Montano & Kinross

[2014] FamCAFC 231

FAMILY COURT OF AUSTRALIA

MONTANO & KINROSS [2014] FamCAFC 231

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – LEAVE TO APPEAL OUT OF TIME – Where the de facto wife made an application for property settlement 23 months out of time – Where trial judge refused to grant leave to extend time under s 44 of the Act – Whether leave is required to appeal an order refusing leave pursuant to s 44(3) of the Act – Where court held that leave was required.

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – APPLICATION TO EXTEND TIME TO APPLY FOR PORPERTY SETTLEMENT – Where the de facto wife made an application for a property settlement 23 months out of time – Where the trial judge found that the de facto wife would suffer hardship if leave was not granted – Where the trial judge found the wife had an arguable case – Where the trial judge found that the last seven months of the delay were not explained and as a result refused to grant leave to appeal – Whether the trial judge fettered the discretion in s 44(6) of the Act by rendering exclusive the requirement to explain the reasons for delay – Where the trial judge made an error of law by treating the failure to explain a portion of the delay as determinative of exercise of the discretion to grant leave.

Family Law Act 1975 (Cth)

Federal Proceedings (Costs) Act 1981(Cth)

Family Law Regulations 1984

Allesch v Maunz (2000) 203 CLR 172
Bienstein v Bienstein (2003) 195 ALR 225 at 230
Carr v Finance Corp of Australia Ltd (No. 1) (1981) 147 CLR 246
Coombs and Moore (1990) FLC 92-175
Davison v Queensland (2006) 226 CLR 234
Emamy and Marino (1994) FLC 92-487
Gallo v Dawson (1990) 93 ALR 479
Harris & Harris (1997) DFC 95-192
Hedley & Hedley (2009) FLC 93-413
McMahon and McMahon (1976) FLC 90-038
Richardson & Richardson [2008] FamCA 1215
Sharp & Sharp [2011] FamCAFC 150
Tamaniego & Tamaniego [2010] FamCAFC 254
Taffa & Taffa [2014] FamCAFC 106
Thallon & Thallon (1992) FLC 92-322
Tormsen and Tormsen (1993) FLC 92-392
Van der Kreek and Van der Kreek (1978) FLC 90-421
Whitford & Whitford (1979) FLC 90-612

APPELLANT: Ms Montano  

RESPONDENT: Mr Kinross  

FILE NUMBER: SOA 32 of 2014

APPEAL NUMBER: MLC 8860 of 2013

DATE DELIVERED:: 13 November 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Ainslie-Wallace, Murphy and Tree JJ

HEARING DATE: 13 November 2014

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 30 April 2014

LOWER COURT MNC: [2014] FCCA 843

REPRESENTATION

COUNSEL FOR THE APPELLANT: Bronia Tulloch

SOLICITOR FOR THE APPELLANT: Jane M Curtis and Associates Solicitors

COUNSEL FOR THE RESPONDENT: Paul Hannan

SOLICITOR FOR THE RESPONDENT: Westminster Lawyers Pty Ltd

Orders

IT IS ORDERED:

1. The orders made by Judge Turner on 30 April 2013 be set aside.

2. In lieu of the said Orders, leave be granted to the appellant pursuant to s 44(6) of the Family Law Act 1974 (Cth) as amended to apply for an order under s 90SM of the Act after the end of the standard application period, such application to be filed within 28 days of the date of these orders.

3. The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to appeal No. SOA 32/2014.

4. The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the him in relation to appeal No. SOA32/2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Montano & Kinross has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 32  of 2014
File Number: MLC 8860 of 2013

Ms Montano

Appellant

And

Mr Kinross

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

MURPHY J

1. The parties to this appeal were in a de facto relationship for about 17 years. The relationship ended on 23 November 2009. Section 44(5) of the Family Law Act 1975 (Cth) (“the Act”) has the effect of requiring any application for, relevantly, orders for alteration of property interests pursuant to s 90SM of the Act to be filed within “the standard application period”, that is, within two years after the end of the de facto relationship.

2. The wife[1] failed to file her application for alteration of property interests within time. Section 44(6) of the Act permits the Court to grant leave to a party in the wife’s position to bring those proceedings after the end of the standard application period upon being satisfied that, relevantly, hardship would be caused to the party if leave were not granted (s 44(6)(a)). The wife sought such an order by an application filed on 14 October 2013, that is, some 23 months beyond the standard application period and some four years subsequent to the end of the parties’ relationship.

