.
The learned Federal Magistrate observed, accurately, that the period after 2 August 2004 during which the parties could agree in writing to a further period in which the husband could remove the chattels to which he was entitled had “no specific time limits”. Her Honour observed that it was “hard to see the wording of that particular order following the 8 weeks, as imposing an obligation on” the wife. With respect, the logic of that proposition is difficult to refute.
Objectively, as her Honour concluded, once the period of 8 week period referred to in Stevenson J’s orders had expired on 2 August 2004 there was no obligation on either party to reach agreement with respect to the husband’s entitlement to come to the premises to remove the chattels to which he was entitled pursuant to the declaration appearing earlier in her Honour’s orders. Whether that meant that the husband forfeited all right to the chattels, though potentially relevant in strictly civil enforcement proceedings, is a separate issue which does not fall for determination in this appeal.
To the extent that any part of the husband’s challenge to her Honour’s decision involves an assertion of error that the wife had breached the orders by failing to agree to anything after 2 August 2004, such challenge could not, on a construction of the orders, succeed in the context of a contravention application.
The learned Federal Magistrate then considered the evidence upon which the husband relied. The first document was dated 16 August 2004, some two weeks after the time during which the husband could, as of right, retrieve his chattels from the wife’s premises had expired.
Her Honour referred to the substance of correspondence subsequent to that date. Having done so, and there is no suggestion that the learned Federal Magistrate failed to refer to any correspondence annexed to the husband’s affidavits, her Honour concluded that she could not “find material in the affidavit that specifies the period up to 2 August 2004”.
There can be no suggestion on the material before this Court that such conclusion was other than correct. As will be seen in the context of considering the further evidence which emerged during the course of the appeal to this Court, whilst there may have been other correspondence, which pre-dated 2 August 2004, the husband did not put such correspondence before the learned Federal Magistrate. As should be self-evident, criticising a judicial officer for failing to have regard to evidence which was not before (in this case) her must overcome significant logical hurdles.
Her Honour observed that, whilst the correspondence upon which the husband did rely evidenced “negotiations in terms of the provisions in the order”, she concluded, correctly as a matter of construction, that, in the context of the contravention application, the order does not “cast any obligation on the parties in relation to any such agreement”.
The learned Federal Magistrate concluded that the husband’s application could not succeed on the evidence adduced by him. Although not so expressed, her Honour could be seen as having concluded that the evidence relied upon by the husband failed to establish a prima facie case or that, applying the principles relevant to applications for summary judgment, the husband’s application was doomed to fail on his own evidence. It is unnecessary to speculate about the basis upon which her Honour concluded as she did. It is the substantive underpinning of that conclusion with which this Court is ultimately concerned.
Her Honour concluded with respect to costs:
8.I am minded that costs decisions are discretionary and are not usually part of family law matters unless there is some justice in the case in terms of ordering costs. I am minded of [Mr Gilday]'s financial circumstances as put before me and confirmation that [Mr Gilday] is on a disability pension. While he may own a property I think it would be very difficult for him to be able to raise any security on funds on that property given the income that he has. Also I am minded that there is an outstanding taxing of costs process from prior proceedings that has not yet been dealt with. [Appeal Book, page 104, par 8].
In order to better appreciate the merits of the husband’s challenges to the learned Federal Magistrate’s decision, it is appropriate to have regard to the transcript of the proceedings before her. It might be noted at the outset that, both before her Honour and this Court, the husband revealed a failure to understand the distinction between submissions on the one hand and the evidence by which the foundation for such submissions might be laid on the other. Whilst that distinction assumes significance in most cases, it assumes particular significance in this case.

