KABLER & KABLER
[2020] FCCA 1688
•26 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KABLER & KABLER | [2020] FCCA 1688 |
| Catchwords: FAMILY LAW – Property – application for leave to proceed out of time – delay of four years found to be compounded by court errors – delay assessed at two years – reason for delay not adequately explained – prima facie case and hardship established – prejudice to respondent established – negative pool other than for superannuation – superannuation splitting order would be sought if leave granted - discretion exercised to dismiss application. |
| Legislation: Family Law Act 1975 (Cth), ss.44, 75, 79 |
| Cases cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Whitford & Whitford (1979) FLC 90-612 |
| Applicant: | MS KABLER |
| Respondent: | MR KABLER |
| File Number: | BRC 8280 of 2012 |
| Judgment of: | Judge Lapthorn |
| Hearing dates: | 11 November 2019, 30 January 2020 and 9 March 2020 |
| Date of Last Submission: | 9 March 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 26 June 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Self represented |
| Solicitors for the Respondent: | Self represented |
ORDERS
The applicant’s application for leave to proceed out of time pursuant to section 44(3) be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Kabler & Kabler is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 8280 of 2012
| MS KABLER |
Applicant
And
| MR KABLER |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Ms Kabler, is hopeful of obtaining a property adjustment order as a consequence of the breakdown of her marriage to the respondent, Mr Kabler. In order to do so she will firstly need leave to bring her application as it is out of time. The parties were divorced on 25 August 2013. Any application for property adjustment orders was required to be filed by 25 August 2014. The respondent opposes the application.
The application that came before me was filed 3 December 2018 some four years and three months out of time. However, this was not the first application filed by the applicant in this court. On 11 September 2012 she filed an Initiating Application seeking parenting orders but filed a Notice of Discontinuance on 18 January 2013. She filed an Application for Divorce on 9 April 2013 and an Application in a Case on 8 May 2013. A new Initiating Application seeking parenting orders was filed on 10 April 2015 with an amended application filed 25 September 2015. On 31 August 2016 this application was further amended to introduce property proceedings including an application for leave to proceed out of time. At this point in time the application was two years out of date. Final parenting orders were made by Judge Spelleken on 1 November 2016 and amended on 15 December 2016. These orders did not address the property application but the court’s computer system recorded all outstanding proceedings as having been finalised when the parenting orders were made. The applicant said she did not understand that the property application had also been finalised which is understandable as no orders were in fact made in relation to this application. It was purely an administrative error. I shall return to the implications of that error later in this judgment.
Documents relied on
The applicant relied on her:
a)Case Outline filed 30 October 2019;
b)Initiating Application filed 3 December 2018;
c)Affidavits filed:
i)6 November 2019;
ii)10 October 2019; and
iii)3 December 2018.
d)Financial Statement filed 3 December 2018.
The respondent relied on his:
a)Response filed 17 June 2019;
b)Affidavit filed 17 June 2019; and
c)Financial Statement filed 17 June 2019.
Legal Approach
By virtue of section 44(3) of the Family Law Act1975 (“the Act”) any application for a property adjustment order under section 79 of the Act must be made within 12 months of a divorce order coming into effect. If a party wishes to pursue such a claim outside of that time limit they would need to obtain the court’s leave to do so. The court is not to grant that leave unless it is satisfied that hardship would be caused to a party of the marriage or a child if the leave is not granted.[1]
[1] S. 44(4)
The jurisprudence in relation to the granting of such leave is well established. [2] The Court is required to consider the following matters:
a)Whether the applicant has established a prima facie case for the orders sought if the application had been brought in time;
b)Whether the applicant would suffer hardship if the application is not granted;
c)Whether the applicant has adequately explained the delay in bringing the application; and
d)What prejudice, if any, would fall on the respondent if the leave was granted.
[2] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Jacenko & Jacenko (1986) FLC 91-776; Oxenham & Oxenham [2009] FamCAFC 167; Sharp & Sharp [2011] FamCAFC 150, (2011) 50 Fam LR 567; and Edmunds & Edmunds [2018] FamCAFC 121
In Sharp & Sharp[3] May and Ainslie-Wallace JJ held:
[17] It is well accepted that hardship for these purposes is more than the loss of a right to commence proceedings. It is the consequences attending the loss of the right to commence proceedings that constitutes hardship. That is a matter to be determined by the circumstances of the particular case.
