Horleck and Horleck and Ors (No 2)
[2012] FamCA 1157
•13 September 2012
FAMILY COURT OF AUSTRALIA
| HORLECK & HORLECK AND ORS (NO. 2) | [2012] FamCA 1157 |
| FAMILY LAW – PRACTICE AND PROCEDURE – application to dismiss or permanently stay applications pending – doctrine of res judicata – whether pending applications are abuse of process. |
| Family Law Act 1975 (Cth) s 79A |
| Johnstone & Johnstone [2005] FamCA 1075 Reid & Lynch [2010] FamCAFC 184 Kemeny v Kemeny (1998) FLC 92-806 Marginson v Blackburn Borough Council [1939] 2 KB 426 Jackson v Goldsmith (1950) 81 CLR 446 Port of Melbourne Authority v AnshunPty Ltd (1981) 147 CLR 589 Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 Baker v Thompson (2006) FLC 93-272 Norman & Howarth [2003] FamCA 1284 |
| APPLICANT: | Ms Horleck |
| FIRST RESPONDENT: | Mr Horleck |
| SECOND RESPONDENT: | Ms Lyman-Horleck (as director of X Pty Ltd) |
| THIRD RESPONDENT: | X Pty Ltd (as Trustee for the H Trust) |
| FOURTH RESPONDENT: | Ms Lyman-Horleck |
| FIFTH RESPONDENT: | Ms Cooper |
| FILE NUMBER: | BRF | 8480 | of | 1994 |
| DATE DELIVERED: | 13 September 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 1 June 2012 |
REPRESENTATION
| FOR THE APPLICANT: | Ms Lyman-Horleck in Person |
| FOR THE RESPONDENT: | Ms Horleck in Person |
Orders
That save for the application to adjourn the trial of the substantive proceedings herein from 2 September 2012 to a later date, all other applications contained in the Application in a Case filed on 13 April 2012 on behalf of the second, third and fourth respondents are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Horleck & Horleck has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRF 8480 of 1994
| Ms Lyman-Horleck |
Applicant
And
| Ms Horleck |
Respondent
REASONS FOR JUDGMENT
Introduction
Another chapter in the litigation in this Court between Ms Horleck and Mr Horleck that has been going on since 1994 unfolds. Mr Horleck and his wife, Ms Lyman-Horleck, seek to make this the last chapter.
Ms Lyman-Horleck has, on 13 April 2012, filed an Application in a Case in which she seeks, pivotally, orders summarily dismissing or permanently staying Ms Horleck’s applications for final relief that are pending in the Court’s list. Her application is supported by Mr Horleck and the other named respondents to the substantive proceedings. Their argument is that Ms Horleck’s applications should be summarily dismissed by application of the doctrine of res judicata or, alternatively, if that argument is not successful, that the proceedings should, in any event, be permanently stayed as being an abuse of the Court’s process.
I heard the Application in a Case on 1 June 2012. These are my reasons for dismissing that application and allowing the litigation to proceed.
Some Relevant Background
A very lengthy trial of property and parenting issues between the former married couple of Ms Horleck (“the wife”) and Mr Horleck (“the husband”) took place in 1995 before Butler J. Although they have not been married to each other for many years, it is simply convenient to refer to these two parties in these reasons as “the wife” and “the husband”. No disrespect or offence is intended to any person by using these descriptors.
Butler J’s reasons for judgment were delivered on 17 July 1995 and his Honour’s orders altering the couple’s property interests were made on 8 December 1995. Those orders divided “the property of the parties”, that his Honour had assessed at being valued at around $331,000 net, 62 percent to the wife and 38 percent to the husband. Accordingly, the wife was entitled to receive about $205,000 and the husband about $126,000 in the property division that the orders effected.
This division of property was to be achieved by:
(i)the sale of five parcels of real estate in the husband’s name;
(ii)transfer to the wife of the husband’s interest in the former matrimonial home; and
(iii)the indemnity of the wife by the husband in respect of a mortgage secured over one of the five parcels of real estate.
Problems quickly emerged between the parties as to how the orders were to be given effect to.
A further application by the wife, filed 15 March 1996, in which she sought further orders that I would describe as mechanical or relating to enforcement of the original orders of Butler J in respect of the sale of some of the properties previously ordered to be sold, resulted in further orders being made on 10 July, 1996, by Registrar McManus. Those orders provided more particularly, in respect of two of the real properties, the method of sale. Those orders express on their face that they were made with the consent of the husband and the wife. The wife asserted, under oath, soon thereafter, that she did not consent to those orders being made.
