Goldman and Goldman - [2007] FamCA 578

FAMILY COURT OF AUSTRALIA

GOLDMAN & GOLDMAN

[2007] FamCA 578

FAMILY LAW - APPEAL – Leave to appeal – Husband was seeking leave to bring property proceedings 7 years after divorce – Wife enjoined from selling home pending proceedings – At trial husband sought adjournment when his solicitors withdrew – Adjournment granted subject to the payment of $4000 costs and filing of affidavits from several proposed witnesses within 10 weeks otherwise the action was to stand dismissed – Injunction dissolved on the trial judge’s own suggestion – Held costs were controversial and should have been ordered as assessed in accordance with the Family Court Rules; discharge of consent injunctive orders as raised by the trial judge raised substantive and procedural concerns where the discharge was linked to the granting of an adjournment; husband was ordered to file and serve affidavits of particular witnesses over whom he has no control – An order to strike out the application would have been more appropriate than an order for summary dismissal – Leave to appeal granted

Family Law Act 1975 (Cth)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; (1981) 35 ALR 629
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
Rutherford and Rutherford (1991) FLC 92-255; (1991) 15 Fam LR 1

Tudor v Tudor (1992) FLC 92-273; (1991) 15 Fam LR 165

APPLICANT:

MR GOLDMAN

RESPONDENT:

MS GOLDMAN

FILE NUMBER:

2007

APPEAL NUMBER:

MLF

6361

1992

DATE DELIVERED:

13 June 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Kay, Coleman and Cronin JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

5 and 12 February 2007

LOWER COURT MNC:

[2007] FamCA 533

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Self Represented

COUNSEL FOR THE RESPONDENT:

Anthony Klotz

SOLICITOR FOR THE RESPONDENT:

Batten Sacks Harvey Bruce Solicitors

Orders

That the husband be granted leave to appeal the orders of the Honourable Justice Barry of 12 February 2007.
The costs of this application be costs in the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Goldman & Goldman

FAMILY COURT OF AUSTRALIA AT MELBOURNE BY WAY OF WRITTEN SUBMISSIONS

Appeal Number: MLF 6361 of 1992
File Number: SA 16 of 2007

MR GOLDMAN

Applicant

And

MS GOLDMAN

Respondent

REASONS FOR JUDGMENT

By application filed 27 February 2007 Mr Goldman (“the husband”) sought leave to appeal against orders made by Barry J on 5 and 12 February 2007. The respondent to that application Ms Goldman (“the wife”) opposed the granting of leave to appeal.
Whilst the husband’s application was filed on 5 February 2007, the first order sought to be appealed by the husband was in fact made on 6 February 2007 and provided that the husband’s application for an adjournment of the trial of the proceedings between himself and the wife be dismissed and that the costs of such application be “reserved to the trial Judge”.
Barry J’s orders of 12 February 2007 provided:
(1)The Husband’s Application is adjourned to a date to be fixed.
(2)I order the husband to pay the wife’s costs of and incidental to the adjournment fixed in the sum of $4000 within a period of 10 weeks of today’s date. These proceedings are not to be relisted until the legal representatives for the wife confirm to a Registrar of this Court that such costs have been paid.
(3)Paragraph 2 of the Consent Order of 12 July 2005 is discharged.
(4)On or before 4pm on 27 February, the husband is to deliver to the wife, care of her solicitors, Batten Sacks Harvey Bruce, level 6, 24 Albert Road, South Melbourne, 3205, a signed withdrawal of caveat for the removal of the caveat registered on the title to the [former matrimonial home].
(5)In the event the husband does not sign the necessary removal of caveat document in accordance with these Orders, the matter is not to be relisted for trial on the application of the husband without the leave of a Judge of this Court.
(6)That the husband is to file affidavits from Ms A G, Mr F S, Mr R G, Mr P S, Mr A W, Mr W J and such other witnesses upon which he intends to rely by way of affidavit evidence within 10 weeks from today’s date.
(7)In the event that the Husband has not complied with the obligations provided for in these Orders within the time prescribed by these Orders, the husband’s Application in Form 1 filed 8 June 2005 and Amended Application in Form 1 filed 22 November 2006 are dismissed.
In support of his application, the husband filed an affidavit sworn on 27 February 2007. The wife filed an affidavit in the proceedings on 4 May 2007 as did the husband.
On 5 March 2007, Kay J directed that the husband’s application for leave to appeal “be dealt with by a Full Court without oral hearing”. His Honour then made directions to facilitate the determination of the husband’s application for leave to appeal.
Kay J made further procedural orders on 13 April 2007 after hearing submissions on behalf of both parties, the costs of the procedural hearing of that date being “costs in the application for leave to appeal”.
On 5 June 2007, the husband sought to file a further, and lengthy, affidavit in support of his application. Such attempt was well after the times for filing documents previously ordered by Kay J. For reasons which will become apparent, we do not propose referring to the husband’s further affidavit.