[3] [2011] FamCAFC 150, (2011) 50 Fam LR 567
The court is required to consider an applicant’s prospects of success in the context of his or her circumstances.[4] An applicant does not have to show that any loss suffered by a refusal to grant leave would be substantial in monetary terms. In Hall & Hall[5] the Full Court[6] held that a court considering the preliminary question did not need to find that the application will ultimately be successful and went on to say:
Similarly it needs to be borne in mind that the prospect of success need not relate to the whole of the proposed claim. It is sufficient if it relates to some part or aspect of it which in the context of the facts of the individual case is of significance.
It is therefore an inquiry as to whether in the particular circumstances of the case in question the applicant would suffer hardship by the refusal to grant leave which s.44(4) permits the court to grant. As all of the authorities point out, the fact that the applicant demonstrates that he or she has a reasonable claim to present to the court is not necessarily the same thing, although that is an important aspect of the matter. That circumstance must then be considered in the light of all of the facts in determining whether at this particular stage the applicant would suffer hardship by the application being refused. That involves amongst other matters some consideration of the then financial and other circumstances of both parties.
[4] See Whitford & Whitford (1979) FLC 90-612
[5] (1979) 5 FamLR 411, (1979) FLC 90-679
[6] Evatt CJ, Fogarty and Yuill JJ
The decision to grant the leave is a discretionary one. In Hall the Full Court said:
If hardship of the required type is established then the court may grant the leave but it has a discretion to refuse to do so and in considering the exercise of that discretion it would take into account any other relevant matters, but basically the question whether there is a reasonable explanation of the delay and the question of prejudice which may have occurred to the respondent as a consequence. Other facts may be relevant in an individual case, such as, for example, any prior order or provision made, and the discretion has to be exercised on the basis of the facts of that particular case.
The fundamental question in any application of this nature is whether granting an extension of time will do justice between the parties. In Montano & Kinross[7] Murphy J writing for the Full Court[8] said:
[14] Like many applications for indulgence, an application for leave to apply after the end of the standard application period requires the Court to exercise its discretion in a manner that, ultimately, is consistent with justice being done to both parties. The potential for injustice to the applicant being unable to pursue the remedy precluded by the refusal to grant leave must be compared to the prejudice to the respondent in the granting of leave. So, too, good or legitimate reasons for failing to do that which the Act requires must be compared with wilful blindness or recalcitrance. Equally, a desire to pursue a remedy out of time must be compared to the necessity for parties to proceed with their post-separation lives free of the spectre of prospective litigation, (see, for example, Gallo v Dawson (1990) 93 ALR 479, and the statutory requirements in section 81 of the Act).
[15] This Full Court spoke in Whitford of “such matters as” the “length of delay, the reasons for the delay and prejudice occasioned the respondent by reason of the delay and the strength of the applicant’s case and the degree of hardship which would be suffered unless leave were granted”. All of those matters were said by the Court to be “matters which affect the exercise of the discretion”. Yet, this Court was at pains there to point out that those considerations were not exclusive of the matters to be considered in the exercise of the broad discretion; an overall requirement to do justice between the parties is the ultimate criterion. The strength or weakness of, or the relative weight to be attached to, those various matters in the exercise of the discretion must necessarily depend on the facts of the particular case. This court said explicitly in Whitford that “these matters are not necessarily the only ones”.
[7] [2014] FamCAFC 231
[8] Ainslee-Wallace, Murphy and Tree JJ
Background
The applicant is 39 years of age having been born in 1981 in Country A. The respondent was born in 1975 and is 44 years of age. The parties met and commenced their relationship in 2005 in Country A. In 2005 the respondent moved to Country B for employment. In 2006 the applicant joined the respondent and they commenced living together. They married in 2007 in Country B.
The respondent worked as a tradesman and was the sole income earner for the parties as the applicant’s visa prevented her from working in Country B. The evidence of the parties differed in relation to their life in Country B with the applicant claiming they lived in poor circumstances, sharing a home with another couple and having limited furniture and possessions. The respondent on the other hand said that the applicant was the one in charge of the household finances and that they had the assistance of a maid to help with household chores. He said they sent money to support their families and paid for relatives to visit. The applicant agreed they had the assistance of a maid.
