KAY (BY HER LITIGATION GUARDIAN) & KAY & ANOR
[2015] FCCA 3622
•2 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAY (BY HER LITIGATION GUARDIAN) & KAY & ANOR | [2015] FCCA 3622 |
| Catchwords: PRACTICE AND PROCEDURE – Adjournment – Application for adjournment refused. |
| Legislation: Federal Circuit Court Rules 2001 r.11.03 |
| Cases cited: Kay & Kay [2014] FCCA 2797 |
| Applicant: | MS KAY (BY HER LITIGATION GUARDIAN) |
Respondent: Intervenor: | MR KAY MR KAY |
| File Number: | WOC 923 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 2 April 2015 |
| Date of Last Submission: | 2 April 2015 |
| Delivered at: | Wollongong |
| Delivered on: | 2 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Campton SC |
| Solicitors for the Applicant: | Kells the Lawyers |
| Counsel for the Respondent: | Mr Harper |
| Solicitors for the Respondent: | Fulcrum Legal |
| Counsel for the Intervenor: | Ms Humphreys |
| Solicitors for the Intervenor: | Hansons Lawyers |
ORDERS
MR KAY is joined as Second Respondent.
The Application for an adjournment is refused.
IT IS NOTED that publication of this judgment under the pseudonym Kay & Kay & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
SYC 923 of 2013
| MS KAY |
Applicant
And
| MR KAY |
Respondent
And
| MR KAY |
Intervenor
REASONS FOR JUDGMENT
Application in a Case
This is an Application by the parties’ son, Mr Kay, to be joined as a party to the proceedings. I note that whether or not Mr Kay was to be joined as a party is not a new issue. His Honour Judge Altobelli referred to it in his decision of 5th December after an interim hearing conducted on 12th November 2014 (Kay & Kay[1]). At paragraph [19] of his judgment his Honour said:
The order seeking leave to join the son as a third party on the basis of the benefit that he received from the sale proceeds of the Property L property was an order that was opposed with little enthusiasm. Even the son’s evidence concedes that he received the sale proceeds of the Property L property and applied it towards his property at Property C. It may well be that he will contend that the application of funds was pursuant to some sort of agreement with, and between, his parents, but that is ultimately for evidence and the making of findings. There appears no reason on the evidence before the Court at the moment, that would preclude him being so joined.[2]
[1] [2014] FCCA 2797
[2] [2014] FCCA 2797 at [19
I also note the letter that was submitted by Ms Humphreys of Counsel as Exhibit 4 being a letter from the Applicant’s solicitors, Kells, to Mr Kay himself of 15th December 2014 in which in the ante-penultimate paragraph the solicitors say:
We advise that you should seek independent legal advice in relation to this matter and the enclosed documents and should consider intervention in these proceedings.
In the penultimate paragraph the solicitors go on to say:
We advise the matter is listed for final hearing on 2 April 2015 in the Federal Circuit Court at Wollongong.
In all the circumstances, in the interests of the administration of justice, I am of the view that the Court should permit Mr Kay to be joined as a party and he will be referred to as the Second Respondent.
I have a little while ago made an order granting the application in a case brought by the party who is now the Second Respondent permitting him to be joined as a party. The Application was supported by an affidavit which appears to have been prepared in accordance with the rules, in particular rule 11.03. The Second Respondent, as he now is, has previously deposed to an affidavit in these proceedings as recently as 18th March which was filed at this Court and presumably served on the other parties the following day.
The Second Respondent seeks an adjournment of the proceedings today and that is opposed by Senior Counsel for the Applicant who has made submissions of some length relating to the laches or delay on the part of the Second Respondent in bringing this application and indeed, if the Court were disposed to grant an adjournment, the Applicant would seek an order for costs because it is quite clear that an adjournment today would mean costs thrown away, costs thrown away on the part of the Applicant and on the part of the Respondent. As Mr Campton of Senior Counsel has pointed out, Mr Harper of Counsel is here with his instructor and is here ready to go.
Delay seems to be very much a feature of this case and I have read in the Second Respondent’s affidavit of 30th March his explanation for the delay in bringing this application at the last minute and it most definitely is at the last minute. The Application in a Case and the supporting affidavit were filed on 31st March, the day before yesterday. It is well known that these proceedings were listed for hearing on a final basis today by Judge Altobelli. I expressed the view earlier that that appeared to me to be rather optimistic with respect to his Honour but I fear that events have proven me right.
It seems to me that the explanation given by the Second Respondent for his delay in making this application is less than satisfactory. He says he had a meeting with his father’s solicitor and his Counsel on 23rd March and it was recommended to him that it would be appropriate for him to obtain his own independent advice in order to ensure that his interests in the proceedings were protected but that was not the first meeting that he had had, certainly with the Father’s solicitor. He had deposed to an affidavit on 18th March that was witnessed by the solicitor and it is fair to assume that he gave instructions for the affidavit either earlier that day or at an earlier time.
