Home and Home
[2008] FamCA 1031
•28 October 2008
FAMILY COURT OF AUSTRALIA
| HOME & HOME | [2008] FamCA 1031 |
| FAMILY LAW – PRACTICE & PROCEDURE – Slip rule – Inherent jurisdiction to correct orders which do not truly represent what the Court intended to pronounce |
Family Law Rules 2004 r 17.02
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Deputy Commissioner of Taxation v Healy [2003] WASC 38
Horleck & Horleck & Ors (No 2) [2008] FamCA 683
Newmont Yandal Pty Ltd v The J Aron Corporation [2007] NSWCA 195
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446
| APPLICANT: | Mr Home |
| RESPONDENT: | Ms Home |
| FILE NUMBER: | BRF | 2057 | of | 2004 |
| DATE DELIVERED: | 28 October 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | O'REILLY J |
| HEARING DATE: | 23 October 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Matthews |
| SOLICITORS FOR THE APPLICANT: | Berck & Associates |
| COUNSEL FOR THE RESPONDENT: | Ms Spence |
| SOLICITORS FOR THE RESPONDENT: | McDonald Brown Solicitors |
Orders
Paragraph 1 of the husband's application filed on 15 March 2007 is dismissed.
The wife's costs of and incidental to paragraph 1 of the husband's application filed on 15 March 2007 are reserved.
IT IS NOTED that publication of this judgment under the pseudonym Home & Home is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRF2057 OF 2004
| MR HOME |
Applicant
And
| MS HOME |
Respondent
REASONS FOR JUDGMENT
Application
By application filed on 15 March 2007 the husband seeks, by par 1:
1. To do justice and equity between the parties, orders be made pursuant to the liberty to apply reserved by paragraph 34 of the Order of Buckley J made on 8 June 2006 ("the 8 June 2006 Order") and, further or alternatively, pursuant to r 17.02 of the Family Law Rules 2004, and to give effect to paragraphs 16, 17, 37, 38 and 39 of the 8 June 2006 Order the effect intended by Clauses 13 and 14 of the Financial Agreement dated 13 November 2003, and in particular that –
(a) the words “division pursuant to” be inserted between the word “of” (where it appears second) and the word “these” in paragraph 37(a) of the 8 June 2006 Order;
(b) the words “division pursuant to” be inserted between the word “of” (where it appears second) and the word “these” in paragraph 37(b) of the 8 June 2006 Order;
(c) the words “division pursuant to” be inserted between the word “of” (where it appears second) and the word “these” in paragraph 37(c) of the 8 June 2006 Order;
(d)the words “division pursuant to” be inserted between the word “of” (where it appears second) and the word “these” in paragraph 37(d) of the 8 June 2006 Order. (emphasis added)
Procedural history
The procedural history of the matter is set out in the reasons for judgment given by Buckley J on 8 June 2006, pars 1-14 which, being directly relevant to the relief the husband now seeks, need to be set out. (The headings are his Honour’s original headings):
INTRODUCTION
1. The discrete issue requiring determination is whether the potential payment of Capital Gains Tax (C.G.T.) in respect of a commercial property situated at [P] is to be taken into account when determining an equal division of the parties’ assets and liabilities.
2. The parties executed a Financial Agreement dated 13 November 2003.
3. On 5 December 2005 Bennett J made the following Order, inter alia:
1.That I declare that the agreement dated 13 November 2003 between the parties is a valid agreement made pursuant to section 90c of the Family Law Act 1975.
Clauses 13 and 14 of the Agreement provide as follows:
1.
1. [The husband] and [the wife] shall divide the matrimonial property in equal shares to [the husband] and [the wife] by agreement.
2.
2. In the event that there is no agreement reached between [the husband] and [the wife] within three (3) months of the date of separation as to the manner in which the matrimonial property is to be divided between [the husband] and [the wife] in equal shares then either [the husband] or [the wife] shall be at liberty to seek orders of the Family Court of Australia to determine the manner in which the matrimonial property shall be divided.
4. As the parties are unable to reach agreement in respect of the above discrete issue they now seek to enforce the agreement pursuant to the provisions of S90G(2) and S90KA of the Family Law Act which provide as follows:
S90G(2) [Orders for enforcement] A court may make such orders for the enforcement of a financial agreement that is binding on the parties to the agreement as it thinks necessary.
S90KA The question whether a financial agreement or a termination agreement is valid, enforceable or effective is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts, and, in proceedings relating to such an agreement, the court:
(a)
(a) Subject to paragraph (b), has the same powers, may grant the same remedies and must have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction; and
(b)
(b) Has power to make an order for the payment, by a party to the agreement to another party to the agreement, of interest on an amount payable under the agreement, from the time when the amount became or becomes due and payable, at a rate not exceeding the rate prescribed by the applicable Rules of Court; and
(c)
(c) In addition to, or instead of, making an order or orders under paragraph (a) or (b), may order that the agreement, or a specified part of the agreement, be enforced as if it were an order of the court.
RELEVANT PROCEDURAL HISTORY
5. The matter came before me as a Reserve Matter in the Defended List on 2 May 2006. The outstanding issues concerned both parenting issues and the enforcement of the terms of a binding Financial Agreement.
6. During the course of the day, I was informed that the parties had reached agreement in respect of both the parenting issues and the matters arising under the Financial Agreement save for the discrete issue identified at the outset of these Reasons.
7. I proceeded to hear brief evidence and oral submissions in respect of that issue.
8. The parties were to provide me with draft Minutes of Orders in respect of the matters about which they had agreed.
9 I subsequently received Minutes of Orders from each of the parties’ legal representatives in respect of both the parenting issues and those arising under the Financial Agreement.
10. A perusal of these Minutes made it abundantly clear that the parties were in significant disagreement as far as these matters were concerned.
11. I arranged for the matter to be listed before me on 26 May 2006 on the basis that if the parties’ were unable to reach agreement in respect of the many outstanding issues in dispute then all issues would be allocated a further trial date in the Defended List.
12. On that day the parties were able to reach agreement in respect of all outstanding issues save for the C.G.T issue which was in dispute.
13. I was subsequently provided with draft Minutes of Orders in respect of both the parenting and property issues. The property Minutes have been prepared on the basis of the discrete issue being determined in favour of either the Husband or the Wife.
14. These draft Minutes are attached to these Reasons. The Minutes of the Parenting Orders are Attachment A, the Minutes of the Property Orders on the basis of the Husband being successful are Attachment B and similarly, if the Wife is successful, are Attachment C.
On 8 August 2008 I ordered that par 1 of the husband's application be listed for hearing and determination on 23 October 2008, in effect, as the hearing of a discrete issue.
On 8 August 2008, I observed that once the matter of par 1 is determined much of the balance of the relief sought in the husband's application may be likely to be the subject of agreement between the parties.
The wife has a separate application before the Court filed on 11 December 2006, amended on 29 March 2007, in relation to which she seeks relief based upon (1) an allegation against the husband of breach of fiduciary obligation in carrying out the orders made by Buckley J on 8 June 2006 in relation to the sale of certain cattle at an alleged undervalue; (2) half the value of certain other cattle which she alleges the husband was ordered to sell but did not sell and kept in his possession; and (3) sale at an alleged undervalue of certain plant and equipment amounting to, I think, of the order of $5000 or $6000. This relief sought by the wife will be set down for hearing on another date unless earlier resolved.
The financial agreement
Clauses 13 and 14 of the financial agreement do not refer to a date of division. Therefore, the expression in clause 13 of that the parties’ property be divided in equal shares “by agreement” contemplates that there be agreement also as to a date or dates for the division.
Attachments B and C and order 37 of Buckley J’s orders
By attachments B and C to the reasons for judgment of Buckley J, 8 June 2006, and pars 12‑14 of the reasons, it must be taken that the parties reached agreement "in respect of all outstanding issues", save for the capital gains tax issue which Buckley J determined against the wife, and therefore made orders reflecting attachment B (attachments B and C to the reasons were identical except for par 17, the husband including at par 17 $766,192 and the wife $452,107.50).
Thus, the financial agreement having been declared valid, it may be taken that the parties contemplated that the orders each respectively proposed, which became attachments B and C, reflected an equal division of their property.
It is important, in this regard, that by clause 14 of the financial agreement the parties agreed that they be at liberty to approach the Family Court of Australia to determine the manner in which the matrimonial property be divided, and it is evident by attachments B and C that the parties agreed the manner of division except as to whether capital gains tax on one specific property be brought to account which, as I have mentioned, Buckley J determined against the wife.
