GROVER and O’DRISCOLL

[2014] FCWA 25

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: GROVER and O’DRISCOLL [2014] FCWA 25

CORAM: WALTERS J

HEARD: 14 APRIL 2014

DELIVERED : 14/04/2014

PUBLISHED : 23 APRIL 2014

FILE NO/S: PTW 5149 of 2010

BETWEEN: MS GROVER

Applicant

AND

MR O’DRISCOLL
Respondent

Catchwords:

FAMILY LAW – practice and procedure – appeal from interlocutory orders of Family Law Magistrate – whether leave to appeal required pursuant to s 211 of Family Court Act 1997 (WA) – alleged de facto relationship – application for alteration of property interests pursuant to Part 5A of Family Court Act 1997 (WA) – where existence of the de facto relationship is in dispute – where applicant asserted the existence of the de facto relationship had been established in previous proceedings between the parties – where previous finding made that the existence of the de facto relationship had been established on a prima facie basis – where the existence of the de facto relationship remained an issue in dispute – where the applicant's appeal was based on a misunderstanding of previous findings – meaning of prima facie case – leave to appeal granted – appeal dismissed

Legislation:

Interpretation Act 1984 (WA), s 13A(1)
Family Court Act 1997 (WA), Pt 5A, s 205ZB, 205ZB(2), s 211(1), s 211(1)(a), s 211(2)(a)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant

Respondent: Mr T O'Sullivan

Solicitors:

Applicant:

Respondent: O'Sullivan Davies

Case(s) referred to in judgment(s):

Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170

Althaus & Althaus (1982) FLC 93-233

Grover & O'Driscoll [2011] FCWA 106

Grover & O'Driscoll [2012] FCWA 127

Jacenko & Jacenko (1986) FLC 91-776

O v G [No 2] [2013] WASCA 265

R & D [2008] FCWA 22

Rutherford & Rutherford (1991) FLC 92-255

Secure Parking (WA) Pty Ltd v Wilson [2012] WASCA 230

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Introduction

1The applicant and the respondent were in a relationship for a period of approximately seven years. The nature of that relationship is in dispute, but it is not in dispute that the relationship, however it may be characterised, ended on 1 July 2007.

2The applicant asserts that her relationship with the respondent was marriage-like. In other words, she asserts that the parties lived in a de facto relationship: see the definition of "de facto relationship" in s 13A(1) of the Interpretation Act 1984 (WA). The respondent asserts that the parties' relationship was other than marriage-like and that he was not the applicant's de facto partner.

3The characterisation of the parties' relationship is important because the applicant has filed an application in this Court seeking orders for property settlement pursuant to Division 2 of Pt 5A of the Family Court Act 1997 (WA) ("FCA"). Such orders can only be made if, among other things, the Court is satisfied that the parties were in de facto relationship for at least two years.

4The FCA also provides that a de facto partner can only apply for orders for alteration of property interests if the application is made within two years after the relationship ended. Notwithstanding that provision, the Court may grant a de facto partner leave to file an application for orders for alteration of property interests out of time if it is satisfied that hardship would be caused to that person (or perhaps the other party to the relationship) if leave were not granted: FCA s 205ZB.

5On 10 September 2010 the applicant filed an application for alteration of property interests under the relevant provisions of the FCA ("the first property application"). On 6 October 2010 the respondent filed a response to the first property application, seeking that it be dismissed on the basis that the Court lacked jurisdiction to deal with it. In broad terms, the respondent asserted that, whether or not the parties' relationship could be characterised as a de facto relationship, the relationship ceased with effect from 1 July 2007 and, as a result, the first property application was out of time. For her part, the applicant asserted that the parties' relationship was indeed a de facto relationship, and that it had ended in October 2008.

6The jurisdictional dispute was heard by Jordan AJ on 1 and 2 August 2011. In ex tempore reasons delivered on 2 August 2011, his Honour found at [33]:

… the parties were at no time in a de facto relationship after 1 July 2007. If there was a de facto relationship prior to that date, an issue which I expressly decline to consider, then it ended on 1 July 2007.

