Harlen and Hellyar (No. 3)
[2020] FamCA 560
•7 July 2020
FAMILY COURT OF AUSTRALIA
| HARLEN & HELLYAR (NO. 3) | [2020] FamCA 560 |
| FAMILY LAW – PRACTICE AND PROCEDURE – trial fixed to commence this day – COVID-19 pandemic still underway – whether applicant should be forced on – balancing considerations – held, adjournment granted. |
| Biosecurity Act 2015 (Cth) Public Health and Wellbeing Act 2008 (Vic) |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Capic v Ford Motor Company of Australia Ltd (Adjournment) [2020] FCA 486 Harlen & Hellyar (No. 2) [2020] FamCA 413 |
| APPLICANT: | Ms Harlen |
| RESPONDENT: | Mr Hellyar |
| FILE NUMBER: | MLC | 13634 | of | 2017 |
| DATE DELIVERED: | 7 July 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | The Honourable Justice Wilson |
| HEARING DATE: | 6 & 7 July 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr St. John QC |
| SOLICITOR FOR THE APPLICANT: | Peter Szabo Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr P. O'Shannessy SC |
| SOLICITOR FOR THE RESPONDENT: | Mann Lawyers |
Orders
The trial listed on 6 to 10 July 2020 is vacated.
This proceeding is re-listed for trial on 1 to 5 March 2021 and 8 to 12 March 2021.
This proceeding is listed for a compliance hearing on 1 February 2021 at 9:30am.
On or before 4pm on 25 January 2021 all parties file and serve any affidavit material and written submissions in relation to costs thrown away of and incidental to the adjournment of the trial previously fixed for five days between 6 and 10 July 2020.
The question of costs thrown away will be determined on 1 February 2021.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harlen & Hellyar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 13634 of 2017
| Ms Harlen |
Applicant
And
| Mr Hellyar |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
Introduction
Today should have been occupied by the second day of the trial of this proceeding. Instead, today is the second day of an application to adjourn the trial. If I accede to the applicant’s application for an adjournment, the trial of this proceeding on a revised 10 day estimated duration can only be accommodated in my docket in March of next year. The proceeding has been on foot since 2017. When fixing the case for trial in May of this year each party enthusiastically embraced the notion of an electronic trial. That trial should have commenced yesterday. Mr O’Shannessy of Senior Counsel for the respondent submitted that the respondent had done all he was required to do so as to prepare for the trial in accordance with an agreed timetable and, in the process, the respondent and his legal team had devoted a substantial amount of time and resources that will be thrown away if the applicant’s adjournment application is granted.
Mr St John QC for the applicant submitted that the case was not ready for trial. He relied on the following grounds –
a)his client was unwilling to expose herself to the risks inherent in travelling on public transport to attend her solicitor’s office during the currency of the international pandemic colloquially called COVID-19, declared as a state of emergency pursuant to the Biosecurity Act 2015 and also under the Victorian Public Health and Wellbeing Act 2008;
b)the applicant does not own a computer and is not computer-literate;
c)the applicant does not read or write in the English language to a significant degree and is entirely reliant upon an interpreter in order to give evidence and to provide instructions;
d)discovery is in a state of incompleteness; and
e)inspection of documentation in response to several subpoenae is restricted which has delayed the preparation of the case for trial.
Synopsis
For the reasons that follow in my judgment this case is not ready for trial to commence in accordance with trial orders previously made. Further, having regard to likelihood of the case being part-heard even if commenced this week, the better approach is to start the case and let it run to conclusion over the revised estimated duration, which I can accommodate during 1 and 12 March 2021. I will adjourn the trial to then. Costs thrown away must be reserved until 1 February 2021 for the reasons that follow.
Relevant chronological evolution
This case first came before me for my consideration of an argument on costs on 5 May 2020. Most of that day was consumed with debate on the applicant’s application for costs. Mr O’Shannessy SC had not had an opportunity of digesting the written submissions of Mr St John QC on costs. I gave Mr O’Shannessy until 14 May 2020 to prepare his written submissions on costs. On 5 May 2020 I fixed this case as an electronic trial for 6 to 10 July of 2020. Debate resumed on costs on 14 May of 2020, a Thursday. I agreed to hand down reasons on several costs applications on 18 May, the following Monday.
