Gorman and Gorman

[2017] FCCA 3187

FEDERAL CIRCUIT COURT OF AUSTRALIA

GORMAN & GORMAN [2017] FCCA 3187

Catchwords:
FAMILY LAW – Practice and procedure – failure to file material in accordance with orders – leave sought to rely on evidence filed after hearing commenced – leave not granted.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), ss.42, 43

Federal Circuit Court Rules, rr.4.05, 10.01, 15.01
Evidence Act1995 (Cth), s.138
Surveillance Devices Act 2007 (NSW), s.7

Cases cited:

Tate & Tate [2000] FamCA 1040
Valiyav & Steiner [2015] FCCA 1816

Applicant: MS GORMAN

Respondent: MR GORMAN

File Number: PAC 2009 of 2010

Judgment of: Judge Obradovic

Hearing date: 22 November 2017

Date of Last Submission: 22 November 2017

Delivered at: Parramatta

Delivered on: 18 December 2017

REPRESENTATION

Counsel for the Applicant: Mr Byrne

Solicitors for the Applicant: Thurlows Family Lawyers

Counsel for the Respondent: Mr Campton SC

Solicitors for the Respondent: York Law Family Law Specialists

ORDERS

1. Leave is granted to the wife to make an oral application for leave to rely on further evidence.

2. Leave is granted to the wife to file evidence in Court in support of the application for leave to rely on further evidence.

3. Application for leave to rely on further evidence is dismissed, namely:

   (a)The leave sought with respect to the Affidavit of Ms Gorman filed 14 November 2017, the Affidavit of Hibah Hazim filed 21 November 2017 and the Affidavit of Ms Gorman filed 21 November 2017 is denied.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2009 of 2010

MS GORMAN

Applicant

And

MR GORMAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. On the second day of hearing of this matter, the wife sought leave to rely on evidence filed without leave and not in compliance with orders of the Court.

2. Such leave was not granted and the hearing continued.

3. Counsel for the wife sought reasons in respect of the dismissal of that application. The Court indicated that the reasons would be delivered at a later date. These are the reasons as to why the leave to rely on such further evidence was not granted.

Relevant Matters

1. On 26 August 2015 the wife filed an Initiating Application seeking, inter alia, a final order:

   1.  That all assets be realised and split: 55% to the Applicant and 45% to the Respondent.

2. Presumably such an order is sought pursuant to s79 Family Law Act1975 (Cth).

3. The wife’s Initiating Application also sought the following interim orders:

   1. That the Applicant be granted leave pursuant to Section 44(3) of the Family Law Act 1975 to institute proceedings with respect to property of the parties under s.79 of the Family Law Act 1975.

   2. That until further order the Respondent and his servants and agents are restrained from transferring, encumbering, mortgaging or otherwise dealing with his interest in the property known as Property A being lot (omitted) in (omitted).

   3. Any other orders the Court sees fit.

4. The parties were divorced on 22 July 2010. As such, any application seeking relief pursuant to s79 Family Law Act 1975, had to be commenced within 12 months of the divorce order. Neither party did so. Indeed, the wife sought leave of the Court to commence such proceedings almost four years after the expiry of the limitation period.

5. The chronology of the proceedings is as follows:

   a)On 18 November 2015[1], at the first return date, the proceedings were adjourned for call over to 9 September 2016.

   [1] Before Judge Harman

   b)On 9 September 2016, the Court listed the matter for hearing at 10am on 7 August 2017 in respect of the s44(3) application for leave to commence proceedings out of time. A number of trial directions were made, including:

   i)The wife was directed to file and serve all[2] affidavit material on which she intended to rely at trial no later than 26 May 2017;

   [2] Emphasis added

   ii)The husband was directed to file and serve all affidavit material on which he intended to rely at trial no later than 7 July 2017; and

   iii)The wife, should she consider it necessary or appropriate,[3] was directed to file an affidavit in reply no later than 28 July 2017 “and in the event that evidence is to be called in reply it shall be by filing such Affidavit and not otherwise”.