Order 37
Order 37 of his Honour's orders provides (replicating exactly par 37 in attachments B and C):
37. In the event that the:
(a) balance of the Westpac bank account, account no. 11[…] is greater than $400 as at the date of these Orders;
(b) balance of the Westpac bank account, account no. 17[…] is greater than $1,500 as at the date of these Orders;
(c) balance of the Westpac bank account, account no. 14[…] is greater than $151,517 as at the date of these Orders;
(d) balance of the Westpac bank account, account no. 13[…] is greater than $596 as at the date of these Orders,
then the difference between the actual balances and the estimated balances referred to in (a) – (e)(sic) of this clause shall forthwith be apportioned equally between the husband and the wife.
Order 37 with words inserted as husband seeks
The husband’s application to insert the words “division pursuant to” between “of” (where it appears second) and “these” would have the effect of creating the phrase “as at the date of division pursuant to these Orders” instead of the quite different phrase “as at the date of these Orders”.
The question which arises, therefore, is whether there is an identifiable “date of division” pursuant to or for the purpose of the orders, which ought to be reflected in order 37 rather than the clear words of order 37 as presently provided.
Attachments B and C are silent as to any generally defined or specified “date of division” to operate pursuant to or for the purpose of the orders as a whole. For example, in many agreements, there will be a clause (usually the first clause) headed “Interpretation” or “Definitions”, defining the terms used in it. Typically, such a clause will define terms such as “the date for performance”, or “the settlement date”, or “the date of division” (with or without exceptions) by reference to a calendar date or specified event. However, just as attachments B and C are silent as to any such general “date of division”, so thus are Buckley J’s orders.
The nature of the husband’s application
The husband applies, as I have mentioned, under order 34 of Buckley J’s orders, the liberty to apply provision, or alternatively under the slip rule. During argument, the husband also raised a case under the Court's inherent jurisdiction for the correction of order 37 as one which does not truly represent what Buckley J intended to pronounce.
Order 34 of the orders provided:
34. The Husband and the Wife shall have liberty to apply to the Family Court of Australia at Brisbane in relation to any question arising as to the implementation or interpretation of these Orders on the giving of seven (7) days notice in writing to the other party.
Order 34 is a procedural provision. See par 53 below. The husband’s application does not seem to arise in relation to the “implementation” of his Honour’s orders, in the sense of performance according to their present terms, but rather seeks to effect a change to one of them. As to “interpretation”, it is necessary always to “look at the document as a whole” (in this case the orders). If there is no ambiguity, then absent application of the slip rule, or the Court’s inherent jurisdiction to correct orders, they must take effect as made. If there is ambiguity then evidence is admissible as to the parties' negotiations and the background matrix of facts to their agreement to ascertain objectively the meaning of their agreement, as reflected in the orders: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352 per Mason J.
In my view however there is no ambiguity in the phrase "as at the date of these Orders" in order 37 which expression very clearly means "as at 8 June 2006". Indeed, Mr Matthews of Counsel, for the husband, conceded during argument that he did not contend that the orders are ambiguous.
The slip rule and the Court’s inherent jurisdiction
I turn now to the slip rule, and also to the Court’s inherent jurisdiction, as to which I would refer to Horleck & Horleck & Ors (No 2) [2008] FamCA 683 at pars [3]-[10], in part reproduced below.
Rule 17.02 of the Family Law Rules 2004 (Cth) (the Rules) provides:
RULE 17.02 ERRORS IN ORDERS
17.02(1) If a party claims that there is an error in an order issued by the court, the party must give written notice of the error to the Registry Manager and all parties.
17.02(2) A Registrar may rectify an error that appears obvious on reading the order.
Example
A kind of amendment that a Registrar may make under subrule (2) is the correction of a typographical error.
17.02(3) If the Registrar:
(a) is in doubt about whether there is an error in an order; or
(b) believes that an error in an order has, or may have, arisen from an accidental slip or omission;
the Registrar may take action under subrule (4).
17.02(4) If subrule (1) or (3) applies, the party or Registrar may, after giving reasonable notice to each party, refer the order to the judicial officer who made it.
Note If the judicial officer who made the order is unavailable, it may be referred to another judicial officer (see rule 1.13).
17.02(5) A judicial officer may, after giving each party a reasonable opportunity to be heard, rectify a suspected error referred to the judicial officer.
Note An amendment of an order may be made under this rule only if it is an error obvious when reading the order. Any other amendment must be remedied by appeal or consent.
The Honourable Justice Buckley no longer being a judicial officer, and thus unavailable, the matter was allocated to my docket.
