Keir & Ramsay (No 5)

Case [2023] FedCFamC1F 150

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Keir & Ramsay (No 5) [2023] FedCFamC1F 150

File number: CRC 8 of 2020
Judgment of: CAMPTON J
Date of judgment: 13 March 2023
Catchwords: FAMILY LAW – PROPERTY – PRACTICE AND PROCEDURE – Application to adjourn the trial dates ­– Where an order pursuant to s 102NA of the Act has been made and the parties are accordingly prohibited from cross-examining one another – Where the respondent is not legally represented as at the date of the trial – Longstanding proceedings adjusting a modest property pool and shareholder oppression claim – Where the prejudice to the respondent occasioned by an inability to cross-examine the applicant is ultimately a product of the elections he has made over the course of these proceedings – Application dismissed.
Legislation:

 Family Law Act 1975 (Cth) ss 90SM, 102NA, 117

Federal Circuit and Family Court of Australia Act2021 (Cth) ss 67, 68

Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) Pt 3.5, r 12.06

Cases cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Keir & Ramsay (No 2) [2022] FedCFamC1F 730

Lindfield & Romano [2022] FedCFamC1A 81

Manderville & Borah [2021] FedCFamC1A 59

Division: Division 1 First Instance
Number of paragraphs: 40
Date of hearing: 13 March 2023
Place: Sydney
Counsel for the Applicant: Mr O’Brien
Solicitor for the Applicant: J Lawyers
The Respondent: Litigant in person

ORDERS

CRC 8 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS KEIR

Applicant
AND:

MR RAMSAY

Respondent

order made by:

CAMPTON J

DATE OF ORDER:

13 March 2023

THE COURT ORDERS THAT:

1.The Application in a Proceeding filed by the respondent on 24 February 2023 is dismissed.

2.The parties are directed to attend an alternate dispute resolution conference with a registrar, today at 2.30 pm at Level 8 in the Sydney Registry.

3.In the event the parties have not already done so, they are directed to exchange in writing before 2.30 pm today offers to compromise all outstanding matters listed for hearing.

4.In the event the matter does not compromise at the alternate dispute resolution conference, the trial is listed to commence before me tomorrow at 10.00 am.

5.The parties are at liberty to relist the proceedings before me by arrangement with my chambers for the making of consent orders today, should that objective be achieved.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to…

Continue reading Keir & Ramsay (No 5)

Sign in free to access the full text

Details
AGLC
Keir & Ramsay (No 5) [2023] FedCFamC1F 150
Case
[2023] FedCFamC1F 150
Decision Date

CaseChat Overview and Summary

Keir & Ramsay (No 5) is a case involving a de facto relationship dispute over property adjustment. The matter has been protracted and complex, with a history of litigation in both the Federal Circuit Court and the Federal Court of Australia. The applicant, Ms Keir, and the respondent, Mr Ramsay, have differing accounts of the start and end of their relationship, as well as their respective contributions to the relationship and its property. The court was tasked with deciding whether to proceed with the trial or to adjourn it, given the respondent's history of changing legal representation and the potential for further delay and cost to the parties.

The court considered the principles of case management and the importance of efficient use of judicial and administrative resources, as mandated by the Federal Circuit and Family Court of Australia Act 2021. The court also took into account the modest value of the property available for adjustment between the parties and their current financial circumstances, which suggested that neither party could afford to pay the mortgage arrears on the jointly held property or continue making repayments. The court found that the potential for delay and the associated costs and mental health toll on the applicant warranted a decision in favour of proceeding with the trial.

In light of the above, the court dismissed the respondent's application to adjourn the trial and directed the parties to engage in an alternative dispute resolution process with a senior judicial registrar. If the parties were unable to reach an agreement, the trial would proceed the following day. The court also considered the costs incurred by the parties and the impact of the litigation on the applicant's mental health and financial situation. The court acknowledged the respondent's history of changing legal representation but found that the overriding consideration was the need to proceed with the trial to avoid further delay and cost.

