Joresko and Kimpton and Anor

[2018] FamCA 320

FAMILY COURT OF AUSTRALIA

JORESKO & KIMPTON AND ANOR [2018] FamCA 320

PRACTICE & PROCEDURE – Stay application – where the husband made an oral application to stay the trial indefinitely – stay application refused.

Family Law Act 1975 (Cth)

APPLICANT: Mr Joresko

FIRST RESPONDENT: Mr Kimpton

SECOND RESPONDENT: Ms Kimpton

FILE NUMBER: MLC 9644 of 2014

DATE DELIVERED: 2 May 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 2 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fary

SOLICITOR FOR THE APPLICANT: SLF Lawyers

THE FIRST RESPONDENT: In person (by telephone)

THE SECOND RESPONDENT: No appearance

Orders

1. That the first respondent have leave to make oral application for a stay of the proceedings.

2. That the first respondent’s oral application for a stay of the proceedings be dismissed.

AND THE COURT NOTES:-

A.That in the event that the first respondent or the second respondent fails to appear at the listed hearing on 14 May 2018, the final hearing of the applicant’s application for final orders may proceed in their absence.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Joresko & Kimpton and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9644 of 2014

Mr Joresko

Applicant

And

Mr Kimpton

First Respondent

And

Ms Kimpton

Second Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court today for mention to ensure the matter’s readiness to proceed for its listed final hearing before me on 14 May 2018.  That is in some 12 days’ time. 

2. The parties to the proceedings, which relate to property matters, are the applicant, Mr Joresko, who is the trustee in bankruptcy of the second named respondent.  The first respondent is Mr Kimpton, and the second respondent is Ms Kimpton. 

3. The first and second respondents were married.  In 2014 they entered into final orders by consent, which were final orders with respect to their property interests.  Those orders provided for the transfer of the second-named respondent’s interest in a property in B Town, Victoria, to the first named respondent.  Subsequent to that transfer, the second respondent entered bankruptcy, and the applicant was appointed as trustee in bankruptcy. 

4. The trustee, that is the applicant, challenges the efficacy of the orders made by consent in 2014.  The trustee seeks a declaration that the orders made in 2014 be set aside and further declarations and orders with respect to the B Town property. 

5. The proceedings have been in my docket since April of 2017.  That is a period of more than a year.  On 26 April 2017 I listed the matter for a first-day hearing before me on 9 June 2017.  Further, I made directions for the filing of amended applications and responses and for a brief summary of issues. 

6. On 9 June 2017, being the first-day hearing, there was no appearance on behalf of the first respondent.  The second respondent appeared in person, and the solicitor for the trustee also appeared.  At that time I was informed of the ill health of the respondent, and in those circumstances I adjourned the listing of the matter to 29 June 2017.  I also then made orders extending time for the first and second respondents’ compliance with my previous orders, as neither the first nor second respondent had filed documents in compliance with my orders of 26 April 2017.  Further, I made an order that the first respondent file and serve evidence from his medical practitioners detailing reasons for his non-attendance at court that day, indicating the condition suffered by the first respondent, his prognosis and advising as to any assessment as to the first respondent’s capacity to participate in the proceedings. 

7. There has been no affidavit filed in compliance with those orders, although I note that at various times during the proceedings the first respondent has provided brief medical reports as to his condition. 

8. On 29 June 2017, at the adjourned mention hearing, the first respondent again failed to appear.  The second respondent appeared in person, and the applicant was represented by his solicitor.  The matter was further adjourned to 10 August 2017.  The first and second respondents were ordered to personally attend that adjourned hearing or, alternatively, have their lawyers attend at the adjourned mention hearing.  Order 3 provided that, in the event of the continued non-compliance by the first or second respondent with the orders made 26 April 2017, 9 June 2017 or these orders, the applicant had leave to seek to proceed with his application on an undefended basis. 

9. On 10 August 2017 the applicant was represented by his solicitor.  The first respondent appeared by telephone, and the second respondent appeared in person.  That day, I made directions listing the matter for a final hearing.  The matter was listed for final hearing on 11 October 2017.  The usual trial directions were made with respect to the filing of affidavit material in anticipation of that trial date. 