The Transcript of the Hearing before the Federal Magistrate

As a reading of the transcript of the submissions to this Court would confirm, many of the husband’s complaints with respect to the learned Federal Magistrate’s decision are based upon her failure to accept or deal with submissions made by the husband to her Honour during the course of the hearing. Significantly, the husband has not demonstrated, nor with respect having regard to the record could he, that the learned Federal Magistrate failed to have regard to any potentially relevant evidence advanced by the husband in his own case. The husband has not demonstrated, nor could he have, that her Honour overlooked, misconceived or misunderstood any of the evidence which the husband placed before her in support of his contravention application.
Without referring to it in detail, the transcript makes clear that the learned Federal Magistrate carefully directed the husband’s attention to what he needed to be able to prove. [Appeal Book, page 106]. Apart from the fairness of her Honour so doing, the substance of the matters to which she referred the husband was in this Court’s view correct. The transcript is revealing in relation to the husband’s complaints in relation to procedural fairness.
In the pages which followed, the learned Federal Magistrate invited the husband to refer her to the material upon which he relied in support of his application. Correctly in this Court’s view, her Honour reminded the husband that the apprehended violence orders predated Stevenson J’s June 2004 orders. As her Honour perceived, no part of the husband’s application before her could have been advanced by reason of those orders.
Having identified for the husband the difficulty in relation to the period for removal of his chattels which expired on 2 August 2004, the learned Federal Magistrate suggested that the potential for there to have been an agreement in writing for such removal subsequent to that date did not “cast any obligation on any person” as the order “doesn’t tell somebody they must do that”. Albeit perhaps not realising the significance of so doing, the husband responded to her Honour by saying “well, there was no agreement”. [Appeal Book, page 110].
The husband suggested that the parties “couldn’t agree in writing because she changed the conditions of the court orders by putting conditions on it”.
As her Honour had pointed out to the husband, the orders were facilitative rather than directive. Quite simply, if the parties agreed, then the husband had a longer period to remove his items in accordance with Order 7. If they did not, then he did not have that right. As noted earlier, whether that meant that the husband thereby forfeited his entitlement to those chattels was a separate issue and as the learned Federal Magistrate correctly identified, not an issue which arose for determination in the proceedings before her.
During the course of the proceedings before her, the learned Federal Magistrate repeatedly sought to direct the husband’s attention to the evidence upon which he did or sought to rely with respect to the 8 week period provided for in Stevenson J’s orders which expired on 2 August 2004.
Her Honour said, in terms which could not reasonably have been misunderstood “you need to specifically say to me at what time and in what circumstance you say that order was contravened”. [Appeal Book, page 112].
As noted earlier, in neither of the affidavits upon which he relied before the learned Federal Magistrate did the husband make any allegations with respect to the period prior to 2 August 2004. The transcript leaves little doubt that, out of abundant and appropriate fairness to the husband, the learned Federal Magistrate invited the husband to refer her to further evidence in support of his case.
As the transcript makes clear, the husband was unwilling or unable to respond to the learned Federal Magistrate’s repeated invitations in the way that addressed the evidentiary lacuna to which her Honour was clearly referring.
The transcript reveals that, on numerous occasions, the learned Federal Magistrate reminded the husband of his “responsibility” to prove his case, repeatedly inviting him “to provide the Court with is (sic) specific detailed, dates and times of what you say on the particular contraventions of this order”.
The husband did not, as his responses make clear, refer the learned Federal Magistrate to particular matters which he asserted constituted contraventions of Stevenson J’s orders.

The Grounds of Appeal

With respect to him, the husband’s Grounds of Appeal are not readily or necessarily able to be translated into what could properly be regarded as Grounds of Appeal. The substance of the husband’s complaints is reasonably apparent, and it is to those matters which the Court directs its attention.
Objectively, the husband’s challenges in part involve the assertion that the learned Federal Magistrate erred in her construction of Stevenson J’s orders, and in part assert that the learned Federal Magistrate’s decision was contrary to the evidence before her.
It is convenient to commence with the challenge to the learned Federal Magistrate’s construction of Stevenson J’s orders. As the learned Federal Magistrate’s Reasons for Judgment and observations during the course of the hearing before her confirm, her Honour perceived that there were two components of Stevenson J’s orders in respect to the chattels to which the husband was entitled.
From the date of the orders until the period 8 weeks later, the expiry of which has never been in contest and was 2 August 2004, the husband was entitled as of right to attend at the wife’s premises to recover his chattels. Thereafter, her Honour perceived that the husband was not entitled as of right to attend at the wife’s premises to recover his chattels. If the parties agreed in writing to the husband doing so subsequent to 2 August 2004, then he could do so. If they did not, he could not. It is not in doubt that they did not.
Her Honour concluded that the orders imposed no obligation on anybody to agree, in writing or otherwise, that the husband could attend at the wife’s premises to collect his chattels after 2 August 2004. It has never been in contest that the parties could not and did not at any time before or after 2 August 2004 reach agreement, in writing or otherwise, that the husband could attend at the wife’s premises to recover his chattels.
This Court is not persuaded that the learned Federal Magistrate misconstrued Order 7 of Stevenson J’s June 2004 orders. Given that, as the learned Federal Magistrate correctly concluded, neither party was obliged to agree to anything after 2 August 2004, no part of the husband’s case could successfully rely upon the failure of the wife to agree to his attending her premises to collect his chattels after 2 August 2004.
To the extent that it might be suggested that, at least at the prima facie case level, implicit in Order 7 was a requirement to not unreasonably fail to agree, the evidence upon which the husband relied before the learned Federal Magistrate could not in this Court’s view have satisfied that requirement.