On 7 August 1996, the wife filed another application in which she sought a number of orders, including, relevantly, an order that “the orders made in the Family Court of Australia at Brisbane on the 10th day of July 1996 be set aside pursuant to section 79A(1)(a) of the Family Law Act 1975.”
On 2 December 1996, Bell J made an order that the wife’s application filed on 7 August, 1996 be dismissed. I have not had the advantage of seeing the reasons given by his Honour. I also record that the wife asserts that Bell J did not make an order dismissing that application that day. There is, though, a sealed copy of the order on the Court’s file. I accept the regularity of that order.
The wife received very little benefit from the orders of Butler J. Some of the real estate that was to be sold pursuant to the orders was eventually sold by mortgagees exercising power of sale. Some of the real estate was sold for values less than those that Butler J had recorded as the values of the properties in his reasons for judgment.
In 2004, the wife filed a Cross Application in proceedings between the parties relating to child support. Apparently, it sought to invoke s 79A of the Family Law Act 1975 (“the Act”). Consent orders relating to the child support matters were subsequently made. I do not know how the application for relief pursuant to s 79A was dealt with at that time. There is no evidence before me that it was heard on its merits and finalised.
In August 2006, the wife filed an Amended Application for Final Orders, a contempt application and an application seeking relief pursuant to s79A. In that application, she sought that the “Property Orders” made on 8 December 1995 be varied or set aside pursuant to s 79A(1)(b) of the Act. Her application for s79A relief stated that it was based on two grounds; that in the circumstances that had arisen since the order, it was impracticable for the order or part of the order to be carried out; and secondly that a jewellery collection in the possession of the husband had been undervalued at trial. At the same time, orders were also sought against Ms Lyman-Horleck, against X Pty Ltd, of which Ms Lyman-Horleck was a director and which was trustee of a discretionary trust and against Ms Cooper. These persons and the company were involved, to varying degrees, in transfers from the husband of some of the properties that were the subject of Butler J’s orders. The wife sought orders setting aside those transactions and further orders in respect of those properties.
Carmody J dismissed the wife’s contempt application in December 2006.
The wife filed a further Amended Application in November 2007. It purportedly deleted all of the orders that she had sought in the August 2006 Amended Application and sought fresh orders, none of which were identified as being sought pursuant to s 79A of the Act.
Carmody J proceeded to hear matters in January 2008. He delivered reasons for judgment and pronounced orders on 7 July 2008. He dismissed the wife’s applications, including application for relief pursuant to s79A of the Act.
The wife appealed against Carmody J’s orders and on 20 January 2010, the Full Court of this Court delivered reasons for judgment on the appeal and pronounced orders allowing the appeal and remitting the proceedings for rehearing. At [85] – [87] of the joint judgment of the three judges that constituted the Full Court on that appeal, their Honours said:
As we have identified, the only applications that we are confident were before his Honour, were the wife’s amended application of 23 November 2007, (which in our view already expressed, was for enforcement of Butler J’s orders and within which the wife sought that certain transactions be set aside) and the husband’s response…..
We are conscious that these applications may not raise all of the issues which a party wishes to litigate or, on the other hand may raise issues beyond what a party appreciates. It may be that the wife needs to give consideration to whether she has or wishes to have a live application invoking the terms of s 79A of the Act. The husband may need to give consideration to whether, if he succeeds in satisfying the court that there has been a miscarriage of justice because of evidence given or not given about the jewellery, that will re-open all matters relevant to the question of property settlement. All parties, but particularly the primary parties, husband and wife, may be well advised to give close consideration to any continuation of proceedings, particularly on the wife’s part, if third parties are to be joined.
If the “matter” proceeds to retrial, care must be taken by the parties to identify not only the orders sought, but the legal basis for the application for such orders.
On 11 March 2010, Registrar Coutts ordered that the wife file and serve any Initiating Application for Final Orders “which amends/clarifies the Amended Application in a Case filed on 23rd November 2007” on or before 1 April, 2010.