Also on 14 May 2020 the parties formulated consent orders pursuant to which the trial of the proceeding would go forward electronically. A compliance hearing was fixed that day for 18 June at 11 am.
On Monday 18 May 2020 I handed down reasons on the costs issues reported as Harlen & Hellyar (No. 2).[1]
[1] [2020] FamCA 413.
On 22 May 2020 the parties debated a contested interlocutory skirmish concerning valuation evidence in relation to real property in Country B, ultimately leading to consent orders being pronounced on that day. The parties also agreed to address questions akin to interrogatories by certain dates. The compliance hearing previously ordered for 18 June 2020 was confirmed.
By 18 June 2020 the impact of COVID-19 pandemic was abating. Bearing in mind that on 18 June 2020 this proceeding had been ordered, by consent, to proceed electronically Mr St John QC urged for the trial to be conducted on a face-to-face basis. Any such order deviating from the previous order for the trial to be conducted electronically required consultation with the Hon. Justice Hartnett in her Honour’s capacity as case management judge for the Melbourne Registry and it also required the ultimate approval of the Chief Justice. At the parties’ request I sought and obtained the approval of Hartnett J and Alstergren CJ for the trial to proceed face-to-face. The trial dates of 6 to 10 July were preserved. Various consent orders, mainly of a procedural nature were made on 18 June 2020.
In the State of Victoria, as was common knowledge at the time, by 29 June 2020 COVID-19 infections had spiked resulting in the Chief Justice of this court determining that face-to-face trials and contested interlocutory hearings were suspended. At my request, my associate sent an email to the solicitors for the parties in this case at 1:20pm on 30 June 2020 informing them that by reason of the suspension of face-to-face trials the parties had two options. The first was to retain the trial date of 6 July 2020 and to proceed as previously ordered, that is to say electronically. The second option was to select new trial dates if the parties wished to proceed on a face-to-face basis. If the parties selected the face-to-face option, my associate told the parties that new dates were available between 27 and 30 July 2020 subject to the possibility that the restrictions on face-to-face hearings may not have been lifted by then. Alternatively if the parties selected a face-to-face trial over five days as previously indicated, then the new dates available from my heavily burdened diary were 1 March 2021 to 5 March 2021. My associate sought the parties’ selection of and agreement to one of those options by close of business on 1 July 2020.
At 10:59pm on 30 June 2020 Mr St John QC sent my associate an email indicating, in substance, that he and Mr O’Shannessy SC were unable to reach agreement on the preferred method to proceed. Mr St John QC stated that Mr O’Shannessy SC preferred keeping the trial date as it was; that is to say between 6 and 10 July 2020 as an electronic trial. Conversely, Mr St John QC said he preferred refixing the trial as a face-to-face trial for four days (a lesser duration than previously agreed) and for the new dates to be 27 July 2020 to 30 July 2020.
Events in the broader Victorian medical community on the days 30 June and 1 July of 2020 were moving at very high speed. It seemed to me that no certainty existed that face-to-face trials would be permitted by 27 July 2020 and that in all likelihood, this case would proceed electronically if it were to proceed in July 2020 as Mr O’Shannessy SC seemed to prefer.
At my request, my associate sent an email to Mr St John QC and Mr O’Shannessy SC at 10.49am on 1 July 2020. In it, Ms H (my associate) informed the parties that I had considered the parties’ preferred positions and that the case was to remain listed for trial on 6 July of 2020 to proceed electronically. That was mainly by reason of the unlikelihood that face-to-face trials would be permitted to resume by 27 July 2020.
At two minutes past noon on 1 July 2020 Mr St John QC sent an email to my associate acknowledging receipt of Ms H’s email at 10.49am earlier that day and indicated that a formal adjournment application would be made and requesting a return date for that application. Mr St John’s email contained the following –
It will be respectfully submitted that there are matters of which the court is not yet aware which make it impossible for the case to properly proceed on 6 July 2020 via video-link. My email sent last night was necessarily couched in neutral terms and did not venture into submissions.
That email came to my attention around noon on the Wednesday prior to the scheduled commencement of the trial the following Monday and on the Thursday and Friday of that week I was elsewise occupied. The applicant’s solicitors filed the application in a case seeking orders for the adjournment of the trial at 2:33pm on 2 July leaving one business day prior to the trial for the application to be heard. In those circumstances I had no choice but to list the adjournment application for the first day of the trial, that is to say, on 6 July 2020.