To the extent that the husband challenges the learned Federal Magistrate’s decision in reliance upon her construction of Stevenson J’s orders of June 2004, such challenges must thus fail.
It is then necessary to consider whether the evidence before the learned Federal Magistrate rendered erroneous her conclusion that the husband’s complaint with respect to the period prior to August 2004 lacked substance.
As a perusal of the Appeal Book, the affidavits relied upon by the husband before the learned Federal Magistrate, and the transcript of the proceedings before her Honour confirm, at no time during the proceedings in the Federal Magistrate’s Court did the husband adduce evidence capable of establishing at a prima facie case level that he had sought prior to 2 August 2004 to retrieve the chattels to which he was entitled pursuant to Stevenson J’s orders from the premises of the wife.
As the transcript establishes beyond doubt, the learned Federal Magistrate repeatedly drew to the husband’s attention the absence of such evidence and invited him to adduce such evidence.
With respect to the husband, in this Court’s view her Honour could not have made clearer the nature of the evidence which the husband needed to produce in support of his application if it was to have any prospect of success. Nor could her Honour have made greater efforts to invite the husband to do so than the transcript reveals to have been the case. Objectively, only by potentially compromising her impartiality as the adjudicator could the learned Federal Magistrate have tried harder to assist the husband in presenting evidence in support of his case.
Before this Court the husband made repeated references to a letter which he said his former solicitors had written to the wife’s solicitors on 18 June 2004. The husband conceded that such letter had not been before the learned Federal Magistrate. The husband, who appeared by telephone from Queensland on the hearing of the appeal was unable to refer to the terms of the letter. The Court invited the husband to call for a copy of the letter written by his former solicitors to the solicitors for the wife. Learned Counsel for the wife produced the letter but, before disclosing it to the Court, advised that the letter was headed “without prejudice”. The husband waived privilege with respect to the letter written on his behalf by his former solicitors.
The Court received the letter on the basis that, though not expressly so formulated, the husband sought to rely upon it pursuant to s 93A of the Act by way of further evidence in accordance with the principles emerging from the judgment of the majority in the High Court in CDJ v VAJ (1998) 197 CLR 172.
Having been written prior to 2 August 2004, the letter has potential relevance to the husband’s contravention application. Whether the evidence is capable of demonstrating appealable error on the part of the learned Federal Magistrate can only be decided by having regard to the terms of the letter.
The husband’s solicitor’s letter of 18 June 2004 commenced by saying “We confirm our client attended the address of [D property] on 4 June 2004 and collected property within the yard of those premises”.
It is ultimately not contentious that the husband did attend the premises on 4 June 2004, and removed chattels to which he was entitled from those premises on that date.
The orders of Stevenson J which gave rise to the husband’s contravention application were made three days later. It would be unfair to the husband in the circumstances to draw any inference adverse to him by reason of the wife’s apparent agreement to the husband attending at the premises on 4 June 2004 and removing items.
The husband’s solicitors letter continued:
We note your advice of damage to property, namely electrical components of the property. We confirm receipt of an invoice for repairs to this property.
At present we are not in a position to comment on this issue and will obtain instructions from our client.
It is not in dispute that, between 4 and 18 June 2004, the wife’s solicitors provided to the husband’s solicitors an “invoice” from a firm of electrical contractors which related to damage allegedly caused to the premises D property by the husband on 4 June 2004.
When the husband’s solicitors obtained instructions from their clients sufficient to “comment” on the issue of alleged damages is unclear. What is clear is that, both before the learned Federal Magistrate and this Court, the next communication from the husband’s solicitors to the wife’s solicitors was dated 16 August 2004, albeit it appears that the solicitors for the parties had “telephone discussions” on 13 August 2004.
The letter from the husband’s then solicitors of 18 June 2004 confirmed that the husband “seeks further access to the premises” at D to recover the “large amount of property” at the premises to which he was entitled, by that time pursuant to Stevenson J’s orders of 7 June 2004.
The husband’s solicitor’s letter then said:
It is noted your client’s instructions are that our client will not enter the house and that the property under the house shall be boxed and left in the rear yard. If your client is to maintain this position and not allow our client access to the house to collect this property, our client will not meet the cost of boxing the said property and removing it to the rear yard.
The letter continued:
We note that final orders were made in the Family Court on 7 June 2004. Unless arrangements may be made between the parties, our client has 8 weeks in which to collect this property. It would be appreciated if you could obtain urgent instructions to allow our client to collect this property.
That statement, to the extent that there could be any doubt about it, made quite clear that the husband was aware of the 8 week period “in which to collect” his property. Following other matters which are not significant for present purposes, the husband’s solicitor’s letter concluded “regarding the damage to property, we shall contact you in the near future”.
Counsel for the wife, consistent with the High Court’s judgment in CDJ v VAJ (supra) sought to rely upon the letter written by the wife’s solicitors on 28 June 2004 in response to the letter from the husband’s solicitors of 18 June 2004 to which reference has just been made. The wife’s solicitor’s letter was also “without prejudice”. As did the husband, the wife waived her privilege with respect to that letter.
The letter commenced by observing that “there is no satisfactory explanation as to why your client did not attend the premises on 7 and 8 June, 2004 as agreed”.
Other than the assertion thus made, there was no evidence before the Federal Magistrate that there had been an agreement that the husband attend the wife’s premises on 7 or 8 June 2004 or that the husband in fact did so. It would not be fair in the circumstances to draw any inferences adverse to the husband in this appeal in reliance upon the opening statement in the wife’s solicitor’s letter of 28 June 2004.
The letter proceeded to state that the wife’s solicitors required payment of the invoice from the electrical contractors with respect to the damage allegedly caused to the wife’s premises on 4 June 2004 “prior to any undertakings of further attendances at the property for the purposes of collection of care parts and componentry”.
The wife’s solicitor’s letter repeated the assertion that the husband had been offered access to the wife’s premises on 4, 7 and 8 June 2004. As noted earlier, it is not in contention the husband attended the premises on 4 June 2004. There was no evidence before the learned Federal Magistrate or before this Court as to whether the husband was offered access to the premises on 7 or 8 June 2004 or sought to have access to the premises on either of those dates.
The wife’s solicitor’s letter proceeded to deal with a number of aspects of the packaging and removal of certain items and the time and manner in which other items were required to be removed, none of which assumes significance for present purposes.