7Thus, the first property application could only proceed with the leave of the Court. Because the applicant had not applied for leave to file the first property application out of time, Jordan AJ concluded that the Court was without jurisdiction to hear and determine it. His Honour then proceeded to dismiss it: see [Grover & O’Driscoll] [2011] FCWA 106.

8On 17 February 2012 (approximately six months after the first property application was dismissed), the applicant filed in this Court a further application seeking orders for alteration of property interests ("the second property application"), including an application for leave to proceed with the second property application out of time.

9The application for leave to proceed out of time was made pursuant to FCA s 205ZB(2).

10On 29 May 2012, the respondent filed a response seeking orders to the effect that the application for leave to commence property proceedings out of time be dismissed.

11After the applicant had filed the second property application (including her application for leave to commence property proceedings out of time), but before the respondent had filed his response seeking the dismissal of that application, the respondent commenced proceedings against the applicant in the General Division of the Supreme Court of Western Australia. He commenced those proceedings on 24 February 2012. He alleged that the applicant and the respondent had been involved in a business relationship and that they had acquired properties together (and borrowed in order to do so). The respondent's case was that his financial contributions to the business activities were greater than those of the applicant and that, as a result, she should be ordered to pay funds to him. In other words, he sought an equitable contribution from her.

12The respondent applied for summary judgment in relation to his claim in the Supreme Court. On 2 July 2012, the Master ordered that the respondent's Supreme Court proceedings be adjourned pending the determination of the proceedings in this Court.

13The applicant's application for leave to proceed out of time came on for hearing before Jordan AJ on 13 December 2012. The application was heard and determined on that day, and his Honour delivered ex tempore reasons.

14Jordan AJ found that there was a satisfactory explanation for the applicant's delay in commencing property proceedings. His Honour also found that the evidence was "sufficient to establish a prima facie case for determining that a de facto relationship existed between 2000 and 2007". Indeed, his Honour found that there was "more than ample evidence" in that regard.

15In addition, his Honour found that there was material to establish a prima facie claim for alteration of property interests and that the applicant had demonstrated that she would suffer hardship if leave to commence the property proceedings out of time were to be denied.

16In the circumstances, Jordan AJ granted the applicant leave to proceed with the second property application out of time: see [Grover & O’Driscoll] [2012] FCWA 127.

17In an effort to facilitate a resolution of the parties' dispute, his Honour also ordered that the proceedings be adjourned to a Judicial Conference, before himself, on the following day (14 December 2012). The conference took place, but the dispute was not resolved.

18Clearly, Jordan AJ's order granting the applicant leave to proceed with the second property application out of time was an interlocutory order.

19On 11 January 2013, the respondent filed an appeal against Jordan AJ's order of 13 December 2012. The appeal was filed in the Court of Appeal (WA).

20The grounds of the respondent's appeal are not presently relevant. The most significant of the grounds, however, asserted that Jordan AJ erred in law in failing to consider or properly consider the respondent's submission to the effect that the applicant was precluded from bringing an application for leave to proceed with the second property application out of time. That submission relied on the doctrine of Anshun estoppel, and involved the respondent arguing that the application for leave to proceed out of time should have been made as part of the original proceedings (in other words, the first property application) dealt with by Jordan AJ on 1 August 2011.

21The general principles of the doctrine of Anshun estoppel were outlined by the Court of Appeal in Secure Parking (WA) Pty Ltd v Wilson [2012] WASCA 230 at [62] to [65] (references omitted):

The doctrine has operated to preclude a party (party A) to contribution proceedings with another party (party B), from later suing party B on a separate cause of action with a view to, in effect, securing a different level of contribution from that determined in the contribution proceedings. ...

The doctrine may also operate to preclude a party (party A) who has sued another party (party B) on a cause of action and lost, from bringing second proceedings against party B on a different cause of action that could have been raised in the first action ...

The doctrine may also preclude a party (party A), who is a defendant in an action brought by a plaintiff (party B), from later suing party B for a claim which could have been brought in the first litigation as a cross-claim ...

22The respondent's appeal was argued on 18 September 2013. On 22 November 2013, the Court of Appeal published its reasons: see O v G [No 2] [2013] WASCA 265. It found that the Anshun estoppel argument had no merit and ordered that the appeal be dismissed.