The power in Rule 17.02 is limited to the rectification of error or suspected error which has or may arise from an accidental slip or omission.
In Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446, McHugh JA (with whom Priestley JA and Clarke AJA agreed as to the result, but with separate observations as to the authorities) said at 452-3:
If the proposed variation of an order relates to a matter which was in issue in the proceedings or to something which was incidental to such a matter, the court, in my opinion, has power to amend its order if the need for the variation is the result of an accidental omission or mistake. …
…
The rationale of the slip rule also requires that an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist: … In general the test of whether a mistake or omission is accidental is …. if the matter had been drawn to the court’s attention would the correction at once have been made? (emphasis added)
The proper application of the slip rule has been the subject of extensive discussion and authority since Storey & Keers. However, McHugh JA’s analysis has received consistent approval. See, for example, Deputy Commissioner of Taxation v Healy [2003] WASC 38 per Hasluck J, who after considering the authorities as pars [15]-[24] concluded:
[26]… The decided cases suggest that the crucial considerations are whether the matter now sought to be corrected would have been attended to at once if the matter had been raised for consideration before judgment was entered and whether the matter to be resolved would require the exercise of an independent discretion or could be regarded as a matter upon which a real difference of opinion might exist. Further, it seems that the slip rule allows for the correction of any infelicity or ambiguity in the expression of the judgment which would result in the order of the Court having an untoward affect. (emphasis added)
The Court also however has inherent jurisdiction to protect the integrity of justice which is not confined by the slip rule or by words such as “accidental slip or omission”: Newmont Yandal Pty Ltd v The J Aron Corporation [2007] NSWCA 195 per Spigelman CJ, with whom Santow JA and Handley AJA agreed:
[18]… No authority was cited to the Court which indicates that the exercise of the inherent jurisdiction is confined by [the] terminology of the slip rule. There is no reason why the inherent jurisdiction of the Supreme Court should be so confined. The Rules of Court do not constitute some type of mini-code replacing the inherent jurisdiction. It may very well be that the Court’s inherent jurisdiction calls for a variation of orders in circumstances falling outside the slip rule.
[19]It is often said that the slip rule “reflects” the inherent jurisdiction. (See e.g. L Shaddock & Associates Pty Ltd v Parramatta City Council (No.2) (1982) 151 CLR 590 at 594). That does not, however, mean that the inherent jurisdiction can be expressed in the same terms as the rule. …
Spigelman CJ, after an exhaustive analysis of the authorities relating to the inherent jurisdiction, said:
[77]In the joint judgment of the High Court in DJL v The Central Authority (2000) 201 CLR 226 at [34], Ivanhoe was referred to as authority for the following proposition:
An order … might be made in the action for the correction of the records of the court to make certain that they truly represented what the court had pronounced or had intended to pronounce. [Emphasis added]
[78]The other authority cited for that proposition was Ainsworth v Wilding [1986] 1 Ch 673 at 678, where Romer J referred to Mellow v Swire as authority for the proposition that:
… even where a judgment has been duly passed and entered it might still be altered by the Court if the Court saw that it did not truly represent the decision which the Court had pronounced or intended to pronounce.
[79]This inherent jurisdiction has been expressly affirmed in DJL. Accordingly, the Supreme Court has jurisdiction to correct a duly entered judgment where the orders do not truly represent what the Court had intended to pronounce. This principle has been applied on numerous occasions. [citations omitted].
[80]The formulation approved recently in DJL, should be accepted as authoritative. That formulation, I note, is in quite different terms to the slip rule. There may be other aspects of the inherent jurisdiction which also overlap with the slip rule, but it is unnecessary to consider them. (emphasis added)
The Family Court of Australia has jurisdiction only in relation to matters vested by Parliament. However, as a superior court it has inherent control over its own process and thus inherent jurisdiction to correct orders in the manner described in DJL.
I have determined already there is no ambiguity in order 37 of the orders, which comprises part of a set of orders agreed between the parties.
There is a valid question however whether order 37 contains any error arising by any accidental omission or mistake relating to a matter which had been in issue in the proceedings or to something which was incidental to such a matter.
Plainly, before par 37 (which became order 37) was offered to the Court in both attachments B and C there had been such an issue: see pars 8-10 of Buckley J's reasons for judgment and exhibits 2 and 4 being extracts of the transcript of the proceedings before his Honour on 2 May 2008 and 26 May 2008.
