Loft v Begum

[2010] TASSC 57

[2010] TASSC 57

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Loft v Begum [2010] TASSC 57

PARTIES:  LOFT, George Skip

v

BEGUM, Naseem

FILE NO/S:  S699/2010

M262/2006

DELIVERED ON:  2 December 2010
DELIVERED AT:  Hobart
HEARING DATE:  21 – 23 September 2010
JUDGMENT OF:  Tennent J

CATCHWORDS:

Family Law and Child Welfare – De facto relationships – Adjustment of property interests – Other matters – Application to set aside orders pursuant to the Relationships Act 2003, s57 – What amounts to a miscarriage of justice.

Holland v Holland (1982) FLC 91-243; McKenna v McKenna (1971) 18 FLR 15; Gebert v Gebert (1990) FLC 92-137; Taylor v Taylor (1979) FLC 90-674; Grimshaw v Dunbar [1953] 1 QB 408; Allesch v Maunz (2000) 203 CLR 172, followed.

Relationships Act 2003 (Tas), ss40, 57.
Aust Dig Family Law and Child Welfare [500]

REPRESENTATION:

Counsel:
              Applicant:  W A Ayliffe
              Respondent:  G J Faulds

Solicitors:
              Applicant:  Walkers
              Respondent:  Faulds & Associates 

Judgment Number:  [2010] TASSC 57
Number of paragraphs:  32

Serial No 57/2010
File Nos S699/2010

M262/2006

GEORGE SKIP LOFT v NASEEM BEGUM

REASONS FOR JUDGMENT  TENNENT J

2 December 2010

1. On 20 March 2009, the Associate Judge published reasons following the hearing of an application by the respondent for orders adjusting property interests pursuant to the Relationships Act 2003 ("the Act"), s40. The applicant was the respondent to that application. On 7 April 2009, orders were made consequent upon those reasons. On 6 May 2009, the applicant filed a notice of appeal. The notice of appeal was filed outside the time permitted. While no order was made extending time, it appears that the solicitors for the respondent indicated they would consent to any necessary extension of time. The necessary order was made at the commencement of the hearing.

1. The appeal was not prosecuted with any diligence and, as at 23 August 2010, it had not been heard. On that date, the applicant filed an application to set aside the orders of the Associate Judge pursuant to the Act, s57. The parties agreed that that application be heard first, with a hearing of the appeal to follow.

Application to set aside

1. The Act, s57, provides as follows:

"57   Variation and setting aside of orders

If, on the application of a person in respect of whom an order referred to in section 40 or 47 is made, a court is satisfied that —

(a)     there has been a miscarriage of justice because of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstances; or

(b)     it is impracticable for the order or part of the order to be carried out; or

(c)     a person failed to carry out an obligation imposed on the person by the order —

the court may vary or set aside the order and make another order in substitution for the order set aside."

The law in relation to application to set aside

1. The power of the Court to make an order pursuant to the Act, s57, is discretionary. Relevantly in this matter, it may only be exercised if the applicant satisfies the Court that there has been a miscarriage of justice because of "fraud, duress, suppression of evidence, the giving of false evidence or any other circumstances". In this case, the applicant has submitted that there were circumstances which justified a finding there was a miscarriage of justice, those being the manner in which the applicant's then solicitor dealt with the proceedings initiated by the respondent and, as a consequence, the way in which the hearing before the Associate Judge was conducted.

1. The circumstances identified as giving rise to the miscarriage of justice must be circumstances existing at the time the order sought to be set aside was made: see Holland v Holland[1].  Further, the miscarriage of justice is not limited to:

"……vitiating elements in the procedure followed in the Court but extended to any situation 'which sufficiently indicates that the decree or order was obtained contrary to the justice of the case'."

See McKenna v McKenna[2] and Holland.

[1] Holland v Holland (1982) FLC 91-243 at 77,339

[2] McKenna v McKenna (1971) 18 FLR 15 quoted in Holland

1. The words "miscarriage of justice" are not to be given a restrictive meaning.  Justice means justice according to law.  See Gebert v Gebert[3].