23The applicant then took steps to relist the second property application. The proceedings were listed before Magistrate Moroni "for directions only".

24The directions hearing took place before Magistrate Moroni on 14 February 2014. The applicant appeared in person. Mr O'Sullivan appeared for the respondent.

25After a hearing which occupied approximately 30 minutes, the learned Magistrate made orders to the following effect:

a)the applicant was to file "all of the witness affidavits upon which she will seek to rely at the trial of the proceedings" by 7 March 2014;

b)both parties were to file undertakings as to disclosure (with attached lists of relevant documents – including "a list of any documents in respect of which legal professional privilege is claimed") by 7 March 2014; and

c)subject to the applicant filing her documents on time, the respondent was to file his trial affidavit, financial statement and witnesses' affidavits by 28 March 2014.

26The second property application was otherwise adjourned to 14 April 2014 "for further directions".

27I shall refer to the orders made by Magistrate Moroni on 14 February 2014 as "the February 2014 orders".

The appeal

28On 13 March 2014, the applicant filed a notice of appeal from the February 2014 orders ("the FCWA appeal"). Her primary ground of appeal was that the learned Magistrate "erred in failing to follow Justice Jordan's orders made on 13 December 2012 to proceed to a property settlement".

29In support of her notice of appeal, the applicant relied upon her affidavit sworn 6 March 2014 (to which I shall refer as the applicant's "first affidavit"). The applicant asserted that Jordan AJ and the Court of Appeal had ordered or directed the parties "to proceed to a property settlement". It was unclear, however, what the applicant meant by this expression. It is not an expression used by either Jordan AJ or the Court of Appeal.

30In her first affidavit at [12] and [13], the applicant deposed as follows:

During the course of the hearing [on 14 February 2014], it appeared that Magistrate Moroni was directing the parties to trial to determine whether or not a de facto status could be attributed to the relationship.

It appeared Magistrate Moroni was oblivious to the orders made by Justice Jordan on 13 December 2012 directing the parties to proceed directly to a property settlement.

31It is clear from the applicant's first affidavit that she was of the view that Jordan AJ had made a positive finding on 13 December 2012 to the effect that the parties had been in a de facto relationship for at least two years prior to the relationship ending on 1 July 2007. The applicant was mistaken in that regard.

32The applicant also asserted in her first affidavit that she should not be obliged to include "a list of any documents in respect of which legal professional privilege is claimed" in her disclosure documents. She said that the Court of Appeal had dealt with the subject in its judgment delivered on 22 November 2013. Again, the applicant was mistaken in that regard.

33On 2 April 2014, the respondent filed an application in a case seeking the dismissal of the FCWA appeal. The application in a case was supported by an affidavit sworn by the respondent on 31 March 2014. The respondent argued that –

a)the applicant had not complied with the February 2014 orders (in that she had not filed the documents that those orders required her to file by 7 March 2014) and, as a result, the second property application should be "dismissed for non-compliance" with those orders;

b)the FCWA appeal was defective in that it did not include an application for leave to appeal as required by the FCA s 211(1) – given that the February 2014 orders are procedural in nature;

c)the FCWA appeal was without merit in any event, because the question of whether or not the parties had been in a de facto relationship prior to 1 July 2007 was yet to be determined; and

d)a previous costs order (made by Jordan AJ on 23 September 2011 following the dismissal of the first property application), and in relation to which the applicant had been assessed as having to pay approximately $50,600, should be enforced.

34On 4 April 2014 the applicant filed a response to the respondent's application in a case. In broad terms, she sought that the orders sought by the respondent be dismissed, that enforcement of the outstanding costs order be stayed and that the respondent pay her costs of the appeal and the competing applications in a case. The applicant filed a further affidavit (sworn 4 April 2014) in support of her response to the application in a case. I shall refer to this affidavit as the applicant's "second affidavit".

35In her second affidavit at [17] to [22], the applicant deposed:

[Jordan AJ] had made his findings by the orders made on 13 December 2012 to proceed to a property settlement.

I believe that Magistrate Moroni was not adhering to [Jordan AJ's] orders to proceed directly to a trial for property settlement.