The orders as a whole are not prefaced by a defined or specified date as an agreed "date of division". Nor, upon a reading of the orders as a whole, does any inevitable inference arise (that is, one in which no other equally available reasonable inference may be drawn) that the parties plainly intended either a uniform division date for all of their property according to the values in schedule C to attachments B and C, or that the date of division for the bank accounts referred to in order 37, and schedule C, should be the date of the transfer of those bank accounts (as opposed to a defined date of division for the purpose of apportioning value).
There is thus a fundamental problem in the husband's case in this regard because to insert the words "division pursuant to" in order 37 so as to read "as at the date of division pursuant to these Orders" would be meaningless because there is no "date of division" pursuant to the orders, which will be exemplified below.
During argument, Mr Matthews contended that the real meaning of order 37, to be made more clear by the words sought to be inserted pursuant to the slip rule, or under the Court’s inherent jurisdiction, was that the phrase “as at the date of division pursuant to these Orders" should be regarded as the date on which, pursuant to order 13(i) of the orders the husband was to transfer to the wife the bank accounts referred to in order 37(a), (b) and (d) and another bank account (account no. 14…), as otherwise, he contended, there would not and could not be effected an equal division of the parties' property, a matter res judicata by Bennett J's declaration as to the validity of the financial agreement and thus clause 14 of it.
Mr Matthews thus submitted that order 13(i) of the orders was a "key" provision to what the parties intended to express, and plainly so in order 37, as to the timing of its performance.
However, during argument Mr Matthews conceded properly that not all of the events contemplated by order 13 of the orders read as a whole were proposed to happen on the one date, let alone the date contemplated by order 13(i), and indeed on their face could not so occur on the one "date of division " if there be any. For example, he conceded (as is plain on the face of order 13) that all of the things listed in sub‑pars (a)-(i) were to occur "within 60 days" and not all on the one day, so that, for example, (a) could occur on any of the days between day 1 and day 60, as could (b), (c), et cetera so that it is not as if the parties had in contemplation a "settlement date" on which all events were to occur or indeed a "division date" for all of the events necessary to effect a division of the parties' property and assets.
Next, even a cursory reading of orders 3-10 shows that the parties did not have in contemplation only one "date of division pursuant to these Orders" because order 5 contemplated that the L property, if not sold "within 3 months from the date of listing" (if an earlier contract referred to in order 3 should not settle) be then listed for sale with the proceeds subsequently to be divided in the manner specified. This does not sit well (or at all) with the notion of there being one "date of division pursuant to these Orders" because order 13 was required to be completed and thus the assets referred to in it divided “within 60 days”, yet order 5 contemplated division in relation to the L property well outside 60 days.
Next, there is the possibility that the parties' true intent, for the purpose of the "obvious" test for application of the slip rule, is that order 37 (“obviously”) ought to have included words to the effect "as at the date of division of the bank accounts pursuant to these Orders" (or “as at the date of division of this bank account pursuant to these Orders”, in each of order 37(a)-(d)), to effect an equal division of the bank accounts.
However, this too is problematic and would become anomalous for the following reasons.
First, order 37(d) provides that in the event the balance of account 13… is greater than $596 ("as at the date of these Orders") then the difference between the actual balance ("as at the date of these Orders") and $596 (the amount specified in schedule C to attachments B and C, right column, husband, item 9, which, it is common ground, was provided to his Honour on 26 May 2008) be apportioned equally.
Secondly, however, order 37(d) must be read in conjunction with order 10 which provides that "simultaneously" upon the settlement of the sale of the L property, the wife do all things necessary to transfer her right, title and interest in account 13… to the husband. I have mentioned already that the settlement of L property, by order 5, conceivably would be beyond 3 months from any listing date for sale if the contract in order 3 should not settle, so that conceivably the date for performance of order 10 similarly would be extended.
Thirdly, it is plain that order 10 and order 13(i) do not contemplate "simultaneous" dates (order 13(i) requiring performance "within 60 days from the date of these Orders") so that if, as it appears, order 10 governs order 37(d) it is impossible, as Mr Matthews submitted, that order 13(i) govern it so as to require correction under the slip rule, or the Court’s inherent jurisdiction.
Further, by reference to orders 10 and 13(i), it is plain that the transfer to the wife of the bank accounts in order 37(a), (b) and (c) (which the wife is to have: see schedule C to attachments B and C, left column, wife, items 8, 9 and 10) may occur not only on a different date from the transfer to the husband of the bank account in order 37(d), but also by reference to order 13(i) that the transfer to the wife of the three bank accounts in order 37(a), (b) and (c) is not required necessarily to occur on the one day, order 13 requiring only that each such transfer occur “within” 60 days.