The evidence in support of this application
Mr Szabo, the applicant’s solicitor, swore to the matters that underpinned the applicant’s adjournment application. Relevantly distilled, there were as follows –
a)he has faced considerable challenges in preparing for the trial of this proceeding especially in the present COVID-19 pandemic;
b)on 21 May 2020 hundreds of documents were disclosed by the respondent;
c)he received further documentation on 29 June 2020;
d)the applicant cannot afford to retain an accountant to examine the respondent’s financial position;
e)the applicant speaks and understands the English language at a rudimentary level only and requires an interpreter to provide instructions or to read or respond to court documentation;
f)the applicant does not own a computer and can only read simple emails or text messages;
g)securing the services of a Country B interpreter has not been easy to arrange but an interpreter has attended Mr Szabo’s offices on at least 10 occasions since 5 May 2020;
h)junior counsel for the applicant has attended to the preparation of the applicant’s affidavits;
i)preparation in recent times has required the services of an interpreter resulting in the applicant and the interpreter sharing a computer screen while attempting to maintain proper social distancing;
j)over 20 hours of conference time has been spent on responding to certain of the respondent’s affidavit material;
k)three court hearings have been conducted since 5 May 2020 since which 16 narrative affidavits have been filed, two financial statements have been filed, an amended initiating application and response have been filed, four subpoenae have been issued concerning the child X, three further subpoenae have been filed in relation to Z Lawyers, Victoria Police and K Accountants, and four detailed legal submissions have been prepared;
l)since mid-June 2020 about 85 letters or emails have been received by Mr Szabo resulting in substantial pressure on the applicant;
m)the applicant and her two children live in a small apartment and the applicant does not discuss the case with them;
n)the applicant’s only income is the JobSeeker allowance;
o)the applicant does not own a car, she does not have an Australian driver’s license and as she lives in regional Victoria she must travel by public transport for two hours in each direction in order to confer with Mr Szabo in his offices in Melbourne;
p)the applicant is concerned about her exposure to COVID-19 by being required to travel by public transport using bus, train, and tram;
q)Mr Szabo received notice on 29 June 2020 that two persons later testing positive to COVID-19 had been in his reception area; and
r)Mr Szabo places as a priority the health of his staff, his counsel, interpreters and those involved in this case.
In paragraph 27 of his affidavit made 2 July 2020 Mr Szabo addressed the complications and logistical obstacles imposed by an electronic trial. They were as follows –
a)Senior Counsel is linked in at his home address;
b)the client and the interpreter would be attending at his office;
c)he would have to separate himself from the client as he is a potential witness in the proceeding;
d)Senior Counsel would not have an instructing solicitor at his home;
e)Senior Counsel would be unable to communicate with the client without the assistance of an interpreter, and before or during the hearing, it would be in real terms impossible to do so and with the consequence that the client would have long travel time each morning and evening, and could not remain following the hearing because she would have a long trip to return to her home for her children.
f)because of the inability of his client to read court documents, or even to accurately identify them, the interpreter would have to assist in that task during cross-examination;
g)the client would be seriously disadvantaged by the absence of familiar people about her, especially her counsel, her unfamiliarity with court procedures and her inability to readily communicate with her counsel or a representative of Mr Szabo’s office; and
h)the time taken for cross-examination would be greatly extended compared with a face-to-face hearing.
It must be said that at least some of those matters were apparent when the consent orders fixing the case for an electronic trial were made.
Mr Szabo said in paragraph 28 of his affidavit that since 15 June 2020 it has been impossible for his client to be fully aware of the evidence before the court, the conflicts of evidence and to receive legal advice. He said the case is now legally complex. He said that in his view the applicant would be greatly prejudiced by a trial commencing on 6 July 2020, especially if a trial is conducted by a video (which I infer he meant using Microsoft Teams software). Mr Szabo said that Mr St John QC takes the same view.