In conclusion, the court dismissed the respondent's application to adjourn the trial and directed the parties to engage in an alternative dispute resolution process. If the parties were unable to reach an agreement, the trial would proceed the following day. The court considered the principles of case management, the modest value of the property available for adjustment, and the impact of the litigation on the applicant's mental health and financial situation in reaching its decision. The court also acknowledged the respondent's history of changing legal representation but found that the overriding consideration was the need to proceed with the trial to avoid further delay and cost.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Each party has filed their trial affidavit evidence, albeit that the evidence relied upon by the respondent was filed late. No objection to the respondent being granted leave to rely on that late affidavit evidence was taken by the applicant. The respondent’s trial affidavit was prepared by his then solicitor Mr KK of LL Lawyers. The applicant on 25 January 2023 filed a joint balance sheet which appeared to have input by the respondent in compliance with the trial directions. The applicant has filed a Case Outline document. BACKGROUND AND LITIGATION HISTORY The matter has a prolonged and intricate history of litigation in this Court, as well as other courts. For the purpose of this determination a brief overview of that history is required. The applicant by way of an Initiating Application filed on 15 January 2020 in what was the Federal Circuit Court sought orders for property adjustment pursuant to s 90SM of the Act. The respondent by way of a Response to an Initiating Application filed on 25 May 2020 sought other orders as to property adjustment. The applicant asserts a de facto relationship commenced between she and the respondent in mid-2007. The respondent asserts cohabitation commenced in mid-2010. The applicant asserts the de facto relationship between the parties concluded in September 2019. The respondent asserts a termination in December 2016. There are no children of the relationship. The affidavit evidence filed in the litigation to date records disparate evidence of each party as to each of their contributions at the commencement of their relationship and subsequent thereto. Without further investigation to be conducted at trial, the property pool of the parties appears to be modest. It comprises: (a)The modest equity in two real properties, being a jointly held property at AA Street, Town F (“the Town F property”) valued at $850,000 subject to a mortgage of $416,840 (an equity in the range of $430,000), and the fifty per cent share of the applicant in a property at MM Street, DD Town having an agreed value of $21,500. It is uncontroversial that the Town F property was held by the respondent whenever cohabitation commenced, and his 50 per cent interest was transferred to the applicant upon a refinance of the mortgage secured on the property in or about late 2015.(b)Approximately $200,000 held in a trust account of the applicant’s solicitor being the balance of proceeds of sale of a property of the respondent at Suburb C Victoria (“the Suburb C property”);(c)Interests of the parties in G Pty Ltd and M Pty Ltd. As to those corporations: (i)As identified in earlier reasons for judgment, the last published Financial Statements for G Pty Ltd are as at 30 June 2018. They record a loan payable as at that date on an unsecured basis to shareholders of $649,911. The respondent contends he is the shareholder who has loaned those funds to G Pty Ltd. Both he and the applicant agreed during the course of my management of this litigation that G Pty Ltd does not have any assets available at this time to repay any funds should they be called upon by that lender. (ii)The 30 June 2021 Financial Statements of M Pty Ltd do not record what the respondent contends is a loan he made available to that corporation in the sum of about $251,000. It is his case that the Financial Statements of M Pty Ltd as at 30 June 2017 record an unsecured loan payable to him in that amount and that subsequently the applicant in her capacity as a sole shareholder of M Pty Ltd caused that loan to be written out of the corporate accounts. Again, it was agreed during the course of my management of this litigation that M Pty Ltd has any other assets available to repay any demand to repay that loan, if it still exists. (iii)The parties in the joint balance sheet as filed for trial do not record any material value attributable to either corporation. (iv)The evidence at the present time as to the relevant shareholders at the dates of the contended oppression in relation to each enterprise is unclear. The evidence appears to suggest that in or about late 2011 or into 2012, transactions occurred at whereby the applicant obtained 33.3 per cent of the issues shares in G Pty Ltd. I am yet to hear how a minority shareholder can occasion an oppression claim pursuant to the relevant corporations legislation, but that may be an issue for another time.(v)It seems uncontroversial that on the incorporation of M Pty Ltd, each of the parties were equal shareholders and directors of that enterprise, and that its issued shares were thereafter dealt with by the parties. (d)In any event, save and except as to notional addbacks, there is little other current property existing as at today for available for adjustment between the parties.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