   [3] Emphasis added

   c)On 11 May 2017[4], the Court discharged part of the orders made on 9 September 2016.[5] The matter was listed for hearing of the application for leave to commence proceedings out of time at 21 July 2017, and subsequently, the timeframe for the trial directions were shortened such that:

   [4] Before Judge Harman

   [5] At this point in time, the matter was to be transferred from the docket of Judge Harman to the docket of Judge Obradovic

   i)The husband was directed to file and serve all his affidavit material on which he intended to rely at trial no later than 23 June 2017; and

   ii)The wife was to file her affidavit in reply by 7 July 2017. Once again, the Court ordered that “in the event that evidence is to be called in reply it shall be by filing such Affidavit and not otherwise.”

   iii)The matter was listed for compliance check on 24 May 2017.  

   d)On 24 May 2017[6], the hearing dates were confirmed but all prior directions regarding the filing of evidence were discharged. Instead the following directions were made:

   i)The wife was to file and serve all evidence upon which she proposed to rely upon for the purpose of the s44 determination by 2 June 2017;

   ii)The husband was to file and serve all evidence upon which he proposed to rely upon by 7 July 2017; and

   iii)The wife[7] was to file and serve any affidavit in reply by 14 July 2017.

   [6] The matter was still before Judge Harman. It was noted by the Court that an application by the wife to vacate the hearing date was not supported by any evidence

   [7] The orders incorrectly refer to the Respondent in this regard, but it is clear that this is an error capable of rectification pursuant to the slip rule

6. On 21 July 2017, the hearing of the wife’s application commenced.

7. At the commencement of the hearing, the parties sought to rely on the following evidence:

   a)In the wife’s case:

   i)Affidavit of wife filed 2 June 2017;

   ii)Affidavit of Ms C filed 2 June 2017;

   iii)Affidavit of Mr D filed 2 June 2017; and

   iv)Affidavit of wife (in reply) filed 14 July 2017.

   b)In the husband’s case:

   i)Affidavit of husband filed 5 July 2017; and

   ii)Affidavit of Ms S filed 12 July 2017.

8. At that stage, there was no further or other application made by the wife in respect of her evidence. The matter was ultimately adjourned part-heard to 22 November 2017 and a number of orders in relation to production of the wife’s previous divorce file, financial disclosure by the wife, freedom of information authorities to be provided by the wife and subpoenas were made.

9. On 14 November 2017 the wife filed, without leave, an affidavit sworn by her on the same day. That affidavit had been served on the husband’s solicitors after hours on 14 November 2017, in effect on 15 November 2017.

10. On 21 November 2017, the wife filed, again without leave, two affidavits. One was an affidavit sworn by her on the same day and the other was an affidavit of Hibah Hazim, a solicitor from the firm acting for the wife. 

11. It was submitted on behalf of the wife at the resumption of the hearing on 22 November 2017 that:

    a)The affidavit filed 14 November 2017 was an affidavit in reply to the husband’s affidavit filed 7 July 2017.

    b)The affidavits filed 21 November 2017 were affidavits which contained important evidence in the wife’s case, said to be a transcript of an electronically recorded conversation, without consent of the husband, between the husband and the wife (“secret recording”) and a CD containing that recorded conversation. The conversation was said to have occurred in March 2015.

12. The affidavit containing the asserted transcript was served after hours on 21 November 2017, in effect on 22 November 2017 and the CD with the recording was provided to the husband’s solicitor at Court on the morning of the hearing on 22 November 2017.

13. On 22 November 2017, the Court heard the wife’s oral application for leave to rely on the affidavits filed 14 November 2017 and 21 November 2017. The Court granted leave to the wife to lead oral evidence in support of that application after a short adjournment on the morning such that a proof of evidence could be obtained.

14. Ultimately, Ms Hazim gave sworn evidence in support of the wife’s application for leave to rely on those affidavits. The wife did not give any evidence in support of this application.

15. Ms Hazim’s evidence was that:

    a)She was the solicitor with the carriage of the matter on behalf of the wife. She had been in practice for approximately nine years;

    b)After the hearing in July 2017:

    “the following evidence came to light that required instructions:

    -    Information from Centrelink

    -    Further information from the client for matters she had not recalled

    -    New information from the hospital and New South Wales police

    …

    -    After last hearing in July we were provided with Financial Agreement from Ms Gorman she did not recall this earlier”

    c)She first became aware of the secret recording two days prior to the commencement of the hearing on 21 July 2017, as the wife had told her about it. At the time the wife had told her that she had previously forgotten about it and that she had not been aware that it could be used in the proceedings;

    d)She came into possession of the recording prior to the hearing on 21 July 2017 as the wife had provided her with the digital recording via email, but as at the date of the hearing in July 2017 she had not listened to the recording.

16. The information from Centrelink was presumably something which became available after the wife had provided a freedom of information authority pursuant to orders made on 21 July 2017. The wife could have obtained such information from Centrelink well prior to 21 July 2017 as it was information pertaining to her.

17. The “new information” from New South Wales Police is presumably the annexures to the affidavit of 14 November 2017 which are apprehended violence orders dated May 2010 and the application for that order; together with statement of witness dated November 2009. There were no documents from any hospital annexed to the affidavit or referred to in the affidavit.

