Lietzau and Lietzau - [2018] FamCAFC 167

FAMILY COURT OF AUSTRALIA

LIETZAU & LIETZAU

[2018] FamCAFC 167

FAMILY LAW – APPEAL – Application for leave to appeal – Where the applicant seeks to appeal interlocutory orders and argues that the Family Law Magistrate erred in failing to disqualify herself and refusing to grant the applicant permission to inspect documents produced under subpoena – Where there was no application made for her Honour to disqualify herself – Held the decision to refuse to grant the applicant leave to inspect the documents appropriate for the reasons her Honour gave –Decision not attended by sufficient doubt to warrant it being reconsidered and no substantial injustice would result if leave were refused supposing the decision to be wrong – Application dismissed – Applicant to pay the respondent’s costs to be assessed if not agreed.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 13.07A

Jess & Jess (2014) FLC 93-620; [2014] FamCAFC 227
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

APPLICANT:

Mr Lietzau

RESPONDENT:

Ms Lietzau

INDEPENDENT CHILDREN’S LAWYER:

Ms W

FILE NUMBER:

PTW

1898

2017

APPEAL NUMBER:

2018

DATE DELIVERED:

24 August 2018

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

24 August 2018

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

31 January 2018

LOWER COURT MNC:

N/A

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Johnson

SOLICITOR FOR THE RESPONDENT:

Kim Wilson & Co

INDEPENDENT CHILDREN’S LAWYER:

No appearance

Orders

The Application for leave to appeal is dismissed.
The Application in an Appeal of the Respondent is dismissed.
The Response to the Application in an Appeal is dismissed.
The Applicant pay the Respondent’s costs of the proceedings to be assessed if not agreed.

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 Lietzau & Lietzau 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 7 of 2018
File Number: PTW 1898 of 2017

