Gill and Gill

[2013] FCCA 757

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILL & GILL     [2013] FCCA 757

Catchwords:
FAMILY LAW – Property – application to vacate final hearing dates – asset pool – where value of personal injury claims unable to be quantified – whether delay in proceedings will prejudice either party – whether a party may apply for a partial property settlement – whether an order for costs should be made.

Legislation:
Family Law Act 1975 (Cth), ss.79, 80

Cases cited:
Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166; (2009) 241FLR 1; (2011) FLC 93-466

Applicant: MR GILL

Respondent: MS GILL

File Number: SYC 4040 of 2012

Judgment of: Judge Scarlett

Hearing date: 1 July 2013

Date of Last Submission: 1 July 2013

Delivered at: Sydney

Delivered on: 8 July 2013

REPRESENTATION

Counsel for the Applicant: Mr Stenhouse

Solicitors for the Applicant: Rockwell Olivier (formerly Argyle Lawyers)

Counsel for the Respondent: Mr Jackson

Solicitors for the Respondent: Tomasevic Poljak Lawyers

ORDERS

1. The hearing dates of 4 and 5 September 2013 are vacated.

2. Each party has leave to file and serve:

   (a)An Application in a Case returnable on 6 September 2013  seeking:

   (i)An interim or partial property order;

   (ii)Costs.

   (b)An affidavit in support of the Application in a Case; and

   (c)A written submission.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 4040 of 2012

MR GILL

Applicant

And

MS GILL

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application in a Case brought by the Husband, who is the Applicant in the substantive Application. He seeks to vacate the final hearing dates on 4^th to 6^th September because an important part of the property pool will not be ascertainable by that time.

2. The parties have three personal injury claims arising out of two motor vehicle accidents. One of these is a motor cycle accident that occurred in November 2004. The other ones arise out of a more recent accident, in September 2009, when both parties were injured in a motor car accident. The parties’ claims will not have been finalised by the trial dates in September this year.

3. The Wife, who is the Respondent, opposes the application to vacate the trial dates. Her contention is that the hearing should proceed, even if the Court only makes a partial property order out of the other assets.

Background

1. The parties were married on (omitted) 2007. They separated on 28^th February 2012 and were divorced on 21^st May 2013.

2. The parties were involved in a serious motor vehicle accident on 5^th September 2009 and both suffered serious injuries. They subsequently instructed Mr Greg Masselos, a solicitor who specialises in personal injury claims, to pursue personal injury claims on their behalf.  

3. The Husband had previously been injured in a motor cycle accident in November 2004. He has made a claim for compensation in respect of injuries to his right knee, his shin and ankle.

4. These claims remain outstanding.

5. The Husband commenced proceedings by filing an application for settlement of property on 11^th July 2012.

6. The Wife filed her Response on 16^th August 2012.

7. On 20^th August 2012 the parties were ordered to attend a Conciliation Conference with a Registrar. The conference took place on 26^th October 2012. No agreement was reached at the conference.

8. On 5^th November 2012 the Application was listed for final hearing on 4^th to 6^th September 2013.

9. On 18^th April 2013 the Husband filed an Application in a Case, seeking to vacate the hearing dates.

10. The Wife filed a Response to the Application in a Case on 20^th June 2013, in which she seeks orders that:

    a)The Application in a Case should be dismissed; or

    b)In the alternative:

    the Hearing dates 4^th, 5^th & 6^th September 2013 be listed for the purpose of a partial property Order in relation to the matrimonial assets, liabilities, and superannuation of the parties (hereinafter referred to as “POOL A”) and excludes the Husband’s personal injury claim (hereinafter referred to as “POOL B”) and excludes the Wife’s personal injury claim (hereinafter referred to as “POOL C”).

11. The Wife seeks a partial property Order in respect of the Pool A assets.

12. Again, in the alternative, the Wife seeks Orders in respect of Pool B and Pool C, the personal injury claims, which would involve appointing a barrister specialising in personal injury claims as a single expert to evaluate the parties’ personal injury claims. The names of three barristers were provided, but I indicated that two out of the three barristers named were personal friends and I would have a conflict of interest if either one were to be used in this way.

Evidence

1. The Husband relied on the following:

   a)his affidavit of 10^th July 2012;

   b)the affidavit of his solicitor, Glenda Ann Laurence filed on 18^th April 2013; and

   c)the affidavit of Ms Laurence sworn on 28^th June 2013.

2. The Wife relies on her affidavit of 19^th June 2013.

3. In her affidavit of 28^th June, Ms Laurence annexes copies of emails between herself and Mr Masselos, the solicitor with the carriage of the parties’ personal injury claims. In his email of 20^th June annexed to Ms Laurence’s affidavit, Mr Masselos advises:

   Mr Gill’s matter has been set down for a CARS Assessment Conference on 23 September 2013. I consider there to be virtually no prospect at all that the matter will settle before then.

4. In her affidavit of 19^th June 2013, the Wife sets out the context of advice that she received from Masselos over the telephone on 15^th May 2013. She deposed that he said words to the effect:

   “Telephone conference took place today with CARS Assessor. Assessment conference is set down for 2 September 2013. If no agreement is reached after September settlement conference then you matter will go to a hearing before a CARS Assessor, following which, the Assessor will make a decision, say by end September 2013. If you accept the decision then your case is finalised. However, if you reject the decision then your matter will go to the District Court Motor Accident Division and it could take up to a further nine months for a District Court hearing.[1]

   [1] Affidavit of Ms Gill 19.6.2013 at paragraph [71]

Submissions

1. Counsel for the Husband, Mr Stenhouse, submitted that the hearing dates of 4^th to 6^th September should be vacated and the matter should be listed for hearing for three days in September 2014, or brought back for directions after the CARS assessment conferences have taken place.