Mr Jenshel, the solicitor for the respondent, put before me factual matters he said demonstrated prejudice to the respondent by any adjournment being granted. Among the more important reasons he advanced were the following –
a)he was served with the applicant’s application in a case at 2:21pm on 2 July 2020;
b)the applicant had not suggested that an electronic trial was not feasible (I presume he meant since the consent orders fixing the case for trial);
c)Mr O’Shannessy SC was at an advanced state of preparation, and if the trial was adjourned both senior and junior counsel and Mr Jenshel will have wasted several days of preparation;
d)an electronic facility was created at Mr Jenshel’s office to cater for the electronic requirements of the trial and that facility will need to be disassembled if the trial is adjourned;
e)he estimated costs thrown away were in the vicinity of up to $25,000 and in the three days leading to the 6 July trial a further $20,000 had been thrown away;
f)the respondent had been ordered to pay costs on several occasions to date and if the trial was adjourned no orders offsetting his costs thrown away presently existed; and
g)Mr Jenshel disputed the suggestion that full disclosure had not been provided by the respondent.
The first day of the trial
The whole of the day on 6 July was consumed with the adjournment application. Mr St John QC’s submissions occupied most of that time. The substance of his client’s contentions have been canvassed above. However, in verbal submissions Mr St John devoted considerable store to documentary problems he said had been and continued to be encountered. He said they included –
a)redactions in documentation supplied by the respondent;
b)seriously reduced time for inspecting documents produced in response to subpoenae;
c)complications associated with copying documentation in the court registry; and
d)other delays relevant to documentation from Victoria Police, K Accountants, Z Lawyers and hospital or medical records.
On behalf of the respondent, Mr O’Shannessy SC submitted that the case should go on. He contended –
a)serious fraud allegations were made against the respondent, Mr J and Mr F;
b)on one construction of events an equally serious allegation of attempting to pervert the course of justice was also alleged;
c)those serious allegations remain untried and continue to hang over the respondent’s head;
d)when the case was fixed for trial by me the applicant enthusiastically embraced the notion of an electronic trial;
e)the order made on 5 May 2020 fixing the case for trial was the second trial date ordered, the earlier date ordered by Williams J having been vacated;
f)both parties agreed on complicated trial directions appropriate for an electronic trial;
g)both parties participated in a compliance hearing on 18 June 2020 yet the applicant did not protest about the trial being conducted electronically on that occasion;
h)preparation for trial is never easy especially during a COVID-19 pandemic;
i)whether the trial is electronic or face-to-face, the problems associated with delays involving the interpretation of the spoken word or documentation will continue;
j)whether the trial is electronic or face-to-face, the applicant will still be required to travel to court;
k)the applicant’s complaint that she is not ready to begin the trial of this case is of her own making;
l)the respondent has been put to vast expense to prepare his case since 5 May 2020 and if the trial is adjourned, at least three days’ preparation will have been wasted by senior and junior counsel and their instructing solicitor;
m)the respondent will suffer prejudice in unrecoverable costs thrown away if the trial is adjourned; and
n)documentation from L Hospital and M Hospital was produced late because the subpoena addressed to each was issues later than the date ordered.
Mr O’Shannessy SC raised the question of evidence from an expert in Country B law which had not yet been obtained. He offered a way forward by the respondent providing a computer for the applicant’s use. Importantly, Mr St John QC said the case would not conclude by Friday 10 July even if started this week. He said the case was nearer eight days in duration. I put to him that it was more likely to require 10 days.
In reply, Mr St John QC pressed hard with the contention that if the trial is forced on against her protests the applicant will have no option but to attend at Mr Szabo’s office thereby exposing her to risk. Mr St John said the applicant agreed to orders for trial on 5 May but by then the epidemic was receding. He disputed the assertion that any fault in the preparation of the case was the applicant’s. Mr St John said the case had grown like topsy since 5 May. He sought orders reserving costs if an adjournment were ordered.
In debate with Mr St John, I asked for his submissions about the approach adopted by Perram J in Capic v Ford Motor Company of Australia Ltd (Adjournment)[2] where his Honour rejected an adjournment application in the face of COVID-19 pandemic conditions. Mr St John said that the case involved an adjournment application made six weeks prior to the trial involving sophisticated parties whereas this case did not involve those circumstances with the consequence that the case was immediately distinguishable.
[2] [2020] FCA 486.
I brought to Mr St John’s attention the observations of the High Court in Aon Risk Services Australia Ltd v Australian National University[3] about the discretion to be exercised in procedural applications including an adjournment application. The question becomes one of unfair prejudice, it seemed to me, at least having regard to the observations of French CJ. Mr St John did not address on the issue.
