Holden & Wolff
[2014] FamCAFC 224
•24 November 2014
FAMILY COURT OF AUSTRALIA
| HOLDEN & WOLFF | [2014] FamCAFC 224 |
| FAMILY LAW – APPEAL – JURISDICTION – De facto relationship – Where the appellant contends that the parties were not in a de facto relationship – Where directions were made requiring the appellant to file current financial evidence in anticipation of a hearing to determine an application for urgent financial orders – Whether the court had power to make orders prior to a challenge to jurisdiction being determined – Consideration of Norton & Locke (2013) FLC 93-567 – Where the court’s powers to make the orders sought can only be granted in a de facto financial cause – Where there is no de facto financial cause until a de facto relationship is established – Where the court has jurisdiction to make directions in contemplation of a determination of the issue of jurisdiction – Where the orders related to preparation of the hearing of the financial matter – Where, until the jurisdictional facts are established, there is no power to coerce the provision of financial information – Appeal allowed. FAMILY LAW – APPEAL – ORAL HEARING – Where order was made in chambers without an oral hearing – Where r 15.03 of the Federal Circuit Court Rules 2001 (Cth) prescribes that a Judge may make a decision without an oral hearing if the parties consent – Where consent was neither sought nor given – Appeal allowed. FAMILY LAW – APPEAL – HEARING DE NOVO – Where the appellant’s application was for a review of a decision of a Registrar – Where r 20.03 of the Federal Circuit Court Rules provides that any review of an exercise of power by a Registrar must proceed by way of a hearing de novo – Where an order made in chambers and absent the parties consent without an oral hearing does not constitute a hearing de novo – Appeal allowed. |
| Family Law Act 1975 (Cth): ss 4AA, 90, 114, 97 |
| Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 83 |
| APPELLANT: | Mr Holden |
| RESPONDENT: | Ms Wolff |
| FILE NUMBER: | SYC | 349 | of | 2012 |
| APPEAL NUMBER: | EA | 125 | of | 2014 |
| DATE DELIVERED: | 24 November 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Ryan and Aldridge JJ |
| HEARING DATE: | 10 October 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 August 2014 30 July 2014 |
| LOWER COURT MNC: | N/A |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Williams |
| SOLICITOR FOR THE APPELLANT: | K M Harkness & Co |
| COUNSEL FOR THE RESPONDENT: | Ms Coulton |
| SOLICITOR FOR THE RESPONDENT: | LLL The Law Firm |
Orders made 24 October 2014
The Applicant be granted leave to appeal an order made by Judge Henderson on 26 August 2014 in accordance with his Notice of Appeal filed on
5 September 2014.
The appeal be allowed.
Order 1 made by Judge Henderson on 26 August 2014 be set aside.
The application for a review filed by the appellant in the Federal Circuit Court of Australia on 26 August 2014 be remitted to the Federal Circuit Court for rehearing.
Notation:
The Court notes that it remains reserved on the reasons for the above orders and on the balance of the appeal.
Orders made 24 November 2014
Leave be granted to appeal from orders 4, 5 and 6 made by Judge Henderson on 30 July 2014.
The appeal against orders 4, 5 and 6 of Judge Henderson be allowed and those orders be set aside.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Holden & Wolff has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 125 of 2014
File Number: SYC 349 of 2012
| Mr Holden |
Appellant
and
| Ms Wolff |
Respondent
REASONS FOR JUDGMENT
By Notice of Appeal filed 5 September 2014, Mr Holden (“the appellant”) seeks leave to appeal from an order of Judge Henderson made on 26 August 2014 in which her Honour dismissed the appellant’s application for a review of an order made by a Registrar. Ms Wolff (“the respondent”) opposes the appeal.
On 24 October 2014 we granted leave to appeal her Honour’s order of
26 August 2014 and upheld the appeal. We set aside her Honour’s order of
26 August 2014 and remitted the application for review of the Registrar’s order for re-hearing by the Federal Circuit Court. Our reasons for doing so, follow.
During the course of the appeal hearing, leave was granted to the appellant to orally amend the Notice of Appeal to seek leave to appeal against orders 4, 5 and 6 made by Judge Henderson on 30 July 2014. These reasons also deal with those matters.
The background to the instant appeal is somewhat complicated and we will set out some seemingly uncontentious matters in order to give context to the present appeal.
