Keir & Ramsay (No 5)
[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 publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Keir & Ramsay has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
INTRODUCTION
These are proceedings for the adjustment of property between Ms Keir (“the applicant”) and Mr Ramsay (“the respondent”) pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”) subsequent to the termination of their de facto relationship at some time between December 2016 (on the respondent’s case) and September 2019 (on the applicant’s case) listed for final trial to commence today over three days in the Sydney Rolling List. Consolidated with the s 90SM dispute are transferred proceedings initiated by the respondent in the Federal Court of Australia on 18 November 2020, claiming for oppression as a shareholder of G Pty Ltd (“G Pty Ltd”) and M Pty Ltd (“M Pty Ltd”).
By way of an Application in a Proceeding filed 24 February 2023 the respondent today seeks an adjournment of the trial. These reasons determine that Application in a Proceeding.
When the matter came before me on 20 September 2022 for the hearing of the respondent’s Application in a Proceeding filed on 12 September 2022 he was not legally represented. In circumstances where a final Apprehended Domestic Violence Order (“ADVO”) was made in the Local Court at Town D in mid-2022, restricting and prohibiting the conduct of the respondent against the applicant, the mandatory aspects of s 102NA(2)(ii) of the Act were engaged. These reasons assume familiarity with the ex tempore reasons delivered on that date (see Keir & Ramsay (No 2) [2022] FedCFamC1F 730). Over the respondent’s objection, an order was made on that date that prohibiting the respondent from engaging personally in the cross-examination of the applicant pursuant to s 102NA, and requiring the respondent to:
6.Within seven days of the date of these orders, [the respondent] is to complete the "Scheme Application Form" and provide that form to Legal Aid NSW ([…@…]) for the allocation of a legal practitioner.
On 20 September 2022, further orders were made listing the proceedings for trial over three days to commence today. Extensive directions were made for the filing of material to be relied on for the purpose of the trial, including affidavits, Financial Statements and a joint balance sheet setting out each party’s contentions as to the identity and asserted value of their property available for adjustment.
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.
In compliance with orders made by Judge Turner on 26 May 2020, the parties attended mediation with an accredited Family Dispute Resolution Practitioner in mid-2020. They did not resolve their disputes on that date.
On 17 September 2020, orders were made directing the distribution of the proceeds of sale of the Suburb C property owned by the respondent, such that the sum of $250,000 was to be retained by his solicitors in a trust account pending further order and the balance of the proceeds of sale were to be paid to the respondent. Further orders progressing the matter were made on that date, including as to the appointment of single expert valuers to value the parties’ commercial and real estate interests.
As recorded, the respondent filed a claim for oppression as a shareholder of G Pty Ltd and M Pty Ltd in the Federal Court of Australia in November 2020. Those proceedings have been transferred to this forum for determination as part of the s 90SM dispute by way of orders made in the Federal Court on 10 February 2021. The claim is defended by the applicant. Neither corporation has engaged or appeared in the proceedings in this forum.
On 10 February 2021 the matter was transferred from the Federal Circuit Court to what was then the Family Court of Australia.
On 24 March 2021 the applicant filed an Application in a Proceeding seeking a raft of injunctions against the respondent, including that he be restrained from producing, and distributing any content relating to the applicant, her solicitors, and her family or friends, and that he remove any such content already distributed online. She also sought an interim distribution from the respondent of $100,000 by way of interim costs and lump sum maintenance. She made allegations that the respondent had, after the parties separated, distributed intimate video footage of the applicant without her consent by way of submitting the footage to various film festivals and providing it to the applicant’s family, her solicitors, and others. For his part the respondent contends that by way of international transfer and distribution agreements entered on 1 March 2021, the parties and the relevant corporations rights in relation to [redacted] films and products have been disposed of.
Justice Rees on 20 April 2021 made orders inter alia restraining the respondent from producing, publishing or disseminating any material relating to the applicant and directing that he cause to be removed and dispose himself of any such media already in his possession or already published or distributed. Her Honour also ordered that the parties facilitate the sum of $50,000 to be paid to the applicant from the proceeds of sale of the Suburb C property, such payment being a payment pursuant to s 117 of the Act.
On 12 August 2021 the parties attended a Conciliation Conference before a registrar of this Court. They were unable to resolve the matter on this date.