   [1]The trial judge adopted, for convenience, the expressions “wife” and “husband” to describe the Appellant and the Respondent respectively (at [1]). For ease of reference, we will adopt the same nomenclature.

3. On 30 April 2014, Judge F. Turner dismissed the wife’s application.  From that order, the wife seeks leave to appeal, and if leave be granted, to appeal.

Leave to Appeal

1. Section 94AA of the Act provides that leave is required in respect of “prescribed decrees”. That expression is defined relevantly in regulation 15A of the Family Law Regulations 1984 as “an interlocutory decree…”. In turn, the definition of “decree” (in section 4(1) of the Act) includes “an order dismissing an application” and a “refusal to make a decree or order”.

2. The “usual test for determining whether an order is final or interlocutory is whether the order, as finally made, finally determines the rights of the parties”, per the High Court (McHugh, Kirby and Callinan JJ), Bienstein v Bienstein (2003) 195 ALR 225 at 230. That test has excited much judicial debate in this Court in respect of applications to file proceedings for settlement of property out of time. The trial judge found, and counsel for each of the parties to this appeal concede, that the principles relevant to the granting of an extension of time in respect of a de facto relationship mirror those applicable pursuant to s 44(3) of the Act in respect of a marriage, albeit noting that the relevant timeframe is one year in the latter and two years in the former.

3. In Bienstein, their Honours in the High Court refer to the earlier decision of that court in Carr v Finance Corp of Australia Ltd (No. 1) (1981) 147 CLR 246 that, “Accordingly, orders refusing to set aside a default judgment or refusing an extension of time are not final judgments because the unsuccessful party could make a further application for the same relief, even though such an application might have very little prospects of success,” (Bienstein, at 230) has been the subject of debate.

4. That particular statement might be seen to be the genesis of the decision of this court in Emamy and Marino (1994) FLC 92-487, that orders are final if they dismiss an application for leave but are interlocutory if leave is granted. Emamy decided that the earlier decision of this court in Thallon & Thallon (1992) FLC 92-322, was wrongly decided “insofar as it appears to be authority for the proposition that an order granting leave under s 44(3) is a final order”.

5. The judicial debate as to whether refusal to grant leave is interlocutory or final is not necessarily confined to this jurisdiction or to this court.  In Taffa & Taffa [2014] FamCAFC 106, it was said that, “This court has consistently held that leave is required to appeal an order refusing leave pursuant to s 44(3).” The court cites Hedley & Hedley (2009) FLC 93-413; Richardson & Richardson [2008] FamCA 1215; Sharp & Sharp [2011] FamCAFC 150.

6. The issue was argued only faintly before us.  Counsel for the appellant contends that leave is necessary.  Counsel for the respondent joins issue in that respect in his written outline.  By reference to the authorities already referred to, we are content to proceed on the basis that leave is required. 

7. As will become apparent, we are satisfied that an error of principle is revealed in his Honour’s reasons and that leave ought be granted. 

Grounds of Appeal

Notice of Appeal filed 23 May 2014: 

1.The learned Trial Judge erred in the exercise of the discretion afforded by Subsection of the Family Law Act 1975 (“the Act”) by failing to grant leave to apply out of time, such failure being inconsistent with the evidence and/or findings of the Trial Judge.

2.The learned Trial Judge erred in the exercise of the discretion afforded by Subsection 44(6) of the Act in giving undue or excessive weight to the applicant’s reasons (or absence of reasons) for the delay and insufficient weight to:

(a)the hardship that the applicant would suffer if leave was not granted; and

(b)the absence of prejudice and/or hardship to the respondent

3.The learned Trial Judge erred in law in misapplying the approach to be taken in cases involving an application to Subsection 44(6) of the Act.

4.In finding:

“Here there is no explanation whatsoever for the 7 month delay between 7 March 2013 and 14 October 2013. That period by itself is a significant delay. The wife’s application for leave to issue proceedings out of time is dismissed for that reason.”

The learned Trial Judge:

(a)Erred as a matter of law, and

(b)Made a finding which was contrary to the evidence and the weight of the evidence, and

(c)Failed to provide adequate reasons for his findings.