Background
The parties were in a relationship from 2001 which at some stage was a
de facto relationship. The dispute between them is whether that relationship continued past January 2006. The appellant contends that the relationship ended before 2006, the respondent argues that it did not and asserts that the relationship ended in 2010.
On 24 January 2012 the respondent brought an application in the Federal Magistrate’s Court (now the Federal Circuit Court) for property settlement orders and for spousal maintenance orders. Given the contest as to the duration of the relationship, a hearing was conducted by Federal Magistrate Foster (as he then was) in order to determine the threshold question of whether the court had jurisdiction to hear the respondent’s application (see ss 4AA, 90SB and 90SK of the Family Law Act 1975 (Cth) (“the Act”).
Following that hearing his Honour declared that the de facto relationship between the parties ended in January 2006, and thus the court had no jurisdiction to determine the application for property settlement orders sought by the respondent.
The respondent appealed his Honour’s decision. On 19 March 2014, the Full Court upheld the appeal, set aside his Honour’s declaration and orders and remitted the matter to the Federal Circuit Court for rehearing by a judge other than Judge Foster.
The appellant sought special leave in the High Court to appeal from the decision of the Full Court. That application had not been heard at the time of the hearing before Judge Henderson. We are not aware of whether the application has been determined.
Hearing of 30 July 2014
On 24 July 2014, the respondent filed an application in the Federal Circuit Court seeking urgent financial orders. That application was listed before Judge Henderson on 30 July 2014 and her Honour indicated that the matter was before her both for the making of trial directions in relation to the
re-hearing of the respondent’s application and in relation to the urgent application for financial orders brought by the respondent. (Transcript dated 30 July 2014, page 5 line 40)
At this hearing, counsel for the respondent urged her Honour to make the urgent financial orders because, it was said that the respondent was in need of financial assistance.
The question of her Honour’s power to make orders before jurisdiction had been determined was raised. In the course of submissions in support of her argument that the court had power to make the orders sought by the respondent, notwithstanding jurisdiction had not yet been determined, counsel for the respondent handed to her Honour a copy of Norton & Locke (2013) FLC 93-567, a case to which we will shortly refer in detail.
Counsel for the appellant argued that jurisdiction must first be found before any orders made or other matter determined. (Transcript dated 30 July 2014, page 6 line 32)
Her Honour indicated that at a point before there had been a determination of whether the court was seized of jurisdiction to hear the application, she could make injunctions on a limited basis to preserve the parties’ assets “… but that’s about it at the moment, that’s the problem.” (Transcript dated 30 July 2014, page 14 line 8)
Nonetheless, counsel for the respondent pressed her Honour to make a mandatory injunction requiring the appellant to pay the mortgage on a particular property in reliance on what she referred to as the court’s “…inherent jurisdiction…”. (Transcript dated 30 July 2014, page 15 line 25)
Her Honour correctly identified that the first matter to be determined by her was whether there was in fact jurisdiction in the court to consider the respondent’s application. Her Honour said:
HER HONOUR: … There’s two aspects to it. I first have to make sure I’ve got jurisdiction.
… …
HER HONOUR: Then we go on to - if I find I do have jurisdiction, then I will go on to what I would normally do in a regular spouse maintenance. …
(Transcript dated 30 July 2014, page 7 lines 40 to 46)
Understanding that the special leave application would perhaps be considered by 17 October 2014, her Honour set both issues down for hearing before her for three days from 27 to 30 October 2014. Her Honour made directions that the respondent file affidavits in support of her application for financial orders together with a minute of the orders she sought. Her Honour then ordered:
4. The husband is to file and serve a minute of orders sought, updating affidavit, the affidavit of his supporting witnesses and updated financial statement by 26 September 2014.
5. If the parties do not agree on the value of any asset in dispute they are to obtain the services of a joint valuer to prepare a valuation report with such report to be filed by 5 September 2014.
6. The parties are to file a joint balance sheet within 7 days.
Application to discharge orders 4, 5 and 6 of 30 July 2014
On 20 August 2014 the appellant’s solicitor filed an application in a case seeking:
1. That orders made by Judge Henderson on 30 July, 2014 so far as they relate to the disclosure of the financial position of the [appellant] be discharged.
2. That the parties be relieved from filing a joint balance sheet.
3. That any hearing undertaken by the court be confined to the discreet issue of jurisdiction.
4. Leave to serve short notice.
…
The appellant’s solicitor filed an affidavit on 20 August 2014 in support of the application. In it he referred to the receipt of advice from senior counsel on her Honour’s directions and referred to Norton & Locke. He concluded:
8. The [appellant’s] counsel proposes to make submissions to this Honourable Court in support of the interim application.
