LAMBERTSON & LAMBERTSON
[2021] FamCAFC 48
FAMILY COURT OF AUSTRALIA
| LAMBERTSON & LAMBERTSON | [2021] FamCAFC 48 |
| FAMILY LAW – APPEAL – PROPERTY – Leave to appeal – Appeal against order to allow proceedings out of time pursuant to s 44(3) – Where 12 months had expired from date divorce order took effect – Findings of fact – Previous application for s 44(3) leave abandoned – Failure to consider evidence of actual prejudice – Leave to appeal granted – Appeal allowed – Matter remitted for rehearing – Costs certificates issued |
| Family Law Act 1975 (Cth) Pt VIIIB, ss 44(3), 44(4), 75(2), 79, 90C Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9 |
| Althaus and Althaus (1982) FLC 91-233; [1979] FamCA 47 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 |
| APPELLANT: | Mr Lambertson |
| RESPONDENT: | Ms Lambertson |
| FILE NUMBER: | LEC | 443 | of | 2018 |
| APPEAL NUMBER: | NOA | 8 | of | 2020 |
| DATE DELIVERED: | 12 April 2021 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ryan, Kent & Tree JJ |
| HEARING DATE: | 21 September 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 December 2019 |
| LOWER COURT MNC: | [2019] FCCA 3304 |
REPRESENTATION
| THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Wrightway Legal |
Orders
The appellant be given leave to adduce further evidence in the appeal, being a statement from the Superannuation Fund dated 2 January 2020.
The application by the appellant to adduce evidence in the appeal beyond that referred to in Order (1) be dismissed.
The appellant be granted leave to appeal the orders made on 19 December 2019.
The appeal be allowed.
The orders made on 19 December 2019 be set aside.
The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge.
There be no order as to costs.
The Court grants to the 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 appellant in respect of the costs incurred by him in relation to this appeal.
The Court grants to the respondent a costs 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 her in relation to this appeal.
The Court grants to each party a costs certificate pursuant to the provisions of s 8 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the rehearing of these proceedings.
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 Lambertson & Lambertson 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 8 of 2020
File Number: LEC 443 of 2018
| Mr Lambertson |
Appellant
And
| Ms Lambertson |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 23 March 2020, Mr Lambertson (“the appellant”) applied for leave to appeal and, assuming leave was granted, to appeal an order made by a judge of the Federal Circuit Court of Australia (“the Federal Circuit Court”) on 19 December 2019. The application for leave to appeal and the putative appeal were heard simultaneously.
By that order, Ms Lambertson (“the respondent”) was granted leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) to apply for a property settlement order pursuant to s 79 and Part VIIIB of the Act. The parties had divorced on 11 September 2007 and by reason of s 44(3) of the Act, the parties had 12 months from the date upon which their divorce order took effect within which they could institute an application for orders under s 79 of the Act as of right. After the expiration of 12 months, other than by agreement, an application for property settlement could only be instituted by leave of the Court.
By an application filed on 25 July 2018, the respondent applied for leave pursuant to s 44(3) to commence property proceedings approximately 11 years out of time. Stated broadly, the respondent sought “a superannuation transfer” of the appellant’s Superannuation Fund interest in an amount equivalent to “52% of [the appellant’s] superannuation at 30 June 2008, plus interest to the date of court order” [sic] (Respondent’s Initiating Application filed 25 July 2018, p.2). Although inelegantly phrased, it was understood that the respondent sought a splitting order against the appellant’s superannuation interest as existing at the time the respondent signed a financial agreement which the respondent contends was made between the parties and which included a provision for her to receive such superannuation split.
So as to put the respondent’s case in context, it needs to be understood that during the 12 months following the parties’ separation, and with each of the parties having retained solicitors in relation to family law matters, they effected an informal property settlement which resulted in the respondent receiving 60 per cent (according to the respondent) or more than 60 per cent (according to the appellant) of the proceeds of sale of the parties’ two parcels of real property. No adjustment was made to either party’s superannuation interest. According to the appellant, the informal property settlement was predicated upon an agreement that he would retain his superannuation interest in its entirety whilst the respondent contends it was agreed she would receive 52 per cent of the appellant’s existing superannuation of $255,000, being the amount of $132,600.
The pivotal issues for determination before the primary judge were whether the respondent established “hardship” within the meaning of s 44(4)(a) of the Act and, if hardship was established, whether the discretion conferred by s 44(3) should be exercised in favour of the respondent.