Their first child, X was born in Country B in 2007.
The respondent moved to Australia in 2008 on a work visa. It is the applicant’s case that she assisted him to find this employment. The applicant returned to Country A for three months before joining her husband in Australia in 2008. X travelled with the applicant to Australia. Her visa was dependent on the respondent continuing to work in Australia on his 457 Visa.
The applicant gave evidence of difficult financial circumstances notwithstanding the respondent earning a good income. She claimed he would send money to his family and continued to restrict her access to money. She annexed some Western Union receipts which she said proved the husband was sending money overseas. These receipts suggest $3,753.45 was sent between 2010 and 2011. The respondent claimed funds were sent to both families and his income both in Country B and Australia helped members of the applicant’s family to travel to be with them.
The respondent however gave evidence of financially supporting their child and the applicant in Country A whilst he obtained his trades license in Australia and on their arrival in this country he fulfilled the role of sole income earner for the family applying his wage to rental, utilities, medical expenses, insurance and childcare fees. The respondent annexed a number invoices and receipts to support his claim. As a condition of the parties’ visa they were not eligible for Medicare assistance and the family’s private medical costs were met through the respondent’s income including all of the costs associated with the pregnancy and birth of the parties’ second child, Y who was born in 2010 and is now nine years of age.
In 2008 the parties commenced a small business run from their home allowing the applicant to also care for their child. This business was registered in the applicant’s name. In 2010 the applicant completed the relevant qualifications for this business. The costs of these studies were met by the respondent’s income. The applicant gave evidence that her annual income from the business was approximately $15,000 which she applied towards groceries and general living expenses.
The parties also undertook an English language course in 2009 which was paid for through the respondent’s income and his income was also used to pay the fees associated with the family’s permanent residency application. He also gave evidence of the applicant providing a tithe to her church notwithstanding her claim of financial difficulties. He claimed that in 2010 the applicant was able to save money for return airfares for her mother between Country A and Australia. Additionally the respondent said the applicant was able to provide $5,000 in 2011 to assist towards her sister’s immigration to Australia.
The parties separated on a final basis on 6 January 2012 making their relationship one of six years. They were divorced on 25 August 2013.
At the time of the hearing before me, the applicant was living in a suburb of Brisbane and the respondent was living in the Region C.
Reason for delay
The respondent gave evidence that he attempted to initiate settlement discussions regarding the parties’ property upon separation in 2012 but such overtures were rejected by the applicant. He annexed a copy of a letter sent to the applicant from his solicitors in July 2012. This letter dealt with parenting matters but also included a request for the respondent to attend at the former matrimonial home to collect some personal belongings. I am not satisfied this letter amounted to a request to negotiate property issues between the parties.
The applicant’s evidence in relation to the reason for the delay in filing her application is multifaceted and at times conflicting. The divorce order was made on 24 July 2013 and came into effect on 25 August 2013. The applicant received the order soon after it was made. As in all divorce orders it contained the following notation:
If a party to the marriage proposes to make an application to a court exercising jurisdiction under the Family Law Act 1975 as to property or as to the maintenance of that party, such application must be made within 12 months from the date upon which this divorce order takes effect. After that time such an application cannot be made without first obtaining the leave of the court to do so.
The applicant gave evidence that when she received the divorce order she thought the reference to property in the notation was a reference to real estate. She was not aware that it included other possessions including superannuation.
She gave evidence that it was not until 2016 that she received legal advice as to her ability to pursue an application for property adjustment. She spoke of her understanding as to the limited rights that women are afforded in her home nation of Country A which she said formed the basis for her belief as to her entitlements in Australia. In Country A, she said, a woman is not entitled to bring an application for property settlement, superannuation or ‘house entitlement’ if the property was purchased by the husband. She believed that women are not entitled to child support in that country and simply leave the former matrimonial home as they are generally not the primary income earner. I make no finding as to the nature of family law in Country A but include this in the judgment as to the applicant’s stated belief.
