Marley & Ormonde
[2020] FamCA 1046
•21 October 2020
FAMILY COURT OF AUSTRALIA
| MARLEY & ORMONDE | [2020] FamCA 1046 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Separating issues – Where the matter was set down for hearing of a discrete issue concerning third party interests in the matrimonial property – Where that hearing was part heard and Orders were made setting the matter down for further hearing of the separate issue and, in addition, the substantive property proceedings concerning the adjustment of the wife and husband’s property – Where during the further hearing, there was insufficient time for hearing of the substantive property proceedings – Consideration given to separating the issues – Consideration given to hearing the separate issue in a discrete hearing. |
| Family Law Act 1975 (Cth) Pt VII, s 79 Uniform Civil Procedure Rules 2005 (NSW) r 28.2 |
| Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 Gould & Gould; Swire Investments Ltd (1993) FLC 92-434 Sahrawi & Hadrami (2018) FLC 93–857 Southwell v Bennett [2010] NSWSC 1372 VC & GC and ORS (2010) FLC 93-434 |
| APPLICANT: | Ms Marley |
| FIRST RESPONDENT: | Mr Ormonde |
| SECOND RESPONDENT: | Ms Ormonde |
| THIRD RESPONDENT: | Mr B Ormonde |
| FILE NUMBER: | SYC | 3012 | of | 2018 |
| DATE DELIVERED: | 21 October 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney by web conference |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 21 October 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Guterres |
| SOLICITOR FOR THE APPLICANT: | MistryFallahi Lawyers & Business Advisors |
| SOLICITOR FOR THE FIRST RESPONDENT: | Mr Brown of Browns the Family Lawyers |
| SOLICITOR FOR THE SECOND AND THIRD RESPONDENTS: | Ms Johnson of Leigh Johnson Lawyers |
Orders
This matter is adjourned for further video hearing on 2 November 2020 at 10am.
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 Marley & Ormonde 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).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3012 of 2018
| Ms Marley |
Applicant
And
| Mr Ormonde |
First Respondent
And
| Ms Ormonde |
Second Respondent
And
| Mr B Ormonde |
Third Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
This matter was originally set down for hearing before me in respect of a separate issue, pursuant to r 10.13 of the Family Law Rules 2004 (Cth) (“the Rules”), concerning whether Ms Ormonde (“the Second Respondent”) and Mr B Ormonde (“the Third Respondent”) have an interest in the property located at E Street, Suburb F (“the Suburb F property”). The Suburb F property is included in the property pool in the substantive proceedings concerning an Application for property adjustment between Ms Marley (“the Applicant wife”) and Mr Ormonde (“the First Respondent husband”).
Following the first three (3) days of hearing in respect of the separate issue, I made Orders on 19 August 2020 for the Court to continue hearing of the separate issue and for the Court to proceed to deal with substantive proceedings concerning the adjustment of the Applicant wife and First Respondent husband’s property over a further four (4) days commencing 19 October 2020.
It became apparent during the further hearing of the separate issue, that there would not be insufficient time for the hearing of the substantive property Application. Accordingly, this decision concerns once again separating the issues for determination.
The law – concepts and principles
Rule 10.13 of the Rules empowers the Court to hear and determine a discrete issue in a case. The Rule relevantly provides as follows:
A party may apply for a decision on any issue, if the decision may:
(a) dispose of all or part of the case;
(b) make a trial unnecessary;
(c) make a trial substantially shorter; or
(d) save substantial costs.
In Southwell v Bennett [2010] NSWSC 1372 at [15]-[17], in reference to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), which is substantially similar to r 10.13 of the Rules, Hallen J at [15]-[17] stated the following:
[15] I take the principles that apply in determining whether to make an order for the separate determination of a question under the rule to be:
(a)The rule speaks of “questions” and not “issues” and does not differentiate between questions of fact, or law, or partly of fact and partly of law.
(b)The judicial determination of a “question” must involve a conclusive, or final, decision based on concrete and established, or agreed, facts, for the purpose of quelling a controversy between the parties: Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334, at [45] and [51].
(c)The rule permits the court to hear and determine the separate question at any point before, at, or after, any trial or further trial in the proceedings, rather than only as a preliminary question.
(d)Whether such an order should be made is a matter for the court’s discretion, which discretion must be exercised judicially, but cannot otherwise be fettered: Dunstan v Simmie & Co Pty Ltd [1978] VR 669, at 670; Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7].