Background

It appears uncontroversial that in 1992 the parties entered into a section 86 agreement and that, pursuant to that agreement, a property was transferred from the joint ownership of the parties to the sole ownership of the wife. Whether or not the parties were then separated, or were separated for some years thereafter is controversial.
In 1996 the husband was made bankrupt. The property in which he previously had an interest did not, by virtue of the 1992 transaction form part of his estate in bankruptcy.
In 1998 the husband applied for dissolution of the marriage between himself and the wife. Of necessity, the husband asserted in his application that he and the wife had lived “separately and apart” for at least twelve months prior to the filing of such application. The husband’s application for dissolution of marriage proceeded unopposed and the parties were divorced.
In 2005 the husband filed an application by which he sought:
(1)THAT the Agreement dated 2 June 1992 between the husband and wife be set aside.
(2)THAT the husband be granted leave to proceed with an application for property settlement pursuant to the provisions of Section 44(3) of the Family Law Act 1975 (as amended).
(3)THAT there be such adjustment of property as this Honourable Court considers appropriate.
(4)THAT the husband be excused from particularising matters in respect of the Orders that he is seeking in paragraph 2 hereof until such time as the wife has provided full disclosure of her financial circumstances.
(5)THAT the husband be entitled to collect from the former matrimonial home…one-half of the chattels acquired by the parties during the marriage and all of his personal belongings and chattels.
(6)THAT the wife pay the husband’s costs of and incidental to this application.
(7)SUCH further Order as this Honourable Court considers appropriate.
The wife opposed the granting of relief in the terms sought by the husband and sought dismissal of his application.
On 12 July 2005 orders were made by consent by a Registrar which, relevantly for present purposes, provided:
(2)THAT UNTIL FURTHER ORDER the wife be and is hereby restrained from disposing of encumbering or in any way dealing with the property [of the former matrimonial home], or the business formerly known as [SPG] now known as [TG] save in the ordinary course of business.
On 18 January 2007 the proceedings were placed in a trial list for the period Monday 5 February 2007 to Friday 16 February, 2007.
The matter came before Barry J on 6 February 2007 as a consequence of the husband’s application filed the previous day that the proceedings be adjourned to a date beyond the range of dates in which the proceedings were scheduled to be heard.
Barry J refused the husband’s application for an adjournment on 6 February 2007 for reasons which he then gave.
The husband’s renewed application for adjournment on 12 February 2007 was granted on the terms and conditions we have earlier set out.