The applicant also gave evidence of having been diagnosed with Post Traumatic Stress Disorder (“PTSD”) as a consequence of family violence inflicted upon her by the respondent. She annexed to her affidavit documents from the Queensland Department of Health Region C Adult Mental Health Service, The D Counselling Centre and her general medical practitioner. None of these documents corroborate the applicant’s claim to having been diagnosed with PTSD. They do show however that she had been receiving counselling for her mental health which she had claimed was affected by family violence. The counselling took place during 2011 when the parties were still living together. There was an inference in the letter written by her general practitioner that she had been diagnosed with depression but there was nothing in the evidence before the court that would enable me to find that the applicant had been diagnosed with PTSD.
In her affidavit filed 10 October 2019 the applicant said:
[26] With the assistance of the Community Legal Centre I attempted to file an Initiating Application with the Federal Circuit Court in late 2016. I filed the documents by posting them to the Court and I moved house about 2 months later. Unbeknown to me at the time the Court Registry had not accepted my documents for service and had written to my last address notifying me of this.
[27] Given that I had not been through this process before I did not know how long the process would take so I did not think to follow up with the Court regarding the documents.
[28] About this time I met a new partner Mr E and fell pregnant fairly soon after starting the relationship. Mr E also became domestically violent to me. He would punch walls, yell at me, smash up furniture and other objects and socially control me. I separated from Mr E in 2018.
[29] Once I start to recover from that domestic violence [sic] relationship I then made further enquiries about the financial settlement documents I filed with the Court. I became aware on 12 November 2018 that these documents were not actually accepted by the Court. Since filing the documents I have contacted the Registry on at least five (5) occasions to enquire about the progress of my application. Each time, aside from the last, I was informed that the application was “in progress.”
I therefore did not believe that I needed to do anything further. It was not until the final call in November 2018 that I was informed that in actual fact the documents were not accepted for filing. I was informed that the Registry had posted a letter to my previous residence at F Street, Suburb G addressing some errors in the documents and notifying me that they were not filed. The Registry has forwarded me the content of this letter via email on 12 November 2018.
Annexed hereto and marked “K-003” is true and correct copy of the email dated 12 November 2018.
[30] At the time of the attempt to file the property application the parenting matter was ongoing between Mr E and I and I sought that the property application be dealt with at the same time as the parenting.
I am not satisfied that the applicant’s interpretation of events is entirely accurate. The letter informing her of the requisitioned documents was sent in January 2015 long before she says she received advice about property proceedings. A careful reading of the requisition letter establishes the documents requisitioned related to parenting proceedings. Doing the best I can, I am satisfied that the applicant attempted to file an Initiating Application for parenting proceedings in late 2014 or early 2015 which was requisitioned. This was resolved when she managed to lodge an Initiating Application that was accepted for filing on 10 April 2015. This application related to parenting proceedings only. When she amended her application on 25 September 2015 she did not seek to include any orders for property adjustment or leave to do so. However when she amended her application on 31 August 2016, proceedings for property orders were introduced including asking the court’s leave to proceed out of time. This would be consistent with her assertion that she obtained legal advice around this time. It would seem that the leave to proceed out of time was not dealt with as a discrete issue and that part of her application travelled along with the parenting proceedings.
When the matter came before Judge Spelleken for trial call-over on 1 November 2016 the parties, including an Independent Children’s Lawyer, reached agreement on all parenting issues save for the location of changeovers for the children to spend time with the father. Her Honour made orders by consent and adjourned the issue of handovers for determination in chambers. No party raised the outstanding property issue with her Honour on 1 November although the property proceedings were part of the call-over. When judgement was delivered in relation to the outstanding parenting matter the court’s computer system recorded all outstanding applications as being finalised thereby capturing the outstanding property proceedings as well. This was an administrative error. Given neither party was legally represented it is not surprising they did not appreciate their property proceedings had been finalised in error.
Further errors from the court compounded the applicant’s prosecution of her property case in that when she made enquiries with the registry she was informed that it was in progress and then eventually in November 2018 she was informed that her application had been requisitioned in 2015 which clearly related to another application altogether. Although that information was factually wrong, the applicant, correctly believing she had no application before the court, wasted no time in filing a fresh application. On 3 December 2018 she filed her application for leave to proceed out of time which was the application that came before me.