Magistrate Moroni's orders seek to turn back the clock of time.

[Jordan AJ] has already determined my application for leave out of time and his directions validate my de facto relationship with my former partner.

[Jordan AJ's] orders are that we are to proceed to a property settlement.

It is a fact, it has been established in the Family Court and concurred in the Supreme Court of Appeals (sic) by three learned judges and it is not subject to challenge.

36A written outline of submissions on behalf of the respondent was provided to the Court on 10 April 2014.

Hearing on 14 April 2014

37The FCWA appeal came on for hearing before me on 14 April 2014. The applicant represented herself. Mr O'Sullivan appeared for the respondent.

38At the commencement of the hearing, I invited the applicant to obtain legal advice from the duty lawyer. She declined to do so.

39During the course of a comparatively informal dialogue between the applicant and the Court, it was made clear to her that neither Jordan AJ nor the Court of Appeal had ordered or directed that the parties were to "proceed to a property settlement" (whatever that expression may mean). It was also made clear to her that neither Jordan AJ nor the Court of Appeal had made a clear finding to the effect that the parties were in a de facto relationship between 2000 and 2007, or at any other time. The applicant eventually conceded that she had misinterpreted the relevant judgments, and the orders made by Jordan AJ.

Jordan AJ's Reasons

40Some limited references to the judgments will serve to illustrate the nature of the applicant's misapprehension:

a)In his reasons dated 13 December 2012, Jordan AJ said in relation to the applicant's application for leave to proceed out of time:

[28]Under the provisions of s 205ZB, the Court is vested with a discretion to grant leave to proceed out of time if the Court is satisfied that hardship may be caused to an applicant if leave is not granted. In presenting such an application, the applicant ... carries the onus. Establishing hardship is not itself sufficient to secure the leave of the Court and the establishment of hardship is ... a prerequisite to the enlivenment of a discretion to be vested in the Court. If the precondition is met, the Court is obliged to consider hardship occasioned to the applicant if leave is refused and hardship and/or prejudice occasion to the respondent if leave is granted.

[29]In determining those matters, the Court must be satisfied that the applicant has produced evidence sufficient to establish to a prima facie level:

(a)that a de facto relationship existed for the requisite period; and

(b) that the applicant has a viable claim for property settlement.

b)Jordan AJ added at [36] that the applicant must also provide an adequate explanation for her delay in commencing the property proceedings.

c)After finding at [40] that the applicant had provided an adequate explanation for the delay in commencing property proceedings, Jordan AJ said at [41]:

As to the evidence sufficient to establish a prima facie case for determining that a de facto relationship existed between 2000 and 2007, I find that there is more than ample evidence.

d)His Honour then referred to evidence relating to the length of the relationship, shared residence, the existence of a sexual relationship, financial dependence and interdependence, arrangements for the ownership and acquisition of property, the degree of mutual commitment to a shared life and public aspects of the parties' lives (including reputation). He concluded at [52]:

That combination of factors leads (sic) me well satisfied that the applicant has placed before the Court evidence sufficient to establish a prima facie case that a de facto relationship existed between 2000 and 2007.

e)His Honour concluded at [57] that, in addition to establishing a prima facie case that a de facto relationship existed between 2000 and 2007, the applicant had also established a (prima facie) case for alteration of property interests.

f)At [58], Jordan AJ said:

In my view, the applicant's claim needs to be addressed by the appropriate Court in order to determine whether a de facto relationship in fact existed. ...

g)After dealing with the hardship or potential hardship to the applicant and the respondent of refusing or granting leave to proceed out of time, his Honour concluded at [70] that he proposed "to grant the applicant leave to proceed with [the second property application] out of time".

h)The actual order made by his Honour was as follows:

The applicant ... have leave to proceed with the Form 1 application filed on 17 February 2012 for property settlement notwithstanding the application was filed outside the prescribed time limit.

Prima facie case

41It is clear from the above that the Jordan AJ did not conclude that the parties were involved in a de facto relationship. He concluded that there was a prima facie case that they were involved in such a relationship.

