Kuay-Hoa and Hoa and Ors

[2010] FamCA 1278

FAMILY COURT OF AUSTRALIA

KUAY-HOA & HOA & ORS [2010] FamCA 1278

FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant sought an extension of time to file written submissions – Where the applicant did not file written submissions pursuant to a previous order – Extension of time granted.

APPLICANT: Ms Kuay-Hoa

FIRST RESPONDENT: Mr Hoa

SECOND RESPONDENT: B Pty Ltd

THRID RESPONDENT: Mr C

FOURTH RESPONDENT: Ms D

FILE NUMBER: MLC 931 of 2007

DATE DELIVERED: 25 June 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 25 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms E Swart

SOLICITOR FOR THE APPLICANT: Kennedy Guy

FIRST RESPONDENT: In Person

SECOND AND THIRD RESPONDENTS: No Appearance

FOURTH RESPONDENT: In Person

Orders

1. That the Order made on 5 March 2010 be varied to provide that the applicant file and serve any written submissions by way of final address by not later than 4.00 pm on 29 June 2010.

2. That in the event that a query arises out of the final submissions by any of the parties the matter be listed before me in July 2010 for clarification. Otherwise the decision is reserved.

IT IS NOTED that publication of this judgment under the pseudonym Hoa& Kuay-Hoa and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 931 of 2007

Ms Kuay-Hoa

Applicant

And

Mr Hoa

First Respondent

B Pty Ltd

Second Respondent

Mr C

Third Respondent

Ms D

Fourth Respondent

REASONS FOR JUDGMENT

ex-tempore

1. In the matter of Kuay-Hoa and Hoa, I will pronounce some brief reasons for judgment.  After a very long trial concluding on 5 March 2010, I made directions for written submissions.  They were that the applicant wife file her submissions by 23 March 2010 and the first and second respondents file their submissions by 13 April 2010.  In the event that these submissions raised matters which the court or either of the parties required to be addressed, a further hearing date was to occur after 25 May 2010.  No written submissions by the applicant wife have been received by the court or the other parties. 

2. On 13 April 2010 at 4.26pm, both the first and second named respondents filed their written submissions.  They are extremely brief.  Due to the non-compliance by the applicant with the order for written submissions, I required the matter to be listed today.  Today, the applicant attends court and seeks leave to file an application in a case in which she seeks an extension of time to enable written submissions to be filed by the wife and any such further order as is appropriate. 

3. There is an affidavit from the wife’s solicitor, Mr Rennick, giving the circumstances of a personal nature of the unavailability of counsel to do the submissions, and also the fact that the solicitor who had carriage of the matter, Mr Kinoff, has ceased employment with that firm.  It is correct to say that the respondents have in no way been responsible for the failure of the wife to comply with the order for written submissions.  There are two courses open to me:  I can grant the wife the extension of time sought so that she can submit her written submissions, or I can not permit the wife to put in any written submissions now and finalise the case without it.  What I did want to avoid was getting halfway through the reasons for determination, and then face an application by the wife such as the one that has been brought today. 

4. It seems to me that, whilst there might be an understandable reason as to why the wife’s submissions have not been filed, there is cause to be very critical of those who represent her for permitting the matter to languish for three months.  If submissions cannot be done by one person, they must be done by another.  Such a task would be very difficult in this case as the only other person in court for the wife was generally a solicitor who left the employ of the wife’s solicitor’s firm some month or so ago.  I have asked the husband and the second respondent this morning what detriment or prejudice or disadvantage they would suffer if I were to permit the wife to make her written submissions next week. 

5. The husband says that he believes that procedure is very important for the court, and the other party has breached it “again and again”.  He points to the fact that the mother has changed lawyers and that he only received the application in a case for an extension of time five minutes prior to me coming into court this morning.  He does not seek an adjournment of that application.  He did not tell me how he was prejudiced.  In fact, the application really does no more than provide on oath, by an officer of the court, Mr Rennick, reasons as to the failure of the wife to comply with the orders to date. 

6. Furthermore, the husband said that if I grant an extension now, “it could happen in the future”.  The husband also said that the change of solicitor has been without excuse and that, “the applicant can use any possible ways to make up reasons which is unbelievable and make this case endless”.  The husband then went on to make a complaint - as best I understand it - relating to the valuation of the property in which he resides and which was, at one stage, the former matrimonial home.  He questioned the authenticity of a valuation, in particular the cover sheet and the date of the valuation.  These were matters which I do not personally recollect being the subject of cross-examination of the valuer in the course of the trial, but my notes will correct me if I am wrong. 

7. In any event, this matter is not a matter which relates to prejudice to be suffered by the submissions being put in next week, which will make them in excess of three months late. 

8. Ms D also opposes the wife having any extension of time in which to put in submissions.  I think it is fair to say that her arguments fell under two categories.  First, she pointed to the fact that there is, in her mind, a questionable relationship between the wife and her solicitor.  She says that no money has been received by the solicitors to be acting for the wife and that if the wife could not pay them she should have acted for herself.  She says that Mr Knoff was previously the wife’s lawyer and now somebody else seems to have taken over her file.  She says that given what is, in her mind, their legally questionable status to act for the wife, I should not entertain an application that they have further time in which to put in submissions on behalf of the wife. 

9. Looking at the affidavit of Mr Rennick I note that he deposes, and I accept, that the mother has retained solicitors and counsel on the basis that they will be paid at the conclusion of the proceedings.  Whilst that might seem unusual to Ms D and to the husband, that is not unusual for this court or for other courts engaged in litigation.  The other matter which seems to cause concern is that Ms D understood that Mr Knoff was acting for the wife and now it is Mr Rennick.  However, Mr Knoff was an employee solicitor of Kennedy Guy;  Mr Rennick is a principal, so whereas it is a different person sitting to instruct Ms Swart at the bar table, it is in fact the same firm of solicitors. 

10. As best I could, I explained to Ms D that this is also a frequent occurrence in family law matters, and that it is often the case that the file remains with the firm of solicitors, rather than travelling with the particular solicitor who has the handling of the matter.  That is for a variety of reasons, but one of the reasons usually is that the first firm has extended credit to the party - which would be the wife in this case - and therefore holds the file. 

11. Ms D’s other plank to her objection was what she referred to as her understanding that having failed to comply with an order, the wife should not now be in a position to put in any submissions.  She says that the case should be finalised on the basis of her being successful because the wife has not put in any submissions and that if I permitted the wife to put in submissions then she might not win, and that means that she is disadvantaged.  That is not an argument that has any merit if I have understood it correctly. 

12. I do not wish to minimise - for either Ms D or Mr Hoa - my appreciation of the gravity of the indulgence which is sought by the wife.  She seeks, after a long and interrupted trial, an extension of more than three months to put in submissions which essentially take the place of final addresses. 

13. It was thought at the time that a final address delivered orally might not be followed by everyone, and it was my concern that the husband and Ms D have an opportunity to be able to comment on the wife’s final address.  That is why the submissions were to be filed sequentially.  To summarise, I am extremely critical of the wife’s practitioners for the delay which has occurred.  I understand they will be in a position to file the submissions on Monday.  I will give them until close of business on Tuesday, but they should understand that there will be absolutely no further extension after that, and that any application made subsequently for an extension of time is likely to fail. 

14. I have asked Ms D and Mr Hoa whether they seek an opportunity to respond to or file further submissions after the wife’s written submissions.  I did so for two reasons.  The first is that  the submissions which they have filed are, in my view, not particularly helpful to their respective cases.  Mr Hoa says in his submissions that he objects to the applicant’s applications and documents and witnesses through cross-examination:

    The applicant’s affidavits, financial statements and witness evidence through cross-examinations are totally false which could not support her applications, even the court feel comfortable that the applicant has failed to make any appropriate and truthful disclosure through these proceedings.

15. I pointed out to Mr Hoa that if he wanted to make submissions in relation to the evidence in support of a finding that the wife was, for instance, a dishonest witness, he needed to point to specific instances, such as her evidence in relation to money which he received from overseas and did not disclose in several financial statements.  The submissions on behalf of Ms D are not much better.  The final submission says:

    The applicant’s claim has no ground from the date of proceeding beginning to the end of trial.  The applicant’s affidavits, financial statements and witness testimony are a sham.  I object to all claims made by the applicant.  I ask the court to dismiss the applicant’s claim.

    Similarly, that is not helpful to her case. 

16. The second point that I raised with each of them in relation to why they may wish to put in further submissions, following those of the wife, was that they would then have an opportunity to reply to the wife’s submissions.  That was why the submissions were to be filed sequentially in the first place.  Each of them, I am satisfied, understood those points.  Each of them maintains that they still do not want any opportunity to respond to the submissions of the wife.  Whilst I am critical of the conduct of the wife’s case, these submissions were to take the place of final addresses.  My task is to determine the case on the basis of the evidence, assisted by submissions by the parties as to the evidence and the law. 

17. If I do not permit the wife to file her submissions, I will be denying her an opportunity in that respect.  If she were seeking a further, significant extension from today, I may come to a different conclusion.  However, she is seeking only one working day.  In these circumstances, and repeating again that I am far from happy with the conduct of her case, I’ll grant the extension sought.  I cannot compel the husband and Ms D to make submissions which they do not wish to make.

18. Counsel for the wife maintains that the wife has not received the submissions which were sent to my associate by the first and second named respondents on 13 April 2010.  Neither produced proof of having sent the documents. 

19. I will direct that the court officer provide Ms Swart with a copy of the documents which were received.  They are both only two pages in length, and that will constitute service by the first and second named respondents on the wife. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  15 October 2010