Relevant Law

The law which governs the present applications is not in doubt and does not require extensive restating. In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; (1981) 35 ALR 629, Gibbs CJ, Aickin, Wilson and Brennan JJ said at 177; 629:
An interlocutory order for an injunction is a matter of practice and procedure. See McHarg v. Universal Stock Exchange Ltd [[1895] 2 QB 81 at 82]; Minister for The Army v. Parbury Henty and Co. Pty. Ltd. [(1945) 70 CLR 459 at 489]; White v. White [[1947] VLR 434 at 438].
Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v. Electronic Industries Ltd [[1978] VR 431 at 440]; on the other hand, De Mestre v. A.D. Hunter Pty. Ltd. [(1952) 77 WN (NSW) 143 at 146]. For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various.
Following the decision of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; (1981) 35 ALR 629, the Full Court of the Family Court in Rutherford and Rutherford (1991) FLC 92-255; (1991) 15 Fam LR 1 per Ellis, Nygh and Wilczek JJ said at 78,715; 5:
As counsel for the husband rightly remarked there is not as yet any reported authority on the principles to be applied in granting leave under section 94AA(1). However, there are a number of authorities dealing with equivalent provisions in relation to the Federal Court of Australia and the Supreme Courts of the States. In our view, counsel rightly invited us to seek guidance in the remarks of the High Court in Adam P Brown Male Fashions Pty. Ltd. v. Philip Morris Inc. (1981) 148 CLR 170 at 177 per Gibbs CJ, Aickin, Wilson and Brennan JJ (per Ellis, Nygh and Wilczek JJ).
Further Ellis, Nygh and Wilczek JJ said at 78,715; 5:
Counsel submitted that the test should be read disjunctively, relying on the remarks of Street CJ, Owen and Hardies JA in De Mestre v A.D. Hunter Pty. Ltd. (1952) 77 WN (NSW) 143 at 146 where they said:
‘… an appellate court should not … interfere with the exercise by the judge of first instance of his discretionary power unless a clear case has been made out that he has acted on some wrong principle or has made an order which works a substantial injustice to one of the parties.’
In the view we have taken it is not necessary to resolve that particular issue. Like their Honours in the High Court we “believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria”.
There can be little doubt that an order refusing or granting an adjournment is by its nature interlocutory. To the extent that the order of 6 February 2007 assumes significance, which it probably does not, as the husband was ultimately granted an adjournment by Barry J on 12 February 2007, leave to appeal that order would certainly be required. Undoubtedly an order adjourning the proceedings, the consequences of non-compliance with the terms and conditions of granting the adjournment on 12 February 2007 render the nature of the relief then granted less clearly, although probably, interlocutory. We say that having regard to the terms of Order 7 of the orders made on that date. No point having been taken that leave is required, or that the orders of 12 February 2007 are interlocutory, we do not need to express a concluded view as to their nature.
We approach the matter on the basis that leave to appeal will be granted if we are satisfied in the terms discussed by the Full Court in Rutherford (supra).

Discussion

In the circumstances to which we have referred, to consider the application for leave to appeal Barry J’s orders of 6 February 2007 would be an academic exercise.
As is clear, save with respect to costs, which remain reserved in any event, nothing can turn on whether leave to appeal the orders of 6 February 2007 is granted or refused.
So far as the orders of 12 February 2007 are concerned, we perceive there to be two issues which require consideration, they being:
(i)The terms and conditions upon which Barry J granted the husband and adjournment; and
(ii)The consequences of the husband not complying with any of those terms and conditions by virtue of the terms of Order 7 of the orders of 12 February 2007 which provided for the dismissal of the husband’s substantive application in the event of the husband failing to comply with any of “the obligations provided for in these orders within the time prescribed by these orders”.

