Greene v Harte No. Scciv-00-564

GREENE v HARTE
[2001] SASC 127
Full Court: Debelle, Williams & Bleby JJ

DEBELLE J. This is an appeal by leave from a decision of a judge of this Court dismissing an appeal from the decision of a magistrate refusing to strike out the respondent’s statement of claim.
The facts are recited in the reasons of the judge. There is no need to repeat them. It is sufficient for present purposes to note only the following. The appellant and respondent had lived in a de facto relationship for three years and four months. They separated on 24 January 1999. There are two children of the relationship. On 21 July 1999 the respondent commenced proceedings in the Magistrates Court claiming to recover debts incurred in the course of the de facto relationship. On the summons she described her claim as “de facto relationship” claim. On 11 August 1999 the appellant filed a defence and counterclaim. In his counterclaim the appellant alleged that following the separation the respondent had wrongfully taken and converted to her own use joint property of the relationship as well as property of the appellant.
After several adjournments a directions hearing and conciliation conference was fixed for 7 December 1999. The parties both failed to attend. The magistrate conducting the hearing made orders dismissing both the claim and counterclaim. On 29 March 2000 the respondent applied to have the action “reinstated”. In her affidavit in support, she said that she was not aware the action would be struck out if the parties failed to attend the conciliation conference and directions hearing on 7 December 1999. The application was heard on 5 April 2000. The magistrate ordered the claim to be “reinstated”. To this time both parties had been unrepresented.
The respondent decided to consult a solicitor. On 8 May 2000 her solicitor filed an application on her behalf to amend her statement of claim so as to rely on the De Facto Relationships Act 1996 and to claim a division of all property pursuant to that Act. On 17 May 2000 a magistrate allowed the respondent’s application and granted 14 days in which to file an amended statement of claim.
On 1 June 2000 the appellant applied to have the amended statement of claim struck out because it was out of time. He was relying on s 9(3) of the De Facto Relationships Act which provides that an application for division of property must be made within one year after the end of the relationship unless the court, after considering the interests of both parties, is satisfied that an extension of time is necessary to avoid serious injustice to the applicant. On 9 June 2000 a different magistrate dismissed the application. By leave, the appellant appealed against that decision.
The learned judge below noted that no application had been made by the appellant for leave to appeal from the decision of the first magistrate on 17 May 2000 allowing the respondent’s application to amend her statement of claim. The appellant applied to the judge for leave to appeal and for an extension of time within which to appeal. The judge granted leave. The learned judge also questioned whether the second magistrate had jurisdiction to hear the appellant’s explanation to strike out the statement of claim because it was, in effect, an appeal from the first magistrate’s order. In the result, the judge did not have to determine that issue because the parties agreed that he should determine the question whether it was necessary to order an extension of time under s 9(3) and, if so, whether such an extension should be granted.
After a thorough examination of the issues, the judge concluded that it was unnecessary to order an extension of time because the true effect of the respondent’s claim lodged on 21 July 1999 was to seek a division of property under the De Facto Relationships Act. Her claim, he said, had therefore been lodged within the time prescribed by s 9(3) of that Act. He added that, even if an extension of time were required to lodge the application dated 8 May 2000, he would have extended time. I agree with the substance of the reasons of the judge. It is unnecessary to repeat them. I incorporate them in these reasons.
The judge also considered the effect of the orders made on 7 December 1999 striking out the claim and counterclaim and of the order made on 5 April 2000 reinstating the claim and counterclaim. The judge concluded that, by reason of Rules 28 or 101 of the Magistrates Court Rules, the orders made on 7 December 1999 were not a final judgment and could be set aside by a magistrate pursuant to Rule 87 of those Rules. Thus, he held, the magistrate erred in using the word “reinstated” on 5 April 2000. In truth, the judgment and orders made on 7 December 1999 were set aside with the consequence that the claim and the counterclaim remained on foot. The judge, therefore, made the following orders:
1.Dismissing the appeal against the decision of the magistrate made on 9 June 2000 in which the magistrate refused an application to strike out the amended statement of claim.
