Massalski and Riley - [2018] FamCA 678

FAMILY COURT OF AUSTRALIA

MASSALSKI & RILEY

[2018] FamCA 678

FAMILY LAW – PRACTICE AND PROCEDURE – Application for adjournment of final hearing – Where the matter has previously been listed for a final hearing which was adjourned – Where Counsel briefed for the wife is unwell and unable to appear on her behalf – Adjournment granted for shorter period than contemplated by application – Where the Court finds that such an adjournment provides sufficient time for new Counsel to be briefed.

Family Law Rules 2004 rr. 1.04, 10.06, 15.52
Federal Court of Australia Act 1976 (Cth) s. 37M

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Hart v Deputy Commissioner of Taxation [2016] FCA 250
St George Bank v Hammer (2015) NSWSC 957

APPLICANT:

Ms Massalski

RESPONDENT:

Mr Riley

FILE NUMBER:

SYC 496 of 2015

DATE DELIVERED:

27 July 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

27 July 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Boadicea Legal Services

COUNSEL FOR THE RESPONDENT:

Mr Coleman SC

SOLICITOR FOR THE RESPONDENT:

Russell C Byrnes Solicitor

Orders

The hearing dates of 30 and 31 July 2018 are vacated.
The hearing will be conducted for three (3) days, commencing 1 August 2018.
The Respondent husband is to take such steps as he is reasonably able to obtain building plans for property known as D Street, Suburb E.
The husband is to arrange and pay for a drive-by valuation of the D Street property, which shall be provided to the solicitor for the wife by no later than 5:00 pm on Monday, 30 July 2018.
In so far as the wife wishes to challenge or verify the value of the drive by valuation, I grant permission, pursuant to Rule 15.52 of Family Law Rules 2004, for the wife to obtain her own independent valuation of the D Street property and to rely upon that valuation as that of an expert witness.
The parties’ costs of today be reserved.
Subject to order 8 herein, the parties have liberty to inspect all documents produced in accordance with subpoenas issued in these proceedings, to date.
The husband have the right of first inspection in relation to the subpoena documents referred to in order 7 herein, which is to be exercised prior to 5:00 pm on Monday, 30 June 2018, with a view to, if necessary, apportioning from those documents, documents that the husband contends infringe the privacy of a third party to the litigation or are otherwise oppressive.
In the event that there is a disagreement between the parties as to those documents that have been so apportioned, that issue will be dealt with at 10:00 am on the first day of the hearing, 1 August 2018.
Pursuant to Rule 10.06 of the Family Law Rules 2004, I direct the parties to make respective formal offers of settlement by 5:00 pm on Tuesday, 31 July 2018.
The parties each file a chronology and a draft balance sheet, by 5:00 pm on Tuesday, 31 July 2018.

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 Massalski & Riley 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 496 of 2015

Ms Massalski

Applicant

And

Mr Riley

Respondent

EX TEMPORE JUDGMENT

Introduction

In this matter, the Applicant wife, through her solicitor, has applied for an adjournment of the hearing of this matter. That hearing is set down for five days, commencing next Monday, 30 July 2018.
The application is made in circumstances where the matter had previously been set down for five days, commencing 9 October 2017, and was subsequently adjourned.
In the case of Hart v Deputy Commissioner of Taxation [2016] FCA 250 (“Hart”) at [5], Edelman J said:
The principles concerning an application for an adjournment are well known. Those principles were referred to by the Full Federal Court in Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 [42] (the Court):
In considering an application for an adjournment, issues particular to the parties and the circumstances of the case must be considered. The Court must also determine how the grant or refusal of an adjournment will promote the overarching purpose of the civil practice and procedure provisions governing the exercise of its jurisdiction, here its appellate jurisdiction, including the objectives in s 37M(2) of the FCA Act, to which we have referred earlier in these reasons in summary form.
Edelman J then referred to the overarching purpose set out in s 37M(2) of the Federal Court of Australia Act 1976 (Cth). While that section is not directly relevant to my consideration of this matter I note section 37M(2) is consistent with the main purpose of the Family Law Rules 2004 which is as set out in Rule 1.04, as follows:
The main purpose of the 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.
Of further relevance is the following passage from Hart at [7], where Edelman J referred to the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (“Aon”):
In the joint judgment in Aon, Gummow, Hayne, Crennan, Kiefel and Bell JJ referred to four matters which should have been taken into account when discretion was exercised to grant an adjournment. Those matters were:
(1) the explanation for the adjournment sought (216 [108]);
(2) the detriment to other parties (217–218 [114]);
(3) the detriment to other litigants in the Court (217–218 [114]); and
(4) the parties’ choices to date in the litigation as to the claims to be made and how they were to be framed (217 [112]).
The wife’s reasons for having sought the adjournment are:
i)That Counsel who had been briefed on her behalf has fallen ill;
ii)That there is no agreement between the parties regarding the asset pool, the valuation of the pool or the respective contributions of the parties;
iii)That there has been inadequate disclosure by both parties, and in particular, she only recently received the updated Financial Statement of the husband;
iv)That the costs incurred by the parties in the proceedings relating to an Apprehended Domestic Violence Order in the State Courts had not been identified, and therefore, cannot be properly regarded as a liability in these proceedings;
v)That her tax liabilities, relating to the tenanting of a joint asset, remain uncertain;
vi)That she seeks the opportunity for the parties to engage in mediation; and
vii)That a drive-by valuation of the property at D Street, Suburb E, which had previously been agreed to by the parties, had not occurred.
The wife’s solicitor also expressed concern that the valuations that the parties had obtained for the properties in the asset pool were now out of date.
I dismiss points four and five of the wife’s reasons for seeking an adjournment as being irrelevant to my consideration. That is, costs incurred by the parties in the proceedings relating to the Apprehended Domestic Violence Order should not be regarded as a joint liability to be deducted from the matrimonial property pool. Further, in terms of the alleged uncertainty regarding the wife’s taxation liabilities, it is entirely inappropriate, in my view, for the wife to be able to refer to the non-quantification or particularisation of those liabilities as justifying an application for an adjournment on her part.
As I will explain, of all of the reasons advanced by the wife for the adjournment, I consider that the only reason of justification is the illness of her Counsel.
The first matter for consideration in determination an adjournment application, as set out in Aon, is any explanation given for the need for an adjournment. In that respect, Mr Coleman SC, entirely appropriately, in my view, conceded that if Counsel, as an officer of the Court, advises the Court that he or she is unwell, that should be accepted by the Court. I accept that Mr Philip Hayes, Counsel briefed for the wife, is unwell. That is confirmed in a medical certificate of Dr J dated 25 July 2018, which is attached to the Affidavit of Ms K.
In that respect, I note that in St George Bank v Hammer (2015) NSWSC 957 at [19], Campbell J said:
In Australia and New Zealand Banking Group Limited & Mio Amico Pty Limited (2013) NSWSC 716 at 62, Davies J pointed out that an adjournment will not normally be granted simply because there has been a late withdrawal of legal representatives. It matters not what the reason was except in the case of supervening personal illnesses or injury. A fortiori, the unavailability of legal representatives, again except in exceptional circumstances, will not justify an adjournment
At [25], his Honour again acknowledged that matters of accident or illness that prevented Counsel from appearing were exceptional circumstances. I note that in Hart, the first week of the two-week trial was vacated but an application for the second week to also be vacated was dismissed.
In my view, while the illness of Counsel in this mater justifies an adjournment, adjourning the matter from commencing on Monday, 30 July 2018 to commencing on Wednesday, 1 August 2018 provides sufficient time for the solicitor for the mother to instruct new Counsel.
I will now deal with the second matter for consideration in Aon (supra), that is, the detriment of the other litigants of an adjournment being grated.
The outline of the Respondent’s contentions in opposition to the Applicant’s adjournment application has been marked as Exhibit “C” in the proceedings. That document, by way of summary, essentially notes that the litigation in this case has been protracted and that it has absorbed considerable resources of the parties and the Court above and beyond that which is proportionate to the issues in dispute. This, it was contended, is despite the fact that the Applicant wife has been self-represented for a substantial part of the proceedings.
By way of further summary, it is contended by the Respondent husband that the information that the parties have provided to the Court and the documents that will be further provided throughout the course of the hearing will enable the trial to proceed, in circumstances where each of the parties has had an opportunity to properly prepare their case.
In that respect, dealing with point seven of the issues raised by the solicitor of the wife, being the absence of a drive by valuation of the D Street property, the husband has undertaken to arrange and pay for such a valuation. Insofar as the wife has any dispute regarding the accuracy of that valuation, I give leave for the wife, pursuant to Rule 15.52, to obtain a further drive by valuation, at her own expense, and for her to be able to rely upon that drive by valuation as an adversarial expert witness report.
The third matter for consideration, set out in Aon (supra), is the detriment that would be caused to other litigants in the Court if the adjournment were to be granted. I have previously noted that this matter had been set down for five days of hearing in October 2017, and that those dates were vacated. The delay in litigants obtaining redress in this Court, as in most courts around Australia, is a challenge. The adjournment of this matter results in a situation where there is insufficient time for another case to be allocated to the dates that have been reserved for the hearing of this matter.
The third matter for consideration is the parties’ choices made during the course of this litigation. This includes how the parties’ claims are to be framed. While filed out of time, each party has now filed Affidavits that they intend to rely upon in these proceedings.
Without pre-judging the merits of the parties’ claims, simply on the basis of my knowledge of these proceedings, having dealt with a number of interim applications, I have a concern that if the parties do not to proceed to final hearing on the dates currently listed, there is a real possibility of additional issues arising between them. This has the potential to result in yet further expense being incurred by themselves and further Court time being occupied.
In relation to point six raised by the wife, being the potential for the parties to settle the matter at mediation, I agree that that is an entirely sensible course of action. It appears to be a course of action that is acknowledged by the husband as being appropriate and I would certainly encourage the parties to consider that opportunity. However, the fact that mediation is contemplated on the Friday prior to a case commencing on the Monday does not, in my view, justify an application for an adjournment. Clearly, measures could have been taken at an earlier time to address that possible course of action.
Similarly, in terms of the eighth point raised by the wife, that is, as to the date of the valuations, any application for updated valuations should have been made at a much earlier time.
Having addressed those matters referred to in Aon, as previously stated, the only basis that I regard as being a legitimate basis for an adjournment is the ill health of the wife’s Counsel.
On that basis, the hearing of this matter will be adjourned for two days, to commence on Wednesday, 1 August 2018. That will permit the solicitor for the wife to instruct new Counsel in the proceedings.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 27 July 2018.

Associate:

Date: 4 September 2018