5.These grounds of appeal have been prepared without the appellant’s practitioners having an opportunity to consider the transcript. Accordingly, upon the transcript becoming available it may be necessary to amend these grounds of appeal and/or to add additional grounds of appeal.

Elements of the Section 44(6) Application

1. An application pursuant to s 44(6) of the Act involves two distinct but related questions. The first is, relevantly, whether “hardship” would be caused to the application (the parties have no children in this case). If hardship is established, but only if hardship is established, the Court’s discretion to grant leave is enlivened, see, for example, Hedley & Hedley (2009) FLC 93-413 and Sharp & Sharp [2011] FamCAFC 150.

2. In Whitford & Whitford (1979) FLC 90-612, this court set out a number of matters which may be relevant to the exercise of the relevant discretion in a particular case once hardship is established. Those criteria are frequently referred to. It must be understood, however, that, as might be expected where factors relevant to a broad discretion are enumerated, they are but illustrative of the sorts of issues that might inform the broad discretion in the circumstances of a particular case.

3. His Honour considered the question of hardship by correctly identifying that satisfaction of the s 44(6) test involved an application establishing more than that the right to commence proceedings had been lost by reason of the failure to apply within time. Secondly, his Honour considered, correctly, in my view, whether the applicant had an “arguable case for a property settlement” as a factor relevant to the decision with respect to hardship. Ultimately, having considered each of those matters, his Honour concluded that there was hardship within the meaning of s 44(6) of the Act. That finding is not challenged by the respondent.

4. Like many applications for indulgence, an application for leave to apply after the end of the standard application period requires the Court to exercise its discretion in a manner that, ultimately, is consistent with justice being done to both parties. The potential for injustice to the applicant being unable to pursue the remedy precluded by the refusal to grant leave must be compared to the prejudice to the respondent in the granting of leave. So, too, good or legitimate reasons for failing to do that which the Act requires must be compared with wilful blindness or recalcitrance. Equally, a desire to pursue a remedy out of time must be compared to the necessity for parties to proceed with their post-separation lives free of the spectre of prospective litigation, (see, for example, Gallo v Dawson (1990) 93 ALR 479, and the statutory requirements in section 81 of the Act).

5. This Full Court spoke in Whitford of “such matters as” the “length of delay, the reasons for the delay and prejudice occasioned the respondent by reason of the delay and the strength of the applicant’s case and the degree of hardship which would be suffered unless leave were granted”.  All of those matters were said by the Court to be “matters which affect the exercise of the discretion”.  Yet, this Court was at pains there to point out that those considerations were not exclusive of the matters to be considered in the exercise of the broad discretion; an overall requirement to do justice between the parties is the ultimate criterion.  The strength or weakness of, or the relative weight to be attached to, those various matters in the exercise of the discretion must necessarily depend on the facts of the particular case.  This court said explicitly in Whitford that “these matters are not necessarily the only ones”. 

6. His Honour’s consideration of the exercise of the relevant discretion was marked by his Honour posing for himself two questions: “Is there an adequate explanation for the delay in seeking to institute proceedings?” (reasons 19-28); and “Would leave to institute the proceedings cause a prejudice to the husband?” (reasons 29 to 34). 

7. As to the first of those questions, his Honour said:

   19.[Counsel for the applicant] presented the following analysis:

   ·The wife had a mental break down shortly after the separation (Annexure ‘A’ to the wife’s Affidavit sworn 17 March 2014).

   ·The wife made attempts to reconcile (Affidavit of the wife affirmed 28 February 2014 at [9] and [10]).

   ·The wife had a major car accident a few months after separation (Ibid [12])

   ·The wife broke her leg in March 2010 (Ibid [14])

   ·Up until April 2010 the husband had been sending funds to the wife (Ibid [10]). The wife was still hoping to reconcile.

   ·Generally the wife was not in a fit mental state to bring the proceedings. Her symptoms made it extremely difficult for her to function effectively in her usual occupation (Annexure ‘A’).

   ·On 20 October 2011 the wife went to see Mr Yong (a solicitor) in [Y] to get a transfer of the property to her, and was not told of any time limits (Affidavit of the wife affirmed 28 February 2014 at [18]).