The application came before a Registrar on 21 August 2014 who refused to grant short service of the application and listed the balance of the application for her Honour’s consideration on 27 October 2014, the first day of the hearing.
On 26 August 2014, the appellant’s solicitor sought a review of the Registrar’s determination. The application for review said in relation to the order sought to be reviewed:
The Application in a Case filed on 20 August, 2014 seeks leave to serve short notice but the Duty Registrar listed the Application for hearing on
27 October, 2014 being the date listed for hearing of the Interim Application filed on 24 July, 2014 by the other party. By so listing the Application, the Duty Registrar effectively determined the Application against the Applicant as the parties are required to comply with the directions of the Court made on 30 July, 2014.The application was supported by an affidavit of the appellant’s solicitor sworn on 25 August 2014. He said, after referring to the Registrar’s refusal to grant short service and in listing the application to discharge her Honour’s orders:
4. By so listing the Application, the Duty Registrar effectively determined the Application against the Applicant as the parties are required to comply with the directions in the meantime.
5. The Applicant’s objection is the to (sic) filing of financial evidence in relation to the Interim Application filed on 24 July, 2014 seeking urgent financial relief.
The solicitor then set out an extract from Norton & Locke and continued:
7. The orders given for financial disclosure given on 30 July 2014 go well beyond the ambit of disclosure required for the purposes of the court determining whether or not it has jurisdiction.
… …
9. Accordingly, the applicant submits that there is a substantive matter for argument that should be heard by the judge to whom the matter has been allocated so the Applicant might not be required to disclose private financial information (not pertaining to jurisdiction) before the jurisdiction of the court has been established.
On 26 August 2014, the day on which the application for review was filed, it was considered by her Honour in chambers and dismissed. The appellant said that the first indication that the application had been determined in chambers was when the appellant’s solicitor contacted the registry to enquire as to when the application was to be listed and was told that it had been considered and dismissed by her Honour.
Her Honour ordered on 26 August 2014:
1. The application for review of a Registrar’s decision filed 26 August 2014 is dismissed.
THE COURT NOTES THAT:
2. The appropriate remedy for the Applicant is to appeal the orders made to the Full Court of the Family Court of Australia.
The appeals
The appellant appealed against her Honour’s dismissal of the application for review. The appellant seeks orders in the appeal that the order dismissing the application for review of the Registrar’s decision be set aside and it be remitted for rehearing. The Notice of Appeal further sought an order that:
3. The appeallant (sic) not be required to file financial information other than as may be relevant to the court’s jurisdiction.
As we have indicated, the appeal as filed was against her Honour’s order of 26 August 2014 dismissing the appellant’s application for review. It was apparent and, indeed it was observed in the written argument of the respondent, that no appeal was brought against her Honour’s orders made on 30 July 2014. Given that the appellant sought, in effect, that those orders be set aside if the appeal was successful, it was somewhat surprising that there was no appeal against them. However the appellant sought and was given leave to add a further appeal to the Notice of Appeal; to appeal against her Honour’s orders of 30 July 2014 and to add to the orders sought on the appeal that orders 4, 5 and 6 made by her Honour on 30 July 2014 be set aside.
Her Honour’s orders, being interlocutory, require a grant of leave to appeal. For reasons which later appear, we are of the view that leave should be granted in this matter.
Thus the appeal agitated two broad challenges – the first as to the making of the orders of 30 July 2014 and the second as to the process by which
her Honour heard and determined the appellant’s application for review of the Registrar’s determination.
Orders of 30 July 2014
The thrust of the challenge is that her Honour erred in requiring the appellant to file updated financial evidence before she had determined whether the court had jurisdiction to entertain the respondent’s application for financial orders.
It was argued for the appellant that in adopting the course of hearing at the same time, both the issue of whether the court had jurisdiction to hear the respondent’s application for financial orders and the respondent’s application for urgent financial orders, her Honour fell into error. This error is said to arise as her Honour made orders which were intended to provide evidence for the hearing of the financial matters when she had no power to make those orders, the jurisdiction of the court not then having been determined. That is, that until the jurisdictional facts were found, her Honour had no power to make the orders appealed against.