The primary judge was satisfied that during cohabitation the parties acquired superannuation interests as employees. Although there was no evidence of the value of the appellant’s superannuation interest as at the date of separation, as the appellant had full time employment whereas the respondent had primarily engaged as a homemaker and parent, it was inferred that the appellant’s superannuation was and continued to be significantly more valuable than the respondent’s. The primary judge concluded that for the respondent to be denied the opportunity to pursue “a legitimate claim” [66] for a share of the appellant’s superannuation would result in her “suffering a substantial detriment in planning for her retirement” [63]. On that basis, the primary judge determined that the respondent established hardship. Although the solicitor’s files which evidence the negotiations, the terms of any agreement and details of distribution of the proceeds of sale had been destroyed, and the respondent’s explanation for her delay was “weak” [59], those matters were insufficient to outweigh “the possible injustice to the [respondent]” if she were not given leave to proceed out of time [96]). Thus, the discretion reposed in the primary judge was exercised in favour of leave [97].
Whilst the discretionary power to grant leave to appeal is expressed in unfettered terms it is established that in the usual run of cases, of which this is one, that the appellant must establish that the decision is attended by sufficient doubt so as to warrant its reconsideration by the Full Court and that a substantial injustice would occur if leave were not granted, supposing the decision to be wrong (Medlow & Medlow (2016) FLC 93-692).
An application by the appellant to adduce further evidence must also be considered.
Factual overview
So as to provide context for the application for leave to appeal and the appeal, it is necessary to provide an overview of the unusual facts in this case.
The parties met in 1989 and not long afterwards commenced a de facto relationship. They were young, neither owned property of any significant value and each of them worked in relatively unskilled positions.
The parties married in 1990 by which time the appellant was a public servant employed by a government department. It is the appellant’s employment with the government department that gave rise to his superannuation interest at the heart of these proceedings.
The first of the parties’ three children was born in 1990 followed by two more who were born in 1995 and 1998.
The parties purchased a property at Suburb B in 1992, which was sold two years later. On the sale of Suburb B they purchased a property at Suburb C. In furtherance of the appellant’s employment, the family relocated on a number of occasions and, during the period they lived at D Town, the parties purchased an investment property in E Town.
Sometime after 2004, the parties sold Suburb C and bought a property at Suburb F which became the family home.
In 2006, the parties separated. At separation, they owned the property at E Town and their home at Suburb F, where the appellant remained in occupation. The respondent and the two younger children moved to G Town and the eldest child moved in with a grandparent.
In November 2006, the respondent and her mother purchased a property at G Town as tenants in common in equal shares. This is where the respondent lives. The property is encumbered by a mortgage on which, at the date of hearing, $190,000 was outstanding.
By no later than 7 December 2006, the appellant retained H Lawyers in relation to family law issues with the respondent. By 30 January 2007, the respondent retained Wrightway Legal to represent her in the parties’ family law issues. By letter of the same date the solicitor for the respondent said that as a general approach:
[The respondent] will require as much cash as possible from the settlement. She wishes to minimise any superannuation transfer form [the appellant]. Please advise [the appellant’s] thoughts on this issue.”
(Respondent’s affidavit filed 25 July 2018, p.23) (As per the original)
Such of the solicitors’ correspondence as now exists, demonstrates that as at 19 April 2007 the parties had not yet reached an agreement concerning property settlement.
The appellant’s unchallenged evidence was that the E Town property was purchased for $195,000 and sold in April 2007 for $337,000. Furthermore, that the Suburb F property was purchased for $295,000 and it sold in June 2007 for $335,000. Furthermore, that once the mortgages were paid out and the costs of sale met, the parties achieved approximately $187,000 from the sale of those properties.
On the respondent’s evidence, she received 60 per cent of the combined net proceeds of sale (but does not now recall the precise amount) [11(w)]–[11(x)]. Whereas, the appellant said the respondent received $145,000 compared to his $47,000 [11(x)].
No challenge was made to the appellant’s evidence that the respondent received the parties’ car which was then worth approximately $20,000 [11(u)].
According to the appellant, the parties agreed on an overall property settlement and, on the basis that the respondent would receive a greater share of the parties’ non-superannuation property, each would retain their own superannuation without further adjustment. When and how that agreement is reached is not in evidence and there is no evidence of it beyond the appellant’s testimony.