   [3] Gebert v Gebert (1990) FLC 92-137 at 77,935-77,936

1. In Taylor v Taylor[4], the High Court considered a situation where a party failed to attend a hearing due to a failure by his solicitors to advise him of it.  Orders were made in his absence.  He applied to vary those orders.  The court considered a number of authorities relating to a party's rights to be heard. The court referred in particular to a statement  of Jenkins LJ in Grimshaw v Dunbar[5].  His Lordship said:

"Be that as it may, a party to an action is prima facie entitled to have it heard in his presence; he is entitled to dispute his opponent's case and cross-examine his opponent's witnesses, and he is entitled to call his own witnesses and give his own evidence before the court.  Prima facie that is his right, and if by some mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidentally absent should be allowed to come to the court and present his case – no doubt on suitable terms as to costs, …".

[4] Taylor v Taylor (1979) FLC 90-674

[5] Grimshaw v Dunbar [1953] 1 QB 408 at 416

1. In Allesch v Maunz[6], a differently constituted High Court considered Taylor.  The facts were somewhat different in that Mr Allesch failed to appear a number of times due, he ultimately said, to health issues.  However he did not take steps until late in the day to put material before the court to that effect.  The court ultimately allowed Mr Allesch to be heard and said, per Gaudron, McHugh, Gummow and Hayne JJ, Kirby J concurring:

"A Court will ordinarily be satisfied that there has been a miscarriage of justice if a person has suffered an adverse order in circumstances where his or her failure to appear is adequately explained unless it also appears that no different result would be reached on a rehearing or that a rehearing would work an irremediable injustice to the other side.  Such injustice will often be capable of remedy by the imposition of terms as to costs."

The evidence at hearing

[6] Allesch v Maunz (2000) 203 CLR 172

1. The hearing which resulted in the decision of the Associate Judge was held on 11 March 2009.  The applicant did not appear.  However, his then solicitor, Mr Chopping, did.  Mr Chopping sought an adjournment.  That adjournment was refused, and Mr Chopping then sought, and was granted, leave to withdraw.  The respondent's application for a property adjustment order proceeded ex parte.  The Associate Judge had regard to the affidavit material she had filed, heard some oral evidence from her, and then reserved his decision.  He delivered that on 20 March.

1. The issue in this case became, not so much that the applicant did not appear on 11 March, but how he came not to be present and how it came about that nothing was put before the court on his behalf by way of opposition to the respondent's application.

1. The applicant and Mr Chopping both gave evidence about a conversation which occurred between them on 10 March 2009, that is the day before the hearing.  They disagreed to a significant degree about the content of that conversation.  What they did agree upon, however, was that Mr Chopping told the applicant not to come to court on 11 March.  The reasons for that, according to Mr Chopping, had their genesis in the way the proceedings generally had been conducted since they were instituted in 2006. 

1. Mr Chopping commenced to act for the applicant in March 2006. When the applicant first came to see Mr Chopping, the applicant provided papers relating to an application for a restraint order he had filed personally in the Hobart Magistrates Court against the respondent. In that application, the applicant described the respondent as an ex-carer and gave some details about the connection between the two. The application did not proceed. In September 2006, the respondent instituted proceedings under the Act, s40. Her description of the relationship between her and the applicant in those documents was very different from that given by the applicant in his restraint order application. When he received a copy of the application (but prior to formal service), the applicant's instructions to Mr Chopping, despite being told that an entry of appearance would be required, were "Deny all matters" and "Play possum and wait and see". The application was however then personally served and Mr Chopping was instructed to file an appearance and did so.