42For present purposes, it is unnecessary to do more than refer to the definition of "prima facie case" in Osborn's Concise Law Dictionary (10th edition, 2005):

A case in which there is evidence which will suffice to support the allegation made in it, and which will stand unless there is evidence to rebut the allegation. When a case is being heard in court, the party on whom the burden of proof rests must make out a prima facie case, otherwise the other party will be able to submit that there is no case to answer, and if he is successful, the case will be dismissed.

43The applicant's application for leave to proceed with the second property application out of time involved no more than a limited inquiry as to the merits of her substantive claim for alteration of property interests. It did not necessitate a detailed hearing for the purpose of analysing the parties' competing cases and determining whether the applicant's substantive claim would be successful. The exercise was for the purpose of determining whether the applicant had demonstrated that there was a reasonable claim to be heard. The general principle is, therefore, that, in order to determine whether a prima facie case has been made out, the Court will proceed on the basis that the applicant's evidence should be accepted (unless, for example, it is inherently unbelievable or contradictory). If leave to proceed out of time is granted, the Court conducting the ultimate hearing has the responsibility of considering all the relevant evidence adduced by the parties and determining the outcome of the substantive case: see, for example, Althaus & Althaus (1982) FLC 93-233 and Jacenko & Jacenko (1986) FLC 91-776, at p. 75,643.

Discussion

44It is important to recognise, as the applicant did not, that the application for leave to proceed with the second property application out of time did not comprise the trial (or even part of the trial) of the substantive proceedings for alteration of property interests. The only question for Jordan AJ to consider was whether leave should be granted to enable the second property application to proceed. His Honour was not required to decide whether the applicant's substantive claim would be successful, but whether it should be heard at all. The respondent's primary defence to the substantive claim was that he and the applicant were not involved in a de facto relationship within the meaning and contemplation of that expression in the FCA. The applicant did no more than demonstrate that there is evidence (indeed, strong evidence) to support a finding to the effect that a de facto relationship existed. If the respondent elects to lead no evidence at trial to contradict the applicant's evidence of the existence of the de facto relationship, then it is likely that the Court hearing the substantive proceedings would be able to find that such a relationship existed. If, however, the respondent chooses to stand his ground and challenges the applicant's evidence of the existence of the de facto relationship (by, for example, cross-examining the applicant and her witnesses regarding the subject and leading evidence from himself and his witnesses which serves to contradict the applicant's assertions), then that issue will fall to be determined on the whole of the evidence.

45It follows from the above that the learned Magistrate correctly apprehended the nature of the task in which he was involved at the hearing on 14 February 2014. That task was to "make some procedural orders which will steer the case towards its conclusion": see 14 February 2014 transcript at page 2. His Honour recognised that the applicant had already filed a comprehensive trial affidavit in September 2012, which affidavit dealt with the questions of whether a de facto relationship had existed and why orders for alteration of property interests should be made. His Honour also recognised that the applicant had filed a financial statement (which had been updated recently). The applicant conceded that it would be necessary to file a further updated financial statement (given the likely time to trial) and that it would be appropriate for her to file a minute of orders sought after she had had the opportunity to consider the respondent's material, including his financial statement. It was not in dispute that the applicant intended to file fresh or updated witness affidavits: see 14 February 2014 transcript at page 7. Nor was it in dispute that the witness affidavits should be filed within 21 days from the date of the directions hearing.

46The learned Magistrate summarised the arrangements (from the applicant's point of view) as follows (14 February 2014 transcript page 8):

His Honour: Okay. Well, you're staying with the affidavit you filed, you're going to be filing an updated form 13 and you're going to be filing some witness affidavits in 21 days.

Applicant: Yes.

His Honour: That will be your evidence in the case. Okay. ...

47There was no dispute during the hearing on 14 February 2014 about the learned Magistrate's proposed orders for the filing of the respondent's material; nor was there any dispute during the hearing about the proposed orders relating to undertakings as to disclosure. In relation to the undertakings as to disclosure, his Honour patiently explained both parties' obligations – including the obligation to include in the disclosure list documents in respect of which legal professional privilege is claimed. His Honour also explained to the applicant that inclusion of such documents in the disclosure list does not mean that the respondent will be able to inspect those documents or use them in court; whether or not such documents can be inspected, and the question of their admissibility, can be argued at a later stage: see 14 February 2014 transcript pages 10 to 17.