On the other hand, it is uncontroversial that by mid-2007 and through the party’s lawyers they were in negotiation in relation to the terms of a financial agreement. Sometime prior to 19 June 2007, the appellant’s solicitor provided a draft financial agreement to the solicitor for the respondent largely in accordance with the document “Financial Agreement” at Annexure D to the respondent’s affidavit filed on 25 July 2018. However, because the original draft provided by the appellant’s solicitor is not in evidence, it is not possible to know what it said about superannuation. Whatever was recorded about superannuation was contentious and thus, by letter dated 19 June 2007, the solicitor for the respondent wrote to the solicitor for the appellant seeking an amendment to the draft, so as to achieve a superannuation splitting order from the appellant’s Superannuation Fund of 52 per cent in the respondent’s favour [11(aa)].
About one week later (27 June 2007) the solicitor for the respondent wrote to the appellant’s solicitor and provided the amended financial agreement incorporating the changes to clause 5 foreshadowed in their letter of 19 June 2007. It is this amended version of the financial agreement that is annexed to the respondent’s affidavit. Although the respondent would eventually sign this version of the financial agreement, the appellant never did.
On 8 July 2007 the respondent filed an application for divorce which was granted on 11 September 2007 and took effect from 12 October 2007. The certificate of divorce contained the usual explanatory note that an application for property settlement must be made within 12 months of the divorce order taking effect, failing which the leave of the Court is required. Thus, no later than October 2007 the respondent knew of the time constraints for bringing a property settlement application.
Circa July 2008, the respondent signed the draft financial agreement attached to her solicitor’s letter dated 27 June 2007 [11(gg)]. The signed financial agreement was forwarded to the appellant’s solicitor on 11 July 2008. It would seem that the appellant withdrew his instructions from his solicitor and it is uncontroversial that he did not sign it. On 25 July 2008, the appellant’s solicitor advised the respondent’s solicitor they were no longer instructed by the appellant [11(hh)]. Thus the respondent’s solicitor wrote to the appellant in an attempt to have him sign the draft financial agreement. The appellant declined and, by letter dated 9 October 2008, correctly advised that s 90C of the Act (the provision under which the financial agreement was said to operate) no longer applied.
Although the property issue languished, a dispute arose in relation to the children and in January 2009 the appellant commenced proceedings in the Federal Circuit Court for parenting orders [11(jj)]. In her Response to that application filed in April 2009, the respondent sought orders:
· that she be given leave to commence property proceedings out of time pursuant to s 44(3) of the Act; and
· a superannuation splitting order in relation to the appellant’s (unnamed) superannuation interest 60 per cent in her favour [11(kk)].
Although the appellant was directed in May 2009 to file a Reply and Financial Statement he did not. However, on 19 June 2009, the appellant filed an affidavit attesting to his belief that the superannuation (property) issue had been finalised [11(ll)]–[11(mm)].
The appellant remarried in July 2009 and has two children with his wife who were aged eight and five years at the date of hearing [11(nn)]. For her part, the respondent also re-partnered and for some time lived in a de facto relationship. After that relationship ended she re-partnered again and has now remarried [11(xx)] and [11(zz)].
The respondent repeatedly failed to attend court dates as a consequence of which her solicitor withdrew [11(oo)]. It was only when a warrant for her arrest was executed that the respondent re-engaged with the proceedings [11(pp)].
The appellant’s parenting application was listed for final hearing on 6 August 2010 for which trial directions were made on 18 March 2010 [11(qq)]. That hearing did not proceed and in February 2011 the parenting and s 44(3) applications were listed for hearing on 23 May 2011 [11(rr)]. In his trial affidavit for that hearing the appellant restated his opposition to leave and again asserted that the property issue was finalised in 2007 [11](ss)]. The respondent did not file a trial affidavit or case outline document as required and thus presented no evidence in support of her case for s 44(3) leave [11(tt)]. No explanation was given for her failure to comply with these directions [11].
As anticipated the proceedings were called on for hearing on 23 May 2011. By agreement, final parenting orders were entered in relation to the two younger children [11(uu)]. No orders were made in relation to the s 44(3) application or the consequential application for a superannuation splitting order [11(vv)]. By reference to the trial transcript it is clear that the respondent made no attempt at the hearing to progress her s 44(3) application. In reality the s 44(3) application was abandoned. Having been abandoned it was thus amenable to an application for its reinstatement (which may have been seen as an abuse of the Court’s process) and was vulnerable to an application that it be dismissed for want of prosecution. But no one did anything.
Nearly seven years later the respondent instructed her former solicitor to negotiate with the appellant for a superannuation splitting order along the lines proposed by her amendments to the draft financial agreement. The solicitor for the respondent wrote to the appellant on 14 February 2018 to this effect [11(yy)]. There was no agreement and thus, on 25 July 2018, the respondent filed an application initiating proceedings in the Federal Circuit Court for leave pursuant to s 44(3) and property settlement. Directions were duly made for the application for leave to be determined without an oral hearing and on the basis of written submissions.
Grounds for leave to appeal and appeal
Although somewhat discursively phrased, the combined effect of the appellant’s Notice of Appeal, Summary of Argument and oral addresses, indicates that the appellant asserts that the primary judge erred:
·in findings concerning the respondent’s delay in instituting the proceedings and the effect of that delay viz destruction of the solicitor’s files (Ground 1);
·in exercising the discretion in favour of leave (Ground 2); and
·in findings qua the respondent’s financial circumstances inconsistent with the facts (Ground 3).
Moreover, whilst not articulated as a ground of appeal the self-represented appellant’s Summary of Argument for the appeal (for example at paragraphs 8, 15, 17, 31, 43, 61, 62 and 64) contains numerous complaints of apprehended bias arising from the reasons for judgment of the primary judge which ought be dealt with in advance of dealing with the other substantive grounds (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128).
The test for apprehended bias is well settled. The test is whether a fair-minded lay observer could reasonably conclude that the reasons for judgment give rise to an apprehension that the judge’s determination is not impartial (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Johnson v Johnson (2000) 201 CLR 488; Vakauta v Kelly (1989) 167 CLR 568).
In our judgment, examination of the appellant’s complaints reveals that all of them are the product of the appellant simply disagreeing with the primary judge’s findings or conclusions as expressed in the reasons or amount to agitation about the weight given to particular evidence. Further, the appellant contends that the primary judge’s use of the expression in the reasons “according to the [appellant]”, for example, when dealing with the appellant’s case concerning the distribution of property sale proceeds, is evidence of “bias” because the primary judge does not use the same qualifier when dealing with the respondent’s case on certain issues.
Clearly, though, the primary judge merely uses that phrase in the reasons to identify what it is that the appellant contended the Court ought find. The primary judge used a similar phrase in describing the respondent’s case, for example the reference at [41] where the primary judge says “[t]he [respondent’s] argument is…”. As to the weight argument, the appellant contends that the primary judge exhibits bias in failing to highlight the fact that the respondent failed to attend Court on numerous occasions resulting in an arrest warrant being issued.
Nothing to which the appellant points in the contents of the reasons for judgment gives any support to the proposition that the reasons for judgment evidence apprehended bias on the part of the primary judge and we find no substance in these complaints.
Discussion of the stated grounds
The third ground may be disposed of quickly. The primary judge was not in a position to resolve the challenges raised by the appellant as to the adequacy of the respondent’s current financial position. We accept there are obvious inconsistencies between the respondent’s Financial Statement filed 25 July 2018 and the evidence contained in the respondent’s affidavit filed 25 July 2018, but given that the point of this aspect of the exercise was to determine no more than whether the respondent had a reasonable claim to be heard, the primary judge was able to take a reasonably broad brush approach to the issue. Error as alleged by Ground 3 is not established.
Paragraph 42 of the reasons for judgment is fundamentally important to the decision to grant leave and the respondent’s explanation for her delay. At [42] the primary judge said:
I find that the [respondent’s] argument is substantiated by the following:
a)The [respondent’s] legal representatives in the negotiations for a section 90 C agreement in 2007/2008 were successful in having included in the draft agreement a clause providing for a superannuation split of 52% in favour of the [respondent].
b)During the 2009/2011 court proceedings the orders being sought by the [respondent] for the property division was a superannuation split albeit a higher percentage of 60%.
….
However, paragraph [42(a)] misstates the facts. The respondent’s solicitor was not “successful” in having the draft financial agreement amended. Rather, the primary judge should have found that the clause concerning superannuation was amended by the solicitor for the respondent and the appellant did not adopt the amendment. In other words, there was no evidence of a concluded agreement about the proposed amendment and given the appellant’s clear evidence that he did not agree to the amendment it was not open to the primary judge to determine otherwise.