The Hearing on 12 February 2007

Reference to the transcript of proceedings on 12 February 2007 is instructive for present purposes.
After some exchanges between Counsel for the wife and Barry J, his Honour said to Counsel for the wife, it is clear with an adjournment of the proceedings in contemplation, “if the following happened, that your client was released from any encumbrances as per an earlier order that she can’t deal with the properties, if your client was awarded costs and if there was a further order that Mr. [Goldman] couldn’t take another step in the proceedings till he paid those costs, how is your client prejudiced?” (transcript, page 20).
Unsurprisingly perhaps, Counsel for the wife responded “there’s no material prejudice, other than the fact that she still has a proceeding to deal with. That’s probably got no basis. But other than that, no, your Honour, it’s hard to point to any prejudice” (transcript, page 20).
Our reading of the transcript does not suggest that, prior to Barry J raising the question of the discharge of the injunctive orders of 12 July 2005, the topic had previously arisen.
There followed further exchanges between Barry J and Counsel for the wife, after which the trial Judge made a series of observations arising out of the material filed by the husband (transcript, page 22).
His Honour then said:
Mr. [Goldman], I’m not saying I will give you the adjournment. The matter may well go ahead today. Many, many litigants in this court have to act for themselves. The law itself says I can only give you an adjournment in extreme circumstances. Now, if I did give you the adjournment, it would be subject to very, very strict conditions. One of those conditions is that you pay the wife’s costs of today. I’m going to stand the matter down and Mr. Klotz can make inquiries from his instructors and find out what – I would estimate something in the lines of, say, some where between 2 and a half to 4 thousand, I’m not quite sure, but it would be in that range. (transcript, page 23 lines 27- 35).
His Honour then said:
I’ll make a further order that you’re not allowed to come back in that court door until you’ve paid those costs. How you do that is a matter for you” (transcript, pages 23 & 24, lines 44 – 46; 1)
The transcript then records the following exchange:
HIS HONOUR: …Leaving that aside, there were orders made previously that the wife is not to deal with the [former matrimonial home at M Street] – it’s [M Street], isn’t it…---
MR. KLOTZ: Yes, [M Grove].
HIS HONOUR: [M Grove], whatever it’s called. Anyway, is that the only restraint?
MR. KLOTZ: He’s lodged a caveat on the property as well.
HIS HONOUR: I could order him to remove it.
MR KLOTZ: Yes. Those are the only ---
HIS HONOUR: All right. Again, he can’t come in the door until he’s removed it. That’s a condition of the matter continuing.
MR. KLOTZ: Yes.
HIS HONOUR: But I thought there was a restraint by order or consent order or something?
MR. KLOTZ: There is an order made by consent on 12 July 05 restraining the wife from dealing with the property, but as well as that.
HIS HONOUR: If I discharge that order?
MR. KLOTZ: I’d seek the discharge of that order, and an order for the removal of the caveat on the property.
HIS HONOUR: Yes, all right, just one moment.
MR. KLOTZ: Your Honour, I’ve prepared – this might assist your Honour a minute of proposed orders, not all of which are relevant to an adjournment but some of which are. (transcript, pages 24 & 25, lines 12 – 45; 1 – 2)
After further exchanges which are not material for present purposes his Honour said:
HIS HONOUR: The conditions of the adjournment. You can argue against this when I come back but at the present time what I’m thinking of is I’m concerned that your case doesn’t have much merit; I’m concerned that there may be criminal charges arising as the only result of what you’re doing; I’m concerned that everybody has turned up and you’ve issued the invitations to be here and you’re the one who’s not ready, for whatever reason. In those circumstances, I order you to pay the costs of the adjournment, not uncommon. I will assess the costs at, say $3000. It’s a condition of my order that you are not allowed to continue this case in two month’s time or whenever until you pay that $3000. I also order you to remove the caveat over the [former matrimonial home]. (transcript, page 26, lines 31 – 41).
In the course of discussion which then followed the husband asserted:
MR [GOLDMAN]: Yes, but I would say that it would be highly prejudicial to my case to remove the caveat from the property because the property – unless final orders are made ---
HIS HONOUR: I’ll hear you on that. But they’re the conditions that I’m looking at. I’ll hear your arguments about it.
MR [GOLDMAN]: Yes.
HIS HONOUR: But costs, the prohibition on further proceedings until you’ve paid the costs, I remove the caveat on the house and the ---
MR KLOTZ: Set aside the order.
HIS HONOUR: I simply set aside the original order of July 05 and order you to sign a withdrawal of caveat, and direct you to file any further material within, say, two months. If you don’t comply with that order, your application is automatically struck out. Do you understand?
MR [GOLDMAN]: Is there any argument that I can put forward?
HIS HONOUR: They’re different shades of black as far as you’re concerned, Mr [Goldman].
MR [GOLDMAN]: Sorry, I couldn’t hear.
HIS HONOUR: You’re not in a winning position when you’re applying for an adjournment in my court. I grant them very reluctantly. The other side is that I direct the matter to go ahead today. I accept you haven’t got legal representation. Many people come to this court without legal representation. I understand your lawyers have prepared your material. I understand what your case is and I can proceed to hear it. Anyway, I’ll adjourn at this point in time and reconvene in 20 minutes or so. (transcript, pages 27 & 28; lines 27 – 45; 1 – 14).
Upon the proceedings resuming some 40 minutes later, the trial Judge said to the husband:
HIS HONOUR: Mr [Goldman], you’ve heard me discussing with counsel for the respondent conditions of any adjournment. You can address me on those conditions, as to why there should not be an order for costs. If I make an order for costs, it’s conditional that you cannot come back to court until you’ve paid those costs. Why should you come back to court in defiance of an existing court order? (transcript, page 28, lines 22 – 27).

