KELK & STEHN
[2019] FamCAFC 23
•15 February 2019
FAMILY COURT OF AUSTRALIA
| KELK & STEHN | [2019] FamCAFC 23 |
| FAMILY LAW – APPEAL – LEAVE TO APPEAL – PROPERTY – Where the appellant complains that she was not afforded procedural fairness or natural justice and the primary judge did not apply the correct principles when dismissing her substantive application – Where the appellant did not comply with the orders of the court but there was confusion about the orders made and the orders were not sent by the court to the appellant’s legal representatives on the record – Where the primary judge had no regard to what the appellant did to ready her case for trial and it was the respondent who had failed to do anything in that regard – Where the primary judge dismissed the appellant’s application without proper notice, without adequate or accurate reasons and without giving her the opportunity to present her case – Where there is merit in the grounds of appeal – Appeal allowed – Matter remitted for rehearing by a judge other than the primary judge. FAMILY LAW – EVIDENCE – Further Evidence – Where the only part of the affidavit comprising the further evidence with any relevance to the application for leave to appeal and the appeal is the section detailing the circumstances surrounding the appellant’s non-compliance with the orders of the primary judge – Where the balance of the affidavit was either inadmissible or irrelevant – Where leave to appeal is to be granted and the appeal allowed it is therefore unnecessary to receive any further evidence – Application dismissed. FAMILY LAW – COSTS – Where the appellant sought an order for costs if leave was granted and the appeal allowed and in the alternative sought a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1975 (Cth) – Where the respondent opposed an order for costs being made but joined in the application for costs certificates – Where the appeal is being allowed on an error of law and there should be no order for costs – Where it is appropriate for both parties to have costs certificates for the appeal but not for the rehearing given that the hearing of the appellant’s substantive application is yet to take place – Costs certificates granted. |
| Family Law Act 1975 (Cth) s 117(1) Federal Proceedings (Costs) Act 1975 (Cth) ss 6 and 9 |
| Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170; [1981] HCA 39 Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Bass & Bass [2016] FamCAFC 64 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76 Lindon v Commonwealth of Australia (No. 2) 136 ALR 251 Lindsey & Christie [2016] FamCAFC 132 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 Rutherford and Rutherford (1991) FLC 92-255; [1991] FamCA 68 State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146; [1997] HCA 1 |
| APPELLANT: | Ms Kelk |
| RESPONDENT: | Mr Stehn |
| FILE NUMBER: | DGC | 4025 | of | 2015 |
| APPEAL NUMBER: | SOA | 102 | of | 2017 |
| DATE DELIVERED: | 15 February 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 6 August 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 November 2017 |
| LOWER COURT MNC: | [2017] FCCA 3367 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Liederman | |
| SOLICITOR FOR THE APPELLANT: | Goldman & Co Lawyers | |
| COUNSEL FOR THE RESPONDENT: | Mr Devries | |
| SOLICITOR FOR THE RESPONDENT: | Gurpal Singh | |
Orders
The applications in an appeal filed respectively on 29 June 2018 and 18 July 2018 be dismissed.
Leave to appeal be granted.
The appeal be allowed.
Paragraph 2 of the order made on 24 November 2017 be set aside and the proceedings for property settlement be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge O’Sullivan.
There be no order as to costs.
The Court grants to the applicant/appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the applicant/appellant in respect of the costs incurred by her in relation to this appeal.
The Court grants to the respondent a cost certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to this appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kelk & Stehn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 102 of 2017
File Number: DGC 4025 of 2015
| Ms Kelk |
Appellant
And
| Mr Stehn |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Kelk (“the wife”) seeks leave to appeal, and if leave is granted, appeals against an order made by Judge O’Sullivan on 24 November 2017 in property settlement proceedings between the wife and Mr Stehn (“the husband”).
The order appealed against dismissed the wife’s application filed on 28 December 2015 seeking final orders for property settlement, and the husband’s response filed on 8 April 2016.
The Notice of Appeal was filed on 21 December 2017, but at the hearing of the appeal leave was given to the wife to rely on three amended grounds of appeal set out in paragraph 8 of her further amended written summary of argument filed on 18 July 2018.
Leave was also given to the wife at the hearing to rely on new orders sought in the appeal set out in that same summary of argument, with the addition of an order seeking a remitter if the appeal was successful.
The application for leave to appeal is opposed by the husband, as is the appeal if leave is granted.
On 29 June 2018 the wife filed an Application in an Appeal seeking leave to adduce further evidence. That application is also opposed by the husband.
On 18 July 2018 the wife filed an Application in an Appeal seeking leave to issue a subpoena and a Notice to Produce. However, that application was not pursued, and it will be dismissed.
Background
The parties were born overseas, and they married in December 2010.
The wife migrated to Australia in November 2011, and the parties commenced to live in Australia at that time.
The parties separated on 7 October 2013, and a divorce order was made on in December 2015.
On 28 December 2015 the wife filed an application seeking orders for property settlement in the Family Court of Australia. Her solicitors were F Lawyers.
On 8 April 2016 the husband filed a response.
On 13 May 2016 the wife changed solicitors, and E Lawyers filed a Notice of Address for Service as her new solicitors.
On 31 May 2016 the proceedings were transferred to the Federal Circuit Court of Australia.
On 29 August 2016 orders were made by the primary judge, including an order setting the matter down for final hearing over two days commencing on 28 August 2017, and orders to prepare the matter for that hearing.
On 7 June 2017 the husband filed an application seeking an anti-suit injunction restraining the wife from pursuing criminal proceedings overseas instigated by her raising a complaint of bigamy and breach of trust against the husband.
On 21 July 2017 the husband filed a further application seeking an adjournment of the proceedings pending completion of the criminal proceedings, and, inter alia, orders providing for the parties to file all relevant documents for the purposes of the final hearing on property settlement within 28 days.
On 22 July 2017 the wife’s solicitor withdrew, and she instructed new solicitors, Goldman Lawyers, who filed a Notice of Address for Service on 25 July 2017.
On 2 August 2017 the wife filed her affidavit of evidence-in-chief, then provided discovery, paid the court trial fees, and on 28 August 2017 filed a case outline.
On 28 August 2017 the primary judge made orders providing for the obtaining of an expert report as to the proceedings in India for the purpose of considering the anti-suit injunction, dismissing the application filed on 21 July 2017, and adjourning the application filed on 7 June 2017 to 24 November 2017.
On 24 November 2017 the expert report was provided, and his Honour dismissed the application for an anti-suit injunction on the bases that either the application was doomed to fail, or there had been non-compliance by the parties with orders of the court in relation to that application.
His Honour then dismissed the wife’s application for orders for property settlement, and the husband’s response thereto on the basis of non-compliance with the orders of the court made on 29 August 2016.
Leave to appeal
There is uncertainty as to the test to be applied in determining whether to grant leave to appeal. For many years the test in this Court was that emanating from the Full Court decision of Rutherford and Rutherford (1991) FLC 92-255, namely, whether there has been an error of principle and/or substantial injustice caused.
Of recent times, a test that has been promoted is whether, in all the circumstances, the decision below is attended by sufficient doubt to warrant it being reconsidered, and whether substantial injustice would result if leave was refused, supposing the decision to be wrong (Medlow & Medlow (2016) FLC 93-692, but see Lindsey & Christie [2016] FamCAFC 132).
However, as has been emphasised by the Full Court in Bass & Bass [2016] FamCAFC 64 there cannot be “a test of universal application to be rigidly applied” given that “[t]he adoption of a prescriptive approach, even in relation to appellate courts reviewing decisions pertaining to practice and procedure, was considered by the High Court to be ‘unnecessary and indeed unwise’” (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 at 177, Bass at [87]).
Here, in summary, the facts relied on in support of the application for leave to appeal are as follows:
a)The wife was only provided with “short minutes of order” and not with all of the orders made on 29 August 2016, and she was not aware of the requirements and the timeframes set out in those orders.
b)The wife’s affidavit of evidence-in-chief was filed before the final hearing date albeit after the deadline provided for in the orders of 29 August 2016.
c)The primary judge did not dismiss the proceedings on 28 August 2017, but rather, made orders for an expert report to be prepared in relation to the application for an anti-suit injunction filed by the husband, and adjourned that matter to 24 November 2017. On that day, after dismissing that application, the primary judge dismissed the wife’s application for an order for property settlement.
d)The wife is now not able to pursue an application for orders for property settlement.
In considering the application for leave it is necessary to address the merits or otherwise of the grounds of appeal, particularly given that the application and the appeal were heard together.
The appeal
As referred to above there are now three grounds of appeal. However, it is unnecessary to consider Ground 3 because that is not a ground that can be maintained.
The Ground is as follows:
The applicant has suffered a substantial injustice as a result of her application being dismissed.
The “substantial injustice” is that the wife in not able to pursue her application for an order for property settlement, but that plainly is a matter that goes to the question of whether leave to appeal should be granted, rather than being a proper ground of appeal raising appealable error by the primary judge.
That though leaves Grounds 1 and 2 which are as follows:
Ground 1
The judge failed to apply the correct principles when dismissing the substantive application of the applicant.
Ground 2
The applicant was not afforded procedural fairness or natural justice, resulting in her application being dismissed.
Conveniently, those two grounds can be addressed together.
His Honour dismissed the wife’s application on 24 November 2017 because of non-compliance with the orders of the court made on 29 August 2016.
There is no doubt that the wife failed to comply with those orders, but it is important to understand what in fact happened, and then to look at how his Honour dealt with that.
When those orders were made, the wife’s solicitors were E Lawyers. They had filed a Notice of Address for Service on 13 May 2016, and they had instructed counsel, Mr Smith, to appear for the wife on 29 August 2016.
There was confusion as to the orders that his Honour made on that day, and what the wife was aware of.
There was an “ORDERS AND DIRECTIONS” document which the two counsel completed and handed to the court and which provided for the dates of the final hearing to be inserted, for the payment of a hearing fee, for the wife to file and serve all affidavits and all other material to be relied upon by no later than 28 days prior to the trial date, for the husband to do the same no later than 14 days prior to the trial date, and for both parties to file and serve outline of case documents no later than 72 hours prior to the trial date.
That document is the “short minutes of order” that the wife has referred to in her application for leave to appeal.
However, that was not the order made by his Honour. His Honour made orders in terms of what he described as “the Brisbane directions”, and which were handed to counsel during the course of the hearing (see Transcript 29 August 2016, p. 4 line 38, and p.5 lines 22 – 23).
Those orders comprised an expansive schedule setting out in precise detail what each party was required to do and by when in order to prepare the matter for final hearing. It did though provide for the filing and serving of affidavit material by the wife at least 28 days before the final hearing, namely, the same as was provided for in the “short minutes of order”.
However, the engrossed order was not sent by the court to the wife’s then solicitors, despite their Notice of Address for Service being on file, but rather to her former solicitors, F Lawyers, and it seems that those solicitors failed to forward those orders to the wife’s solicitors, E Lawyers.
The wife (and her solicitors) thereafter operated not on the expansive orders, but on the “short minutes of order”, and her solicitors sent that document to her in or about May 2017.
Of course, the wife’s solicitors should have been aware that there was far more required in order to prepare for trial than was contained in those “orders”, but it seems that that was not conveyed to the wife.
On 22 June 2017 the wife’s solicitors, E Lawyers, filed a Notice of Intention to Withdraw as her solicitors, which they then did, and the wife instructed new solicitors, namely Goldman Lawyers, who filed a Notice of Address for Service on 25 July 2017.
The wife, through her new solicitors, then filed her affidavit of evidence-in-chief on 2 August 2017. That was just outside the 28 day period provided for in both the “short minutes of order” and the actual orders.
The wife says that she subsequently became aware through her new solicitors of the terms of the actual order made on 29 August 2016, and a few days before the date set for the trial, she produced all her financial documents to the husband, paid the court trial fee, and then submitted a case outline at the hearing on 28 August 2017. Thus, albeit that order of 29 August 2016 had not been strictly complied with by the wife, she was ready to proceed to trial, but the husband was not; he had not complied with any of the orders made on 29 August 2016, but he of course had filed an application seeking an anti-suit injunction, and then an application seeking an adjournment of the proceedings for reasons related not to the substantive proceedings and their readiness for trial, but to do with the anti-suit injunction.
At the commencement of the hearing on 28 August 2017, the transcript indicates that his Honour delivered a judgment, but that judgment is not part of the appeal record, and despite exhaustive enquiries it cannot be found. Thus, I am unaware of what the judgment dealt with.
In any event, the transcript then indicates that there were some discussions between counsel for each of the parties in an attempt to settle the substantive proceedings, but that was unsuccessful because the husband wanted to pursue his application for an anti-suit injunction first.
His Honour then embarked on a consideration of that application, and that exercise took up almost the entirety of the hearing, and very little was said about the substantive application. At one point there was this exchange between his Honour and the wife’s counsel:
MS HOWE: And so we would like to pursue the property application, which is before the court. This is now an application - - -
HIS HONOUR: If, Ms Howe, you had been in a position today where your client and your instructor had complied with the orders I had made last year, then you would have been able to agitate such an application but, as was made clear in the orders that I made last year, if you haven’t, one of the options I have is of simply dismissing the - - -
MS HOWE: I understand.
HIS HONOUR: Which, of course, is what Mr Singh’s client wants, in the alternative.
MS HOWE; I understand that.
HIS HONOUR: Yes.
(Transcript 28 August 2017, p.8 lines 15 – 31)
Further, in identifying what orders his Honour would make that day, his Honour said this:
HIS HONOUR: All right. What I will do is I will:
(1) vacate the return date of the applicant in a case, filed 7 June;
(2) dismiss the review application, filed 9 June;
(3) adjourn the application in a case, filed 21 July, to hearing on 24 November;
I have already set out the factual and procedural background in this matter. On any description, as I noted earlier, the parties haven’t complied with the orders and directions for trial. …
(Transcript 28 August 2017, p.11 lines 23 – 29)
And then finally this exchange occurred:
MS HOWE: Your Honour, so I just ask – you’ve adjourned the application in a case to 24 November, but we still have the substantive application that is before the court, which wasn’t resolved today.
HIS HONOUR: Yes. That’s in purgatory, at the moment.
MS HOWE: Okay. So that’s just – we will set the date, perhaps, on 24 November.
HIS HONOUR: If it’s necessary to do.
MS HOWE: If it’s necessary. I understand that. So in terms of any more filing of material, I’m just very conscious that the parties haven’t – I just don’t – my client indicated - - -
HIS HONOUR: But what else would need to be filed?
MS HOWE: Well, I would hope nothing, but I just to make sure that their situation doesn’t arise again.
HIS HONOUR: Well, I made orders in August of last year, that no material be filed other than in accordance with those orders, and nobody bothered to follow that.
MS HOWE: Well, my instructions are that my client did change lawyers, and the lawyers that were provided with a copy of the court orders actually weren’t her lawyers at the time, and they haven’t been provided to her or provided them to my instructor.
HIS HONOUR: Instructions aren’t evidence.
MS HOWE: No. They’re not, your Honour. I accept that.
HIS HONOUR: And your client was represented when those orders were made, and I’m entitled, therefore, to assume that she got advice on and was told and, therefore, understood what those orders required her to do, including in the event that she changed lawyers.
MS HOWE: Yes. Thank you, your Honour.
(Transcript 28 August 2017, p.12 lines 4 – 40)
Apart from these comments his Honour did not address at all the substantive proceedings, and relevantly he made no order in relation to them. All his Honour did was to include this amongst a number of notations:
C.The parties had not complied with the orders for trial made 29 August 2016.
Further, the only application that was adjourned to 24 November 2017 was the husband’s application filed on 7 June 2017 seeking an anti-suit injunction. In that regard, I note that his Honour became confused as to what application he was considering. As can be seen from that part of the transcript quoted at [50] above, his Honour indicated that he would be adjourning the application filed on 21 July 2017 which was the application filed by the husband seeking an adjournment, and not the application for an anti-suit injunction which, to repeat, was filed on 7 June 2017. His Honour though got it right in the actual order that he made, but when his Honour made his orders on 24 November 2017 he again became confused because he dismissed the application filed on 21 July 2017, rather than the application filed on 7 June 2017. This is concerning in itself, but fortunately that confusion does not affect the appeal because there is no appeal against that order.
However, to return to the order that his Honour did, or rather did not make, it seems that despite there being no order in relation to the substantive proceedings, the parties proceeded on the basis that those proceedings were also adjourned to 24 November 2017.
On 24 November 2017, to repeat, his Honour dismissed the husband’s application filed on 21 July 2017 when he should have dismissed the application filed on 7 June 2017, and his Honour dismissed the wife’s application for an order for property settlement filed on 28 December 2015 and the husband’s response thereto filed on 8 April 2016. It is this latter order of course which is the subject of this appeal.
Importantly, at the hearing on 24 November 2017 his Honour did not seek any submissions from counsel as to the substantive proceedings and after making some remarks from the bench which included the following:
On 28 August this year, this court made orders for the court today to determine an application in a case brought by the respondent in the substantive proceedings for an anti-suit injunction against the applicant wife in the substantive proceedings. That application was filed very close to what has been the trial date fixed for the applicant’s property settlement application, but to describe the applicant’s discharge of and compliance with the orders for that purpose as adequate would be a gross misrepresentation. At no stage during the conduct of the substantive proceedings was either the applicant or the respondent in compliance with the orders that the court had made for the determination of that part of these proceedings.
(Transcript 24 November 2017, p.2 lines 16 – 24)
he proceeded to deliver reasons for judgment and make orders which dealt with both the Application in a Case, and the substantive proceedings.
In those reasons for judgment, although his Honour said a good deal about the role of the Federal Circuit Court of Australia, the principles that that court applies, and how that court deals with non-compliance, his Honour said very little about the substantive proceedings per se. For example, when detailing the history of the matter his Honour said this at [9]:
9.The orders made on 29 August 2016 speak for themselves. Those orders which set the matter down for trial for the dispute over property settlement on 28 August 2017 were designed to crystallize the issues between the parties and ensure all evidence was before the Court. They also made clear there were consequences for non compliance. The parties did not comply with those orders. Notwithstanding what was clearly set out in the orders made on 29 August 2016, the applicant filed nothing with the Court in compliance with those orders. Indeed, there was nothing that was filed until 31 May 2017 when new solicitors went on the record for the respondent.
Then, at [13] his Honour said this:
13.The correspondence between the solicitors then on the record for the parties occurred over 11 June 2017, 7 July 2017 and 14 July 2017. As noted earlier, on 25 July 2017, the current solicitors for the applicant filed a notice of address for service. After doing so, and on 2 August 2017 they purported to file an affidavit on behalf of the applicant which was in clear defiance of the orders made on 29 August 2016. When the parties came to Court for the date that had been set back in 2016 for the trial (28 August 2017), both parties were represented. It was clear that the respondent wished to agitate the issue/s raised in the most recent application in a case and the application for an antisuit injunction.
Next, at [18] his Honour commented as follows:
…The proceedings were listed today to deal with the antisuit injunction application but the non compliance by the parties with the orders for trial continued and remained an issue. …
As can be seen, apart from simply mentioning the filing of the affidavit on 2 August 2017, those comments pay no regard to what the wife did to get the case ready for trial, and the exchange at the hearing on 28 August 2017 between his Honour and the wife’s counsel set out at [51] above.
Then, having referred to the relevant rules of court, and relevant authorities, his Honour dealt with the husband’s application for an anti-suit injunction and said this:
31.That is not the end of the matter because of non-compliance with the orders of the Court, and having regard to the history of this matter, the substantive application should also be dismissed.
32.The parties have repeatedly failed to comply with orders made by the Court. Pursuant to rr.13.03A(1), 13.03B(1), and/or 13.03A(2), and/or 13.03B(2)(d) of the Rules this provides sufficient basis for the Court to dismiss the substantive proceedings on that basis as the parties by their own conduct have shown they are not prepared to cooperate with the Court or comply with court orders which are necessary to bring their respective disputes to a conclusion in a manner consistent with the Rules and the Act which governs the conduct of this Court.
33.The applicant’s solicitor did not take issue with the above and when given the opportunity to do so only sought to raise one issue. The applicant’s solicitor told the Court he was “instructed” his client had done everything possible to comply with the Court’s orders. The applicant’s solicitor claimed his client “never received the orders” and he had “written proof” that she had requested “the orders from her former solicitors”.
34.Putting to one side for present purposes that this explanation had not been proffered before, and there was no affidavit material establishing the claim, the applicant’s solicitor, who had been on the record for many months did not dispute his client had an obligation to ensure her notice of address for service was up to date and that the orders made by the Court had been sent to the address provided by her. There was no basis to make out this claim made by the applicant’s solicitor.[1]
[1] In fact see paragraph 119-120 of the affidavit filed on 2 August 2017 by the applicant prepared by her current solicitor which suggest to the contrary.
In relation to [32] his Honour failed to refer to what the wife in fact did in an attempt to have the matter ready for hearing. Indeed, it was the husband who had done nothing at all in that regard.
In relation to [33], that paragraph paints an incorrect picture of what in fact occurred. There was no opportunity given to the wife to explain her position prior to his Honour delivering his judgment and making the orders. What is recorded in that paragraph was put to his Honour after judgment was delivered and the orders made (see Transcript 24 November 2017, p.4). Indeed, that paragraph and [34] were plainly added subsequent to delivery of the reasons on the day.
In relation to [34], that paragraph is also not correct. The explanation was put to his Honour on 28 August 2017 by counsel, but his Honour dismissed it as being nothing more than “counsel’s instructions”, and not “evidence” (Transcript 28 August 2017, p.12). It was also not open for his Honour to imply that it was the wife’s fault that she had not received the order because her Notice of Address for Service was not up to date. As referred to above, her Notice of Address for Service was up to date, but the court still sent the order to her previous solicitors.
Further, in the footnote his Honour referred to paragraphs 119 – 120 of the wife’s affidavit filed on 2 August 2017 as indicating that there was no basis to the wife’s claim.
Those paragraphs are as follows:
119.DLegal assisted me by writing to the Respondent and his previous lawyer who was acting for him in the divorce. I wanted to negotiate a property settlement however after three follow ups made by DLegal and after the letter was returned to them it was early December 2015 leaving me with limited time to prepare my application.
120.At or around June 2017 I approached Goldman Weiss & Co Lawyers to carry my matter forward after my solicitor at DLegal was no longer able to represent me.
I fail to see how those paragraphs “suggest to the contrary”. There is of course an error in paragraph 120, namely the solicitor who was “no longer able to represent [the wife]” was from E Lawyers and not F Lawyers. However, that cannot be what his Honour was referring to.
It is plain from this recitation of the history of the matter and how his Honour addressed the substantive proceedings, that grounds of appeal one and two are made out.
In relation to Ground 2, his Honour failed to afford the wife procedural fairness in how he dealt with her application for an order for property settlement. In dismissing the application on 24 November 2017 his Honour failed to provide the wife with the opportunity to present her case as to why that should not happen (Allesch v Maunz (2000) 203 CLR 172 per Kirby J at [35]), and that failure was also apparent on 28 August 2017.