18. What the “Further information from the client for matters she had not recalled” was not explained in the evidence of Ms Hazim.

19. No explanation was offered as to why neither the husband nor the Court were put on notice about the secret recording on 21 July 2017, or at any time prior to 21 November 2017.

20. Furthermore, while the Court was taken to parts of the transcript (indeed it was suggested that the Court ought to have regard to the whole of the transcript in determining the issue of leave), the purpose of the evidence was identified to be in response to paragraph 68 of the husband’s affidavit filed 7 July 2017. It was said to go to the issue of credibility.

21. No explanation was offered as to why the affidavit sworn on 14 November 2017 was prepared shortly before the adjourned part-heard date and served five business days before the hearing.

22. Paragraph 8 of the wife’s affidavit filed 14 November 2017 reads:

    This affidavit is provided to supplement the information provided in my previous Affidavits filed on 2 June 2017 and 14 July 2017 and to better explain the circumstances leading up to me filing for property orders out of time.

23. The affidavit contained factual assertions which included explanations and reasons as to why the proceedings were not commenced by the wife prior to the expiration of the limitation period. It was an affidavit of some 52 pages, including lengthy annexures. The annexures included documents which dated back to 2009 and photographs dating back to 2000. References in the affidavit included:

    I have not considered such disclosure to be relevant to the proceedings because Mr J and I have entered into a Binding Financial Agreement, whereby our respective assets and interests are protected and indemnified from one another… I say this further demonstrates the hardship I wold face if I were not granted leave out of time to obtain my rights in accordance with the Family Law Act.

    The document said to be the Binding Financial Agreement which the solicitor had become aware probably within 21 days after the hearing on 21 July 2017, was not disclosed until the affidavit was served.

Reasons for ruling

1. Leave is a matter of judicial discretion. Such discretion must not be of an arbitrary nature, but rather exercised in accordance with relevant legal principles.

2. While the objects of the Federal Circuit Court of Australia Act1999 (Cth) are to enable the Court to operate as informally as possible in the exercise of judicial power and the Court is obliged to proceed without undue formality[8], it is still a Court and required to act like one, hearing and determining judicable controversies.[9]

   [8] See ss 42, 43 Federal Circuit Court Act 1999 (Cth)

   [9] Valiyav & Steiner [2015] FCCA 1816 at [52] – [54]; See also Federal Circuit Court Rules, Parts 4 (rule 4.05), 10 (rule 10.01), 15 (rule 15.01)

3. It is apposite to be reminded of what the Full Court held in Tate & Tate[10]:

   74. The interlocutory orders made by the trial Judge by way of case management, were no less orders of the Court. There were entitled to full and punctilious obedience. This Court has a duty to order its business with justice according to law. The Rules of Court are there to assist in the fair and timely preparation of matters for expeditious trial. Litigants in such matters also have the duty of full and frank – and we would add prompt – disclosure of relevant financial matters. Against that background the trial Judge’s specific orders achieved an even greater potency. They did not have to be expressed as “unless” or “guillotine” orders: they were interlocutory orders of a judge of a superior court of record and to be obeyed as such according to their terms, which included specific times for performance.

   75. It is not for litigants, appearing in person or otherwise, to pick and choose which orders they will or will not obey, or when they may condescend to comply with them. Such an attitude, amply evidenced in this matter, if adopted, brings its own nemesis. That is not only because it is contemptuous of the Court’s orders. It is also because it works injustice to the parties who do comply, and unfairness to that myriad of litigants waiting to have their matters despatched as soon as the Court can hear them. The luxury of procrastination – let alone deliberate disobedience – is a luxury of the past if it ever existed.

   [10] [2000] FamCA 1040

4. While the Federal Circuit Court is not a superior court of record, it is nonetheless a Chapter III Court, and no less worthy of having its orders complied with.

5. The Full Court of the Family Court further held in Tate:

   99. In attempting to match the limited resources of the Court to the demands of increasing lists, the principles of case management are assuming greater prominence. Never an end in themselves, they are and must always remain subject to and never prevail over the attainment of justice as “the paramount consideration” (State of Queensland v J.L. Holdings; supra). But justice in matters such as this is due to each party to litigation (see the comments of Kirby J in Allesch v Maunz [2000] HCA 40 at paras 38-40). Case Management guidelines, principles and orders are designed to facilitate the ends of justice by encouraging: full frank and prompt disclosure; settlement; identification of the matters genuinely in dispute needing the Court’s determination; and the expeditious marshalling and presentation of relevant evidence.