His Honour added:
HIS HONOUR: Then the next matter is why shouldn’t the orders of July 05 be lifted and you were to remove the caveat. (transcript, page 28, lines 31 – 32).
The following discussion in relation to the discharge of the injunctive orders of 12 July 2005 then occurred:
HIS HONOUR: Thank you. Why is it precisely your client wants the caveat lifted and the injunction discharged?
MR KLOTZ: She wants to be able to sell the property. It’s a burden on her. She’s got a small business. It doesn’t earn her a large income.
HIS HONOUR: It’s worth about 800, 900 thousand.
MR KLOTZ: Yes.
HIS HONOUR: It’s unencumbered, isn’t it?
MR KLOTZ: No, there’s a mortgage on it.
HIS HONOUR: How much?
MR KLOTZ: I’m told about $350,000.
HIS HONOUR: All right. What is she going to do with the balance when she receives it?
MR KLOTZ: I can check but I think that my instructions were she would prefer to buy a smaller apartment without a mortgage.
HIS HONOUR: Your client clearly understands that given a set of circumstances – I won’t attach any other descriptions to them – but given that set of circumstances, if there is a property settlement, then any disposition of those assets by your client can be set aside.
MR KLOTZ: Yes.
HIS HONOUR: She fully understands that?
MR KLOTZ: Yes.
HIS HONOUR: Whatever she nets from the sale of the property will end up in some other form of asset. She’s got no intention of gifting it to a daughter or ---
MR KLOTZ: I don’t have instructions on that. I haven’t discussed that.
HIS HONOUR: If she did, clearly it can be set aside. (transcript, pages 30 & 31, lines 14 – 45; 1 – 10).
The trial Judge then said:
HIS HONOUR: Thank you. Mr [Goldman], you can sit down. I’m going to give my reasons at this stage. This will be about the second time in 18 months that I’ve been persuaded that an adjournment is called for. I intend to give brief reasons in this matter. In the course of my reasons, I’ll refer to the parties as the husband and wife, although I appreciate they have been divorced since 1998; it’s just a convenient way of dealing with the matter. (transcript, page 31, lines 20 – 25).
Judgment was then delivered in relation to the husband’s adjournment application after which submissions were made by Counsel for the wife as to the quantum of the costs sought, during the course of which the trial Judge asked the husband “do you wish to be heard on the quantum of costs” (transcript, line 20, page 32) to which the husband said “Like I said before, I can’t deal with those matters, I’m sorry” (transcript line 21, page 32).
His Honour concluded on the quantum of costs by saying “I’ll limit the costs to $4000; often they are taxed down on scale” (transcript, lines 27 & 28, page 32).
The discussion then proceeded to the question of the witnesses the husband wished to call in the proceedings. The husband named a series of persons he intended to call as witnesses. His Honour then gave judgment in relation to the requirement that the husband file affidavits of evidence of those witnesses.
After his Honour had given the indications to which we have referred, Counsel for the wife sought “clarity” in relation to the orders which the trial Judge proposed making and the following exchange occurred:
MR KLOTZ: The form of the order in respect to costs and the removal of the caveat is that he’s been given a time by which to do those things. The matter is not to be relisted.
HIS HONOUR: He can’t move.
MR KLOTZ: If he doesn’t do it within the time but seeks to do it after the time given, that’s when I’m – I’m not sure what happens in those circumstances. Previously your Honour had indicated that you were considering a form of strike-out – a self-executing form of order, so in other words, he must do it within the time limit. If the [sic] does it, solicitors for the wife file an affidavit to say it’s been done. (transcript, pages 36 & 37; lines 37 – 45; 1 – 3).
Against that review of the transcript of proceedings on 12 February 2007, it is appropriate to briefly review Barry J’s reasons for the orders which he then made.

The Reasons for Judgment of 12 February 2007

His Honour referred, it seems accurately, to the contentious issues which would arise for determination in the course of deciding the husband’s application filed in 2005.
His Honour recorded that “material prejudice to the wife can be minimised by an order for costs with conditions attaching” (Reasons, paragraph 12, page 3).
His Honour then said:
16.The husband says that he wants to subpoena witnesses. I am going to obtain details of those witnesses and if he has not filed affidavits from those witnesses within a limited period of time, then his application is to be dismissed (Reasons, paragraph 16, page 4).
Later, his Honour said:
19.As a condition to granting the adjournment, counsel for the wife has handed up a minute of draft orders. He proposes the consent orders made on 12 July2 005 be set aside. Those orders restrain the wife from dealing with the [former matrimonial home]. That property is said to be worth somewhere in the vicinity of 800 to 900 thousand dollars. There is a $350,000 mortgage on it. The wife says she wants to dispose of that property, to pay out any liabilities and acquire a more modest apartment. There is also a restraint on her dealing with her business. I propose to lift both those restraints. I am satisfied that the wife will not dispose of assets. Even if she did, it would be an easy matter for this court to set aside that disposal. (Reasons, paragraph 19, page 5).