1. The application was listed before the Associate Judge for directions. Mr Chopping advised the applicant that the Associate Judge had ordered there be financial statements filed.  Mr Chopping sent a draft of such a statement to the applicant and asked for instructions.  Several weeks later the applicant rang Mr Chopping's office and left a message in which he indicated he was worried about being unable to complete paperwork due to illness and needed an extension of time.  Nevertheless, he made an appointment to see Mr Chopping, which he then did not keep.  However, in March 2007,  he did give quite detailed instructions to Mr Chopping about the relationship between him and the respondent.  It is unclear from Mr Chopping's file whether that was by telephone or in person.  There seems no dispute that the applicant and Mr Chopping only ever had one face to face meeting.

1. Mr Chopping appears to have prepared an affidavit for the applicant which he sent to him on 22 March 2007.  The affidavit was sworn and returned.  A copy was sent to the respondent's solicitors at the end of April.  On 16 May, the applicant instructed Mr Chopping that he wished the matter to go to Court, but that he was not fit enough to attend mediation.  Mr Chopping raised the issue of ill-health with the respondent's solicitors and was asked to provide a medical report.  Mr Chopping noted in a letter to the applicant on 10 July 2007, that the applicant's estimate of the value of his property seemed to be a significant overstatement of its value and suggested a valuation be obtained.  Mr Chopping also indicated that, if there was to be any request to adjourn a  conference in September, the applicant would need a medical report.  The applicant refused to permit the respondent to have an inspection done of the real property by an agent.

1. In January 2008 Mr Chopping advised that the applicant was not well enough to attend mediation and in any event saw no point in its occurring.  The applicant's instructions were that he would make no offer because the respondent was not entitled to a settlement.  In April 2008, the Associate Judge made orders in respect of a timetable for the filing of affidavits.  Mr Chopping wrote to the applicant telling him that an Affidavit of Merits would be required.  On 27 May, he advised him specifically of what was required.  The advice was repeated in a letter of 19 June.  The applicant's only real response was an email in which he outlined a number of health problems.  Finally on 1 July 2008, the Associate Judge directed the matter be set down for hearing and also directed that "any application by the respondent for the vacation of an allocated hearing date is to be made at least 21 days in advance of the hearing date and if based on medical grounds to be supported by an affidavit from a medical practitioner".

1. The proceedings limped along with one set of hearing dates being vacated because of the applicant's health.  Over the second half of 2008, Mr Chopping's efforts appear to have been concentrated upon obtaining medical information.  The matter came to a head on 17 December 2008.  On that day, the Associate Judge was to hear evidence from the applicant's doctor as to the applicant's health situation.  A subpoena had been issued to that doctor to appear.  The doctor failed to appear.  There was however a statutory declaration from the doctor before the Court which gave some limited detail about the applicant's state of health, and indicated that the applicant would not be fit to attend court for a period.

1. In the circumstances the Associate Judge adjourned the respondent's application for a one day hearing on 11 March 2009.  He also made directions in the following terms:

"Orders:

1    The originating application is set down for hearing at 10 am on Wednesday, 11 March 2009 at the Supreme Court, Salamanca Place, Hobart with an eht of 1 day. 

2If the respondent or his solicitor appearing on his behalf does not attend the Court at 10 am on Wednesday, 11 March 2009, the application for the adjustment of property interests will be heard in the absence of the respondent and such orders will be made in his absence as the Court considers to be just and equitable including orders for the sale of the property at 106A Blessington Street, South Arm, the distribution of the sale proceeds, the delivery up by the respondent of other property and payment by the respondent of the applicant's costs of the proceedings. 

3Any application by the respondent for an adjournment is to be made by him appearing in person or by his solicitor before the Court and not in any other way and evidence in support of any adjournment application by him must be given orally and not by affidavit or the production of a medical certificate or in any other way. 

4This order is to be formally taken out by the applicant with an original to be posted to the respondent by ordinary pre-paid mail addressed to him at 106A  Blessington Street, South Arm, Tasmania.

5I direct that a copy of the record of proceeding sheet for today be sent to the practitioners for the parties."

1. Mr Chopping wrote to the applicant on 17 December.  His letter read as follows:

"I thank you for the provision of the copy Caveat.

I advise that the Caveat does not give Ms Begum any entitlement to your property but simply serves as a warning that any transaction by you is subject to the claim by her in respect of the property.