8. Quoting from paragraph 20 of his Honour’s reasons:

   The letter from the husband’s solicitor to the wife’s solicitor (Affidavit of the husband sworn 17 November 2013, Annexure ‘RNK-3’) made it clear that “a property division is yet to take place” and that they wanted to “avoid contested legal proceedings”; they were in the process of drafting a Binding Financial Agreement for the wife’s consideration.

9. Significantly, his Honour found at paragraph 21:

   …the husband’s solicitor said that they were negotiating but that the matter was already out of time”. 

10. The wife became aware of the time limit, according to her evidence, in June/July of 2012 (that is to say, some seven or eight months after the expiration of the time limit for the institution of proceedings). 

11. His Honour found that at this time “there were still ongoing settlement negotiations”.  There is no specific finding as to whether the wife became aware of the time limit as the result of any advice from her attending upon a new lawyer in June/July 2012. Nor was there evidence before his Honour as to what steps, if any, were taken by the lawyer so as to protect her rights as best as could be done at that time, or whether or not any earlier lawyer had given advice to the wife as to the limitation period.  It seems tolerably clear, however, that his Honour accepted that the wife first became aware of the limitation period within the June/July 2012 timeframe. 

12. It is important to record that the transcript reveals an interchange between then counsel for the applicant and the bench when the issue of delay was being considered.  His Honour first poses the question as to the reasons for the delay between 12 March 2013 and 14 October 2013 (transcript 26 March 2014, p 25 ln 35). As the discussion proceeds, his Honour then asks, again, “What’s the explanation for the delay from 12 March ’13 to 14 October?” (Transcript 26 March 2014, p 26 ln 5.) Counsel for the applicant says, “I think negotiations broke down, your Honour, and my instructor writes to [the husband’s solicitors] on 11 September asking if they will accept service of the documents”.  His Honour then asks, “So, again, there’s a delay from 12 March ’13 to 14 October ’13 which is unexplained?”  Counsel, “In that it’s – yes, it’s – I can’t take it any further than that, suffice to say that my client proposes that she still suffers from depression”.  Of some significance, his Honour then says, “Yes, but a firm has carriage of this matter”, to which counsel replies affirmatively. 

13. It is important, then, to observe that his Honour accepts that a solicitor was engaged by the wife (and, inferentially to do all such things as a reasonably prudent solicitor would do on behalf of the wife), at least during the period that his Honour refers to in the passage of the transcript just referred to (transcript 26 March 2014, p 26 ln 10-20).

14. During the hearing before us, counsel for the respondent was asked whether the only reasonable inference open on the evidence before his Honour was to the effect that any delay in the seven month period which assumes particular importance in his Honour’s reasons is that the wife was represented by a solicitor and it ought be assumed favourably to her that the solicitor would undertake all such steps as might be properly undertaken by a reasonably prudent solicitor in those circumstances. Counsel did not accept that that was the only reasonable inference open.

15. Upon invitation from the bench to suggest alternative inferences, counsel referred to the evidence of his client, at the trial proceedings, to the effect that he considered he was negotiating a dispute in respect of the co-ownership of property.  In my view, that contention is, with great respect, difficult to maintain in light of clear evidence before his Honour.  As but one example, a letter from the husband’s solicitors exhibited to the husband’s affidavit as annexure RMK3 – dated, it should be noted, 27 March 2012 (that is to say, prior to the wife becoming aware of the limitation period) – says in the second paragraph:

    The parties were in a de facto relationship for 17 years from 1992 until 2009.  There are no children of the relationship.  As yet, a property division is yet to take place between the parties. 

    The following paragraph of the letter says:

    To avoid the expense and stress associated with contested legal proceedings [the husband] would like to reach an amicable agreement concerning the property division. 

    Of some significance, that same letter then goes on to say:

    We are in the process of obtaining further instructions from [the husband] to submit to you a draft binding financial agreement for your client’s consideration.  We will contact you again shortly in this regard.

1. Subsequent letters, also forming part of the same exhibit, include a letter dated 19 September 2012 to the wife’s then new solicitor. It is also of considerable significance.  The letter advised the new solicitors that they acted for the husband.  The letter refers to the husband’s “former de facto partner”. It goes on to enclose copies of documents, which, it seems clear from the letter, had been sent to the wife’s previous solicitors.  The documents enclosed with that letter include:

   Copy letter to [wife’s former solicitors] dated 27 March 2012 regarding a proposed binding financial agreement and the missing power of attorney …

   A “draft binding financial agreement” is enclosed. 