10. The matter was called on for mention before me again on 8 September 2017.  There was no appearance by the second respondent at that hearing.  The first respondent appeared by telephone.  The issue which caused the matter to be brought on for mention was the failure of both the first and second respondents to file any material in compliance with my trial directions of 10 August 2017.  I made a further order for the first respondent to file and serve an affidavit of his treating medical practitioners evidencing his current medical condition and his capacity to participate in the proceedings listed on 11 October 2017.  The matter was otherwise adjourned to 20 September 2017. 

11. On 20 September 2017, upon hearing submissions from counsel for the applicant, the first named respondent who appeared by telephone, and there being no appearance for the second respondent, I vacated the trial date.  I listed the matter for mention on 17 November 2017.  Again I made an order requiring the first named respondent to file an affidavit with respect to his medical condition, his capacity to participate in the proceedings.  The notation to those orders is as follows: 

    A.That the proceedings have been adjourned in part due to the first-named respondent’s health issues as identified in his affidavits filed 25 August 2017 and 19 September 2017.

    B.The Court has raised with the parties this day that in the event the first-named respondent’s capacity to participate in the proceeding continues to be impeded due to his medical condition, the question of appointment of a Case Guardian to represent his interests may be considered at the mention hearing upon filing of appropriate applications.

12. It is evident from the notation that it was raised at that hearing, that consideration be given by the first respondent to engaging with lawyers to assist him in the appointment of a case guardian to conduct these proceedings on his behalf. 

13. When the matter came before me again on 17 November 2017, no action had been taken in regards to the appointment of a case guardian.  Indeed, no further material had been filed by the first respondent.  In the circumstances, I made further directions listing the matter for trial.  The matter was fixed for hearing on 14 May 2018.  It was listed for a mention hearing on 17 April 2018.  The mention hearing of 17 April 2018 was vacated by the court and refixed to this day. 

14. The applicant has indicated that, given the long history which I have described, it is his client’s position that the applications before the court should proceed and that the trial should proceed on its listed trial date. 

15. That application is opposed by the first named respondent.  He makes an oral application for an indefinite stay of the proceedings.  He submits that he has ongoing health issues.  He refers to the ongoing treatment, including scans, screens and testing, which he is to undertake in the coming period.  He submits that he wishes to resolve his medical issues first and upon an improvement of his health he hopes to be in a position to deal with these matters.  He submits that to proceed at this time would be totally unfair to him. 

16. As to the application for a stay of the proceedings, it is submitted on behalf of the applicant, that there is no proper basis for such stay, particularly in circumstances where there is no evidence before the court to indicate that there will be any change in the first respondent’s circumstances in the future.  Simply put, there is no evidence before the court which clearly identifies what the prognosis for the first respondent is, what the treatment plan is or that indicates when he will be in a position to participate in the proceedings. 

17. Counsel for the applicant points to the propositions put on behalf of his client to resolve the issue of representation for the respondent.  The property the subject of the proceedings is a vacant block of land.  It has been proposed by the applicant that that property be sold to enable capital to be freed up and thereafter utilised by the first named respondent to meet any costs associated with engaging lawyers to represent him in these proceedings. 

18. That proposal has been ignored by the first respondent.  He has not provided any response to previous proposals put.  He was reminded today of that proposal and makes no submission in response to that proposal. 

19. Further, the applicant points to the history of the proceedings and particularly the fact that the issue of the appointment of a case guardian has been raised with the first respondent on previous court events.  I have already referred to the notation to the orders made by me last year, which highlights the fact that the issue of the appointment of a case guardian has been raised with the first respondent.  The first respondent has simply taken no action to progress the matter on that front.  In those circumstances, it is submitted, that there would be unfairness to the applicant, were he to be deprived of the opportunity of proceeding with the application which has now been in my docket for more than a year. 

20. Having regard to the procedural history of the matter in my docket, I am satisfied that the first respondent has had ample opportunity to prepare for the trial listed before me on 14 May 2018.  He has had almost six months’ notice of that trial date.  He has had opportunity to either prepare material on his own behalf or, alternatively, to engage lawyers to represent him in the proceedings.  Whilst sympathetic to his apparent health issues, I must also balance those matters against the entitlement of the applicant to a hearing of his application.  In those circumstances, I propose to dismiss the oral application made by the respondent this day seeking a stay of the final hearing.  Therefore the matter will proceed on its listed trial date. 

21. I note that in the event that the first respondent does not appear or have lawyers represent him at that listed trial that the matter may proceed in his absence.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 2 May 2018.

Associate: 

Date: