KHADEM & DABIRI
[2020] FamCAFC 321
•16 December 2020
FAMILY COURT OF AUSTRALIA
| KHADEM & DABIRI | [2020] FamCAFC 321 |
| FAMILY LAW – APPEAL – Where the appellant appeals an order dismissing an application – Where that application sought relief in relation to r 15.31 of the Federal Circuit Court Rules 2001 (Cth) – Where the appeal was conceded – Where this Court is satisfied that the primary judge erred in law – Appeal allowed – Costs certificates granted to each party. FAMILY LAW – LEAVE TO APPEAL – Errors of principle – Where orders effected substantial injustice – Leave to appeal granted. |
| Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9 Federal Circuit Court Rules 2001 (Cth) rr 6.11, 15.31 |
| Hydron Pty Ltd v Harous [2005] SASC 74 Rapid Metal Developments (Australia) Pty Ltd v Griffiths [2005] QDC 48 Rutherford and Rutherford (1991) FLC 92-255; [1991] FamCA 68 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 |
| APPELLANT: | Mr Khadem |
| RESPONDENT: | Ms Dabiri |
| FILE NUMBER: | BRC | 5590 | of | 2018 |
| APPEAL NUMBER: | NOA | 57 | of | 2020 |
| DATE DELIVERED: | 16 December 2020 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Brisbane (via video link) |
| JUDGMENT OF: | Strickland, Kent & Tree JJ |
| HEARING DATE: | 8 December 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 September 2020 |
| LOWER COURT MNC: | [2020] FCCA 2643 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Galloway with Ms Meyers-Young |
| SOLICITOR FOR THE APPELLANT: | AMG Law Firm |
| COUNSEL FOR THE RESPONDENT: | Mr Alexander with Mr Bolovan |
| SOLICITOR FOR THE RESPONDENT: | Smart Legal |
Orders made on 8 December 2020
BY CONSENT IT IS ORDERED THAT:
Leave to appeal be granted.
The appeal be allowed.
The order made by the primary judge on 9 September 2020 be set aside.
AND IT IS FURTHER ORDERED THAT:
The Court grants to the appellant husband a costs certificate pursuant to 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 appellant husband in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent wife a costs certificate pursuant to 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 wife in respect of the costs incurred by her in relation to the 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 Khadem & Dabiri 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 57 of 2020
File Number: BRC 5590 of 2018
| Mr Khadem |
Appellant
And
| Ms Dabiri |
Respondent
REASONS FOR JUDGMENT
Introduction
For reasons delivered ex tempore on 9 September 2020, the primary judge dismissed an Application in a Case filed by Mr Khadem (“the appellant”) on 8 September 2020. That application sought, relevantly, orders in the following terms:
1.Pursuant to Rule 1.06 of the Federal Circuit Court Rules, the [appellant] be excused from the requirement to notify of his dispute concerning facts within the time limited in Rule 15.31, or that time be enlarged to permit him to serve a notice disputing the asserted facts.
2.Further, or in the alternative, the [appellant] shall be granted leave under Rule 15.31(3) to withdraw the deemed admissions made by operation of sub-rule (2).
(As per the original)
From that dismissal, the appellant appealed. Although initially the appeal was resisted by Ms Dabiri (“the respondent”) at the hearing before us on 8 December 2020, counsel for the respondent conceded that it must be allowed.
We then made orders by consent giving the appellant leave to appeal, allowing the appeal, setting aside the primary judge’s orders and affording both parties costs certificates relating to the appeal, albeit we reserved our reasons for doing so. These are those reasons.
Background
The parties were born in Iran. As at the time of the hearing of the application, the appellant was 55 years of age and the respondent 49 years of age.
The respondent commenced property settlement proceedings by Initiating Application filed in the Federal Circuit Court of Australia on 24 May 2018. Thereafter, the parties prepared the matter for trial. A significant issue in contention between them was whether the appellant owned particular real and personal property, both in Iran and elsewhere (“the disputed property”).
On 11 December 2019, the trial of the proceedings was listed to commence on 9 September 2020.
On the evening of Sunday, 13 August 2020, the respondent’s solicitors sent four emails to the appellant’s solicitors, commencing at about 7.00 pm. In total, the four emails attached 64 documents, 63 of which were by way of disclosure, mostly comprising bank statements and the like. The third of those emails was sent at 7.03 pm, and only read “Dear Colleagues, please find attached. Kind regards.” Attached to that email were 21 separate documents, including the Notice to Admit Facts which gave rise to the appellant’s Application in a Case filed 8 September 2020. The title of the pdf attachment which comprised the Notice to Admit Facts was simply “NTA”. The Notice to Admit Facts sought admissions from the appellant that, amongst other things, he owned the disputed property, and its value.
Pursuant to r 15.31(2) of the Federal Circuit Court Rules 2001 (Cth) (“FCCR”), if a notice disputing the facts is not served within 14 days of the request made by the Notice to Admit Facts, then for the purposes of the proceedings, the asserted fact is taken to be admitted by the party who received the notice. In that event, r 15.31(3) permits that party to subsequently seek the Court’s leave to withdraw the deemed admission.
The appellant did not serve a discrete notice disputing facts upon the respondent until 8 September 2020, however, as we shall shortly discuss, in his trial affidavit filed on 20 August 2020, he did give evidence contrary to the contentions contained in the respondent’s Notice to Admit Facts. Assuming that the Notice to Admit Facts is properly taken to have been communicated on 14 August 2020 (FCCR r 6.11(1)(f)), the appellant’s discrete notice disputing facts was out of time. The appellant’s solicitor, in an affidavit filed 8 September 2020, says that the discrete notice disputing facts was not served until 8 September 2020 because he did not see the Notice to Admit Facts until 7 September 2020, after being alerted to its existence by a reference to it in the respondent’s case outline.
That then precipitated the application of 8 September 2020, which was determined at the commencement of the trial of the property settlement proceedings before the primary judge. Having dismissed the appellant’s application, on 10 September 2020, his Honour adjourned the trial pending the determination of this appeal.
Why the appeal succeeded, and leave to appeal granted
In the course of the primary judge’s reasons, his Honour demonstrated that he was unaware that, in the appellant’s trial affidavit filed 20 August 2020, the appellant had rejected the respondent’s contentions about the disputed property. For instance, at [46] his Honour said that the appellant had “not provided any evidence in relation to the issues subject to the admission” and at [48] noted that the appellant’s “trial affidavit contains no information or denial in relation to” the disputed property.
However the appellant’s trial affidavit at paragraphs 39–48 and 67–72 explicitly traversed the respondent’s contentions about the disputed property in a way which clearly denied them. That error by the primary judge was, of itself, sufficient to mandate the success of the appeal by reference to Ground 3.
However that error led to a more fundamental one which, although unhelpfully to his Honour was not identified by the appellant and thus was not the subject of submission by the appellant before the primary judge, nonetheless led to his Honour not considering whether or not those paragraphs in the appellant’s trial affidavit constituted notice disputing the facts contended in the Notice to Admit Facts. We should note that although this matter was not raised by any ground of appeal, consistent with Warren v Coombes (1979) 142 CLR 531, we raised it with the parties at the commencement of the hearing of the appeal, after which it was conceded by the respondent.
Rule 15.31 of the FCCR deals with Notices to Admit Facts and disputes to them in the following terms:
15.31 Notice to admit facts or documents
(1)A party to a proceeding (the first party) may, by notice in accordance with the approved form, ask another party to admit, for the proceeding, the facts or documents specified in the notice.
(2)If the other party does not, within 14 days, serve a notice on the first party disputing the fact or the authenticity of the document, the other party is taken to admit, for the proceeding only, the fact or the authenticity of the document.
…
It will be appreciated that the rule contemplates a prescribed form for the Notice to Admit Facts, but not the notice disputing the facts.
Whilst we would not wish to encourage any practice of using affidavits as the vehicle for disputing facts the subject of a Notice to Admit Facts, nonetheless we are satisfied that, in this case, such comprised sufficient notice to the respondent,[1] and was given within the 14 day period. In any event, the paragraphs in the appellant’s trial affidavit were necessarily a significant relevant consideration in the determination of the appellant’s application, and by failing to have regard to them, the primary judge further erred in law.
[1] cf.Hydron Pty Ltd v Harous [2005] SASC 74 at [20], where the notice disputing facts referred to previous affidavits, unlike here, where the affidavit was filed and served after the Notice to Admit Facts.
Those were errors of principle effecting a substantial injustice to the appellant (Rutherford and Rutherford (1991) FLC 92-255) thereby justifying an order for leave to appeal.
Before concluding, we must take this opportunity to remark upon the means by which the Notice to Admit Facts was provided to the appellant, and particularly its inclusion with 63 items of disclosure, and the failure of the email attaching it to draw attention to the notice in any way.
In an analogous context dealing with a deemed admission arising from pleadings McGill SC DCJ in Rapid Metal Developments (Australia) Pty Ltd v Griffiths [2005] QDC 48 observed that it is good practice to provide notice that a deemed admission is to be relied on at trial, stating at [16] and [17]:
16.In my opinion a party intending to rely on a deemed admission under r 189(2) [of the Uniform Civil Procedure Rules 1999] at a trial should always give reasonable notice of that intention to the other party. This is not a requirement of the rules, but in my opinion it is a requirement of good practice, calculated to avoid wasting time and costs, and in particular calculated to avoid wasting the court’s time as happened here. If proper notice is given, a party intending to make an application under r 189(3) can do so in the appropriate place and at the appropriate time, that is, before the applications court, and prior to the trial. It gives the party time to assemble the necessary material for the application before the hearing of it, instead of trying to do it on the run, and it also means that the outcome of the application is known prior to the trial, so that whatever the outcome the parties ought to be able to proceed with the trial on the date on which it is set down.
17.A defendant who is seriously interested in defending a claim ought to respond to a notice to admit, but sometimes things go wrong, and there is a failure properly to dispute facts which are genuinely in dispute. This was an example of that situation. In such a case, giving notice of intention to rely on the deemed admission a reasonable time prior to the trial would in my opinion be good practice for a plaintiff, and would avoid the waste of time which occurred in the present case.
(Footnote omitted)
The same considerations apply with equal force in respect of a Notice to Admit Facts in family law jurisdictions. Further, if a Notice to Admit Facts is, even innocently, effectively concealed amongst a plethora of other documents then the concealing party should not expect to easily retain any forensic advantage thereby obtained.
Outcome
Because the appeal succeeds on the basis that the primary judge erred in law by not recognising that the appellant’s trial affidavit comprised sufficient notice disputing the respondent’s Notice to Admit Facts, other than setting aside the primary judge’s orders of 9 September 2020, no other order was required, as the appellant’s application of 8 September 2020 was otiose, and thus need not be
re-determined.
The trial can therefore now proceed.
Costs
The appeal succeeded on a point of law. Both parties sought costs certificates in respect of the appeal, and we being persuaded that the relevant provisions of the Federal Proceedings Costs Act 1981 (Cth) were satisfied, made orders accordingly.
I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Kent & Tree JJ) delivered on 16 December 2020.
Associate:
Date: 16 December 2020
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