Moving on from that mistake, at [52] the primary judge said “[t]he [respondent] in her evidence, explains that she had a belief around the time the parenting proceedings were finalised that the superannuation split would occur”. However, the respondent did not give such evidence and, in relation to her failure to prosecute her earlier application for s 44(3) leave, the respondent said:
I can recall that in my response that there may have been some reference to orders for property but as we were then negotiating to complete a Section 90 Financial Agreement, the property aspect of the application and response may have been overlooked.
(Respondent’s Affidavit filed 25 July 2018, paragraph 9)
The respondent’s evidence at its highest was:
20. I was informed by my solicitor that the [appellant’s] only reply was sent on 9 October 2008. In his correspondence the [appellant] says,
“I am under the belief that a 90C does not apply anymore”.
21.On 20 October 2008 my solicitor informed the [appellant] that the financial agreement could be binding and that he would be required to see a solicitor before signing the agreement. I have been informed by my solicitor that the [appellant] failed to reply.
(Respondent’s Affidavit filed 25 July 2018, paragraphs 20-21) (As per the original)
Properly understood, these statements suggest that in late 2008, the respondent believed that there would be a superannuation splitting arrangement in accordance with the draft financial agreement. Of course, if that evidence is accepted it means that at some stage between late 2008 and April 2009 the respondent learned that she did not have an effective superannuation split and needed to commence proceedings under s 44(3). Which she did.
These mistaken findings underpin her Honour’s unsustainable conclusion at [55] that the respondent believed as late as 2011 that the superannuation split may still occur.
The primary judge continued and at [53] expressed regret that the property proceedings, more correctly the s 44(3) application, were unfortunately not dealt with “but this in itself is not a reason why the property proceedings cannot be reopened”. In that an abandoned application does not, without more, finalise the underlying cause, so much is true. However, in deciding to grant leave, it was necessary for the primary judge to give close attention to the fact and consequences of the respondent having abandoned this earlier application.
Although the primary judge does not specifically say so, it is tolerably clear that the respondent’s evidence that the application may have been overlooked, was accepted. While that may be an explanation for what took place on 23 May 2011, it is no answer for the respondent’s failure to file evidence and argument in support of her application. It is well accepted that to allow the commencement of an action beyond a statutory time limit is prima facie prejudicial to the respondent (Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (“Brisbane South”) at 544). A respondent is entitled to believe that the cause of action has expired and to arrange their affairs accordingly. It follows that it is no small thing to invoke the Court’s jurisdiction in an attempt to overcome the consequences of delay and statutory time limits. The respondent had legal representation when she invoked the Court’s jurisdiction and for some months thereafter. Although we cannot know what passed between the respondent and her solicitor concerning that application and her failure to file evidence in support of her claim, that the respondent may have overlooked her claim on 23 May 2011, does not explain her failure to take necessary steps beforehand or to present evidence in support of it. One might reasonably infer that the respondent abandoned her s 44(3) application before she was due to file her case outline document.
That the respondent may have overlooked her application for leave on 23 May 2011 does not even begin to explain her failure to take action for the next seven years.
In Althaus and Althaus (1982) FLC 91-233, Evatt CJ said at 77,267–77,268:
The requirement that the applicant under sec.44(3) give an explanation of the delay in bringing proceedings in my view requires a consideration of the whole period from the date of the decree nisi to the lodging of the application. It requires the Court to consider whether the wife took all reasonable steps to pursue her claim or whether, on the other hand, she acted at any time as if she had no intention of proceeding or pursuing any claim at all against the husband. It requires the Court to consider whether it can reach conclusions as to why the proceedings were started beyond the time lodged and whether those proceedings are attributable to default on the part of the applicant.
The reference to “acted at any time” should be emphasised. More than once the appellant said that he believed that the respondent demonstrated or said she had no intention of pursuing her claim for leave and a superannuation adjustment. This included the finalisation of proceedings in 2011 without addressing the s 44(3) application. Although the primary judge was not satisfied that the parties discussed the fate of that application at the hearing, it was incumbent on her Honour to then consider the effect of the issue not having been raised by the respondent and the hearing being completed to the parties’ apparent satisfaction without the issue being addressed. In our view the failure to consider that question is fatal and inevitably means that the case was decided without taking into account a highly relevant consideration.