2. The Husband submits that:

   a)The three motor vehicle personal injury claims are a major component of the otherwise relatively modest asset pool;

   b)None of them will be crystallized by the final hearing dates in September; and

   c)On a best-case scenario the claims will not be crystallized before the end of September 2013, if the husband and Wife both accept the CARS assessment of their personal injury claims, and on a worst case scenario the claims will not be finalised until the end of August 2014, if both parties have to pursue their claims through the District Court.

3. The Husband opposes the Wife’s proposal to appoint a personal injury as a Court expert to “value” the parties’ three personal injury claims. He also opposes the Wife’s alternative proposal, which involves dividing the property pool into three separate pools and then proceeding with the final hearing in respect of Pool A, the pool containing the former matrimonial home and other assets.

4. The Wife opposes the Husband’s proposal to vacate the hearing dates. Her counsel, Mr Jackson, submitted that:

   a)Even the recent evidence about the likely time for the parties’ personal injury claims to be finalised does not provide any certainty as to when the property proceedings between the parties will be completed;

   b)The Husband is the Applicant in these proceedings has considered the matter to be ready to proceed from the time he commenced these proceedings on 11^th July 2012 through to November 2012, when he was seeking final hearing dates, and no indication was given prior to April this year that the matter was not ready to proceed; and

   c)Any delay in proceedings will greatly prejudice the Wife.

5. The prejudice to the Wife by a delay in finalising these proceedings comes from:

   a)the fact that she has no proprietary interest in the former matrimonial home and her assets are largely limited to a bank account, which she has elected to remain frozen;

   b)she only holds a casual position of employment and her short term financial future is uncertain;

   c)she is not in receipt of spousal maintenance; and

   d)she has concerns about the Husband disposing of assets since the parties separated.

6. Accordingly, the Wife proposes reliance on a barrister with experience in motor vehicle personal injury claims to value the parties’ personal injury claims. Mr Jackson submits that such a valuation exercise is no different from any other valuation of an item of property. It is not necessary, he submits, to value a parcel of real property for the Court to wait until it is actually sold, nor is it necessary to value a business in that way in order for the Court to make orders under s.79 of the Family Law Act 1975 (Cth).

7. The Wife’s alternative proposal is to provide temporary relief by way of a partial property order. It is not necessary to establish compelling circumstances in relation to the making of a partial property order. All that is required is that it is appropriate to exercise the power (Strahan & Strahan (Interim Property Orders)[2].

   [2] [2009] FamCAFC 166; (2009) 241 FLR 1; (2011) FLC 93-466

Conclusions

1. In my view, the Husband’s estimate of the likely time scale for the finalisation of his motor vehicle personal injury claims was quite inaccurate when he commenced the proceedings on 11^th July 2012. In his affidavit of 10^th July 2012, he stated:

   My personal injury claim is still proceeding. Both my motorcycle accident and a further car accident claim will finalise at the end of this year or early next year. The wife also made a claim in respect of our accident in September 2009, in respect of damages/injuries suffered as a result of that accident. Her claim is estimated to be settled mid to end of next year.[3]

   [3] Affidavit of Mr Gill 10.7.2012 at paragraph [18]

2. Curiously, whilst the Husband’s prediction of the likely time in which his own claims would be resolved was inaccurate, his prediction of the likely progress of the Wife’s claim was much closer to the mark. This poses the question why the Husband, who as the Applicant had carriage of the matter, sought to have the application set down for final hearing when he did.

3. It would appear that the Husband gave little thought to the reality of the personal injury claims being resolved in time and proceeded to take hearing dates which are obviously too early for the parties, and the Court, to have an accurate idea of the size of the property pool.

4. The property proceedings are clearly not ready for final hearing on 4^th September this year. I am not disposed to follow the Wife’s suggestion of appointing a barrister as a Court expert to value the parties’ personal injury claims. This course, with respect, appears to be imprecise and speculative.

5. It would appear that the Wife may have a claim for a costs order arising from this unfortunate situation, but that is a matter for submissions on another day.

6. However, it would appear that there is scope for an application for either an interim or a partial property order to be made, as referred to in Strahan & Strahan[4]. Although the Wife already seeks a partial property order in her Response filed on 20^th June, she may wish to file an Application in a Case along with a supporting affidavit if she wishes to pursue a partial property claim.

   [4] supra

7. There is no justification for holding two separate final hearings. The hearing dates of 4^th and 5^th September will be vacated but 6^th September will be retained. On that day, the Court will hear submissions about:

   a)Any application for an interim or partial property order; and

   b)Whether a costs order should be made in respect of this Application.

8. Each party will have a period of twenty-eight days to file and serve:

   a)Any Application in a Case;

   b)Any further affidavit in support of the Application in a Case; and

   c)Any written submission on the subjects of:

   i)An interim or partial property order;

   ii)Costs.

9. I will order accordingly.

I certify that the preceding thirty-five paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  8 July 2013