The respondent argued that the order for production of updated financial evidence by the appellant was an order open to her Honour to make because that information was essential to the proof of the jurisdiction. This was because the respondent alleged that she and the appellant intermingled their finances and that fact, if accepted, would be a matter properly to be taken into account in determining whether a de facto relationship existed at the relevant time.
We observe that no submission to this effect was made to her Honour by counsel for the respondent.
Thus the argument on appeal devolved to the nature and extent of orders able to be made before jurisdiction had been determined and whether the order requiring the appellant to provide updated financial evidence was able to be made by her Honour.
The appellant relied on the decision of the Full Court in Norton & Locke in which the court considered the court’s power to grant injunctions before there is a de facto financial cause. Their Honours said, apropos the trial judge’s making of an injunction pursuant to s 114(2A) of the Act:
18. The terms of s 114(2A) are clear; the court’s power to grant injunctions pursuant to the section can only be granted “in a de facto financial cause”. There is no “de facto financial cause” until a
de facto relationship is established and the additional ss 90SK and 90SB conditions met. Until they are met – that is, relevantly, a decision has been made by the court consistent with the case advocated by the respondent – there is no “de facto financial cause” and no jurisdiction to make an order of the type contemplated by
s 114(2A). (Nor, it might said, more broadly pursuant to
s 90SM or s 90SE as sought by the respondent in the substantive proceedings).Their Honours continued:
42. This court does not have power to make an interlocutory injunction of the type sought pursuant to s 114(2A) of the Act. That relief is dependent upon the establishment of a “de facto financial cause” which, in this case, is dependent upon the establishment of facts central to jurisdiction which are bona fide in dispute and which have not been established. The power to grant such an injunction pursuant to s 114(3) or s 90SS of the Act is subject to the same limitation because each is dependent upon proceedings under the Act (and the other preconditions contained within each section) and those proceedings cannot be brought or continued without satisfaction of the relevant jurisdictional facts.
43. This court, does, however, plainly have jurisdiction to determine if it has jurisdiction – in this case the jurisdiction to embark upon proceedings which seek to establish or deny the relevant jurisdictional facts. This court has the power to make orders that are necessary for the determination of issues relevant to that jurisdiction. Those powers include the power to control its own process; “[t]he power of each court over its own process is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own process abused for the purpose of the injustice…” More specifically, this court has the power to, as Menzies J put it in
Ex parte Bevan, “protect[…] its function as a court”.(Emphasis in original, citations omitted.)
The Full Court continued:
49. Taken together, the authorities point to the Family Court having power – within its jurisdiction to determine if it has jurisdiction – to control its processes and to protect its function as a court by granting interlocutory injunctions so as to “preserve the status quo” pending the resolution of the issue of jurisdiction.
We reject the respondent’s argument that the impugned orders were made in contemplation of the determination of the issue of jurisdiction, first because, as we said earlier, it was not submitted to her Honour that it was necessary for the appellant to file evidence concerning his current financial circumstances in proof of the respondent’s assertion that as at 2010 the parties intermingled their finances. Secondly the terms of the orders themselves clearly speak against their being made to inform the determination of jurisdiction because order 4 requires the appellant to file an updated financial statement when, had the orders been made for the purposes of the determination of the jurisdiction, the appellant’s present financial circumstances were irrelevant.
The Full Court in Norton & Locke said as to this issue:
78. … The existence of a de facto relationship is, then, a jurisdictional fact in the sense earlier described.
79. In our view, perforce of the reasons earlier outlined, until such time as the relevant jurisdictional facts are established, there is no power to order the provision of financial information pursuant to Part 24 of the Rules.
80. However, as has been said, the court has the power to make orders controlling its own process. In our view, the court does have the power to make orders or give directions in respect of the provision of such information as is reasonably necessary for the determination of the jurisdictional facts. It may well be that a court could be persuaded that financial information, broadly so-described, is directly relevant to the establishment of a jurisdictional fact. For example, the intermingling relationship or lack of intermingling of the parties’ respective financial affairs, may be directly relevant to the establishment of whether a de facto relationship exists (see, s 4AA(2)(d) of the Act).
We are of the view that, in this case, her Honour’s orders directing the appellant to prepare a minute of orders sought in response to the respondent’s application, affidavits by him and his witnesses and an updated financial statement were clearly intended by her to be in preparation for the hearing of the financial matter.
Further, again in Norton & Locke, the Full Court said:
82. It is, in our view, difficult to see how the documents required by that rule could be required for the narrow purpose to which directions might be fashioned by the court for the limited “jurisdictional purpose” just outlined.