I will proceed further with the defence of the claim against you and keep you informed of developments.

Yours faithfully,

Steven Chopping LL B

(Dictated by Steven and signed in his absence)" 

Mr Chopping's evidence was that he enclosed with that letter the typed record of proceedings sheet from the Associate Judge.

1. Mr Chopping had no further contact with the applicant until 10 March 2009.  However, Mr Chopping's secretary took a message from the applicant on 5 March.  The note of that message read:

"Skip Loft – will be @ Crt 10.00am Wed 11^th.  Call him if you need to discuss prior"

It is apparent from Mr Chopping's file that at no time did he, in writing, give detailed advice to the applicant about how a hearing of the respondent's claim would proceed.  There is no recorded advice to the effect that the evidence before the Associate Judge was to be in affidavit form, and that the applicant would not be able to simply come to court on the day of the actual hearing and tell the court his side of the story.  While Mr Chopping asked the applicant on a number of occasions  to provide material for an affidavit, he did not ever apparently say to the applicant, "if you do not give me instructions to do an affidavit, I will not be able to present your case for you".  In fact after 17 December 2008, Mr Chopping did nothing at all.  He had to, as an experienced practitioner, have known that the applicant could be at a serious disadvantage if he did nothing and yet Mr Chopping gave the applicant no warning of that.

1. Both the applicant and Mr Chopping gave evidence about the conversation between them on 10 March. Their versions of the event were entirely different. Mr Chopping also made a file note. That note is as follows:

"Att S Loft

I rang

Left message

Skip rang back

Discussing Ct appearance

Dr X wanted $2k to go to Ct

You have new Dr

Numerous serious op's still to go

Still in poor health

Not sure how long, when ?

Could be @ Ct.  Great need for carer.  Unable to transport self

Discussing evidence by her – you struggle to be at Ct

Considered may be better to let go

I to seek adj"

In his oral evidence, Mr Chopping said that, although he has not made a detailed note of the discussions or exactly what his advice to the applicant was, he discussed tactics with the applicant.  At the end of the conversation, it was agreed that the applicant would not come to court, and that Mr Chopping would seek an adjournment of the hearing.  If that was unsuccessful, he would withdraw.  He said he told the applicant that in dealing with the matter this way, he might have a better chance of having any orders set aside. 

1. The applicant denied absolutely that any such discussion about tactics occurred.  He said that Mr Chopping told him that he did not need to come to court because the hearing only related to the court taking evidence from the applicant's doctor.  The applicant said that he had every intention of attending court.  His carer had arranged a taxi for him and was accompanying him.  There was evidence from the carer to that effect.  The carer had seen letters from Mr Chopping which advised the applicant of the need to attend court for the hearing.

1. The applicant's evidence is inconsistent with both Mr Chopping's notes and oral evidence.  It is also contrary to any possible understanding of what was to occur on 11 March that Mr Chopping could possibly have had.  There is no logic at all in his having given the applicant advice not to appear because the hearing related to the doctor's evidence.  Mr Chopping may very well have told the applicant that in relation to the attendance before the Associate Judge on 17 December. However, it makes no sense at all that Mr Chopping would have given the advice the applicant says he did on 10 March.  In all the circumstances, I do not accept that Mr Chopping told the applicant on 10 March that he need not attend court because the hearing related to the taking of evidence from a doctor.

1. As is beyond doubt however, Mr Chopping clearly did tell the applicant not to appear in court on 11 March, and I accept that was as a result of a conversation Mr Chopping gave evidence about.  I accept as a consequence that the applicant took the advice he was given, and cancelled his intended visit to court on 11 March.

1. Another aspect of the applicant's case on the application to set aside was that he had never been asked to give detail to Mr Chopping for the preparation of an affidavit to respond to that of the respondent.  However, when asked just that in cross-examination, he responded that he had indeed been asked to do that by Mr Chopping.  He clearly was asked because there is correspondence from Mr Chopping in which the applicant is told of the need to provide an affidavit of merits.  The applicant had to have known that he had not. 