The letter concluded with the request that the husband’s solicitors:
… obtain instructions from your client in relation to the payment of the repairs for the damage caused by your client on 4 June, 2004. Upon receipt of payment of same, we will be in a position to discuss further access to the premises of [D property].
There is no evidence of any response by the husband’s solicitors to that letter until, albeit not purporting to respond to the letter as such, the husband’s solicitors wrote to the wife’s solicitors on 16 August 2004. [Appeal Book, page 48]. That letter was before the learned Federal Magistrate and recorded the following:
We note you indicated your client consents to an extension of time for the removal of the car parts with the following conditions attached:-
1.    Payment by the husband for the damage allegedly undertaken at the premises.
2.    In order to retrieve the car parts under the house, such removal can only be undertaken by an agent.
3.    The husband be prohibited from having access to the kitchen and other areas of the home.
We indicated we would obtain instructions and reply as soon as possible. [Appeal Book, page 48].
The letter is curious insofar as it purports to record the wife’s willingness to extend the time pursuant to Order 7 of Stevenson J’s orders for the husband to gain access to her premises to recover the chattels to which he was entitled, and to do so on terms which, at least as to paragraphs 2 and 3, could not be seen as in any way unreasonable.
So far as the request for payment of the damage allegedly caused by the husband was concerned, his solicitor’s letter of 16 August 2004 was silent as to whether the husband accepted liability for such damage, notwithstanding that the issue had been raised prior to 18 June 2004 as the husband’s former solicitor’s letter of that date made clear.
Albeit erroneously dated July, the wife’s solicitor’s letter to the husband’s solicitor of 20 August 2004 confirmed the willingness of the wife to consent to an extension of the time in which the husband could recover the chattels to which he was entitled from the wife’s premises. Save with respect to the first item there raised, none of the conditions stipulated could properly be regarded as unreasonable. [Appeal Book, page 47].
Although the first page of the husband’s solicitor’s letter to the wife’s solicitor of 16 August 2004 appeared to conclude such letter, [Appeal Book, page 33] there may have been, whether it was to that letter or not is unclear, a further paragraph which read:
You will appreciate if we have not received consent to removal of the car parts by the close of business today, an application will have to be made to relist the matter before Her Honour Justice Stevenson. Regrettably, we foreshadow an application for costs will be made. [Appeal Book, page 34].
In the second affidavit of the husband in support of his contravention application, to which was also annexed his solicitor’s letter of 16 August 2004, the possible additional paragraph did not appear.
If that additional paragraph in fact formed part of the husband’s solicitor’s letter, it would not be to the husband’s advantage given its contents, as no application was ever made to Stevenson J, or any other judge, for relief in the terms there foreshadowed.
On 15 September 2004, the wife’s solicitors again wrote to the husband’s solicitors in the following terms:
We refer to our letter dated 20 August 2004 inadvertently dated 20 July 2004.
We note that we agreed to the extension for the removal of the car parts and componentary until 7 September 2004. We further confirm that we have not to date received any request by you in relation to arranging a suitable time for your client or his agent to attend the property for this purpose.
Various arrangements have been made with your client over a period of at least 2 years to remove these items. Despite some 20 attendances by your client virtually none of the parts, rubbish and debris have been removed.
We are therefore instructed to advise that unless an arrangements satisfactory to our client for removal of these items is made forthwith and that the items are consequently removed within 28 days of the date hereof, our client will consider herself free to take whatever action she sees fit to remove the items from her home. [Appeal Book, page 43].
There is no evidence that the husband’s solicitor replied to that letter in the two year period which followed its receipt.
In the circumstances, as the evidence, both before the learned Federal Magistrate and the further evidence before this Court reveal them, there is no evidence before the learned Federal Magistrate capable of establishing the husband’s assertion, even at a prima facie level. Her Honour was in the circumstances not only justified in dismissing the husband’s application but was, in this Court’s view, obliged to do so.
To the extent that the husband complained that the learned Federal Magistrate “would not give access to witness to give oral evidence”, [Ground 5, Appeal Book, page 20] nothing to which the husband has referred this Court, or which this Court has discovered for itself from the transcript of the proceedings before her provides any support for complaining that the learned Federal Magistrate denied the husband the opportunity complained of. On the contrary, her Honour clearly and repeatedly invited the husband to adduce evidence in support of the alleged contravention.
The husband could not reasonably contend that he did not understand what her Honour was asking him. Though unresponsive in other respects, the husband’s responses to the learned Federal Magistrate’s invitations in that regard leave little room for doubt that, for whatever reason, the husband was unable to provide further particulars in support of his complaint or give any evidence in support of them.
Without needing to reach a concluded view about it, the evidence before her Honour and further evidence before this Court imply that the husband’s failure to give instructions with respect to the payment of the damages allegedly caused by him on 4 June 2004 prevented the parties from making arrangements to enable him to attend at the wife’s premises in order to recover the balance of the chattels to which he was entitled pursuant to Stevenson J’s orders.
Without needing to reach a concluded view about it, on balance, the evidence suggests that the husband’s failure to gain access to the wife’s premises to recover his chattels was more referrable to his failure to give instructions to his solicitors during the 8 week period subsequent to the making of Stevenson J’s orders than to any refusal on the part of the wife.
Whilst it is also unnecessary to reach any concluded view, the evidence before this Court leaves little room for doubt that, even if, despite the absence of any evidentiary basis for doing so, the learned Federal Magistrate had found a prima facie case against the wife, the wife would have had little difficulty establishing on the balance of probabilities a reasonable excuse for not complying with Stevenson J’s order prior to 2 August 2004.
To the extent that the husband complains about the learned Federal Magistrate’s exercise of discretion, such complaint is misconceived. In dismissing the husband’s contravention application, the learned Federal magistrate did not exercise judicial discretion. Having found, as was clearly open to her, and with respect, almost inevitable, that the husband had not made out his application to even a prima facie level, the learned Federal Magistrate was obliged to dismiss his application. Judicial discretion was never enlivened.
As noted earlier, no challenge to any finding of fact which led her Honour to so order has been successfully challenged. No ground of appeal having been made out, the husband’s appeal will be dismissed.