To my mind, in all of the circumstances in this case, the potential for delay occasions actual prejudice to the applicant of the kind identified by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (“Aon Risk”). She has done all as required of her to have the matter ready to proceed today. The decision of the High Court in Aon Risk provides authority for courts to take into account case management principles when exercising discretion in procedural applications such as this, even to the prejudice of a party to a particular proceedings. The High Court emphasised that it is not sufficient to pursue just and procedural outcomes merely by reference to the interests of the parties to a particular proceedings. The effects that a procedural decision will have on other litigants and the public’s interest on the use of a court’s resources must also be taken into account. To my mind, the vacation of the trial listed to commence today is counterintuitive to those matters. CONCLUSION On balance and for all of the above reasons, I am of the view that in the interests of justice the trial listed to commence today needs to proceed. These parties should be able to get on with their lives and ensure that their modest remaining property is not eviscerated by further fees and delay. The Application in a Proceeding of the respondent filed on 24 February 2023 will be dismissed. Each party today seeks, should this Application in a Proceeding be dismissed, the opportunity to engage in further alternate dispute resolution with an experienced senior judicial registrar of the court prior to the trial proceeding. Both implicitly contend there is some prospect of a compromised outcome to this long running dispute, and implicitly are bona fide in their desire to resolve the matter without recourse to further litigation. So as to permit the parties to pursue those bona fide intentions, I will direct that they attend an alternate dispute resolution procedure with a senior judicial registrar today. In the event agreement is not achieved, the matter will be adjourned for the commencement of the trial tomorrow before me at 10.00 am.

Ratio Decidendi

Legal Principle Established

It is the applicant’s evidence that she has not received any costs notice by the respondent pursuant to r 12.06 of the Rules, she contending that he has engaged at least eight different lawyers over the course of the litigation. It is her case that the conduct of the respondent has expanded the scope of dispute and increased costs to each party. She sets out in her costs notice filed on 1 March 2023 that she has incurred legal costs of $79,842, $14,699 in disbursements and experts’ fees of $6,600. The applicant identified that she will occur costs in relation to the trial arising from her solicitor flying to Sydney, herself and her solicitor requiring accommodation, and by way of counsel’s fees of appearing today. She further sets out that the proceedings have taken a toll on her mental health and gave evidence as to some of the therapy she has undertaken. She said she is concerned as to the impact of an adjournment on her mental health prognosis. It is the applicant’s evidence, controversially, that she has been forced to relocated from the Town F area due to pressure she says was exerted unlawfully by the respondent. The applicant said her current income is nil and that she had to leave her two casual jobs in Town F, that she owes $20,000 by way of credit card debt, that she has no home and no employment, and that she is trying to sell her car to reduce the credit card debt. Her case is that if the proceedings are adjourned she is unsure as to how she will cope. CONSIDERATION The respondent has been notice as to the final hearing since I made orders listing it as part of the Sydney Rolling List on 20 September 2022. He has been aware since that date that he would not be permitted to personally cross-examine the applicant. The ex tempore reasons delivered on 20 September 2022 record the respondent’s contention at that time that he “may, or is likely to, obtain alternate representation in the future”. He has now been represented by seven or eight separate solicitors, two of which were engaged facilitated through or by Legal Aid pursuant to s 102NA of the Act. This Court and these parties are regulated by the mandates contained in s 68 of the Federal Circuit and Family Court of Australia Act2021 (Cth) (“the FCFCOA Act”), being inter alia that the Court must conduct proceedings in a way that is consistent with the overarching purpose identified in s 67 of the FCFCOA Act. That section provides that the Court is required to ensure that litigation and the management of the Court’s workload occurs according to law as quickly, inexpensively and efficiently as possible. The FCFCOA Act requires the Court to efficiently use its judicial and administrative resources, to be efficient in the disposal of its overall caseload and to ensure the disposal of all proceedings in a timely manner at a cost that is proportionate to the importance and complexity of the matters in dispute. There is nothing particularly complex or unusual about this matter. I take into account the modest value of the current property of the parties that is available for adjustment. Property that has been the subject of pre-disposition in reality has no current realisable value to these parties. The mortgage on the Town F property in arrears. The evidence is that the mortgagee is about to commence possession proceedings. Each of the parties contend they are currently without meaningful means of self-support. Having regard to their current financial circumstances, neither party has a proposal to pay the arrears on the mortgage, nor to continue to meet the mortgage repayments into the future. One wonders how the identified possession proceedings can be avoided.