Mr Lietzau

Applicant

And

Ms Lietzau

Respondent

And

Ms W

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

I will give brief reasons explaining why the application for leave to appeal will be refused.
The background is set out in the reasons for decision delivered by Family Law Magistrate Sutherland, as her Honour then was, on 31 January 2018. It is important to record, however, that the reasons for decision were provided to the parties on 19 January 2018, in advance of the hearing on 31 January 2018.
It is apparent from reading the transcript of the proceedings before the Magistrate on 31 January 2018, that at some stage after the parties had received an advance copy of the reasons, the applicant in today’s proceedings wrote to the court and in that correspondence, amongst other things, requested that her Honour disqualify herself. At that hearing, her Honour made clear that, quite properly, this documentation had not been provided to her and that she was therefore unaware of the content, it being well-known that proceedings are not conducted by correspondence. Thereafter, and notwithstanding what has been said by the applicant in his written submissions, no application was made to her Honour to recuse herself, it being noted that no earlier application had been made either.
Cutting through, as best I can, the mountain of material provided in relation to the very narrow issues before the Court, the application for leave to appeal focuses on two distinct matters. One is the alleged error on the part of her Honour in failing to disqualify herself and the second is in relation to her Honour’s refusal to grant the applicant permission to inspect medical documents produced under subpoena.
In determining whether leave to appeal should be granted, the parties agree the applicable law is set out in by the Full Court in Jess & Jess (2014) FLC 93-620 and Medlow & Medlow (2016) FLC 93-692. The test for leave to appeal is whether, in all the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered and whether substantial injustice would result if leave were refused, supposing the decision to be wrong. It is important to note, however, as was said in Medlow at [55], that in appropriate cases the test gives way to the particular interests of justice in that case.
Dealing first with the issue of the disqualification, it is difficult to understand, with respect to the applicant who is a legal practitioner, the submissions that have been made. He says the Magistrate ought to have been aware that he had made an application for disqualification and that, by her conduct of the matter, she had made clear that if such an application was made, she would not consider it.
There is no basis for that submission. There was no application properly before her Honour. The application purporting to be made by correspondence came very late in the piece, given that the reasons had already been provided to the applicant. There would be no point in leave to appeal being granted to allow this meritless argument to be further agitated.
As for the second matter, the decision of the Magistrate is clear as to the basic reason why the applicant was not permitted to inspect the documents, namely that the Magistrate anticipated he would use them for an ulterior purpose and was not satisfied that he would comply with conditions preventing him from doing so. This finding comes in light of the fact that documents already provided in the proceedings had been used by the applicant for an ulterior purpose.
The law is clear that it is inappropriate for documents provided pursuant to subpoena to be used for any purpose other than the purpose for which they were produced to the court: r 13.07A of the Family Court Rules 2004 (Cth). For them to be used for any other purpose would require leave of the court and the applicant has a history of not seeking that leave. As counsel for the respondent said in her submissions, her Honour’s decision also needs to be understood in the context of this being litigation in proceedings where the best interests of children are the paramount consideration and her Honour also referred in her reasons as to the relevance of that matter to her decision.
The applicant’s primary complaint is that in coming to her decision, her Honour took into account matters in a way that resulted in him being refused procedural fairness. He submits that her Honour, in part, based her decision on matters on which he was not on notice, on which he had not been cross-examined and on which he had, therefore, not had an opportunity to be heard.
The test for leave to appeal however is whether the decision itself is attended by sufficient doubt, not whether or not her Honour made one finding which may have been made without the applicant having been put on notice so that he could make a submission. It seems to me clear, beyond all doubt, that it was entirely appropriate for the Magistrate to adopt the position that she did, given the likelihood of the applicant using the documents for an ulterior purpose. I am also in no way persuaded that there is any merit in the applicant’s submission that the outcome was inconsistent with the “whistle blower” laws to which he has referred at some length in his documents.
Quite apart from the fact that there is not sufficient doubt to warrant granting leave to appeal, I am also not persuaded that there is substantial injustice to the applicant. The Magistrate has not cut off, indefinitely, the granting of leave to inspect the documents. She acknowledged in her reasons the possibility that this may, in fact, be appropriate at a much later stage if the matter proceeds to trial. This case, notwithstanding that it now fills a large number of volumes, is still arguably at only an early or intermediate stage of the proceedings.
The applicant today refers to the difficulty that he would have in being able to negotiate a settlement with the respondent without being able to read these medical documents. But, as I have pointed out to him, the evidence and his submissions point very clearly to the fact that no amount of information or evidence will persuade him away from the view that he has held for a long time, namely that the respondent suffers from a mental illness. This includes the fact there are medical reports now available saying that this is not the case. I am not persuaded there would be anything in the documents that would assist him in the negotiations. And, I repeat, by the time the matter gets to trial, there will be further opportunity for him to agitate his arguments in relation to whether or not he should be allowed to inspect the documents.
I should also mention one final matter in relation to the disqualification issue. At the previous hearing I explained that as a result of Magistrate Sutherland having received a commission as a judge of the court, her docket has been assigned to another magistrate. This matter, for the time being, will continue to be heard by another magistrate. In the circumstances it is unlikely that this matter would ever again be placed before Justice Sutherland, as her Honour now is, to hear the matter. If that did occur then at that point the applicant could seek to apply for her Honour to disqualify herself if he had some reasonable basis for doing so.
There is also an Application in an Appeal by the respondent seeking $26,000 in costs for the appeal. It is acknowledged that if the application for leave fails then that application should be dismissed. It will therefore be dismissed.
The applicant, in his response to the Application in an Appeal, sought a variety of orders. He has properly acknowledged in his submissions today that one of the orders he seeks (order 3) is an order that would more appropriately be sought in the first instance proceedings. As for the orders sought relating to the Legal Profession Complaints Committee, there has been no service on the Committee. In any event, I am not persuaded – particularly now that these appeal proceedings are not going any further – that this is an order that would be appropriate to be made in this part of the proceedings. The applicant otherwise acknowledges the orders seeking intervention by the Attorney‑General of Western Australia is a matter that need not be pursued in light of the decision to refuse leave to appeal. Accordingly, that response will also be dismissed.
The formal orders of the Court are that the application for leave to appeal is dismissed; the Application in an Appeal of the respondent is dismissed and the Response to an Application in an Appeal is dismissed.

RECORDED; NOT TRANSCRIBED

The application now before the Court is the respondent’s application for costs, excluding the costs of the application for costs associated with the proposed appeal. These are sought to be quantified in an amount of $10,000.
The primary basis upon which the respondent seeks costs is that the applicant has been entirely unsuccessful. The applicant acknowledges that this is the case, although he points out that I did not formally reject his argument that he had been denied procedural fairness. It might be said, however, that nor did I formally accept that argument, that issue having simply been left undecided.
The applicant also correctly points out that in this Court the primary position is that each party will bear their own costs. But that, of course, is subject to subsection 117(2) and the factors which must be considered in s 117(2A) of the Family Law Act 1975 (Cth). One of factors to consider is whether or not a party has been wholly unsuccessful.
It is commonly the case, particularly in appellate proceedings, that lack of success leads to a costs order. In this case the only basis upon which I would even contemplate not making a costs order for what I consider to be an entirely unmeritorious application, is the issue associated with the applicant’s financial circumstances. He has given quite detailed evidence about his means, his relatively modest income, his obligation to meet child support, and the fact he has no funds or property, other than a couple of vintage motor vehicles.
That being said, counsel for the respondent is correct in stating that impecuniosity is not a bar to a costs order. I consider that in this case the application was so lacking in merit that there should be an order for costs, notwithstanding what I accept seem to be the very difficult financial circumstances of the applicant. I am not prepared, however – contrary to my normal practice of endeavouring to fix costs – to fix the figure at $10,000. I do not have any basis for concluding whether that is or is not an appropriate figure.
The order, therefore, will be that the applicant pay the respondent’s costs of the proceedings to be assessed if not agreed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 24 August 2018.

Associate:

Date: 17 December 2018