The wife did do that. On 29 March, 2010, she filed a fresh Initiating Application in which she set out an extensive array of orders that she now seeks including orders pursuant to s 79A(1)(b) and (c) that the original orders of Butler J of 8 December 1995 be varied or set aside. The grounds upon which she makes the application were set out. They were; that in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for part of the order to be carried out; that the jewellery collection in the possession of the husband was undervalued and it is in the interests of justice to revalue the collection and set the value as determined by the Court; and that the husband defaulted in carrying out a number of obligations imposed on him by the order, and in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order.
The document set out final property orders the wife seeks in the event that her s 79A application is successful as well as declarations and consequential orders in respect of the transfers of the real estate that was the subject of Butler J’s orders.
The proceedings were set for a Judicial Settlement Conference for June 21, 2011 and a ten day trial was scheduled for July 2011. Neither of those events took place for reasons I do not consider necessary to explore or set out just at this point in time.
A new trial date was set for 16 January, 2012 and on 4 August 2011, the wife filed a document styled “Minute of Orders Sought By Applicant”. In that document, the orders she states she seeks were again substantially amended. They include now orders pursuant to s 79A(1)(a), (b), (c) and (d) that the orders of 8 December 1995 be varied or set aside. The grounds she seeks to rely upon are stated as:
(i)that there has been a miscarriage of justice by reason of fraud by the husband as constructive trustee; and/or
(ii)that there has been a miscarriage of justice by reason of the suppression of evidence and/or the failure to disclose relevant information by the husband regarding the matrimonial furniture, goods and chattels; and/or
(iii)that there has been a miscarriage of justice by reason of the suppression of evidence and/or the failure to disclose relevant information, and/or the giving of false evidence regarding the jewellery collection and stock and equipment, and possibly, a number of matters were overlooked; and/or
(iv)that in the circumstances that have arisen since the order was made it was impracticable for the order to be carried out or impracticable for part of the order to be carried out; and/or
(v)that the jewellery collection in the possession of the husband was undervalued and it is in the interests of justice to revalue the collection and set the value as determined by the Court; and/or
(vi)that the husband has defaulted in carrying out some of the obligations imposed on him by the orders of his Honour Butler J and, in the circumstances, that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; and/or
(vii)that in the circumstances that have arisen since the making of the order, being the diagnosis of one of the parties’ children with Aspergers Syndrome, the wife will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; and/or
(viii)that in the circumstances that have arisen since the making of the order, being the diagnosis of the wife with a dissociative identity disorder, the wife will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order.
Again, the wife sets out orders she seeks for property division in the event that her s 79A application is successful. She again sets out declarations she seeks against the third parties she has joined to the proceedings and asks for consequential orders, though not particularised, in the event of such declarations being made.
In January, 2012, again, the trial was vacated by Bell J for reasons that I also do not consider it necessary to explore or set out at this point. His Honour listed an application by Ms Lyman-Horleck similar to the one that I am currently determining for hearing before himself. However, before his Honour could hear it, the wife made an application for his Honour to recuse himself and his Honour did. Ms Lyman-Horleck then filed the Application in a Case that I am determining.
The Argument for Summary Dismissal by Application of the Rule as to Res Judicata
Simply stated, it is submitted by all of the respondents to the substantive proceedings that the rule as to res judicata applies because the wife made an application pursuant to s 79A in 1996 that was dismissed by Bell J in December of that year. The submission is made that she, therefore, cannot maintain any further proceedings pursuant to s 79A.
The law on the application of the doctrine of res judicata (sometimes referred to as the rule as to res judicata) is well settled. In Johnstone & Johnstone [2005] FamCA 1075, the Full Court of this Court said of the doctrine, citing from Spencer Bower, Turner and Handley “The Doctrine of Res Judicata”, the third edition of which issued in 1996 and was edited by Handley JA of the Court of Appeal of New South Wales:
…res judicata is a decision pronounced by a judicial tribunal having jurisdiction over the cause and the parties which disposes once and for all of the matters decided, so that except on appeal they cannot afterwards be relitigated between the same parties or their privies … The decision estops or precludes any party to the litigation or his privies from disputing, against any other party or his privies, in any later litigation, the correctness of the earlier decision. The same claim cannot be raised again between them, and this principle extends to all matters of law and fact which the decision necessarily established as the legal foundation of the conclusion reached by the court.