I accept the applicant’s submission that she should not be held responsible for delay from late 2016 to late 2018 as this was occasioned by errors made by the court. Whilst litigants must take responsibility for the conduct of their own litigation, in this case it is clear that the court has made a number of errors which compounded the applicant’s understanding of her proceedings in the context of her not being legally represented.
I propose therefore to consider the issue of delay as being from 25 August 2014, by which time the application should have been filed, to 31 August 2016, which is when the amended application was filed first introducing the property proceedings.
The period of delay was therefore of two years duration. In that time the applicant had lodged an application for divorce and two initiating applications for parenting orders as a self-represented litigant. She also amended her parenting application in 2015. The applicant is an educated woman with tertiary qualifications. In the documents from the Adult Mental Health Service annexed to her affidavit filed 3 December 2018 she is described as a well-educated, articulate woman. That observation accords with my own observation of her. I do not accept her claim that a lack of understanding of her rights to bring an application for property settlement contributed to the delay in filing an application for property orders.
The applicant further claimed that she was suffering PTSD which impacted her ability to bring this application. There is no evidence before the court of any such diagnosis nor any evidence of ongoing treatment for depression after separation. Given the applicant was able to bring the other applications during this time I am not satisfied the applicant has established she was unable to bring her property application in time or closer to the time in which the application should have been brought. I therefore make a finding that she has not adequately explained the delay.
Prima facie case
The parties commenced their relationship with no assets and no liabilities. The assets that they had acquired by separation included household goods, two vehicles and some modest superannuation. At separation the husband retained a vehicle, his superannuation and minimal personal items. The applicant retained the remaining assets.
The applicant asked the court to accept that she would have had a prima facie case in relation to property settlement if her application was filed in time.
Her primary submission was that she had made both non-financial and financial contributions, as contemplated in s.79, such as the following:
a)She maintained the parties’ home in Country B and Australia, albeit with the assistance of a maid in Country B.
b)She has been the primary care provider for the children during and after separation.
c)She supported and assisted the respondent to obtain employment in Australia.
d)She contributed to the household finances through her business.
A further aspect of her claim would be her future needs considerations under s.75(2) primarily in the context of her ongoing primary care of the children.
Although the respondent gave evidence as to his significant financial contributions as the primary income earner I am satisfied that the applicant has a prima facie case in so far as the issues of contributions and future needs are concerned.
That of course needs to be seen in the context of the pool of assets and liabilities. Apart from superannuation, neither party has any significant asset. In fact their debts appear to exceed their assets. The applicant appears to be cognizant of this and suggests in her material she is seeking a superannuation splitting order from the respondent’s superannuation. There is no evidence before the court as to the balance of his superannuation at this point in time but given the parties have been separated for eight years and he has been employed throughout that time an inference can be drawn that it is now much higher than it was when they separated. Most of it however would be considered to be acquired post separation without any contribution by the applicant. Even if the court was persuaded to make a superannuation splitting order the extent of it would not be anywhere near as high as the applicant indicated in her material where she said she would be seeking half of the husband’s superannuation. Whilst the applicant does not need to show that her claim would achieve a substantial sum in monetary terms the likely outcome is a relevant consideration particularly when weighing up the consequential prejudice to the respondent.
Hardship
The applicant made submissions that she and the children would suffer financial hardship if leave was not granted. She has the primary care of the parties’ two children and also has another child from a subsequent relationship. The applicant holds tertiary qualifications. She described her current employment as a public servant.
The state of the applicant’s evidence and the time it has taken for the matter to be heard has made assessing her income difficult. At the time of filing of her financial statement on 3 December she said her income was $705 per week derived from Centrelink benefits and child support. She had $200 in the bank, a $20,000 motor vehicle and household contents to the value of $2,000. She said her Superannuation amounted to $10,000. Her liabilities were said to be a $6,000 personal loan, a $4,000 debt to Radio Rentals, and a motor vehicle loan of $40,000 which exceeded the vehicle’s value. In the personal expenditure section of the Financial Statement she said her weekly expenses amounted to $731 but this did not include the figures set out in Part N of that document. In that part she estimated her other expenses, for herself and the children, amounted to $940. This figure includes $500 per week for the children’s education. They attend a private school. On these figures the applicant’s expenses would amount to $1,671 per week.