[3] (2009) 239 CLR 175.
Consideration
It seemed to me that this case is finely balanced. The respondent has recently become very focused on this case and its preparation. Over the life of the litigation the same could not be said of his approach. That said, since May, he has approached the trial of this case as an electronic trial with appropriate application even to the extent of having his solicitors create a dedicated electronic facility in their office specifically for this case. All members of his legal team have worked very hard in the lead-up to the trial. I accept that this case will raise legally and factually complicated issues in which it is likely that diametrically opposed versions of events will be propounded. Exquisitely detailed preparation is demanded in such a case. There may be some aspects of the last four days’ preparation that are lost (or deferred) if this case is adjourned, at least so far as the respondent is concerned. It is also true that Mr O’Shannessy will be required to re-acquaint himself with the facts if an adjournment is ordered. I do not accept that the whole of counsels’ preparation time is lost in its entirety. No doubt notes for cross-examination of a large portion of the applicant’s witnesses can be utilised once Mr O’Shannessy re-reads the material.
In the other dish of the scales of justice in which I must weigh the competing contentions on this adjournment application is the multifaceted argument advanced by the applicant. The first facet is the health risks to which the applicant will be exposed in undertaking three forms of public transport twice daily. The second facet is the current complications associated with inspecting and copying documents produced by subpoenae. The third facet is the presently unprepared evidence about Country B law. The fourth facet is the applicant’s computer illiteracy. The fifth facet is the applicant’s need for an interpreter at all phases of this case both in court and out of it.
The sixth facet is the woefully inaccurate estimated duration of this trial, irrespective of the methods selected for the conduct of the trial. General consensus now seems to emerge that the five-day estimate was wrong. It seems to me to be prudent to allocate double that time. The seventh facet is the undesirability of starting a case, whether face-to-face or electronically, then adjourning it part heard, sometimes well into the future, especially when a witness is partially cross-examined. That orchestrates a real hardship on the party or witness being cross-examined.
It is readily apparent that the applicant’s case is not fully prepared. It is also apparent that during the currency of the problems that the applicant’s legal team was experiencing with inspection and copying of documents produced in response to one or more subpoenae, the respondent’s legal team was preparing at full speed in order to have the case ready for the commencement of the trial on 6 July. Whether the parties’ legal teams interacted in any way to explain, for example, the complications the applicant was encountering or to alert the respondent that the case may not be ready to start at trial on 6 July is unknown from the material. It seems that any such interaction was unlikely having regard to Mr Jenshel’s statement that he was unaware of this adjournment application until 2:21pm on 2 July and his statement that it had not been earlier suggested to him that the applicant was not ready for trial. That tended to align with Mr Szabo’s statement in paragraph 3 of his affidavit where he said in the passive tense –
The challenge of properly preparing my client’s case, especially in a COVID-19 pandemic was greatly underestimated.
I assume Mr Szabo made that underestimate.
Be that as it may, the most important question for me is whether it is just to force the applicant on for trial at this juncture. In my view it is not. However, the respondent should not be left without a remedy in the face of events beyond his control.
Mr O’Shannessy pressed for an order for costs. He asked for those costs to be offset against costs orders already made against his client. There is force in that submission, at least superficially. Sums up to $45,000 were mentioned by Mr O’Shannessy, yet Mr Jenshel did not quantify the sums he mentioned in his affidavit. Any consideration about costs must be much more focused, especially as to the makeup of the sum sought but more particularly as to the legislative basis for the making of the order. No material on either basis is presently before me.
In those circumstances it seems to me that an order vacating the trial date is inevitable and I should make it. Given that the case will most likely take 10 days at trial, and the first uninterrupted sequence I have of 10 days commences on 1 March 2021, I shall refix the case for 1 to 5 March and from 8 to 12 March 2021. It is appropriate to convene a compliance hearing prior to 1 March. I fix 9.30am on 1 February 2021 for a compliance hearing. On that day I shall determine the question of costs thrown away by reason of the adjournment ordered today. Seven days prior to 1 February 2021 the parties must file and serve any affidavit material and submissions on which each relies in relation to costs thrown away of and incidental to the adjournment of the trial previously fixed for five days between 6 and 10 July 2020.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 7 July 2020.
Associate:
Date: 15 July 2020
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