2.Granting the application to extend the time within which to seek leave to appeal from the order of the magistrate made on 17 May 2000 granting leave to amend the statement of claim and extending the time to 1 September 2000.
3.Refusing the application for leave to appeal against the order of the magistrate made on 17 May 2000.
He added, in relation to the third order, that if he had been minded to grant leave to appeal he would have dismissed the appeal.
The learned judge granted leave to appeal to the Full Court from his decision. The appellant contended first that the judge erred in characterising the respondent’s claim lodged on 21 July 1999 as a claim for division of property under the De Facto Relationships Act. In my view, the judge correctly concluded, for the reasons he gave, that the claim was for a division of property under the De Facto Relationships Act.
The next ground of appeal is that, if the claim was correctly characterised as a claim for division of property under the De Facto Relationships Act, the judge erred in holding that a magistrate could, by setting aside the orders made on 7 December 2000, reinstate or otherwise revive the claim. Relying on Smith v Sydney (1870) LR5QB 203 the appellant contends that the orders of 5 April 2000 did not annul the orders made on 7 December 2000, so that the respondent’s claim had always been set aside. Thus, the appellant contends, the respondent had to obtain an extension of time within which to recommence her action.
The effect of the decision in Smith v Sydney (supra) is misunderstood by the appellant. That decision concerned no more than the operation of a judgment before it is set aside and the consequences of a person acting on that judgment. It is entirely silent on the consequences where a judgment has been set aside. Thus, the appellant’s argument is misconceived. The effect of the orders setting aside the orders made on 7 December 2000 was to nullify those orders. While anything done in consequence of the orders of 7 December 2000 was valid while the judgment remained on foot, once those orders had been set aside it was as if they had never been made. Thus, the claim and counterclaim remained on foot.
Even if I were wrong in that conclusion, I would agree with the trial judge for the reasons he gave that it was proper to grant the respondent an extension of time within which to make her claim.
There is no substance, therefore, in any of the arguments on behalf of the appellant. I would dismiss this appeal.
WILLIAMS J. I agree.
BLEBY J. I also agree.
DEBELLE J. Ms Harte, you are at liberty to apply for an order as to costs but only if you are able to show that you have incurred any out of pocket costs in relation to this appeal.
MS HARTE I will not be applying for it. In the last appeal I was awarded costs and I have not had any costs of that.
DEBELLE J.          We will, therefore, not make any order as to costs. The orders of the court are:
1.     Appeal dismissed.
2.     No order as to costs.
Speaking for myself alone, it seems to me that it is time the parties paused and took stock of their position. It is time that they began to consider where they are heading.
One cannot help note that they have, in the past year or so, engaged in a flurry of legal proceedings which have really produced nothing. I address these remarks to both parties.
The question of what would be a proper division of assets, if there has not already made a proper division - as to that I make no comment at all - is something that would be best resolved by them speaking with one other or, if they cannot speak with one another, to engage the assistance of someone outside. I suspect from what has occurred so far that there is a great deal of rancour and bitterness. That is unhappily often a consequence of a separation, either from a marriage or a de facto relationship, and it is to be recognised. But the sensible fact is for you to put that bitterness and rancour to one side. It does not assist in a decision how to divide the assets. All it does is cloud the minds of you both.
As I have said, if you cannot agree it yourself then engage the assistance of someone else. Maybe it is appropriate to go back and see Father John Fleming. After all you did reach an agreement with him at one time. Or if it is not to be him, someone else again. There is an organisation called Relationships Australia which has counsellors who are very experienced in these kinds of matters. Both of those courses are much to be preferred than seeking to litigate the issues.
So, again, I speak for myself alone, but I really do think it is time that you both sat down sensibly, whilst understanding the rancour and the bitterness each must hold, and least agree to disagree with things and get on with what is an appropriate division of the assets, if there has not already been. That is addressed quite earnestly and sincerely to you both.
WILLIAMS J. I would support Debelle J in what he has said.
BLEBY J. I would respectfully agree with those comments as well.

[2001] SASC 127

17 April 2001