HUMPHREY & HUMPHREY
[2015] FCCA 2961
•6 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUMPHREY & HUMPHREY | [2015] FCCA 2961 |
| Catchwords: FAMILY LAW – Review of Registrar’s decision – no relevant risk identified or any other factor to warrant earlier listing date – consideration of strain on Court resources of inutile applications – paramount duty of lawyer to court – duty of lawyer to court not to make futile or inappropriate applications – application to review dismissed with costs. |
| Legislation: Federal Circuit Court Rules 2001, R.5.03, Division 20.2 |
| AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Barristers’ Conduct Rules, Australian Bar Association (2011), rr.5(a) & 25 |
| Applicant: | MR HUMPHREY |
| Respondent: | MS HUMPHREY |
| File Number: | CAC 1289 of 2015 |
| Judgment of: | Judge Neville |
| Hearing date: | 28 August 2015 |
| Date of Last Submission: | 28 August 2015 |
| Delivered at: | Canberra |
| Delivered on: | 6 November 2015 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Ms P Spence |
| Solicitors for the Applicant: | Elringtons, Canberra |
| Solicitor/Advocate for the Respondent: | Mr D Moore |
| Solicitors for the Respondent: | KJB Lawyers, Canberra |
ORDERS
Application in a Case, filed 26th August 2015, be dismissed.
The Applicant pay the Respondent’s costs, either as agreed or taxed.
IT IS NOTED that publication of this judgment under the pseudonym Humphrey & Humphrey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1289 of 2015
| MR HUMPHREY |
Applicant
And
| MS HUMPHREY |
Respondent
REASONS FOR JUDGMENT
On 17th August 2015, the Father filed an Initiating Application regarding parenting matters in relation to the two children of the relationship, 13 year old X and eight year old Y. The matter was given a first return date of 16th November. Other documents filed at the time of that Application were an affidavit by the Father and, as prescribed, a Notice of Risk.
Two things are immediately obvious from the Notice of Risk.
First, there are no allegations of abuse, family violence or any other risk in relation to the children. Tellingly, at the hearing on 28th August (referred to in more detail later), the experienced solicitor who acts for the Applicant Father could point to no relevant risk in the proceeding that would warrant the matter being listed more urgently. This was so despite repeated – indeed repeated and blunt - questions from the Bench about any relevant risk, and or any other matter (other than the Father’s wish or preference for the matter to be listed earlier than mid-November) that would warrant the matter being listed on an earlier date. Plainly, there are no such risks.
Secondly, without being overly pedantic, the Notice of Risk was not fully completed by this experienced solicitor, who works for a firm of long experience in family law matters. By way of observation: where, in effect, a complaint by way of a review application is made to the Court (which is detailed below), yet the documents filed have not been properly completed, it does not give complete confidence that there has been proper or complete attention to all relevant detail by the moving party. The Father’s solicitor formerly worked for care and protection services in the Australian Capital Territory, by which I simply intend to note that attention to detail should reasonably be expected by the Court, as well as what kind of matter does, and what does not, usually or reasonably warrant urgent attention by the Court. I accept, of course, that “care proceedings” work rather differently to parenting matters in this Court, and it may be that, being new to a private firm, she was given little or no guidance by her superiors.
Parenthetically, I also note that the jurat at the end of the Father’s affidavit, filed 26th August 2015, was similarly not properly or fully completed by the solicitor who acts for him.
The Application for Review
On 26th August, the Father filed an Application in a Case (and supporting affidavit) which sought a review of the listing date allocated by the Registrar, and that an earlier date be allocated, rather than the currently listed date of 16th November 2015.
The substance of the Father’s request for review of the Registrar’s decision is his concern that his children will suffer psychologically in circumstances where he is seeing only his son, Y, but not currently his daughter. He has a concern – formally not a “risk” as per the Notice of Risk – about “the psychological welfare of the children.”
I note that Rule 5.03 of this Court’s Rules sets out the kind and range of evidence that is necessary to provide to the Court in urgent applications. There was plainly no regard to the detail set out in that Rule regarding the requisite evidence for such Applications. Given what is in the Father’s material filed, patently there was no such evidence available. I might record here that there is no evidence of the children being at any relevant risk while in their Mother’s care.
By letter dated 18th August (only one day after the original Application was filed), the Registrar wrote to the Father’s solicitor. In that letter, the Registrar stated as follows:
...