(e)As a general rule, the discretionary power to order separate determination of a question should be approached with caution: Perre v Apand Pty Ltd [1999] HCA 36 ; (1999) 198 CLR 180 at [436], per Callinan J; Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1, at [168]–[170] per Kirby and Callinan JJ: Commonwealth Bank v Clune [2008] NSWSC 1125 at [6], per Johnson J; Bailey and Bailey v Director-General Department of Energy Climate Change and Water [2010] NSWSC 979 at [4] per Studdert AJ.
(f)In exercising its discretion, the overriding purpose of the Civil Procedure Act 2005, namely the just, quick and cheap resolution of the real issues in the proceedings (s 56) must be given effect.
(g)Generally, all questions of fact and law should be determined at the one time: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141–42; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14. If the court is to depart from that position, the party seeking the separate determination of a question must satisfy the court that it would be “just and convenient” for that order to be made: Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 at [8]–[9], see also Energy Australia v Australian Energy Ltd [2001] FCA 1049.
(h)While it may appear attractive, superficially, to order the trial of a separate question, experience often shows that it will not be so, for example, because of the complications that can arise in relation to appeals, or to overlapping factual issues, or to questions of credit, if the same witnesses have to give evidence in relation to a question that is separated and those questions that are not: Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7(6)] per Einstein J.; Owners Corporation Sp 70672 v Trustees of Roman Catholic Church [2010] NSWSC 946 at [16] per Ball J.
(i)The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings, but often has the reverse effect. It sometimes happens that it turns out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which it is intended to avoid: Idoport Pty Ltd v National Australia Bank Ltd; Tepko Pty Ltd v The Water Board at [168].
(j)Before a question is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings: Tallglen v Pay TV Pty Ltd at 142, per Giles CJ in Comm D; Parramatta Stadium Trust v Civil and Civic Pty Ltd; Century Medical v THLD (NSWSC, 27 August 1996, unreported).
(k)Where findings as to the credit of a witness is, or of witnesses are, or may be, involved in the consideration of the evidence relevant to the question, it is inappropriate to order a separate trial: ABB v Freight Rail [1999] NSWSC 1037.
(l)Often, a separate question is heard on the basis of:
(i)agreed statements of fact;
(ii)a narrow point to be determined; and
(iii)a hearing that is able to be conducted within a short time (or a short time relative to the total length if the hearing of the separate question were not to be dealt with).
(m)Factors that tend to support the making of an order, include that the separate determination of the question may:
(i)contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the proceedings: Tallglen v Pay TV Holdings;
(ii)contribute to the settlement of the litigation (CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 602 per Kirby P at 607).
(n)It may be appropriate to determine a separate question, even if it will not resolve all the issues, provided that there is a strong prospect that the parties will agree upon the result when the core of the dispute has been decided, or if the decision will obviate unnecessary and expensive hearings of other questions: City of Swan v Lehman Brothers Australia Ltd [2009] FCA 784 ; (2009) 73 ACSR 86 at [27] per Rares J. The determination of the one question should enable a sensible reassessment of litigation risks, which is generally likely to encourage some form of settlement discussions.
(o)Relevantly, one factor that may tell against the making of an order would be where there is likely to be a significant overlap between the evidence adduced on the hearing of the separate question and at trial — possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding: Reading Australia Pty Ltd v Australian Mutual Provident Society at [8]. There is always a risk of inconsistent findings arising from determination of separate questions.
(p)Whilst the decision is ultimately one for the court to determine, it will have regard to the attitude of the parties: TVW Enterprises Ltd v Duffy (Federal Court of Australia, 28 March 1985, unreported) Toohey J.
(q)It is a relevant consideration to weigh the time likely to be taken in the hearing of a separate question and the availability of hearing dates for that purpose, against the time and expense of a substantive hearing and the length of time likely to elapse before such a hearing will take place: TVW Enterprises Ltd v Duffy at pp 4–5.
(r)Each case will have its own dynamics that dictate the relative importance of various factors to be considered in exercising the discretion conferred.
(s)It is necessary that there be precision, both in formulating the question, and in specifying the facts upon which it is to be decided: Jacobson v Ross [1995] 1 VR 337 at 341
[16] Finally, I should refer to Allen v Gulf Oil [1981] AC 1001, which seems to me, in the circumstances of the present case, to be not only sensible, but essential, to remember. Lord Wilberforce said, at p 1010H:
… My Lords, I and other of your Lordships have often protested against the procedure of bringing, except in clear and simple cases, points of law for preliminary decision. The procedure indeed exists and is sometimes useful. In other cases, and this is frequently so where they reach this House, they do not serve the cause of justice. The present is such an example. The question as originally framed was clearly inept. It was recast by Kerr J. into an improved form. But both judges in the Court of Appeal found it either unintelligible or unanswerable: so I believe do some at least of your Lordships. The fact is that the result of the case must depend upon the impact of detailed and complex findings of fact upon principles of law which are themselves flexible. There are too many variables to admit of a clear-cut solution in advance.