At no stage did his Honour properly address the wife’s non-compliance with the order made on 29 August 2016. The time to do that was on 28 August 2017, but as can be seen his Honour failed to do so, and omitted to make any order at all in relation to the substantive proceedings. That failure was then compounded on 24 November 2017 when his Honour made the order dismissing the application without any proper notice, without adequate or indeed accurate reasons, and without giving any opportunity to the wife to present her case.
It is submitted on behalf of the husband that when his Honour adjourned the matter at 11:16 am on 24 November 2017 until 2:00pm, his Honour gave notice that he would be dismissing the substantive proceedings. However, that submission is misconceived. What his Honour indicated was that unless the expert report in relation to the application for an anti-suit injunction was produced that day, he would be dismissing both the application and the substantive proceedings. The report was produced, and his Honour then dealt with that, but without any notice dismissed the substantive proceedings.
As for Ground 1, in dismissing the application his Honour failed to take into account that, “it is a serious matter to deprive a person of access to the courts of law…” (Lindon v Commonwealth of Australia (No. 2) 136 ALR 251 per Kirby J at [14]).
Further, as Kirby J said in State of Queensland v J L Holdings (1997) 189 CLR 146 at [7]:
While taking all of the considerations relevant to the circumstances of the case into account, the judge must always be careful to retain that flexibility which is the hallmark of justice. New considerations for the exercise of judicial discretion in such cases have been identified in recent years. But the abiding judicial duty remains the same. A judge who ignores the modern imperatives of the efficient conduct of litigation may unconsciously work an injustice on one of the parties, or litigants generally, and on the public. But a judge who applies case management rules too rigidly may ignore the fallible world in which legal disputes arise and in which they must be resolved.
The wife not only had a story to tell as to why there had been non-compliance with the order of 29 August 2016, but once she was aware of what was required, albeit she was then out of time, she made every effort to prepare and file the necessary documents, and ensure that the matter was ready for the final hearing. Further, it must not be forgotten that she filed her affidavit of evidence-in-chief on 2 August 2017, just a day or two late. However, his Honour had no regard to this and, as identified above, failed to give the wife a proper opportunity to present her case as to why her application should not be dismissed.
Conclusion
Having found merit in the grounds of appeal, leave to appeal must be granted regardless of what test is applied, and the appeal allowed. The order dismissing the wife’s application should then be set aside and the substantive proceedings remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge O’Sullivan.
Application in an appeal seeking leave to lead further evidence
In the application filed by the wife on 29 June 2018, the further evidence that she sought to adduce was set out in her affidavit filed on that same day. The only part of that affidavit that had any relevance to the application for leave to appeal and the appeal, and which could be received as further evidence, was the evidence that addressed “the facts and circumstances” of her non-compliance with the order of 29 August 2016, and her attempts to rectify that.
The balance of the affidavit was either inadmissible, or irrelevant to the application for leave to appeal and the appeal, and was not able to be received pursuant to the principles established by the High Court of Australia in CDJ v VAJ (1998) 197 CLR 172.
However, given that I propose to grant leave to appeal and allow the appeal, it is unnecessary to receive any of the further evidence, and thus the application should be dismissed.
Costs
At the conclusion of the hearing I sought submissions from the parties as to the question of costs regardless of the result of the application for leave to appeal and the appeal.
If leave was granted and the appeal allowed the wife sought an order for costs, and in the alternative a costs certificate pursuant to the provision of the Federal Proceedings (Costs) Act 1981 (Cth).
The husband opposed an order for costs being made, but joined in making an application for a costs certificate.
It was not unreasonable for the husband to oppose the appeal, and given that the appeal is being allowed on an error of law committed by the primary judge, I consider that s 117(1) of the Family Law Act 1975 (Cth) should apply, and there should be no order for costs. However, it is appropriate for both parties to have costs certificates for the appeal, but given that the hearing of the wife’s application is yet to take place, there is no basis for the parties to have costs certificates for that hearing, which will now take place.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 15 February 2019.
Associate:
Date: 15 February 2019
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