1. In his oral evidence, the applicant was at pains to place the blame on Mr Chopping for the way in which the proceedings of the respondent were dealt with.  I did not accept the applicant as an impressive witness.  His lack of memory was at times selective.  To explain his failure to give instructions to Mr Chopping at one time, he claimed he had been taken to hospital with amnesia.  His counsel had introduced his medical records into evidence.  There was nothing there to suggest a case of amnesia.  The applicant also claimed to have been unable to contact Mr Chopping because his computer was broken down for several months.  He did not identify when this was.  I do not accept his evidence as to that.  Mr Chopping's file records emails from the applicant on a quite regular basis.  There was also no real explanation from the applicant as to why he could come from his home at South Arm from time to time for medical appointments in the city, and yet he did not make use of any of these trips to see Mr Chopping to instruct him when he clearly could have.

1. Having said all that about the applicant, he is a 73 year old man whom I accept is, and has been for some time, in poor health.  My acceptance of his poor health arises from the medical records tendered and the statutory declaration of his former doctor from 2008.  However, there was nothing in any of that material which explained the consequences to the applicant of his various health problems.  Given the state of the evidence produced, it is impossible to draw conclusions as to just what the impact of the applicant's various health conditions was on his capacity to deal with the court proceedings in which he was involved.  Through the course of the proceedings, and I infer even now, the applicant has been supported by community based carers who have assisted him on a regular basis.

Was there a miscarriage of justice such as to allow the Court to exercise its discretion in the applicant's favour?

1. The respondent's position was effectively that the applicant was complicit in the decision not to attend court on 11 March, and that, in those circumstances, it cannot be said a miscarriage of justice occurred.  The applicant cannot, it was submitted, now turn around and say he was deprived of the opportunity to present his case.  I have some sympathy for that argument because I accept that the applicant has not been diligent in dealing with the respondent's application to the best of his ability.

1. However, it must be concluded that Mr Chopping did not represent the applicant as he should have.  Mr Chopping may very well have felt he was fighting a losing battle in his dealings with the applicant trying to obtain instructions.  However, he did not make clear to the applicant what the consequences were likely to be if he failed to give those instructions and, in particular, failed to have any affidavit material before the court at hearing. Mr Chopping also does not seem to have made clear to the applicant that, if any hearing proceeded ex parte the only evidence the Associate Judge would consider would be that of the respondent. Against that background, the applicant accepted Mr Chopping's advice of 10 March not to appear at court on 11 March.  It is impossible to conclude that the applicant knew just what the legal implications were of his accepting that advice.

1. Another factor to be considered when determining whether or not a miscarriage of justice may have occurred is that the applicant has, at all times in his dealings with Mr Chopping, maintained that the respondent had never been in a defacto relationship with him. If that were accepted by a court, the respondent would not be entitled to any order under the Act. The applicant lost, by his absence from court and failure to present affidavit evidence, the ability to contest that basic issue.

1. I am satisfied that there is an adequate explanation for the applicant's failure to attend court on 11 March 2009. I am also satisfied that, by reason of the applicant's position in relation to the lack of relationship between the parties, if appropriate evidence is led in relation to that issue, it may have a significant effect on the outcome of any proceedings between the parties under the Act. In those circumstances, I am satisfied that a miscarriage of justice has occurred such as to warrant the exercise of the Court's discretion in favour of the applicant.

Conclusion

1. I have not dealt with the applicant's appeal and it is unnecessary that I do so.  It is adjourned sine die.  The order of the Court is that the orders of the Associate Judge made 7 April 2009 are set aside.  The respondent's application for property adjustment is to be remitted for hearing to the Associate Judge on a date to be fixed.

1. Given the history of this matter, and to avoid as much delay as is possible, I would propose to give directions for the filing of material and in relation to any other procedural matters to ensure the expedited hearing of the respondent's application.  I will hear counsel as to those directions and any other consequential orders sought.