Submissions on behalf of the parties

In his affidavit of 27 February 2007 the husband (page 3) made a series of assertions in support of his application, reference to which is unproductive.
On 28 March 2007 submissions on behalf of the wife were filed. Having set out some matters of history, which do not advance matters materially beyond those recorded earlier by us, and referring to the relevant “legal principles” it was submitted on behalf of the wife that no aspect of the exercise of discretion on 5 February 2007 (sic) could enliven appellant intervention.
It was submitted with respect to the orders of 12 February 2007 that “the material of the applicant discloses no evidence of any substantial prejudice, or any prejudice for that matter, suffered as a result of the orders” then made (wife’s submissions - paragraph 12, page 3).
It was then submitted that the husband “would need to demonstrate prejudice of a kind where his substantive legal rights that are an issue in the proceeding have been affected to his detriment” (wife’s submissions - paragraph 13, page 3).
It was submitted that the husband’s “substantive rights in the proceedings remained fully in tact” and that “the nature of the relief he seeks remains unaffected by the orders of 12 February 2007” (wife’s submissions – paragraph 14, page 4).
It was further submitted that the husband did not “depose to any actual prejudice from the granting of a lengthy adjournment, from the order requiring him to pay the respondent’s costs of $4,000.00 or from the orders requiring him to deliver a signed withdrawal of caveat to the respondent or discharging paragraph 2 of the consent order of 12 July 2005” (wife’s submissions – paragraph 15, page 4).
It was submitted that the husband’s affidavit did not disclose “any error of principle” and that Barry J’s Reasons for Judgment revealed that he had been “mindful of balancing the competing prejudices that commonly exist when one party seeks an adjournment of the trial at the last moment” and had achieved the necessary “balance” (wife’s submissions, paragraph 18 page 5) in the orders made on 12 February 2007.
Under the heading “Proceeding below stands dismissed” it was submitted, perhaps curiously in light of earlier submissions to which we have referred, that “a further factor militating against the granting of leave to appeal of two orders is that the proceeding below effectively stands dismissed” (wife’s submissions, paragraph 19, page 5), the husband having failed to comply with the trial Judge’s orders in a number of respects which were then identified.
It was further submitted on behalf of the wife, under the heading “Applicant bound to fail in proceeding below” that the husband’s case “in the proceeding below is so hopeless that it is bound to fail” (wife’s submissions para 22, page 6).
A number of submissions were then made, each being substantially predicated on findings of fact favourable to the wife but adverse to the husband being made in and for the purpose of determining the substantive proceedings.
In his affidavit of 4 May 2007, the husband made a series of submissions, most of which, with respect to him, cannot advance his application for leave to appeal. It is apparent (paragraph 12) that the 1992 transfer of the then jointly owned property to the wife is controversial. It is apparent, though nowhere clearly articulated, that the husband, who demonstrates little understanding of the legal principles involved in this application, complains of the terms and conditions on which Barry J granted his adjournment application on 12 February 2007.
Attached to the husband’s affidavit of 4 May are submissions in response to those filed earlier on behalf of the wife to which we have referred. Unlike his affidavit, the submissions did identify with precision the matters particularly complained of with respect to Barry J’s orders of 12 February 2007, they being:
(4)The Grounds of Appeal in relation to the other Orders of 12 February 2007 can be divided into three discrete complaints by the appellant being:
(a)The quantum of costs for the un-necessary mention appearances;
(b)The orders lifting the injunction of 12 July 2005 and requiring the removal of the appellant’s caveat.
(c)Conditions precedent and the severity of the self-executing orders (submissions for the applicant husband in support of application for leave to appeal, paragraph 4(a), (b) (c), page 2).