Thus, even if it may have been the parties' intention that the adjustment provision in the last two lines of order 37, by reference to the schedule C amounts specified in order 37 (a), (b), (c) and (d), should operate in respect of the actual balances in each of the four specified bank accounts as at the date of transfer of each of those accounts respectively, it is by no means clear, as submitted by Ms Spence of Counsel, for the wife, which submission I accept, that such an order (if capable of correction under the slip rule, or the Court’s inherent jurisdiction) would produce equality of division of the parties' property overall as agreed by clauses 13 and 14 of the financial agreement. Indeed, it is plain that evidence would be required on this point to adjudicate it which places the matter far beyond the reach of either the slip rule or the Court's inherent jurisdiction to correct its orders.
Rather, in relation to the slip rule, the subject matter raised by the husband, plainly, is one which, to effect the change sought to the wording of order 37, would require the exercise of an independent discretion, is a matter upon which a real difference of opinion might exist and further, would require evidence to be adduced before a judicial officer to determine which and what altered substantive order would provide an equal division of the parties' property if, and I emphasis "if", the present orders do not, which is by no means clear but is a matter for determination beyond the scope of the husband's present application and one requiring evidence. In particular, in the absence of evidence, it is not possible for the husband to demonstrate that order 37 as it presently appears does not have the practical effect of an equal division of the parties' property overall. That is contended, but is neither obvious nor proved.
Further, whilst in relation to the Court’s inherent jurisdiction it is plain that Buckley J “intended to pronounce” orders reflecting an equal division, as I have said, it is contended, but it is neither obvious nor proved, that the orders as made do not have that result.
Therefore, of necessity, I will dismiss the husband's application and I will reserve the matter of the wife's costs.
I would add that in dismissing the husband’s application I have considered all of the written and oral submissions, whether or not expressly referred to in these reasons, and would add also the following observations, specifically because par 1 of the husband’s application alleges that the words sought to be added to order 37 are required “to give effect to” orders 16, 17, 37, 38 and 39.
First, there is a “link” between orders 13(b), 16 and 17, in that orders 16 and 17 are to be performed “simultaneously” upon the happening of the event described in order 13(b).
Secondly, it is plain that there is a “link” between each of orders 37, 38 and 39 because each has, as a common feature, a balance formula intended to achieve equality where there is or may be variance between the values attributed in those orders (the values having been extracted from schedule C) and the actual realised values on the dates of the events specified. However, orders 38 and 39 expressly provide for discrete adjustment dates according to the settlement of sale “of each asset” referred to in orders 38 and 39, which does not assist the notion of there being one “date of division pursuant to these Orders”, but several dates for discrete purposes, not all of which (indeed few of which) necessarily coincide.
Mr Matthews’s written submissions (par 8(a)) included that there are “unforeseen and unintended legal consequences” flowing from the circumstance that order 37 presently has “differing dates” from those in orders 8 to 13, which Mr Matthews described as “the effective machinery orders”. This does not assist, as there are also “differing dates” and descriptions of dates throughout orders 8-13. See, in particular order 8 “on or before the settlement of the sale of the [L] property”; order 9 “on or before the settlement of the sale of the [L] property”; order 10 “simultaneously upon the settlement of the sale of the [L] property”; order 11 “forthwith upon the settlement of the sale of either” [this relates to plant and equipment and cattle]; and order 13 “within 60 days from the date of these Orders”, as dealt with exhaustively already.
Further, I would observe that it is common ground by reference to pars 5 – 14 of Buckley J’s reasons, and the transcript of proceedings of 26 May 2006, that attachments B and C were delivered to his Honour on or shortly after 26 May 2006. His Honour’s imminent retirement was common knowledge at that time. However, there is I think no sensible contention that the words “as at the date of these Orders” in order 37 necessarily are erroneous because of the short time gap between 26 May 2006 and his Honour’s imminent retirement. Rather, the wording in order 37 expressly provided for adjustment, having regard to the time gap, in the terms set out.
I would add also the following observations.
First, much argument was directed to the question whether Buckley J's orders were substantive orders or machinery orders. This debate was not helpful. The slip rule, and the Court’s inherent jurisdiction to correct orders, apply equally to all orders of the Court substantive or machinery. Ultimately both Counsel conceded this and thus it is not a matter further to be agitated.