   100. The aim is to produce a better focussed trial which, by concentrating on essentials, is shorter and thus less costly to all concerned. Not only are the resources of litigants thus conserved, so, too, are the far from limitless resources of the Court.

   101. Problems of delay in the attainment of justice have long plagued the Courts. Well known remedies were even sought by way of Magna Carta in the thirteenth century. The aphorism “Justice delayed is Justice denied” is all too frequently manifestly true in this jurisdiction. Delays in cases such as this are often not fully compensable in purely money terms…

   …

   103. In many cases monetary compensation is not an adequate remedy for delay. In property disputes, especially where the needs of the parents which whom children are living need to be addressed, adjournments with or without costs orders may be totally inadequate in doing justice between the parties.

   104. To eliminate or at least greatly reduce unacceptable delays, within the resources available, is a constant goal of the Court. In achieving such reduction as may be possible, the co-operation of all litigants, legally represented or appearing in person, is essential. Thus it is fundamental that case management directions and orders of the court in preparation for trial (or settlement) must be respected and obeyed.

   105. Interlocutory processes must at all times necessarily balance the rights of all litigants to justice according to law. Such litigants comprise not only those party to such cases as are listed for hearing but also those litigants waiting for hearing dates due to the congestion of the lists. It is common sense, that, when time is allocated to a particular case, it should be ready to proceed and fully utilise the time afforded it. Such time should be no less and no more than that which is needed to do justice in the particular matter.

6. The wife is the person who seeks the Court’s indulgence, not only with respect to commencing proceedings more than four times after the expiration of the limitation period, but also with respect to the present application being leave of the Court to rely on evidence which was not only filed and served very late in the proceedings, but months after the matter had been adjourned part-heard. No adequate explanation has been offered by the wife as to why this is so.

7. The Federal Circuit Court is one of the busiest trial courts in the country. Part of its workload represents 87 per cent of all family law work filed at the federal level.[11] Since the commencement of these proceedings, the Court’s workload has been such that it deals with over 40,000 filings[12] in the family law jurisdiction for parenting and property orders per year[13]. The judges in the Parramatta Registry of the Court at the relevant time had well over 400 matters in their individual dockets.

   [11] In 2016-17

   [12] Not including applications for divorce

   [13] See Annual Reports for 2016-17 and 2015-16

8. Prior to the hearing of the matter, the proceedings had been on foot for almost two years. During that time, the proceedings were case managed and trial directions had been made, and ultimately extended. The matter had gone over part-heard. Significant judicial resources had been allocated to the matter.

9. In respect of the evidence sought to be adduced with leave, the Court notes the following:

   a)Prima facie, the secret recording is not admissible: s138 Evidence Act1995 (Cth); s7 Surveillance Devices Act 2007 (NSW);

   b)Although the exception contained in s7(3) Surveillance Devices Act2007 (NSW) was said to apply to the secret recording, namely that it was a recording said to be made because it was reasonably necessary for the protection of the lawful interests of that party, there was absolutely no evidence in support of that submission;

   c)Prima facie, credibility evidence about a witness is not admissible: s102 Evidence Act 1995 (Cth).

1. While the issue before the Court was not one of admissibility of evidence, but rather leave to rely on evidence which was not filed with the Court’s leave and contrary to orders made by the Court, most of the evidence contained within the affidavits filed 21 November 2017 is prima facie not admissible.

2. The affidavit filed on 14 November 2017 was clearly not meant as an affidavit “in reply” despite the submission that it was filed on that basis.

3. The application for leave to rely on such evidence took up approximately half a day. It caused a further delay in the proceedings.  It is a most unsatisfactory approach to litigation, not only in general, but particularly in this jurisdiction.  The Court gave the wife significant leeway in respect of the present application, despite the fact that she had been legally represented at all times and had Counsel appear on her behalf at the hearing on 21 July 2017 and again on 22 November 2017.

4. To grant the leave as sought by the wife would have entailed further costs to both parties, an adjournment to allow the husband time to consider the evidence and if appropriate answer it, and delay – not only to these parties but to the other litigants who are awaiting for their matters to be judicially determined; and all without a satisfactory explanation by the wife.  Most, if not all, of the matters deposed to by the wife, were matters which were within her knowledge well before the hearing commenced in July 2017. The secret recording was made in 2015.

5. Furthermore, the prejudice to the husband in terms of costs is not something which is likely to have been capable of being met by the wife, given the matters set out in her financial statement[14].

   [14] Which itself was filed only on 19 July 2017

6. In all of the circumstances, the wife has not satisfied the Court that leave ought to be granted.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date:  18 December 2017