The proceedings were allocated to my docket in April 2022.
On 23 May 2022, for reasons then delivered, orders were made facilitating the appointment of a litigation guardian for the respondent pursuant to Pt 3.5 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). That determination was made in circumstances where he became an inpatient in the N Centre at S Hospital from early 2022. He was discharged from N Centre in mid-2022. By the time the matter was before me again on 20 September 2022, it was appropriate and an order was made for the discharge of the litigation guardian for the respondent’s benefit. As recorded, the matter was listed for trial and directions made on that date.
THE RESPONDENT’S ADJOURNMENT APPLICATION
On 24 February 2023 the respondent filed an Application in a Proceeding seeking the following orders:
1. That this application be listed on an urgent basis.
2. That short service of the Respondent be allowed.
3. That the Final Hearing listed in the Rolling List before Justice Campton on 13 March 2023 be vacated.
4. That the proceedings be listed for Final Hearing on a date not less than 60 days from 13 March 2023.
(As per the original)
The respondent’s Application in a Proceeding was supported by an affidavit prepared with the assistance of his solicitor then on the record, Mr NN. Mr NN had been instructed by the respondent after he terminated or withdrew his instructions with LL Lawyers, or they had ceased to accept those instructions. That affidavit recorded that the respondent had engaged Mr NN solely for the purpose of making an application for an adjournment of the trial dates and that Mr NN was unavailable to appear at the trial. A Notice of Address for Service was filed by Mr NN on the respondent’s behalf on 23 February 2023, and a Notice of Ceasing to Act subsequently filed on 3 March 2023 (which became Exhibit 2 in the proceedings today). Mr NN appeared on the hearing of a subpoena objection on 17 February 2023.
In his affidavit filed 24 February 2023, the respondent set out a chronology of events which he said lead to him become unrepresented in the immediate shadow of the trial, being:
(a)In or around late 2022, the respondent’s s 102NA grant was allocated to “Mr OO”. This evidence was inaccurate. On 24 October 2022, Mr KK of LL Lawyers filed a Notice of Address for Service on behalf of the respondent.
(b)In late 2022, the respondent sent an email to Mr KK and received an automated response informing him that Mr KK was on annual leave for a period in late 2022.
(c)Between two dates in late 2022, the respondent sent a number of emails to Mr KK, to which he said he had no reply;
(d)The next day, in late 2022, “an application was made to Legal Aid for funding [the respondent’s] final hearing”.
(e)A short time later, in 2022, the respondent had a “disagreement” with Mr KK about “the contents of [his] trial affidavit”;
(f)The office of LL Lawyers closed for the summer break between 23 December 2022 and 9 January 2023;
(g)The respondent’s trial affidavit was filed on 27 January 2023;
(h)Between the filing of the respondent’s trial affidavit and the following week, the respondent and Mr KK had “further disagreements… regarding pre-trial disclosure”.
(i)On 6 February 2023, being approximately five weeks prior to the final hearing, Mr KK sent the respondent a Notice of Ceasing to Act. LL Lawyers filed that Notice on 14 February 2023.
(j)In the days following his receipt of the Notice of Ceasing to Act, the respondent made enquiries with “solicitors who might be able to take the matter on”, including Mr NN.
In early 2023, my chambers received an email from Mr NN which had been sent with the consent or at least knowledge of the applicant and was marked as Exhibit 1. That email read:
Dear Associate,
I have received instructions and a transfer of Legal Aid on behalf of [the respondent] in the matter of [Keir & Ramsay] - CRC8/2020 – 22307.
I note that this matter is listed before His Honour on 13 March 2023 for Hearing Directions.
[Mr OO] (sic) was [Mr Ramsay’s] former solicitor and has filed a Notice of Ceasing to Act.
Solicitors acting on behalf of the Applicant Wife have advised me that it is their understanding the matter will proceed to final hearing on 13 March 2023 in His Honour’s rolling list pursuant to trial directions made in September 2022.
Prior to me filing a Notice of Address for Service in the matter, I kindly request confirmation as to whether this matter is listed for Directions only, or for possible Final Hearing.
This email was sent with the consent of the Applicant’s solicitor.