Secondly, Mr Matthews conceded during argument, properly, that the prefacing words in the husband's application "to do justice and equity between the parties" are misplaced in that the proper application of the slip rule and of the inherent jurisdiction to correct orders are not so premised, the principles being those in the authorities to which I have referred. This matter also should not be further agitated.
Thirdly, to the extent that par 1 of the husband's application relied on the liberty to apply provision in order 34 of the orders, it is plain, as submitted by Ms Spence, by reference to authority, that a liberty to apply provision is a procedural provision to provide for the expeditious listing of applications to implement orders and arguably to remove the necessity for a formal application in that respect. See the authorities referred to in par 7 of Ms Spence's written submissions.
Fourthly, on 21 May 2008 I directed (orders 2-4):
2The wife file and serve points of claim raising all matters which she seeks to have determined by 4pm on Friday 20 June 2008.
3The husband file and serve points of defence responding to the wife’s points of claim and a cross claim raising all other matters which he seeks to have determined by 4pm on Friday 18 July 2008.
4The wife file and serve points of reply and answer by 4pm on Friday 1 August 2008.
In consequence the wife filed points of claim on 4 July 2008, the husband filed points of defence and cross claim on 8 August 2008 and the wife filed points in reply and answer on 22 August 2008. In this regard, in relation to the husband's application, only those paragraphs of the pleadings relevant to par 1 of the husband's application filed on 15 March 2007 have now been dealt with. The remaining issues will be listed for hearing as soon as may be possible.
It would be prudent at some convenient stage for the parties to provide fresh copies of those three pleading documents with the matters now dealt with and any subsequent agreement which may flow in relation to the remaining paragraphs of the husband's application ruled through or excised.
Fifthly, the dismissal of the husband's application under the slip rule and/or inherent jurisdiction may not be the end of the matter as to whether the orders made by Buckley J on 8 June 2006 represented an equal division of the parties' property as required by clauses 13 and 14 of the financial agreement declared valid by Bennett J on 5 December 2005. In making his orders, plainly Buckley J relied upon representations by Counsel for the parties that the orders in attachments B and C (subject to his necessary determination as to the capital gains tax issue he decided) represented an equal division of the parties' property. The orders were not prefaced as consent orders, however, plainly his Honour was induced by Counsel to make the orders upon the implicit representation that they represented an equal division. Equally plainly, in making the orders his Honour intended that result.
If the orders were made in error, in not effecting that intended result, the parties may have other avenues of relief, for example, an appeal out of time (if leave to appeal out of time be granted) to correct his Honour's error (induced by Counsel) if, but only if, it be demonstrated on evidence to the Full Court that the orders his Honour made, in particular with order 37 as it presently reads, do not amount to an equal division of the parties' property overall.
I would think, but it is not my place otherwise to anticipate, that this is a matter in which the Full Court necessarily would admit evidence to demonstrate such error (if there be error) but only if the evidence provided clear proof that the orders do not represent an equal division of the parties' property overall (and otherwise, further, that the de minimus principle does not apply).
In reality, the husband may not be able to put together such evidence, or evidence strong enough to persuade the Full Court that error has occurred. That is a matter to be left for the parties and their legal advisers.
Sixthly, if the husband should be advised to pursue such a course he would need to be mindful that any setting aside of the orders made by Buckley J on 8 June 2006 may need to be in toto, and that this is now impossible because of the performance in a large part of those orders. This, however, also is a matter for the parties and their legal advisers.
ORDERS DELIVERED
I note that the wife's case in her amended application filed on 29 March 2007, and all other matters in the husband's application filed on 15 March 2007, unless now able to be agreed, are listed in the callover of my matters on 24 November 2008 for the allocation of trial dates in 2009. That course will now proceed subject to any appeal or applications to the Appeal Division in the meantime.
HER HONOUR: Yes, that concludes the reasons. Ms Spence, in the circumstances, though I anticipated you would seek costs, I decided it was best to leave all those arguments for another day.
MS SPENCE : Thank you your Honour.
HER HONOUR: So I hope that course is suitable. If costs are to be awarded your argument won't lessen in force by that course - I should say "strengthen or weaken" by the passage of time. Yes, thank you very much for your assistance.
MS SPENCE: Thank you.
HER HONOUR: Would you adjourn the Court generally please.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O'Reilly
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