2. It is difficult to reconcile that evidence with a contention that the husband was negotiating, or purporting to negotiate, a co-ownership agreement as opposed to attempting to negotiate a prospective claim, or an asserted claim, in respect of what might loosely be called a property settlement pursuant to the Act. In my view, the only inference reasonably open on the evidence before his Honour, was that, contrary to what his Honour found, the delay of seven months, which formed the central part of his Honour’s reasons, was attributable to the solicitors then acting on behalf of the wife failing to undertake any steps in respect of the proceedings during that time. Reference will shortly be made to the significance of this.

3. As that correspondence refers to, by March 2013 negotiations between the parties were continuing but broke down “after 12 March 2013” (reasons [24]).  The wife signed her initiating application on 30 September 2013, and it was filed on her behalf on 14 October 2013 (reasons [24]).  As has been seen, that period of approximately six or seven months assumed specific relevance in his Honour’s reasons.  Yet no further discussion subsequent to those various findings occurred in the reasons as to matters which informed the exercise of the discretion.  Rather, the matters just discussed are succeeded immediately in the reasons by reference to the decision of this Court in Frost & Nicholson (1981) FLC 91-051 that, “there must be an explanation of the entire delay”. His Honour then makes the specific finding, central to the ground of appeal relating to what is asserted to be the misapplication of the relevant legal principles, that “No explanation for the seven month delay from 12 March 2013 until 14 October 2013” was provided.

4. It is, in my view, difficult to escape the conclusion that, despite all of the other matters to which reference has just been made, and the other matters specifically referred to by his Honour as informing the discretion, the sole central finding resulting in his Honour’s ultimate decision, is that despite numerous other explanations being given for the delay during the whole of the period, there was no explanation for seven months of it.  It is in my view also difficult to escape the conclusion that it was this factor, and in effect this factor alone, which was decisive.

5. The central role of this single factor can be seen when his Honour turns to a consideration of the second of the questions posed for himself, earlier referred to.  Specifically, his Honour found:

   30.The Court does not find that those allegations of prejudice are sufficient by themselves to justify dismissing the wife’s application. The matters raised by the husband can be addressed in property proceedings before the Court.

   31.“Prejudice is intended to refer to the problems caused to memory and loss of documents which arise where there has been a delay”: Star (supra) at [50].

6. Having referred to those two matters, his Honour then returns to the issue of the failure to explain the last seven months of the delay by reference to what was said by a Court exercising a different jurisdiction in Victoria, pursuant to the Property Law Act of that State (Harris & Harris (1997) DFC 95-192, per Gillard J).  His Honour then says this:

   33.Ms Wheeler referred to the decision in Tamaniego & Tamaniego [2010] FamCAFC 254 at [162] as follows:

   As to the second part of the exercise, the fundamental issue in any application for extension of time is whether this will enable the court to do justice between the parties: see Gallo v Dawson[1990] HCA 30; (1990) 93 ALR 479. In Gallo v Dawson McHugh J referred to the need to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences to the parties of the grant or the refusal of the extension of time. The authorities and principles were discussed in Tormsen and Tormsen (1993) FLC 92-392: see also McMahon and McMahon (1976) FLC 90-038; Van der Kreek and Van der Kreek (1978) FLC 90-421 and Coombs and Moore (1990) FLC 92-175. In summary, in considering the second question the court may have regard to a number of factors that include whether the applicant has an adequate explanation for the delay in bringing the proceedings and whether to grant leave would prejudice or impose hardship on the respondent to the application for leave or other persons.

   34.The Court notes that the decision states the requirement for an “adequate explanation for the delay”. Here there is no explanation whatsoever for the 7 month delay between 7 March 2013 and 14 October 2013. That period by itself is a significant delay. The wife’s application for leave to issue proceedings out of time is dismissed for that reason.

7. His Honour does not refer to the fact that this decision itself (together with the decision in Gallo v Dawson earlier referred to and the other decisions there referred to) all refer to “a number of factors” that include an adequate explanation for the delay. His Honour also does not at all refer to the fact that, for example, O’Ryan J in Tamaniego, makes plain, (with respect, correctly in our view) that

   The fundamental issue in any application for extension of time is whether this will enable the court to do justice between the parties.