The Costs Appeal

The learned Federal Magistrate had regard to all relevant matters in concluding, which was clearly open to her, that the husband should pay the wife’s costs of his unsuccessful contravention application. The quantum of those costs could only be regarded as generous to the husband.
On the evidence before this Court, the husband’s contravention application was ill-conceived. The fact that the husband was unrepresented would not create a shield against liability for the wife’s costs of successfully resisting that application.
Nothing to which the husband has referred this Court, with respect to the costs order or otherwise, provides the slightest foundation for appellate intervention.
The costs appeal will be dismissed.

Costs of the Appeal

Learned Counsel for the wife sought that the husband pay the wife’s costs of successfully resisting the husband’s appeal.
Other than by reference to the husband’s financial circumstances, no basis for declining to form the opinion required by section 117(2) of the Act could reasonably be suggested in the circumstances of this appeal. Objectively, on the husband’s own evidence, just as his contravention application before the learned Federal Magistrate was doomed to fail, so was his appeal to this Court.
In fairness to the husband however, and without strong opposition from Counsel for the wife, the husband will have the opportunity within 28 days, to file and serve evidence with respect to his financial and personal circumstances in support of his opposition to an order for costs being made in favour of the wife.

I certify that the preceding ninety eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman

Associate: MB

Date: 5 March 2009