Malta and Malta and Ors

[2007] FamCA 1531

FAMILY COURT OF AUSTRALIA

MALTA & MALTA AND ORS [2007] FamCA 1531

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment

Family Law Act 1975 (Cth)

APPLICANT: Ms Malta

RESPONDENT: Mr Malta

SECONDNAMED RESPONDENT: … Rural Water Authority

PETITIONER: Mr Trim

PETITIONER: R Group Pty Ltd

FILE NUMBER: MLF 4121 of 2002

DATE DELIVERED: 20 December 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Justice Cronin

HEARING DATE: 20 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: No Appearance

COUNSEL FOR THE RESPONDENT: Mr Acquaro

SOLICITOR FOR THE RESPONDENT: Acquaro & Co

COUNSEL FOR THE PETITIONER: Mr Sanger

SOLICITOR FOR THE PETITIONER: Watkins Boag O’Connor & Dunne

COUNSEL FOR R GROUP PTY LTD: Ms Hishon

SOLICITOR FOR R GROUP PTY LTD: Deacons Lawyers

Orders

1. That the further hearing of all outstanding application be adjourned to 9.00am on 4 February 2008 before Justice Cronin.

2. That in so far as the wife desires to participate in those proceedings, she attend personally or by legal representative.

3. That by Monday 28 January 2008, the wife take all necessary steps to activate the prosecution of her proceedings in the Supreme Court of Victoria to set aside the orders of the Honourable Justice Mandie made on … August 2004.

4. That by Friday 1 February 2008, the wife file and serve upon all parties to the proceedings in this Court, an affidavit setting out the steps that she has taken to comply with paragraph 3 of these orders.

5. That if the wife fails to attend as provided in paragraphs 1 and 2 hereof, that MR TRIM have leave to proceed with his application on an undefended basis.

6. That the husband file and serve any further application and affidavit material in support of his application for property settlement by 4.00pm on 25 January 2008.

7. That by 4.00pm on 25 January 2008 the wife file and serve any submissions she wishes to be considered in reply to the submissions on behalf of Mr Trim.

8. The question of all costs of the parties of this day are reserved.

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules2004 this matter reasonably required the attendance of counsel.

2. That as soon as practicable, the Associate to Justice Cronin forward to the wife a sealed copy of these orders by post to … SA ….

3. That the wife’s letter dated 20 December 2007 and the medical certificate accompanying it be marked as Exhibit “A” and remain on the Court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 4121 of 2002

MS MALTA  

Applicant

And

MR MALTA  

Respondent

REASONS FOR JUDGMENT

1. This matter came before me today as a special fixture.  The date for the hearing was fixed by Registrar Mestrovic who made specific orders for the filing of material.

2. The husband was represented by his solicitor, counsel appeared on behalf of Mr Trim who purports to be a creditor of the wife.  I shall deal with that in more detail below.  Ms Hishon appeared on behalf of liquidators of a company R Group Pty Ltd.

3. Just prior to the commencement of the proceedings, my court officer was handed a letter dated this day and a medical certificate.  I am told that the bearer of the letter was a Mr S.  He apparently remained throughout these proceedings in the back of the court.  The letter purported to be from the wife and authorised the Court to hear Mr S who is apparently an accountant on her behalf.

4. The proceedings between the husband and the wife relate to property division.  They have been complicated by virtue of a number of other actions and I shall try and deal with some of those.

5. When the letter to which I have referred from the wife was drawn to my attention, I indicated that I was not prepared to have Mr S speak on behalf of the wife.  Leaving aside any questions of agency and Mr S not being a lawyer, the order of Registrar Mestrovic was very clear.  The wife was to appear in person or by legal representative.  In previous proceedings in this Court, the wife has sought and been given leave to attend hearings by telephone and in the letter dated this day, she provided a telephone number.  Having regard to the numerous applications in various courts previously and the fact that the Registrar’s orders were quite specific, I declined to involve Mr S at all and will make orders about the future involvement of the wife.

6. Mr Sanger of Counsel appeared on behalf of Mr Trim.  Mr Trim was a former solicitor for the wife.  Mr Trim alleges that work was done but not paid for.  He issued a bankruptcy notice against the wife.  Thereafter, he issued a petition in bankruptcy.  The wife apparently alleges that Mr Trim was not authorised to act on her behalf and is not entitled to payment.

7. Federal Magistrate McInnes in the Federal Magistrates Court of Australia refused to permit the petition to proceed on the basis that he seemed to be satisfied that if the wife was successful in her property claim against the husband, there would be ample funds for the creditor to be paid.  Since then, the petition has fallen foul of the twelve months rule and one of the issues before me was the extension of time.  The law in relation to that seems clear and I was helped by some comprehensive submissions in writing by Mr Sanger.  Those submissions were filed pursuant to the order of the Registrar.  Unfortunately, the Registrar did not make provision for the wife to respond to those submissions and there realistically was no need for her to do so having regard to the fact that she had ordered the wife to attend.  The wife complains that although the submissions were post-marked 11 December, she only received them on 17 December.  She says that she wants to reply.  She will certainly have that opportunity.