In the Full Court’s more recent decision of Reid & Lynch [2010] FamCAFC 184, O’Ryan J cited High Court authority in respect of the application of the doctrine[1] and went on to say:
If the cause of action was held to exist so that judgment was given upon it, it is said to be merged in the judgment and no longer has an independent existence. The notion of res judicata is founded on the necessity of avoiding re-agitation of issues and of preventing the raising of issues which could have been and should have been decided in earlier litigation. Res judicata is a defence to a claim in a legal proceeding which, if made, is a complete bar to the claim. There is no discretion in a court to allow the second action to proceed where the cause of action is merged in the judgment of the prior proceedings.[2]
[1]Jackson v Goldsmith (1950) 81 CLR 446 at 466 per Fullagar J dissenting, cited with approval in Port of Melbourne Authority v AnshunPty Ltd (1981) 147 CLR 589 at 597 per Gibbs CJ, Mason and Aitkin JJ and Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 510 – 11 per Deane, Toohey and Gaudron JJ.
[2]Ibid
In its earlier decision of Kemeny v Kemeny (1998) FLC 92-806, the Full Court had set out with approval the constituent elements necessary for the doctrine to apply that they had extracted from the learned text referred to above, which in turn had been extracted from the UK decision of Marginson v Blackburn Borough Council [1939] 2 KB 426. Those were:
(i) that the decision was judicial;
(ii) that the decision was in fact pronounced;
(iii) that the tribunal had jurisdiction over the parties and subject matter;
(iv) that the decision was final and on the merits;
(v)that the decision determined the same question as that raised in later litigation;
(vi) that the parties to the later litigation were parties to the earlier litigation.
Applying those principles to the factual circumstances of this case, where the wife has had an application pursuant to s 79A of the Act dismissed previously and in these current proceedings seeks relief pursuant to s 79A, where the respondents raise a plea of res judicata as they do, I consider the primary questions for my determination are whether the cause of action as currently “pleaded” is the same as that which was litigated in the former proceedings and, if it is, whether the earlier dismissal was “final and on its merits”. .
I am not satisfied that either of those questions can be answered affirmatively.
In 1996, the wife sought to have the orders that were made on 10 July 1996 (that I have described as machinery orders) set aside pursuant to s 79A(1)(a) of the Act. Section 79A(1)(a) of the Act at that time provided as follows:
(1) Where, on application by a person affected by an order made by a court under section 79 in proceedings with respect to the property of the parties to a marriage or either of them, the court is satisfied that-
(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance.
As I read the wife’s affidavit filed on 7 August 1996 in support of her application, she “pleaded” her case on the basis of assertions that she had not consented to those machinery orders being made on 10 July 1996 and that, somehow, amounted to a “miscarriage of justice”, presumably by reason of “any other circumstance”. The wife did not, in 1996, seek to set aside the original orders of Butler J of 8 December 1995 that were the final property orders.
By her current proceedings, she “pleads” her case on multiple grounds pursuant to s 79A(1)(a)-(d) to seek to have set aside those original final property orders. I do not consider that the cause of action as the wife currently “pleads” it is the same as the cause of action she “pleaded” in 1996 that was dismissed by Bell J in December 1996. She seeks to set aside different orders and she seeks to have them set aside on different grounds, some of which she is clearly asserting have arisen since 1996.
Additionally, I have no knowledge of the reasons for Bell J’s December 1996 dismissal of the wife’s application for relief pursuant to s 79A. In this regard, I respectfully agree with the view expressed by Warnick J (sitting singularly as the Full Court) in the decision of Baker v Thompson (2006) FLC 93-272 that it is at least doubtful that dismissal of an application on any basis at all, supports a defence against a later identical application on the basis of res judicata. It is for the party seeking to establish the application of the doctrine to persuade the Court that it is established and, on this aspect of the doctrine, I am not persuaded by evidence that Bell J dismissed the wife’s s 79A application on its merits; a necessary element for the doctrine to apply.
It can be seen then that I do not accept that the rule as to res judicata as raised by the respondents has application in the circumstances of this particular case. Accordingly, I find that the wife’s application for relief pursuant to s 79A that is currently pending is not barred by application of the doctrine and I will not summarily dismiss it.
Should the Proceedings be Permanently stayed as an Abuse of Process?
There is no dispute that the Court has the inherent power to permanently stay proceedings which it is satisfied, if allowed to continue, would constitute an abuse of process. Such a stay may be granted even where the wife may be seen to have a meritorious case, as it is not the merit of the case to be run that is critical but rather other matters, such as the wife’s conduct in the lead up to and after the commencement of the proceedings (see the decision of Le Poer Trench J in Norman & Howarth [2003] FamCA 1284 for a useful discussion of the cases and principles involved).