48It follows from the above that no error has been disclosed in the learned Magistrate's approach to the directions hearing on 14 February 2014, or in the orders made on that day. It is clear from the transcript of the directions hearing that the applicant did not oppose that approach or those orders. The complaints reflected in her notice of appeal and supporting documents appear to reflect concerns that commenced to trouble the applicant at some later stage. His Honour had no opportunity of dealing with those concerns during the course of the hearing.

49The applicant's appeal to this Court must proceed by way of a re‑hearing: FCA s 211(2)(a). As a result, the applicant's failure to raise her concerns at the hearing before the learned Magistrate is not an impediment to this Court making such order as it thinks fit in relation to the FCWA appeal. The FCWA appeal is without merit, however, and should be dismissed.

Leave to appeal

50Pursuant to FCA s 211(1)(a) leave is required to appeal from an interlocutory order of the Magistrates Court as constituted by a family law magistrate. It follows that the applicant required leave to appeal from the February 2014 orders, which are clearly interlocutory in nature. As explained above, if leave is granted the appeal must proceed by way of a re-hearing: FCA s 211(2)(a).

51This Court is required to exercise particular caution when reviewing decisions relating to practice and procedure. It must be demonstrated that the Court below has made an error of principle and that its orders will cause a substantial injustice to one of the parties (or, perhaps, that there is either an error of principle or a substantial injustice to one of the parties): see Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 177 and Rutherford & Rutherford (1991) FLC 92‑255 at 78, 715. In R & D [2008] FCWA 22, Thackray CJ said at [41] in relation to an application for leave to appeal in proceedings which do not relate to children:

... In the context of the present litigation, I would be inclined (were it necessary to decide) that it would be appropriate for leave to be granted only if it were established that there was an error of principle and a substantial injustice to one of the parties as a consequence of the orders made. In coming to this view, I have taken into account the fact that the matter in issue is entirely one of practice and procedure ...

52I agree with his Honour the Chief Judge that, when dealing with an application for leave to appeal from interlocutory orders in property proceedings, it would only be appropriate to grant such leave if it can be established that there is both an error of principle and a substantial injustice to one of the parties as a consequence of the orders appealed from.

53During the course of the hearing on 14 April 2014, I indicated to Mr O'Sullivan that the question of leave to appeal would not be determined as a separate or preliminary matter and no further submissions (beyond those contained in the respondent's written outline of submissions) were made on the issue. Given that I then proceeded to hear the appeal and found it to be without merit, it is unnecessary for me to say more about the question of whether leave to appeal was required.

Orders

54Notwithstanding the applicant's failure to apply for leave to appeal, I propose to grant leave but dismiss the appeal.

55Because the applicant saw fit to pursue her appeal, the time limits set out in the February 2014 orders have expired. The parties agreed to those time limits being extended to enable the substance of the February 2014 orders to be maintained.

56Mr O'Sullivan did not press for any of the other orders sought in the respondent's application in a case filed 2 April 2014, save for an order in relation to costs. I have dealt with that subject in separate reasons.

57The orders made 14 April 2014 are as follows:

1.The applicant have leave to file her notice of appeal filed 13 March 2014.

2.The orders made in the Magistrates Court, 150 Terrace Road Perth on 14 February 2014 be varied as follows:

a)by deleting the words "no later than 7 March 2014" where they occur in paragraphs 1 and 2 and inserting in their place the words "no later than 5 May 2014"; and

b)by deleting the words "no later than 28 March 2014" where they occur in paragraph 3 and inserting in their place the words "no later than 26 May 2014"

3.The applicant's notice of appeal filed 13 March 2014 and application in a case filed 4 April 2014 otherwise be dismissed.

4.The respondent's response to an application in a case filed 4 April 2014 be dismissed.

5.The applicant pay the respondent's costs fixed in the sum of $2500, such costs to be paid by not later than 1 August 2014.

6.All extant proceedings otherwise be adjourned to 6 June 2014 at 9:45 am for further directions, such hearing to be before Magistrate Moroni.

I certify that the preceding [57] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate