Melville and Dent

[2009] FamCA 79

FAMILY COURT OF AUSTRALIA

MELVILLE & DENT [2009] FamCA 79

FAMILY LAW – PRACTIVE AND PROCEDURE – Adjournment – Principles

Family Law Act 1975 (Cth)

Black v Kellner (1992) FLC 92-287
Giunti (1986) FLC 91-759
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Sali v SPC Ltd [1993] HCA 47
Weir v Weir (1993) FLC 92-338

APPLICANT: Ms Melville

RESPONDENT: Mr Dent

FILE NUMBER: MLF 3157 of 2006

DATE DELIVERED: 2 February 2009

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Strum

SOLICITOR FOR THE APPLICANT: Marshalls & Dent

COUNSEL FOR THE RESPONDENT: Mr Hoult

SOLICITOR FOR THE RESPONDENT: Forte Family Lawyers

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLF 3157 of 2006

MS MELVILLE

Applicant

And

MR DENT

Respondent

REASONS FOR JUDGMENT

1. This is an application by the husband on the first day of a property trial for an adjournment.  That application is opposed.  I have just indicated to the parties that I propose to grant it with much hesitation and reservation.  Before I deal with the reasons why this case is I think, a little unusual, I propose to say for the benefit of the parties why it is that I am granting this adjournment.  In a case in the High Court of Sali v SPC Ltd [1993] HCA 47, the High Court, and in particular Toohey and Gaudron JJ, said this:

   The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales...

   The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard…

2. Their Honours went on to say this:

   In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties. As Deane J pointed out in Squire v. Rogers ((4) (1979) 27 ALR 330, at p.337.) this "may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing". What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.

3. Sali's case was considered by the High Court again in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. There the majority said:

   It may be said at once that in the passage which we have cited from Sali v SPC Ltd Toohey and Gaudron JJ are not to be taken as sanctioning any departure from the principles established in Cropper v Smith and accepted in Clough and Rogers v Frog.

4. But they went on to say:

   But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim

5. Queensland v JL Holdings was a case involving the amendment of pleadings.  It occurred very early in the piece by current case standards.  I am dealing here with a case where, to use Mr Strum's words, at the 11th hour and the 59th minute the application is being made.  In Queensland v JL Holdings, the majority dispensed fairly quickly with the application, but Kirby J spent a lot of time going through the history of a number of cases.  His Honour looked at a variety of aspects of case management and, in particular, those relating to adjournments, are matters that I will now turn to.

6. What his Honour pointed out was that a party who is seeking an adjournment is effectively seeking an indulgence.  His Honour said,

   Amongst considerations which may tend to favour the extension of an indulgence to a party applying for it are the following: that this is the only way in which the true issues and the real merits, factual and legal, can be litigated and artificiality avoided; that the oversight which occurred is adequately explained as, for example, that it arose out of sudden and unexpected events; that the proposed amendment is of considerable importance to the rights of a party, particularly where it provides a complete answer to a claim; that any fault is that of the party's legal representatives; that the oversight was wholly accidental; that it was simply the product of unavoidable human error or, possibly, the outcome of the application to the case of fresh legal minds who perceived an important new point; that cost orders or the imposition of other conditions could adequately rebalance the competing claims to justice; and that the hearing date is sufficiently in the future to permit a party to meet the amendment, taking into account any consequences for the gathering of fresh evidence, the conduct of discovery or like pre-trial procedures and the loss of assigned hearing dates. Departures from a court ordered timetable, whilst relevant, are not decisive. Such orders are the servants of justice. They are designed to enhance its achievement in a way that an inflexible application of rigid rules could prevent.

7. His Honour then looked at the opposite side of the coin and said:

   Considerations which tend to argue against the grant of an indulgence include many which are the counterparts of the foregoing. Thus, the failure of a party to offer anything by way of explanation for a late application has been held relevant. So has the blamelessness of the resisting party and the extent to which the applicant is at fault in its breach of clear directions ⁹³. Courts now take into account the strain which litigation may place upon those involved and the natural desire of most litigants to be freed, as quickly as possible, from the anxiety, distraction and disruption which litigation causes. In my view this is not a consideration limited to litigation by natural persons or involving private citizens. Because justice cannot be measured solely in monetary terms, costs orders are not necessarily an adequate balm to the other party… Courts are entitled to react unfavourably to repeated default on the part of a litigant whose conduct has the effect of frustrating a proper timetable fixed for the trial. Justice will not necessarily require that a party should have multiple opportunities to plead and present its case. A court must accord justice to the particular litigant. But it must also maintain its responsible use of scarce public resources and consider, in a general way, the impact which its orders have on other litigants and on the public generally.

   Whilst taking all of the considerations relevant to the circumstances of the case into account, the judge must always be careful to retain that flexibility which is the hallmark of justice.

8. Those principles resonate in this case.  What Mr Strum has indicated to me is that, if the matter proceeds, he desires to proceed on the basis of long-held authorities in this court which were set out in a number of cases, particularly the first of which was the case of Black v Kellner (1992) FLC 92-287;.  In Black v Kellner, the Full Court picked up the 1986 case of Giunti (1986) FLC 91-759, where the Full Court in that case said:

   It is obviously desirable as a general principle that the court should first of all identify the pool of assets available and evaluate it. If each party complies with his or her obligation to make a full and substantive disclosure of their financial affairs, there is no problem, although there may be disputes as to valuation. However if, as here, one party fails to fulfil that obligation, is it open to that party then to rely on the absence of satisfactory evidence to prevent the making of an order against him or her which otherwise justice and equity would require? It would be simple, if that were the case, to evade the jurisdiction of this court, not by outright refusal which would attract sanctions but by obfuscation and evasion.

9. In Black v Kellner, what the Full Court said was that it was part of the judge’s obligation in cases of that nature to consider all of the factors set out in s 75(2) and in particular to consider the respective incomes of the parties.  Ultimately, the importance to me of Black v Kellner and why it is unusually different from this case is that in that case the trial judge heard the whole case and it then went on appeal and those principles were canvassed in the appeal.  In 1993, the Full Court had another look at that situation in the case of Weir v Weir (1993) FLC 92-338. What the Full Court there said was:

   It seems to us that once it has been established that there has been a deliberate non disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.

10. The dilemma that I am faced with here is that, notwithstanding his appalling track record of the production of documents - and I am not at all hesitant in saying that I am not at all happy about what the husband has done in this case - I am facing the prospect that, if I was to conduct the proceedings on a Weir v Weir and Black v Kellner basis, I may not have the necessary comfort that the Full Court was talking about in Weir v Weir of not being unduly cautious.  What I have decided to do is to grant the adjournment for three particular reasons.  Before giving those reasons, there is a factual situation here which I have drawn from the husband's affidavit, which I acknowledge at this stage is untested, which gives rise to the three reasons.

11. If I was to ultimately accept that during the early part of this litigation, or shortly prior to it, the husband was embroiled in civil litigation which then followed on with a criminal trial, as a result of which he was found guilty and sentenced, followed by which he completed the sentence only to then face an appeal court where he was then imprisoned, it might very well explain some of the reasons why the husband's efforts have been nothing short of disarray.  It certainly does not justify them.

12. The three reasons why I have decided to grant the adjournment in this case are that the husband, on what I have read more than what I have been told, appears to have started to understand the serious nature of not only his obligation of disclosure, but his proper preparation of the case.  The second reason is my considerable discomfort about having to apply the provisions of s 79(4) and s 75(2) on the peculiar facts of this case, where the husband asserts that the only asset outside of the assets known to the wife may possibly be modest, but the debt impact on the other pool is, at this stage anyway, unknown.  The third reason is that an adjournment in any event will be modestly short by comparison to what the parties in this case have had to wait up until now and, more particularly, the period of time that the wife has had to endure to get this case for trial.  For those reasons, I propose to contemplate the adjournment subject to the two matters that I mentioned at the outset. 

I certify that the preceding Twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  13 February 2009