Indeed, Ms Lyman-Horleck pointed out in her written material that Le Poer Trench J in Norman & Howarth (supra) at [60] set out a non-exhaustive list of circumstances relevant to the determination of whether allowing proceedings to continue would constitute an abuse of process. They are:
(i) the proceedings are commenced not in good faith and for an improper purpose;
(ii) the Court is satisfied that the continuation of the proceedings would be so unfairly and unjustifiably oppressive;
(iii) the processes and procedures of the Court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness;
(iv) it would be manifestly unfair to a party, or would otherwise bring the administration of justice into disrepute among right-thinking people;
(v) the proceedings are frivolous, vexatious or oppressive;
(vi) the application of the relief should only be applied in an exceptional or extreme case, sparingly and with the utmost caution;
(vii) the proceedings may be unjustifiably oppressive where there is inordinate delay in commencing the litigation;
(viii) where there is delay the whole quality of justice deteriorates as what has been forgotten can rarely be shown;
(ix) long delay gives rise to a general presumption of prejudice;
(x) delay may give rise to an abuse where it is such that a court could conclude that by the time the matter came to trial relevant facts would no longer be in the minds of potential witnesses;
(xi) the finding of actual prejudice and the possibility of other prejudice should give rise to the relief sought.
I respectfully accept the appropriateness of such a list of relevant matters.
Ms Lyman-Horleck asserts that:
(i) there was an inordinate delay of eight years in the commencement of proceedings by the wife; and
(ii) the wife has behaved unconscionably in not pursuing the matter so that it could be heard at the earliest opportunity, being responsible for the delay of the matter until late 2012;
(iii) the delay is of such a length that it must give rise to a general presumption of prejudice and a conclusion that, by the time the matter comes to trial, the relevant facts known at the time of the events will no longer be in the minds of potential witnesses;
(iv) actual prejudice is able to be demonstrated by the fact that she is unable to call upon historical records or a key witness who has died;
(v) the delay in commencing the proceedings would bring the administration of justice in disrepute among right-thinking people.
All of these arguments are also adopted by the other persons who are respondents, namely Mr Horleck and Ms Cooper. It is submitted that in all these circumstances continuation of the proceedings would be unjustifiably oppressive and manifestly unfair to all the respondents.
Having read the lengthy affidavit of evidence filed by the wife on 27 January 2012, I must point out that I cannot, on an interim hearing such as this one where there has been no cross-examination of any of the deponents to the affidavits that are relied upon by each party, make findings of fact on the matters that are in issue between the various parties. I cannot, in such circumstances, for example, accept that the fact that these proceedings have not yet been able to be heard, more than half way through 2012, is a matter that can be completely attributed to conduct of the wife or that her conduct has been “unconscionable” as asserted by the respondents. Such a finding itself would, I acknowledge, be highly relevant to this immediate determination. However, the wife, in her evidence, asserts that conduct on the part of the husband and Ms Lyman-Horleck is directly the cause of her being put in such a disturbed emotional state that she was too unwell to prepare material for trial at one of the critical points. I simply cannot determine on this hearing that such assertions are not true and do not have any relevance to this immediate application.
Similarly, I am not in a position to determine, on the evidence that is before me, the exact reasons why applications by the wife for relief pursuant to s 79A were, apparently, overlooked or not dealt with over a period of years between 2004 and 2007. I simply cannot, uncritically, accept a submission that it was somehow solely attributable to action or inaction on the part of the wife and her various legal representatives throughout that time.
Further, the wife cannot be criticised and held in some way responsible for the amount of time between the trial of the proceedings in January 2008 and the delivery of judgment in July 2008. Nor can she be criticised for the time that it then took to have her appeal to the Full Court heard and determined or the fact, as determined by the Full Court, that the trial judge’s decision contained appellable error that necessitated a rehearing of the parties’ competing applications.
Accordingly, I do not see that I can confidently determine that the way in which the wife has conducted these proceedings between 2006 and now demonstrates unconscionable conduct or lack of bona fides on her part, such as would support a determination that the continuation of these proceedings is manifestly an abuse of process.