83. In our view, it is established that the order was made without jurisdiction and it, too, should be set aside.
Consistent with Norton & Locke, in our view, until her Honour determined jurisdiction she had no power to make those orders and thus fell into error.
During submissions on the appeal, counsel for the respondent argued that the orders for filing of documents were made by consent and thus the appellant cannot now be heard to complain about their being made.
We do not accept that the orders were made “by consent” of counsel then appearing for the appellant. Throughout the hearing before her Honour, counsel for the appellant was at pains to draw the distinction between the hearing of the jurisdictional issue and any hearing on wider financial issues between the parties. When her Honour indicated that she would make those orders ultimately made on 30 July 2014, that there was no demur from counsel for the appellant does not, in our view, amount to consent to the making of those orders.
We also note that on the morning of the appeal hearing we received what was called “Respondent’s Supplementary Submission” in which reference was made to proceedings conducted under the Industrial Relations Act1996 (NSW) and to the authority of Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 83. At first glance, the submissions themselves appeared not to relate to the issues being agitated on appeal. Counsel for the respondent argued that the submissions sought to contend that this court should not follow the Full Court in Norton & Locke and find that it was wrongly decided.
This argument had not been raised either in the respondent’s written submissions on the appeal nor in oral argument. We do not intend to deal with the issue. We are somewhat at a loss to understand the persuasiveness of arguing by analogy with cases determined in the Industrial Relations Court of NSW conducted under that Act. In any event, other than asserting that the determination of the Full Court in Norton & Locke was “plainly wrong” no argument was put by the respondent which was directed to how we would, in reliance on the authority cited, come to that view.
Leave to appeal will be granted and the appeal against her Honour’s orders of 30 July 2014 will succeed.
The appeal against the order of 26 August 2014
Although two grounds of appeal challenge her Honour’s order of
26 August 2014 in which she dismissed the appellant’s application for review of the Registrar’s decision, counsel for the appellant conceded that they in fact cover the same ground and they were argued together. We will consider them in the same way. The grounds as expressed in the Notice of Appeal are:
Ground 1
That Her Honour erred in refusing the Appellant the right to prosecute the Application of the 20th August, 2014 prior to the expiration of the directions made on the 30th July 2014.
Ground 2
That her Honour denied the Appellant the right to be heard in relation to an issue which required determination prior to the return date allocated to the Appellant’s Application.
As we understood it, the appellant abandoned (appropriately in our view) his contention that her Honour was obliged to hear and determine the application prior to 26 September 2014. Rather it was argued that her Honour, in proceeding as she did, erred first in undertaking the determination in chambers without first undertaking an oral hearing and secondly that she failed to conduct a “hearing” as required by the relevant rules.
The hearing in chambers
Counsel for the appellant contended that her Honour’s course of considering and determining the application ex parte, in chambers and without the parties being notified of that course amounted to error.
It is thus important to consider the procedure undertaken by her Honour, that is, determining the matter in chambers in light of the relevant rules and statutory provisions.
Section 97 of the Act provides:
(1) Subject to this Act, to the regulations and to the applicable Rules of Court, all proceedings in the Family Court, in the Federal Circuit Court of Australia, or in a court of a Territory (other than the Northern Territory) when exercising jurisdiction under this Act, shall be heard in open court.
(1A) The regulations and the applicable Rules of Court may authorise proceedings to be heard by a Judge, Judicial Registrar, Registrar or magistrate sitting in Chambers.
…
The Federal Circuit Court Rules 2001 (Cth) (“the Federal Circuit Court Rules”) do not provide for hearing of family law matters in chambers. However, r 1.05(2) of the Federal Circuit Court Rules provides that where the Federal Circuit Court Rules are insufficient, the court may apply the Family Law Rules as necessary.
Rule 11.16 of the Family Law Rules 2004 (Cth) (“the Family Law Rules”) provides that the Family Court of Australia (as well as those courts to whom the rule applies or may be applied) may exercise its jurisdiction in chambers.
Although her Honour did not expressly indicate that she applied r 11.16 of the Family Law Rules in order to hear the application in chambers, we assume that she did.
Section 54 of the Federal Circuit Court Act 2001 (Cth) provides:
54. The Rules of Court may authorise the Federal Circuit Court of Australia or a Judge to make decisions in proceedings without an oral hearing if the parties to the proceedings have consented to the making of such decisions without an oral hearing.