Your application for an early listing is made on the basis that the Mother has unilaterally stopped a shared care arrangement in respect of the children, X and Y. I note that no orders were in place and the parties had participated in a parenting plan.
Whilst I appreciate the difficulties for your client and his desire for early attention to his matter, the early listing is refused for the following reasons:
(1) The matters raised, whilst serious, are matters routinely raised before this Court are therefore not, in and of themselves, matters where an early listing would be allocated.
(2) I note there are no allegations of risk in the Notice of Risk.
(3) There is no evidence about immediate harm to the children.
(4) It seems that your client has been able to negotiate some time with Y as set out in paragraph 77 of your client’s affidavit.
(5) Due to Judge unavailability and Court lists, there are no listing times available before November 2015.
Consideration and determination
This Court is the largest Commonwealth trial Court in Australia. In addition to general federal law filings, as statements of fact, in this Registry this Court deals with well in excess of 90 per cent of all family law filings, which come from the ACT and surrounding areas, the south coast of New South Wales, and as far afield as Wagga Wagga and surrounding country centres in Griffith, Junee and Leeton.
For the financial year ending 30th June 2015, there were 637 applications for final orders, and 763 applications for interim orders, filed in this Registry in family law for this Court. The average number of filings in this Registry in this Court per month is approximately 120. None of these figures, of course, include the significant filings in general federal law matters (e.g. bankruptcy, migration appeals, industrial law, and other things besides) to which this Court attends also.[1]
[1] Details of the immense load carried by the Court and the vast number of filings across its broad jurisdiction are readily available, such as in the Annual Report of the Court, which is readily available, including on the Court’s website.
All of this is simply to observe that this is a very busy Court. The Court’s “busyness” and stress from the volume of filings is well known to family law practitioners, and many others. It is commented on regularly in the media all around the country.
A review of a Registrar’s decision takes place pursuant to rule 20.03(a) of this Court’s rules. Review hearings of the kind before the Court are, of course, de novo. What is required in such hearings was set out by the High Court quite some time ago in Harris v Caladine.[2]
[2] Harris v Caladine (1991) 172 CLR 84 at p.124 (Dawson J), where his Honour said, among other things in relation to a hearing de novo: “… the Court reviewing the order begins afresh and exercises for itself any discretion exercised below by the Registrar. The parties commence the application again … 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 …”
The experienced Registrar’s reasons are clearly and plainly put, which I have set out earlier in these reasons. There is little that is before the Court that was not before the Registrar. I have considered the evidence as put by the Father. Although not an appeal from the Registrar’s reasons, in my view, other than some additional matters to which I refer, the Registrar readily and succinctly outlines what the evidence discloses – nothing more, nothing less.
As I have already noted, despite repeated questions from the Bench, and notwithstanding the prescriptions and requirements of Rule 5.03, the Father’s experienced solicitor could point to no single, or collective, factor that would warrant the matter otherwise being listed on a date earlier than was allocated by the Registrar. To the degree relevant, nor could anything be said by the Father’s solicitor that pointed to, or even suggested, any relevant error by the Registrar in the reasons given.
The following further considerations, in my view, are important factors that otherwise, or further, tell against the utility or justice of the Application for Review succeeding.
In the [now] almost infamous decision in AON Risk Services Australia Ltd v ANU, French CJ said, for example, at [5], [23] and [24] (internal citations omitted, emphasis added):[3]
[5] … the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account.
[23] The Judicature Act Rules and their Australian offspring did not in terms make reference to the public interest in the expeditious dispatch of the business of the courts. The way in which proceedings progress has been left to the parties. This may be seen as an aspect of the adversarial system which is a dominant part of the common law inheritance of Judicature Act procedure. In this respect, however, the adversarial system has been qualified by changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.
[24] … Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation…
[3] AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. In addition to the comments of French CJ cited, see also the general observations of Gummow, Hayne, Crennan, Kiefel and Bell JJ at [112] – [113].
More recently still, in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Limited, the High Court commented further, by reference to the earlier comments in AON Risk Services v ANU. At [51], [56] and [57], the Court (French CJ, Kiefel, Bell, Gageler & Keane JJ) said (emphasis added):[4]
[51] … It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants...
[56] … Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose…
[57] That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance.
[4] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Limited (2013) 250 CLR 303.