As to the submissions made in respect of the delay in first bringing an application for relief pursuant to s 79A, which necessitate a slightly different focus of attention, I do observe that waiting eight years to bring an application in which contentions are effectively made that full and frank disclosure was not made by the husband in the original proceedings in circumstances where that position was taken by the wife from the time of the original proceedings does raise concerns. It is worth noting that consideration of matters surrounding that issue will necessarily take place at the point of determining whether to exercise a discretion to vary or set aside any of the original property orders if one of the s 79A(1) grounds is ultimately found to be satisfied. Of course, that does not, in itself, answer the submission that the initial delay creates such prejudice in this case that the continuation of the proceedings is an abuse of process.
Again though, having read the wife’s lengthy affidavit of evidence upon which she has not yet been cross-examined, it seems at first glance, as the Full Court accepted when they determined the appeal against Carmody J’s orders, that the wife got very little benefit at all from property orders that, according to the Trial Judge’s reasons, entitled the wife to receive $205,000. In the immediate aftermath of the property division, the wife went into bankruptcy, apparently due to an inability to pay for the legal representation she had had in the earlier proceedings against the husband. She then became embroiled in ongoing disputes with the husband over unpaid child support and child support assessments and, through that process, appears to have begun to gather information over time that brought to her attention matters that she, at least, considered reflected that she had been treated unfairly and perhaps even unjustly in the property division and its aftermath.
I appreciate that Ms Lyman-Horleck, the husband and Ms Cooper are representing themselves in these proceedings and that they, unsurprisingly, lack professional skills in respect of the preparation for and presentation of legal argument. However, as I have already observed, the onus is on the party who seeks to gain the benefit of the exercise by the Court of a very rarely used inherent power to permanently stay proceedings that are determined to be an abuse of process to satisfy the Court that the circumstances justify using that power. I am not satisfied that it is enough to say, where there is no statutory limitation period in respect of such applications, that because the wife did not commence her proceedings for relief pursuant to s 79A of the Act for eight years after the original property division orders were made, that so doing amounts to an abuse of process without more. The onus on the respondents required them to put the evidence before the Court that satisfied the Court that there is no reasonable, bona fide explanation for the delay and that the delay has caused prejudice that is unjustifiably oppressive. I have to say that I am not so satisfied at this point.
I appreciate that witnesses may no longer be available through death or infirmity. The real significance of that and the extent, if any, of actual prejudice thereby caused is likely, in my view, only to become clear during a complete hearing of the matters the wife is going to agitate at the hearing of her substantive applications. As I have already noted, these matters will be relevant to any exercise of discretion to vary or discharge the original property division orders if, and only if, the wife succeeds in satisfying the Court that one or more of the s 79A(1) grounds for the triggering of the discretion is made out. I am not satisfied at this point that such matters are determinative of the abuse of process argument in favour of the respondents who seek to make it out.
Whilst there may be some merit in the assertion that right-thinking people could legitimately be concerned about the due administration of justice in this case, particularly given the delays that have occurred over the last four years, it is just as readily observed that right-thinking people might be equally as concerned about this Court taking the serious step of depriving a person, who may have a meritorious claim, of access to the Court to have that claim tested and determined. It would indeed be unjust to visit upon the litigant the responsibility for delays that, in at least some respects, are endemic in the processes employed by an extremely busy court.
In all the circumstances, I am not satisfied that allowing these proceedings to continue to trial as they are currently “pleaded” constitutes an abuse of process. I will not permanently stay them.
Changing the Trial Dates Again
Interestingly, given the nature of the application Ms Lyman-Horleck otherwise had before the Court, she was also applying to have the trial dates changed from those that were already fixed for this month. She is a school teacher and these proceedings have already forced her to use long-service leave entitlements when she has had to take leave to come to Brisbane for Court appearances.
She sought to have the trial dates changed to a school holiday period so that she could use her holidays rather than her long service leave. That could only be done by putting the hearing back yet again. To their credit, the parties were able to agree to the trial being adjourned and set down for a week at the beginning of the December/January school holidays for hearing before me. That was ordered, in the event that the balance of Ms Lyman-Horleck’s application was dismissed, as I have determined will happen.
I will hear the parties on the delivery of these reasons as to any matters that need to be addressed between now and December to ensure that this matter proceeds to trial as expected so that the proceedings can be finalised and the last chapter of this litigation closed as soon as possible.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 13 September 2012.
Associate:
Date: 13 September 2012
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