What is significant, however, is that this issue of the Second Respondent becoming a party is not an issue that has just arisen in the last couple of days, far from it. I have previously referred to an order made Judge Altobelli in his decision of 5th December 2014 where in the final sentence of paragraph 19 his Honour said of the Second Respondent, as he now is:
There appears no reason on the evidence before the Court at the moment that would preclude him being so joined.
In my view, with respect to his Honour, the Court made it quite clear that this was a matter to which the Second Respondent should turn his mind. If there were a need for that message to be driven home, it can be found in the letter from the Applicant’s solicitors of 15th December 2014 where they advised the Second Respondent the matter was listed for final hearing today, but had said:
We advise that you should seek independent legal advice in relation to this matter and the enclosed documents and should consider intervention in these proceedings.
That advice again could not have been more clear. So by 15th December 2014 the Second Respondent should have been well and truly aware that if he wished to do something to protect his interests in these proceedings, then he should bring an application. I note from the decision of Judge Altobelli of 5th December that he gave directions relating to the amendment of the Initiating Application which, in fact, did take place and that Amended Application was filed on 12th December and subsequently brought to the attention of the Second Respondent. His Honour confirmed that the matter remained listed for final hearing on 2nd April; he made other directions for hearing and adjourned the Application to 9:30am on 3rd February 2015 for mention.
In my view, that is the date upon which the Second Respondent’s Application in a Case should have been returnable. The documents should have been filed prior to 3rd February. The matter could have been brought to the Court’s attention on that date. The parties would have had the opportunity to give their views as to whether the Application should be acceded to or not and his Honour could then have made directions as to the ongoing progress of the matter. He may or may not have come to the view that the proceedings required additional time than the one day allocated, but his Honour was not able to do that because the application was not before him on 3rd February.
The Second Respondent now says that having been joined as a party, he needs an adjournment so that he can take what further steps he needs to get his case on. The fact that he is in this predicament today, if indeed it is a predicament, is not the fault of the Applicant, it is not the fault of the First Respondent. They are here, ready to go. The responsibility lies entirely with the Second Respondent.
This is not a case where the Second Respondent has not got any affidavit on because he has. He deposed to an affidavit as recently as 18th March albeit when he was still a witness in his father’s case. What would change? There is no submission made that as his status has changed that he would wish to provide some further evidence by way of the affidavit of another person. The fact that the affidavit was drafted by a solicitor other than the solicitor who now acts for him is, in my opinion, neither here nor there. It happens quite frequently in this jurisdiction and in all of the jurisdictions in which this Court sits that parties for one reason or another change their legal representation and proceed on their original documents.
The Second Respondent has not filed a financial statement. I recall Mr Campton of Senior Counsel suggesting that that was not of very great import and in the circumstances I am inclined to agree. There is certainly material that has been produced by subpoena and I have dealt previously today with objections to those subpoenas and I have set aside the notices of objection. So there is material available.
The Second Respondent has, of course, not filed a Response but the Court knows and the parties know what order or orders that he seeks. Draft orders are annexed to his affidavit of 30th March. The fact that a Response has not been filed does not, in my view, take the matter any further. The other parties to the proceedings, who are here and ready to proceed, have been given a very good idea of what orders the Second Respondent wants. They know what his evidence is going to be. The fact that there is no financial statement does not, in my view, take the matter much further.
It has been put to me that there would be a prejudice, certainly to the Applicant, if the matter does not proceed. The Applicant and the First Respondent are not young people. I am informed that they are not in particularly good health. If I adjourn the matter today, the Applicant’s costs and the First Respondent’s costs would be thrown away. Even if an order for costs were to be made, that would not, to my view, be an adequate way of responding to the matter. It has been suggested that costs should be reserved. I have seldom been of the view that reserving costs is a beneficial procedure. There may be occasions when it is appropriate. Frequently, reservation of costs is not appropriate.
Even if the Court were to make an order for costs on the basis of indemnity costs and I have not considered that any further, to my mind that would not make up for the fact that a hearing date has effectively been thrown away without any evidence being heard on the substantive matter but only on interlocutory matters.
Mr Campton of Senior Counsel raised the concern as to whether if I were to adjourn the matter, it would go into the docket of another judge. It would not. My view is that I have commenced the matter, I am part-heard. What that means is that the hearing dates before me, and I suggest before anyone of my learned colleagues, should be used wisely and effectively.
It is not without my notice that the Second Respondent is, in fact, just that; He is a respondent. The Applicant, through her litigation guardian, is here to present her case. There is still time today for the Applicant’s case to start and the Applicant’s case will start. I refuse the application for an adjournment.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 22 July 2016
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