Given the huge lists in this Court that are well-known by the legal profession, and the abject lack of any relevant risk to the children, or any other compelling circumstances, the Application for Review, in my view, should never have been made. I leave to one side the further drain on the Court’s time with the rather late in the day hearing of the Application. It was yet another pressing matter to fit into the Court’s odiously oppressive schedule.
To move to the Mother’s side of the dispute, given the length of time between the Initiating Application and the first return date in mid-November, the Respondent Mother and her solicitor should reasonably be expected to have filed material in sufficient time for the Father and the Court to be able properly to appraise it and determine the scope of the contest.
The length of time until a first return date does not provide unbridled licence by either party not to ensure that all documents to assist the Court are filed as promptly as possible. Prompt filing of material might mean that orders by consent might be able to be made even prior to the next listing date – orders such as sending the parties to a s.11F conference with a family consultant.
Moreover, given the Father’s Application to review the Registrar’s decision, the Mother and her solicitor should be taken to be well on notice that there is particular need to ensure that matters proceed to formalised parenting orders as expeditiously as possible.
There is one final matter to note. Both at common law and pursuant to standard rules of professional conduct, there is a paramount duty owed by lawyers to the Court. This duty takes precedence over any duty to the client.
For example, in Giannarelli v Wraith, Mason CJ said (at pp.555 – 556) (emphasis added):[5]
The peculiar feature of counsel's responsibility is that he owes a duty to the court as well as to his client. His duty to his client is subject to his overriding duty to the court. In the performance of that overriding duty there is a strong element of public interest…
The performance by counsel of his paramount duty to the court will require him to act in a variety of ways to the possible disadvantage of his client…
It is not that a barrister's duty to the court creates such a conflict with his duty to his client that the dividing line between the two is unclear. The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary. Rather it is that a barrister's duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client's success, but also to the speedy and efficient administration of justice…
The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case. In such an adversarial system the mode of presentation of each party's case rests with counsel. The judge is in no position to rule in advance on what witnesses will be called, what evidence should be led, what questions should be asked in cross-examination. Decisions on matters such as these, which necessarily influence the course of a trial and its duration, are made by counsel, not by the judge. This is why our system of justice as administered by the courts has proceeded on the footing that, in general, the litigant will be represented by a lawyer who, not being a mere agent for the litigant, exercises an independent judgment in the interests of the court.
[5] Giannarelli v Wraith (1988) 165 CLR 543.
Although Mason CJ’s comments are directed specifically to barristers, in my view, they apply equally to all advocates from which-ever arm of the legal profession they come. And further, his Honour’s comments take on even greater force (if that be necessary) in the light of the High Court’s more recent comments in AON and Expense Reduction Analysts regarding the limited public resources available to courts and the impact of applications on other litigants.
If the statements of principle by the High Court were not enough to highlight the paramount duty of advocates to the Court, among other things, the Australian Solicitors Conduct Rules, issued by the Law Council of Australia (June 2011), also make plain (r.3.1) that “a solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of any inconsistency with any other duty.” The same duty is expressed in standard barrister’s rules, which I need not otherwise detail here, except to refer to the Australian Bar Association’s Barristers’ Conduct Rules (2011) (rr.5(a) & 25).
Conclusion
To stress again: the Court’s resources are finite. The High Court has regularly emphasised that court resources are public resources that must be used prudently and with proper regard to all litigants, not just the parties in contest, such as those in dispute here.
To state again, the Application for review, in my view, should never have been filed. It was, respectfully, utterly inutile. This is especially the case where (a) there was no evidence of any relevant risk or factor identified that would warrant an earlier listing, and (b) the Father’s experienced solicitor is well versed in what does, and what does not, constitute urgent Applications.
I do not suggest that the Application to Review was frivolous or vexatious. It was, however, particularly given the lack of relevant evidence, plainly misconceived.
Having said all this, the Court appreciates readily the desire of litigants to have their matters attended to as expeditiously as possible. But all resources are finite, not least – given the very large filings in the Court – the very precious commodities of “time” and “judicial availability.”
And in any event, a lawyer’s over-riding duty is to the Court. It must take precedence over any duty to the client. The duty to the Court, in my view, must include not only the responsibility to assist the Court but also not to consume needlessly the scarce resources of the Court with inapposite or inutile applications.
In all the circumstances, the Application for review must be dismissed. Especially given the significant lack of merit of it in all relevant respects, an order for costs, either as agreed or taxed, must also follow. The matter will stay listed for the date set by the Registrar.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 6 November 2015
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