Horleck & Horleck

[2009] FamCAFC 181

FAMILY COURT OF AUSTRALIA

HORLECK & HORLECK & ORS [2009] FamCAFC 181

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Application to adduce further evidence – Evidence available at the time of trial – Application made late in the appeal process – application refused

APPLICANT: Mrs Horleck

RESPONDENT 1: Mr Horleck

RESPONDENT 2: Ms Lyman-Horleck (in her capacity as Director of X Pty Ltd)

RESPONDENT 3: X Pty Ltd as Trustee for the H Trust

RESPONDENT 4: Ms Lyman-Horleck

RESPONDENT 5: Ms Cooper

APPEAL NUMBER: NA 71 of 2008

FILE NUMBER: BRC 8480 of 1994

DATE DELIVERED: 25 August 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Warnick J, May J, Barry J

HEARING DATE: 25 August 2009

REPRESENTATION

APPLICANT: Mrs Horleck appeared In person

RESPONDENTS : Mr Horleck, Ms Lyman-Horleck and Ms Cooper appeared in person

IT IS NOTED that publication of this judgment under the pseudonym Horleck & Horleck & Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

APPEAL NUMBER: NA71 of 2008
FILE NUMBER: BRC 8480 of 1994

Mrs HORLECK

Applicant

And

Mr HORLECK

Respondent 1

And

Ms LYMAN-HORLECK

Respondent 2; In her capacity as Director of X Pty Ltd

And

X Pty Ltd

Respondent 3

And

Ms LYMAN-HORLECK

Respondent 4

And

Ms COOPER

Respondent 5

EX TEMPORE

REASONS FOR JUDGMENT

WARNICK J

1. At the resumption of this appeal hearing Mrs Horleck, the appellant, asks that we receive further evidence.  After some discussion about the purposes of further evidence before an appeal court, Mrs Horleck has confined her application to material referred to as JMH29 in her affidavit, filed 10 August 2009, which relates to any delay by her in taking proceedings arising out of non-compliance with orders of Butler J which are identified in the material before us.

2. The material, in my view, does go to the question of delay in the broadest sense.  In other words it shows that the wife was making inquiries, perhaps even making attempts, to have something done about the situation that developed, insofar as orders were simply not being given effect as was anticipated, to put it at the least, and perhaps to say deliberate non-compliance at the worst.  But the matters covered by the letters are only a part of the many facts which, even from the material before us, though they may not be all the facts relating to delay, were much more extensive than simply what Mrs Horleck was doing in relation to seeking legal advice and attempts to gain legal aid in 1996, 1997 and 1999. 

3. I would not receive the further evidence.  Firstly because it was available at the trial before Carmody J, whose orders are the subject of this appeal.  Had it been before him then the respondents may well have cross-examined about it and, or sought to put evidence of their own, bearing upon the issue, before the trial judge.  It remains likely to be contentious material and an appellate court is not in a good position to fairly deal between all parties with contentious material. 

4. An added reason for refusing the application is that the application to adduce the further evidence is itself very late and seems to substantially arise, not so much to either support a ground of appeal or to assist the court in re-exercise of discretion, but as a counter to propositions made by Mr Horleck in his submissions.  Insofar as Mr Horleck’s submissions were founded on the material already before us then they will be taken into account in our consideration of the matter.  Insofar as his submissions went beyond that, and on occasions they did, then we will disregard them.  It is not necessary, therefore, for fairness to be done to Ms Horleck in that regard, for us to receive this further material.

5. The application is made after Mrs Horleck completed her submissions and after Mr Horleck completed his submissions.  That was at the end of a day of hearing.  In my view the lateness of the application now is of some significance and supports the other reasons for which I would not receive the further evidence.

MAY J

1. I agree with the reasons of the presiding judge and have nothing further to add.  I also would not allow the application for further evidence.

BARRY J

1. I agree with the reasons advanced by the presiding judge.  I would simply add the observation that if we were to allow this fresh evidence it would almost certainly invite an application for an adjournment by the other parties to this appeal and we do not think, having regard to the time delay, the evidence is such a critical factor that further adjournment would be justified.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate: 

Date:  2 October 2009