It was submitted by the husband that “the appropriate order for costs (if any) should have been costs of the mention for the appearance on 12 February 2007 and the costs of the mention on 6 February 2007” (husband’s submissions, paragraph 7, page 3). There followed a number of specific complaints with respect to the components of the costs orders and their quantum (husband’s submissions paragraphs 8, 9 10, pages 3 & 4).
So far as Barry J’s order with respect to the caveat was concerned, the husband relied upon the fact that the injunctions which Barry J’s orders of 12 February 2007 discharged had been made by consent on 12 July 2005 as undoubtedly it had and asserted that “Nothing contained in the wife’s affidavit material referred to any financial pressure or need for a speedy or early discharge of that order. Indeed, had the matter begun, it is reasonable to expect that judgment might have been reserved for some period, during which the injunction would in any event have continued” (husband’s submissions, paragraph 12, page 4).
It was submitted that, in circumstances where the injunctive order had been made by consent and the husband was unrepresented, the trial Judge had not been “particularly careful in dealing with the discharge of such a significant injunction (protecting the entirety of the property the subject of the dispute between the parties)” (husband’s submissions paragraph 13, page 5).
The husband complained that the trial Judge having, impermissibly he asserted, discharged the injunction, the failure to then impose conditions on the wife “requiring her to apply the monies in a certain way” had been erroneous. (husband’s submissions, paragraph 15, page 5).
The husband asserted, correctly it appears to us, that there had been “no affidavit material in support of the application for a discharge of the injunction” (husband’s submissions, paragraph 16, page 5) made by consent on 12 July 2005.
It was further submitted by the husband that the matters put to Barry J by the wife’s Counsel “established prima facie a breach of the injunction (of 12 July 2005) itself” in that the mortgage appeared on those statements to have been increased from $195,000.00 to $350,000.00 subsequent to and in breach of, the injunctive order (husband’s submissions, paragraph 16(b), page 6).
The husband further complained that the orders made by the trial Judge discharging the injunctive orders of 12 July 2005 denied him “the opportunity to put before his Honour evidence as to the basis for the injunction, particularly given that it had been consented to… in the first place” (husband’s submissions, paragraph 18, page 6).
It was submitted in response to the assertion that the husband’s substantive application was bound to fail, and that Barry J was entitled to conclude that such was the case, that such assertions did not sit well with the fact that the wife “agreed to the injunction in July 2005” with respect to the only asset of substance of the parties (husband’s submissions, paragraph 20, page 7).
The husband submitted that “his prospects are no better or worse than they were at the time the wife agreed to the injunction”. (husband’s submissions, paragraph 20, page 7).
On 10 May 2007 there were filed on behalf of the wife further submissions in response to those of the husband of 1 May 2007. As a reading of those submissions makes clear, they do not seriously attempt to grapple with the matters raised by the husband to which we have just referred.
To the extent that they address the husband’s complaints with respect to the discharge of the injunctive order of 12 July 2005, it was submitted on behalf of the wife that:
(3)To the extent that it is relevant that the injunctive order of 12 July 2005 discharged by His Honour Justice Barry was made by consent, the consent provided by the respondent wife was given on the basis of an implied representation by the applicant husband that he would prosecute his application expeditiously and without undue delay. The respondent wife should not by her consent be regarded to have consented to an injunction being in place indefinitely regardless of how the applicant husband prosecutes his claim. The applicant husband’s conduct in failing to be ready to proceed to trial on the date scheduled by the court has caused undue delay in this matter. The manner in which the applicant husband conducted his claim entitled the respondent wife to withdraw her consent to the injunction. (Further Submissions for the respondent wife, paragraph 3, page 2).