[17] Lord Roskill said at p 1022A:
… The preliminary point procedure can in certain classes of case be invoked to achieve the desirable aim both of economy and simplicity. But cases in which such invocation is desirable are few. Sometimes a single issue of law can be isolated from the other issues in a particular case whether of fact or of law, and its decision may be finally determinative of the case as a whole. Sometimes facts can be agreed and the sole issue is one of law. But the present is not a case in which this procedure ought ever to have been adopted for the reasons stated by my noble and learned friend …
… But I hope that your Lordships’ agreement so to treat it will not encourage others to invoke the preliminary point procedure in unsuitable cases, or lead those whose task it is to decide whether or not the trial of preliminary points should be ordered, to be other than extremely cautious before acceding to pleas for the making of such orders as a result of attractively advanced submissions founded upon pleas of supposed economy.
Consideration
In my view, having regard to those principles, I am satisfied that the separate issue originally set down for hearing can be dealt with as a discrete issue. The factual issues and points of law, which we have been considered in the six (6) days of hearing to date, are substantially discrete from the substantive s 79 of the Family Law Act 1975 (Cth) (“the Act”) proceedings concerning the adjustment of the Applicant wife and First Respondent husband’s property.
Further, in considering the exercise of my discretion, I have had regard not only to those authorities to which I have referred, but also to r 1.04 of the Rules which provides, as follows:
The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.
A very significant issue in that respect is the fact that without resolution of the separate issue concerning the interests of the Second and Third Respondents, they would, in all probability, be required to participate in further proceedings. I estimate those proceedings would continue for not less than five (5) days given that it would involve the substantive property proceedings and the substantive parenting proceedings under Pt VII of the Act. The Second and Third Respondents would, necessarily, incur legal fees in respect to their representation.
Further of relevance is that the manner in which proceedings have been conducted to date are such that the separate issue can be conveniently dealt with as a discrete issue, save to the extent that counsel for the Applicant wife has indicated he may wish to present an argument regarding, for want of a better description, course of conduct or similarity with course of conduct on the part of the Applicant husband, with a view to impugning the husband’s credit.
There is a significant question in my mind as to whether it would be proportional to the costs of the litigation to, in considering that issue, which I would think would take at least a two (2) days of further hearing and hence further prolonging the final hearing which I have estimated would be five (5) days. In other words, there is every chance that pursuing that angle, which counsel for the Applicant wife has foreshadowed, would cause the final hearing to proceed in the order of seven (7) days rather than five (5) days.
I acknowledge that I raised with the parties that one disadvantage of my giving a decision on this discrete issue is that it may potentially involve findings of credit regarding evidence that has been given in this aspect of the proceedings. On the other hand, I note that there are also a number of Full Court authorities to the effect that a finding that a witness has given unreliable evidence in respect to one aspect of the case does not necessarily diminish necessarily in respect to another aspect of the case.[1] Accordingly, I respectfully agree with the submission of the solicitor for the First Respondent husband that credit may not necessarily be a live issue, in the final property proceedings, in the event of my giving judgment in these proceedings regarding the limited issue.
[1] See Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 at 1201; Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 at 322; Sahrawi & Hadrami (2018) FLC 93–857 at [59].
I further acknowledge the Full Court authorities which caution trial judges about separating issues,[2] particularly when there are issues of credit that may be impacted by cross-relevant evidence.[3] Nonetheless, in the particular and specific circumstances of this matter, including the fact that the parties have incurred legal costs of $585,722.93 between them, it is my view that we should make every endeavour to tip the scales ever so slightly in favour of the matter being resolved and I consider that it would be more likely to occur if this preliminary issue was to be dealt with.
[2] See Gould & Gould; Swire Investments Ltd (1993) FLC 92-434 at 80,448.
[3]See VC & GC and ORS (2010) FLC 93-434 at [8]-[9].
On that basis, I determine that we should proceed on 2 November 2020 to hear submissions from the parties’ regarding this preliminary issue. I would then reserve my judgment and will set the matter down for further programing with a view to setting dates convenient to the parties for the further conduct of the proceedings in 2021.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 21 October 2020.
Associate:
Date: 9 December 2020
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