Rule 15.03 of the Federal Circuit Court Rules provides that that court may determine a matter without an oral hearing. It follows that the rule addresses process and not venue (in chambers). Notably, r 15.03 requires that the parties consent to a matter being determined without an oral hearing. As we have already mentioned, the parties consent was not sought and given the appellant’s solicitor’s advice that counsel had been briefed to address the court, consent could not have been inferred. We accept that r 1.06 of the Federal Circuit Court Rules enables the court to dispense with full compliance with any of the rules “in the interests of justice”, but there is nothing to indicate that her Honour dispensed with compliance with r 15.03 or considered the obvious consequences of so doing.
It was uncontroversial that no consent was obtained from the appellant to the course adopted by her Honour in determining the matter without an oral hearing. To that extent then, her Honour erred.
The nature of the hearing conducted
Secondly it was asserted that in considering the matter as she did, her Honour failed to conduct a hearing de novo as mandated by r 20.03 of the Federal Circuit Court Rules. Rule 20.03 of the Federal Circuit Court Rules provides for the nature of the hearing to be conducted on an application for review. It is helpful to set those rules out in full:
20.02 Application for review
(1) An application for review of an exercise of power by a Registrar must be in accordance with the approved form.
(2) An application must be listed for a hearing as soon as possible and, unless impractical to do so, within 14 days after the date of filing.
(3) The applicant must serve a sealed copy of the application on each other party to the proceeding within 7 days after it is filed.
(4) Unless the Court or a Registrar otherwise orders, the application does not operate as a stay of the exercise of power under review.
20.03 Procedure for review
The review of an exercise of power by a Registrar:
(a) must proceed by way of a hearing de novo; and
(b) may receive as evidence any affidavit or exhibit tendered before the Registrar; and
(c) may with leave receive further evidence; and
(d) may receive as evidence:
(i) any transcript of the proceeding before the Registrar; or
(ii) if there is no transcript, an affidavit sworn by a person who was present at the proceeding before the Registrar as a record of the proceeding.
(Emphasis added)
What constitutes a hearing de novo is well settled. In Harris v Caladine (1991) 172 CLR 84, Dawson J said at page 124:
An order made by a Registrar is reviewable by way of a hearing
de novo. That means that the court reviewing the order begins afresh and exercises for itself any discretion exercised below by the Registrar. The parties commence the application again, subject to any restrictions in the rules upon the calling of evidence or provisions relating to the use before the court of evidence called before the Registrar. A hearing de novo involves the exercise of the original jurisdiction and “the informant or complainant starts again and has to make out his case and call his witnesses”…(Citations omitted)
Rule 20.03 itself contemplates the very nature of a hearing de novo, containing provision for the receipt of any affidavit or exhibit tendered to the Registrar, the reception of further evidence with leave and receipt of the transcript of proceedings before the Registrar. Axiomatically too, a party who must per force “make out his case and call his witnesses” must also be able to make submissions on the matter in a hearing de novo.
Although parties may consent to a hearing de novo being conducted in chambers without further evidence or submissions, without that consent, there was, in this case, no hearing.
In this regard her Honour did not comply with the mandated process by which a review of a registrar’s decision must be heard and in so doing failed to afford the appellant procedural fairness. To this extent then her Honour erred.
The appellant further contends that her Honour was obliged to give reasons for her determination. Given our determination of the other grounds of challenge to her Honour’s orders, it is unnecessary to consider this matter further.
For the reasons given above we granted leave in respect of the appeal against her Honour’s order of 26 August 2014 and allowed the appeal.
Costs
At the conclusion of the hearing we heard the parties’ submissions as to costs of the appeal to save the time, trouble and expense of relisting the matter for submissions after delivery of judgment.
The appellant argued that if the appeals succeeded, he sought an order for costs against the respondent because, it was said, the issue of power was plain on its face, and the appeal ought to have been conceded.
In the event that the court concluded that the matter was not one in which an order for costs should be made against a party, then the appellant sought a costs certificate.
The respondent too sought a costs certificate in the event that the appeal was successful.
Although the appellant has been entirely successful and we might otherwise have been persuaded that an order that he have his costs was appropriate, because we do not have evidence of financial circumstances and understand that the respondent is a person of modest means, an order that the respondent pays his costs will not be made. This is a matter in which each party should pay his or her own costs of the appeal and we do not propose to order a certificate for either party pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 24 November 2014.
Associate:
Date: 24 November 2014
6
3
5