Discussion

On the material before us, we are persuaded that the husband should be granted leave to appeal against orders 2 – 7 made on 12 February 2007. Our reasons for so concluding are perhaps best expressed by reference to the orders themselves.
Whilst in our view the making of a costs order against the husband on 12 February 2007 was itself unexceptional, we have some concerns about the components of that order, and its quantum. The matter was not necessarily straightforward in terms of the components of the costs order given that, as we understand it, the case was in a “rolling list” and, whilst it may well otherwise have proceeded to trial during the period covered by that rolling list, that does not appear to have been a certainty. We have concerns about the appropriateness in the circumstances of the trial Judge assessing the quantum of whatever costs were appropriate to be paid by the husband who was not represented and clearly was not, and arguably could not reasonably have been expected to have been able to effectively deal with that issue on 12 February 2007.
The usual practice of the Court, where costs are controversial, is to order that they be “assessed” in accordance with the Rules. Had his Honour made an order that the husband pay the costs wasted by virtue of the adjournment as assessed, we would see no basis upon which the husband could in all the circumstances complain. He does however, in our view, have grounds for challenging the costs orders made by Barry J.
So far as the discharge of the consent order of 12 July 2005 is concerned, we have earlier set out the background to that issue and the circumstances in which the consent orders of 12 July 2005 were discharged by Barry J.
We have a number of concerns about the discharge of the consent injunctive order of 12 July 2005, both in terms of the making of the order for discharge and, particularly in the absence of what was said, or not said, on behalf of the wife, the absence of any subsequent protection of the proceeds of any sale of the property by the wife.
With respect to his Honour, it can fairly be said that the first suggestion that the injunctive order of 12 July 2005 might be discharged came from his Honour. Unsurprisingly, Counsel for the wife agreed with that course. As the husband has submitted, there was no evidence before his Honour in support of any request to discharge the injunctive order and, as the transcript makes clear, with respect to him, the instructions which Counsel for the wife had in relation to the topic, were vague, and consistent with the impression conveyed by the transcript that the topic arose only because his Honour raised it. We have concerns both of a substantive and procedural nature as to the appropriateness in the circumstances of this case of linking the granting of an adjournment to the discharge of the injunctive orders made by consent on 12 July 2005.
We have some difficulty with the order directing the husband to file and serve affidavits by particular witnesses, some or all of whom may have been, or be, unwilling to swear affidavits. It would have been entirely appropriate in the circumstances for his Honour to have ordered the husband to file and serve all affidavits upon which he intended to rely within a specified period, but we have concerns about making an order that the husband file affidavits by persons over whom he clearly could have no control.
It remains to consider the effect of Order 7 of the trial Judge’s orders.
His Honour’s orders expressly provide for the dismissal of the husband’s substantive application in the event of his failure to comply with all of the conditions provided by the earlier orders in accordance with their terms, at least one of which the husband may not have been capable of complying with despite his best endeavours.
If Order 7 of the trial Judge’s order stands and, as seems to be common ground, the husband fails, or has already failed to comply with any of those conditions, his substantive application stands dismissed without ever having been heard on the merits. Whilst the trial Judge was clearly “cynical” (Reasons of 12 February 2007, paragraph 18) about the husband’s bona fides, and on the material before him was not unjustified in that cynicism, nothing which occurred before the trial Judge could be, or is suggested to have been, a hearing of the husband’s substantive application on the merits. The effect of Order 7 is thus that, unless the husband complies with such of the conditions he would potentially be denied access to the Court. His application would for all practical purposes have been summarily dismissed.
The principles governing security for costs and summary dismissal are not without relevance for present purposes.
In Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 at 255 – 256 Kirby J said:
Approach: applicable principles
The approach to be taken by the court to the Commonwealth's application for summary relief is not in doubt:
1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided [General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128f Dyson v Attorney-General [1911] 1 KB 410 at 418].
2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action [Munnings v Australian Government Solicitor (1994) 118 ALR 385 at 388f ; 68 ALJR 169 at 171f per Dawson J] or is advancing a claim that is clearly frivolous or vexatious [Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91].
3. An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination [Coe v Commonwealth (1979) 24 ALR 118 ; 53 ALJR 403; Wickstead v Browne (1992) 30 NSWLR 1 at 5-7]. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
4. Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer [Coe v Commonwealth (1979) 24 ALR 118 at 132 ; 53 ALJR 403 at 409]. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
5. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading [Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 79 ; 43 ALR 587]. A question has arisen as to whether O 26, r 18 applies to part only of a pleading [Northern Land Council v Commonwealth (1986) 161 CLR 1 at 8 ; 64 ALR 493]. However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim.
6. The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.

We have some misgivings as to the appropriateness of Order 7 given its potential, or actual, effect on the rights of the husband to have his claim heard and determined on the merits.
It also seems to us that it is arguable that Order 7 ought to have been expressed in terms of striking out the application for want of prosecution rather than dismissing summarily. An order to that effect would have enabled the application to be reinstated if it was appropriate to do so (see Tudor v Tudor (1992) FLC 92-273; (1991) 15 Fam LR 165).

Conclusion

In our view, the husband has demonstrated an entitlement to the grant of leave to appeal Barry J’s orders of 12 February 2007, and we will so order.
The costs of this application should be costs in the appeal and we will also so order.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 13 June 2007