The approach to the question of prejudice and the effect of the destruction of the solicitor’s files is also flawed. Because there were public records which could establish the properties’ selling prices and bank records for the amounts each received, the primary judge found that “the ability to obtain documentation does not in any way prejudice the [appellant]” [88]. In reaching this conclusion the primary judge failed to consider an essential plank of the appellant’s case which was that the solicitor’s files contained the details of the negotiations, the original financial agreement and concluded agreement which demonstrated that superannuation was taken into account in the informal settlement. There was no issue that this is where the details of the negotiations and the like were to be found. Reference has already been made to the solicitor for the respondent’s letter dated 30 January 2007 and the respondent’s request that she receives the majority of the non-superannuation property. The point being, there was good reason to consider that the solicitor’s files contained evidence relevant to this issue and which could not be garnered from “other public records” [86].
In Brisbane South, McHugh J explained at 555:
But once the potential liability of the defendant had ended, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important. To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But the justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.
The primary judge was obliged to consider the appellant’s claim of actual prejudice. Again, to quote McHugh J in Brisbane South at 555:
When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period.
There can be no doubt that the case was decided without taking into account this highly relevant consideration.
The effect of these matters is that the challenges raised by Grounds 1 and 2 have been established.
Whilst we have determined that the primary judge erred in the respects identified, we are not persuaded that the respondent’s Initiating Application ought be dismissed as a result without any rehearing and affording the respondent the opportunity to address the evidentiary deficiencies identified. One of the primary judge’s central findings was that the respondent “has a reasonable claim to the [appellant’s] superannuation even if the [respondent] received a high percentage of the non-superannuation pool” [73]. Even allowing for the identified errors and putting the appellant’s case at its highest that conclusion cannot be construed as untenable.
On the basis of the appellant’s evidence concerning the distribution of the proceeds of sale of property, the apparently uncontentious figures included in Schedule 1 of the draft financial agreement, the respondent taking the family car and a statement from the Superannuation Fund dated 2 January 2020 concerning the appellant’s superannuation admitted as further evidence in the appeal, the appellant in effect contends that he received property worth about $247,000 comprising:
·$47,000 from the sale of real property,
·Furniture valued at $5,000 (although the appellant also says that the respondent received more furniture than he did), and
·His superannuation valued at $195,000.
Furthermore, that the respondent received property worth about $183,000 comprising:
·$145,000 from the sale of real property,
·Furniture valued at $5,000,
·Car valued at $20,000, and
·Her superannuation at $13,000.
On the appellant’s own case that represents an overall division of property, including superannuation interests, of 57 per cent/43 per cent in the appellant’s favour. This is in respect of a 16 year cohabitation and marriage which produced three children and in respect of which, at least on the known evidence, had no readily apparent features distinguishing the contributions of either party up until separation. Moreover, relevant s 75(2) factors arguably favoured the respondent.
None of these observations will be binding upon a judge reconsidering the application. The point is simply that the errors we have identified do not lead inextricably to the conclusion that the respondent’s application at first instance ought simply be dismissed.
Conclusion and Costs
The appellant has established the conditions for leave as set out in paragraph [7] of these reasons. For the same reasons, the appeal will be allowed and the order set aside. As the purpose of the appellant’s application to adduce further evidence in the appeal was to establish error, given that purpose has been achieved, the application to adduce further evidence (apart from that application provided in Order (1)) should be dismissed. Although we were amenable to the application being re-determined by the Full Court, we understood that both parties sought the opportunity to rectify deficiencies in their evidence exposed during the appeal hearing. In these circumstances, and although we are loath to prolong the proceedings, the appropriate course is to remit the respondent’s application for rehearing. Steps should also be taken in relation to the respondent’s abandoned application for leave.
Although the appellant has succeeded, we do not consider an order for costs against the respondent would be appropriate. Whilst there can be no doubt that the primary judge did not receive the level of assistance which these unusual facts justified, the errors which drive the outcome of the appeal do not result from steps taken by the respondent. However, the conditions for certificates under the Federal Proceedings (Costs) Act 1981 (Cth) are met and it is appropriate that the parties have certificates for the appeal and rehearing.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Kent & Tree JJ) delivered on 12 April 2021.
Associate:
Date: 12 April 2021
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