However in her affidavit filed 10 October 2019 the applicant said that she had household contents to the value of $3,000 and her superannuation had reduced to $8,000 but was to be further reduced upon an application for release of funds due to hardship. She did not value her vehicle, saying only that it had a negative equity. Her evidence was that she continued to have debts: a personal bank loan of $5,000, a loan to Radio Rentals of $3,000, outstanding school fees of $4,000 and the car loan of $30,000.
The applicant informed the court that after the birth of her third child she did not return to work and began to fall behind on her vehicle loan. She negotiated a financial hardship arrangement with the finance provider which was due to conclude in November 2019 when she intended to return the vehicle so it would be auctioned to reduce the loan debt. The applicant would then remain liable for any outstanding monies owed. In this event she intended to negotiate a further payment plan.
The applicant said that she needed a motor vehicle as the children’s school was 7.7km away from her home and is not serviced by public transport. She intended to use the money released from her superannuation fund to purchase a second hand motor vehicle and pay school fees.
There is no doubt the applicant is currently experiencing financial hardship. If her application is allowed to proceed and is ultimately successful she will receive some relief to that hardship although it is unlikely to be fully relieved. When I take into account her financial position I am satisfied the applicant has established she would suffer hardship if she was not granted the leave to proceed.
Hardship caused to Respondent
The Respondent is a tradesman living the Suburb H area. He gave evidence in his Financial Statement filed 17 June 2019 that he earned $1,649 per week in wages and allowances from his employer. He has expenses of $1,312 a week which included $225 for child support. That figure however did not include the sum of $317 per week set out in Part N of the form. This would bring his expenses to $1,629 per week. He does not own any real estate. His stated assets were $500 in the bank, household contents of $3,000. He gave a nil value to his motor vehicle. He did not give evidence of the current value of his superannuation at the time of filing his Financial Statement but said that at the time of separation it was valued at $20,372. His liabilities were said to amount to $32,708 being mostly made up of a car loan.
The respondent said that when he separated from the applicant he left with two plastic storage containers with his possessions of no substantial financial value and his motor vehicle which he lived in until he found rental accommodation. He said the applicant retained the following:
a)A Motor Vehicle 1;
b)All of the home and contents including:
i)Furniture;
ii)Double door fridge;
iii)Professional tools;
iv)Text books;
v)A music system; and
c)The financial and non-financial proceeds from the applicant’s business.
The 2016 parenting orders provide for the children to spend time with the respondent each alternate weekend from Friday to Sunday and half of the school holidays. His evidence was that the applicant has not always been compliant with the orders and since she had given birth to her third child she had not facilitated the children’s handovers at Suburb J but instead required him to do all of the travel which amounted to a 400km round trip at both the beginning and end of the periods of time. This added considerably to his fuel costs and wear and tear on his motor vehicle which he estimated at around $7,888 a year.
The respondent gave evidence that he pays for the children’s private medical insurance at a cost of $142 per fortnight or $3,692 per year. His post separation contributions in relation to the cost of travel and medical insurance would be a consideration in any application for property adjustment.
Although the respondent earns a greater income than the applicant, his financial circumstances, other than superannuation, are not much better than hers. If the leave is granted he will be put to the expense of responding to the application and have to carry the burden of ongoing litigation.
It is important that people are free to get on with their lives after separation without the fear of having to face litigation years afterwards. In this case though that consideration is tempered by the fact that I have considered the delay to be from 2014 to 2016 rather than 2018 when the applicant filed her second application for leave to proceed out of time because of the court’s error in finalising her first application without hearing it. Even taking that into account however I am satisfied the respondent would suffer prejudice if the leave was to be granted.
Conclusion
This has been a difficult decision to determine because the court can see that the applicant is in a difficult financial position and I have found that she would suffer hardship if the leave is not granted. However when I weigh up my findings that she has not adequately explained her reason for the delay between 2014 and 2016, the prospect of a modest superannuation splitting order being made, if at all, and the prejudice to the respondent in having to respond to the application given his own financial circumstances I have decided to exercise my discretion and decline to grant the leave sought. Accordingly the application will be dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Associate:
Date: 26 June 2020
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