Martin and Harris (No 2) - [2009] FamCA 908

FAMILY COURT OF AUSTRALIA

MARTIN & HARRIS (NO. 2)

[2009] FamCA 908

FAMILY LAW – PRACTICE AND PROCEDURE – variation of a self-executing order – application to extend time by one day to comply with previous order that any costs application be filed and served within 28 days – whether the Court has the discretion to extend the time for the filing of the application nunc pro tunc – whether the Court is functus officio – Court’s power to vary a procedural order – Court’s discretion as to costs orders – explanation of delay satisfactory and no prejudice suffered by the delay

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Bailey and Marinoff (1971) 125 CLR 529
DJL v Central Authority (2000) 201 CLR 226
Eure & Tidwell (1995) FLC 92-622; 19 FamLR 346
FAI General Insurance Co Ltd v Southern Cross Exploration (1988) 165 CLR 268; [1988] HCA 13
Morgan v 45 Flers Avenue Pty Ltd & Anor (1987) 11 NSWLR 573
Purcell v F C Trigell Ltd [1971] 1 QB 358
Southern Cross Exploration NLv Fire and All Risks Insurance Co Ltd (1986) 7 NSWLR 319

APPLICANT:

Ms Martin

RESPONDENT:

Mr Harris

INTERVENOR:

Mr R

FILE NUMBER:

SYC

1251

2007

DATE DELIVERED:

16 September 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

7 August 2009 followed by written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Broun QC

SOLICITOR FOR THE RESPONDENT:

Mr Gallego

SOLICITOR FOR THE INTERVENOR:

Mr Orlizki

Orders

Order 7 of the Orders of 18 June 2009 is varied by the deletion of the words “28 days” and the replacement of the words “29 days”.
Order 1 above take effect and operate as and from 18 June 2009.
The respondents to the wife’s costs application have a further 28 days from today in which to file any submissions or affidavits adducing evidence upon which they might wish to rely in opposition to the claim.
The costs of this application are reserved to the hearing of the wife’s application for costs.
The matter is listed for further mention before me at 9.30 am on Thursday,

15 October 2009.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1251 of 2007

MS MARTIN

Applicant

And

MR HARRIS

Respondent

And

MR R

Intervenor

REASONS FOR JUDGMENT

Introduction

Proceedings between the parties to this application were determined by a judgment and orders made on 18 June 2009.
Relevantly in relation to costs the following orders were made:
7.Any application for costs is to be filed and served within 28 days of the Orders herein made, and subject to the following:
a.Any costs application is to be accompanied by affidavits setting out the evidence in chief on which the applicant wishes to rely together with any written submission in support of that application.
b.[Not Reproduced]
c.[Not Reproduced]
8.In the event that no application is filed within the time limit specified, then each party is to pay their own costs of an [sic] incidental to these proceedings.
An application for costs was filed by the wife one day out of time.
The wife now makes application seeking an order in the following terms namely:
1.That Order 7 of the Orders of 18 June 2009 be varied by the deletion of the words “28 days” and the inclusion of the words “29 days”.
The issue which has arisen on a threshold basis is whether the Court has the power to make the order sought or whether by operation of the order the Court is functus officio and has no such power.
Further issues arise as to whether the order should be made in the event that I find I have power to make it.
The orders stand separately. Certainly consequences flow if Order 7 is not complied with but nevertheless it is a separate procedural order.
The Court is referred by the wife to the provisions of Rule 1.10 of the Family Law Rules 2004 (“the Rules)” and to the provisions that the Court may make an order in relation to any matter mentioned in the Rules and may make a consequential order. The Court may make a consequential order and the Court may specify the consequence of failure to comply with the order. These descriptors apply to Orders 7 and 8 above.
The wife then refers the Court to the provisions of Rule 1.11 which gives to the Court the power to set aside or vary an order made in the exercise of its power under these Rules.
It is submitted by the wife that the Court has power referred to above by virtue of Rule 1.10 and “unless a legislative provision states otherwise”. The wife goes on to submit that far from in any way limiting the Court’s power to make orders as to costs, Section 117(2) of the Family Law Act 1970 (“the Act”) is in the widest possible terms:
… the Court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, may make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the Court considers just.
It is argued by the wife that the combined effect of these provisions is that the Court has the widest discretion to make or vary an order such as Order 7.
It is submitted that those provisions of the Rules which permit of an extension of time to be granted even though the time fixed by the order has passed mean that a self-executing order can be varied.
It seems that an order of that nature can be made operating nunc pro tunc and in this case were such an order for extension be made then there could be no operation of the provisions of Order 8 since the application would have been filed in time.
I am referred to the decision of the Full Court in Eure & Tidwell (1995) FLC 92-622; (1995) 19 FamLR 346. That decision related to a procedural matter which took place prior to the final determination of the matter. In that case the Court was held by the Full Court of the Family Court of Australia to have power to set aside a self-executing order which had been given effect to. The Full Court held that the Court had a discretion under then Order 3 Rule 3 of the Family Law Rules to extend the time for compliance with a self-executing order.
I am referred to the decision of the NSW Court of Appeal (Kirby P, Hope and Priestly JJA) in Morgan v 45 Flers Avenue Pty Ltd & Anor (1987) 11 NSWLR 573. Again there was a consideration of extending time for compliance with a self-executing order. Kirby P considered the power of the Court to set aside orders and referred to the decision of Priestly JA in Southern Cross Exploration NL v Fire and All Risks Insurance Co Ltd (1986) 7 NSWLR 319. In that case Priestly JA drew attention to the provisions of the Supreme Court Rules which permitted the Court to extend or abridge time fixed by those Rules or by any judgment or order which power can be exercised both before and after the time expires. Kirby P in Morgan v 45 Flers Avenue Pty Ltd & Anor (supra) went on to distinguish English decisions which it was suggested supported the view that the Court loses its power to make orders under those Rules.
His Honour (at paragraph 579) drew attention to a decision of Lord Denning in Purcell v F C Trigell Ltd [1971] 1 QB 358 which clearly supported the view that there was a large discretion to set aside orders, and particularly interlocutory orders.
My attention was drawn also to the decision of the High Court of Australia in FAI General Insurance Co Ltd v Southern Cross Exploration (1988) 165 CLR 268; [1988] HCA 13. In that case Wilson J (Brennan, Deane and Dawson JJ agreeing) held that Part 2, Rule 3 empowers the Supreme Court of New South Wales to extend time for compliance of a self-executing order in circumstances where the time for compliance had expired. His Honour stated that the discretion ought to be exercised to prevent an injustice where the