Kind Regards,
As recorded above, Mr NN subsequently filed a Notice of Address for Service on behalf of the respondent. It is contended that the notice was filed “for the purpose of making the adjournment application only”. I am not aware as to any capacity pursuant to the Rules for a legal representative to file a limited address for service.
It was the respondent’s submission in support of the Application in a Proceeding that he wants to get to trial, that he is happy to negotiate, and that he is aware that he is unable to personally cross-examine the applicant. He contends that the prohibition on his cross-examination of the applicant pursuant to s 102NA of the Act occasions a denial of natural justice and an absence of procedural fairness. I reject that submission. The statutory prohibition established by s 102NA of the Act is just that (see e.g. Lindfield & Romano [2022] FedCFamC1A 81; Manderville & Borah [2021] FedCFamC1A 59, especially at [68]–[74]).
The respondent identifies an absence of prejudice to the applicant in the substantive proceedings in that the current injunction continues to preserve the monies held in the applicant’s solicitor’s trust account, being the balance of the proceeds of sale of the Suburb C property. He also advises, albeit not the subject of evidence, that last Thursday he received hard copies of 15 years’ worth of documents from Westpac bank, which will support his contentions as to the applicant’s inappropriate use and application of funds over the periods of many years, relevant to both the oppression suit and the s 90SM claim. The respondent did not identify why these documents were not obtained earlier in circumstances where the proceedings have been on foot now for many years and he at all material times knew the documents he wished to obtain from Westpac.
The respondent gave evidence in his affidavit that within the week prior to filing his Application in a Proceeding, he had made enquiries with multiple separate firms of solicitors as to their availability to appear on his behalf at trial, “with no success”. He did not particularise the extent nature or context of his enquiries, the identity of the persons with whom he spoke, or any other relevant matter. He did during the course of oral submissions concede that Mr KK had secured Mr PP of counsel to appear at the trial on a s 102NA basis. He has not given any evidence of Mr PP’s continuing availability or as to he now being unavailable to appear.
The applicant filed a Response to an Application in a Proceeding and affidavit in support thereof on 8 March 2023. She sought that the application to adjourn the trial be dismissed and that the trial proceed. She set out in her affidavit her current financial circumstances, including that she has now separated from her last partner. She says that from late 2019 she has lived with various friends while the respondent has continued to live in the jointly held Town F property. She sets out, uncontroversially, that the mortgage on the Town F property is in arrears and that repayments are not being made. She gives evidence as to making an application for hardship to prevent legal action from the mortgagee, QQ Finance, and that the possession proceedings anticipated to be commenced by the mortgagee are on hold until early 2023, being some days into the future. She gives evidence that the mortgagee is aware of the trial listed to commence today and that they require an update from her on 15 March 2023 as to the status of the proceedings.
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.
The applicant’s costs notice filed on 1 March 2023 records that she has incurred legal fees up to the trial of more than $100,000. As recorded, she will incur further fees over the course of the trial by way of counsel, accommodation and travel. There is no doubt that any adjournment of the trial will occasion substantial cost to the applicant by way of fees thrown away.
The Court will be unable to allocate further trial dates until early 2024. That would mandate the filing of updated or further affidavit evidence, obtaining an updating of the single expert evidence as to the valuation of the parties’ real property and hence further costs.
There was no evidence as to any capacity or lack thereof of the respondent to fund his own legal representatives, or of him making any relevant enquiries of such privately funded legal representatives. It was always open to the respondent to apply to seek a release of funds from the proceeds of sale of the Suburb C property to meet his legal fees. As identified earlier in the reasons, it appears that he did not pursue the continued retention of Mr PP appearing as counsel at this trial.
This matter has been ready to proceed to trial since the respondent filed his trial affidavit filed on 27 January 2023. I am not minded in the circumstances to give his recent receipt of documents from Westpac significant weight in relation to his application for adjournment having regard to the history of the proceedings identified earlier in these reasons.
The impact of s 102NA cannot be avoided. The statutory prohibition in that section is cast in mandatory language, such that the respondent will be precluded from personally cross-examining the applicant. That is an unfortunate circumstance that I accept will generate some prejudice against the respondent. That said, to my mind, such prejudice is ultimately a product of the elections he has made over the course of these proceedings. It is really a matter for him to have obtained alternate representation in all the circumstances identified earlier.
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.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 14 March 2023
4
0