8. What prevents the case proceeding in this Court is the dispute about what is property of the parties.  In August 2004, there were significant proceedings in the Supreme Court of Victoria over a large parcel of land.  In early August 2004, the Honourable Justice Mandie in that court made an order which effectively removes the property from the pool of assets between the husband and the wife on the basis that a declaration was made that the husband did not have an interest in it.  The order is more complicated than that but that description will suffice for the moment.  There were subsequent orders in which the Registrar of Titles was joined for the purposes of presumably enforcing the order.

9. The order of Mandie J was based upon the fact as I read it, the wife was not objecting to the order.  She certainly seemed to be represented at that time.  Notwithstanding that perception, the wife subsequently sought in April 2005 to set aside the orders of Mandie J.  She alleged that the firm of solicitors did not have the instructions to do what they alleged occurred.

10. The problem in this case is that the wife has not prosecuted her proceedings in the Supreme Court.  Equally problematic is the fact that the respondents to the proceedings in the Supreme Court have not sought a summary dismissal nor a dismissal on the basis for failure to prosecute.  It is a little difficult to understand exactly what the wife’s position is but I have presumed that she says she cannot afford to pursue the matter.  Ironically, the respondents to those proceedings say exactly the same thing.  R Group Pty Ltd which seems to now be the legal owner of the property is in liquidation and the liquidators have no funds to take the step to bring the matter in the Supreme Court to a head.  I pointed out to the participants in the proceedings before me that in reality, they were talking about people being unable to afford lawyers.  It is not an unusual situation in courts today to see litigants in person and in this case, it is hard to understand why there is any difference.  We have a classic stand-off in which neither party is moving in respect of those proceedings as a consequence of which this Court does not have the capacity to deal with the case.  I propose to rectify that problem.  It is to be noted that the Registrar in October 2007 endeavoured to push the case along by requiring the wife to file material setting out what steps she had taken.  She has failed to file any material.  I am now proposing that she will have just over one month notwithstanding the Christmas period to take the steps that will bring the Supreme Court proceedings to a head and she will be required by my orders to set out what steps she has so taken.  In the letter to which I earlier referred which purports to be from the wife, she says she now has two barristers and a solicitor willing to act for her.  If that is so, the professionals will need to move quickly.

11. On the basis that the wife fails to attend the return date of the proceedings in my court and certainly fails to show that she is actively taking proceedings to bring the Supreme Court hearing to a head, I propose to treat the matter as one in which the property of the parties is that other than the property which was the subject of those Supreme Court proceedings.

12. The remaining property appears to be a vacant parcel of land, some saleable shares which used to be called a water right and the proceeds of the sale of stock from a business.  In respect of the latter, it is clear that there is a dispute over that but if there is no evidence about the existence of those funds, then on the basis that the water right shares and the vacant land are worth something in the vicinity of $300-400,000, it is my view that the matter in this Court should proceed expeditiously without allowing the parties to spend significant amount of court time and energy chasing those funds from the stock.  I say that because of the fact that I was told by Ms Hishon on behalf of the liquidators that there are creditors who would be seeking something in the vicinity of $150,000.  That would potentially mean that the interest of the wife in the remaining property must be limited.  Ms Hishon told me that there have been orders for costs made against the wife which remain unpaid and it is her client’s intention to issue a bankruptcy notice and then pursue the matter to finalisation.  To a large degree therefore, the issue of the petition by Mr Trim becomes somewhat academic if in reality, there is another bankruptcy notice followed by a petition immediately behind it.  Having said that, if a petition proceeds to finalisation, it will amount to the appointment of a trustee in bankruptcy and unless I can be convinced otherwise, the law is that the wife will not be an active participant in the proceedings because of the fact that the trustee will take her role.

13. I was also told that the wife had entered into a scheme of arrangement involving the appointment of a trustee by the name of C.  However, it is not entirely clear whether that situation was still extant.  If it is, the issue needs to be investigated as well.

14. Accordingly, I have made orders that give the wife an opportunity to endeavour to drag into the pool of assets in this Court that which she alleges she has an interest in arising out of the Supreme Court proceedings.  Having regard to the fact that over 2½ years has now passed by without any action being shown towards a resolution of the Supreme Court proceedings, I think it is appropriate that everything be brought to a head.

15. In the proceedings that I have set down for February at 9.00am, I propose that that day be treated as a mention to get the matter to a finalised position.  As a result of the wife not filing any material in response but having indicated she wishes to do so in relation to the petition of Mr Trim, I have made orders that she be given that opportunity and if she fails to do so, I will treat the matter as an undefended matter.  The law in relation to that seems clear on the submissions of Mr Sanger and if the wife has some issue that she can point to to the contrary, I will be happy to consider it.  Otherwise, the role of Mr Trim will presumably cease as if the petition proceeds, a trustee in bankruptcy would no doubt be appointed.

16. I want to make clear that I have understood that the wife has filed a certificate saying she is ill.  I was told by counsel however that orders have not been complied with and adjournment applications have been made at the last moment previously.  It is now time for the stand-off to cease and all matters will now be managed by me from this day onwards. 

17. I propose to continue the involvement of Registrar Mestrovic in the matter and to have the Registrar deal with compliance issues should that be necessary.

I certify that the preceding Seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate

Date:  28 December 2007