non compliant party ought to be excused.
The Intervener raised submission directed at three issues namely:
a)Is the wife’s application filed 17 July 2009 (the costs application) competent?
b)Is the Court functus officio so that the wife’s application is of no effect?
c)If power exists to hear the application now made by the wife for variation, should it be granted?
It is submitted by the intervener that Order 7 is not an order at all since it does not compel the doing of any act. I respectfully disagree, as it is an order that if you wish to file an application that you do so within a specified time. That the option remains open for a party not to file an application and suffer the consequence set out in Order 8 does not make Order 7 a “non order”.It is suggested that the application by operation of Order 8 which has come into effect, in the circumstances makes the application for costs incompetent. The application is not incompetent if I have power to, and then do so order, order nunc pro tunc that the time for filing of the application be extended.
The Intervener argues that once an order disposing of proceedings has been entered the proceedings are at an end and absent specific and relevant statutory provision, no further orders can be made. The Intervener cites the decision in Bailey and Marinoff (1971) 125 CLR 529, and in particular the reasoning of Barwick CJ at 530-1. There is in my view, clear authority in the Rules made pursuant to statute the power to vary an order and to make that order operate from the date of the judgment.
My attention is further directed to the decision of the High Court of Australia in DJL v Central Authority (2000) 201 CLR 226 as authority for the proposition that statutory courts do not have (absent clear provision to the contrary) the inherent power to reopen perfected orders disposing of proceedings. Whilst there are stated exceptions to the principle, the Court decided in that case to extend the category. It however appears not to be closed.
I was, as a consequence, reminded that the Family Court of Australia is a statutory court and has as a policy a provision in Section 81 of the Act as to the finality of financial relationships between parties to a marriage and the avoidance of further proceedings between them. That Section relates to proceedings under Part VIII of the Act. The proceedings in this matter are proceedings under the provision of Part XV of the Act.
I do not accept the submission that the Court’s powers are spent in relation to Orders 7 and 8. The Court has power to act in relation to completed proceedings and the Rules and the authorities make it clear that the Court does have power to make an order which would extend the time for pleading where a default order is made, in the absence of pleading within a specified time. The order which is sought to be extended is a procedural order. That non-compliance with it has certain effects does not make it other than procedural.
It is submitted by the Intervener that extending the time under Order 7 will have no effect since Order 8 has already come into effect. I reject that submission. If the time under Order 7 is extended nunc pro tunc then there is no activation of Order 8.
I take the view that the Court has power to vary a procedural order. I rely on the Rules of the Court in that regard and the operation of the provisions of Section 117 of the Act, which gives the Court a broad discretion to make orders for costs.
The Court can make that variation, notwithstanding that the time limit set by the order has passed.
It can make such an order to operate nunc pro tunc.
I therefore hold that if I make such an order as is sought by the wife operating in that fashion, that the effect of such an order would be that there is no default in compliance upon which Order 8 could operate.
Given that I have power to make the order the question then arises as to whether I should make such an order.
In determining that I should, I have had regard to the following matters:
a)The delay was one day only;
b)The delay has been explained to my satisfaction that there are special circumstances and understandable ones arising by reason of the funeral of the wife’s solicitor’s grandmother;
c)The delay was not the fault of the wife;
d)Neither of the respondent parties has suffered any prejudice by reason of the delay;
e)The application is not capricious and the wife has a clearly arguable case for the relief she seeks and in that regard I refer to my Judgment herein. Whether the argument succeeds, and if so to what extent, is to be determined but that application could not be said to have no foundation; and
f)The prejudice to the wife in refusing the order exceeds that of any prejudice from which the husband, his solicitor and the intervenor might suffer.
Accordingly I make the orders set forth above.
I will reserve the question of costs of this application to the determination of the wife’s application.
Given that Mr Gallego has said that he and his client, the husband, now seek separate representation given the conflict in their interests, I will allow further time for responses to the wife’s application for costs.
I will reserve the costs of this application to the hearing of the substantial application for costs.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 16 September 2009