8. In my view, his Honour’s reasons exhibit a clear error of law.  That error consists of his Honour elevating the failure to explain a portion of the delay as being required for, and determinative of, the question in respect of the exercise of the discretion, rather than but a factor, together with all other relevant factors, in the exercise of that broad discretion.  Discretions of this type are by no means confined to this jurisdiction, or to the issue with which his Honour was confronted; they are frequently confronted in other areas of the law.  In respect of a similar broad discretion relating to a common law action, the High Court in Davison v Queensland (2006) 226 CLR 234 1, said this, at 14:

   The Court of Appeal majority said that section 43 was not to be construed “restrictively”, and that the section 43 discretion had “an unfettered character”.  However, the requirement for a reasonably arguable case does restrict and fetter discretion.  There is no support for this outcome in the express statutory language, or the subject matter, scope, and purpose of the legislation. 

9. In this court, the passage from Frost & Nicholson quoted by his Honour is succeeded by a passage contained in the same paragraph to this effect:

   It was argued that the delay in this case was the delay of Mr T who is the applicant’s legal agent, but the decision of the Full Court in Hall & Hall, Supra, makes it quite clear that so far as the question of delay is concerned, a delay by the applicant solicitors in carrying out instructions given in time should not necessarily be ascribed to the applicant.  If the applicant is a lay person, as she is in the present case, her power of supervising the solicitor and of choosing a confident and diligent solicitor are clearly limited.  I am satisfied that in the present case, the applicant did all she reasonably could have been expected to do to have the matter brought on for action and that any delay was not the fault of her personally.

10. Similar considerations can be seen to apply in this case. Indeed, it would appear his Honour tacitly recognised this in the exchange between bench and counsel earlier referred to. 

11. In my view, his Honour misapplied relevant considerations and thereby committed an error of law. 

12. If his Honour was of the view that there were good reasons why the factor identified by his Honour as central to his Honour’s determination clearly outweighed all other factors relevant to the exercise of the broad discretion, there is, in my view, nothing apparent in the reasons to explain why that conclusion was arrived at.  Further, and in any event, in my view, his Honour’s finding that the delay during the relevant seven-month period was unexplained is contrary to the evidence or, more accurately, contrary to the only inference to be reasonably drawn from that evidence.

13. It is reiterated that his Honour was told, and it did not seem to be challenged before him, that during that seven-month period the wife was continuing to suffer from depression, and more importantly, a solicitor (as her agent) had carriage of the matter on her behalf. A reasonably prudent solicitor should be expected by a layperson to carry out all such matters as might reasonably be required of that solicitor so as to protect the wife’s rights.  No evidence suggests that any aspect of the seven-month delay was attributable to her action or inaction.

14. For those reasons, I would allow the appeal, and I would set aside the orders of Judge Turner.

15. At the conclusion of the argument in this matter each of the respective counsel was asked for submissions in respect of whether this Court should, in the event of the appeal being allowed, re-exercise the discretion for itself or remit the hearing of the question to the Federal Circuit Court.  Each counsel, obviously, mindful of limiting for their respective clients the difficulties and expense that would necessarily be incurred if the matter was remitted, urged this Court to re-exercise the discretion for itself. 

16. As has frequently been said by this Court, we are desirous of re-exercising the discretion where that is possible so as to avoid, to the extent that it is possible, the incurring of any further expense and, indeed, the time and other stresses of further litigation.  Our capacity to re-exercise the discretion is constrained by what was held by the High Court in Allesch v Maunz (2000) 203 CLR 172, and, in particular, the requirement that any re-exercise of the discretion should be by reference to the facts and circumstances applicable at the date of the hearing of the appeal as distinct from the date of the trial.

17. In this particular case it seems to me that all of the factual matters necessary to decide the relevant question for ourselves upon a re-exercise of the discretion is canvassed in the material in the record. Neither of the parties seeks to put any further material before this Court in respect of any of those matters.  The issue that needs to be decided on a re-exercise of the discretion is a narrow one. In my view, it can readily be undertaken. 

18. It should be apparent from what has previously fallen from me that, in my view, the totality of all factors relevant to the discretion envisaged by s 44(6) point strongly in favour of leave being granted to the applicant so as to pursue her prospective claim pursuant to s 90SM of the Act.

19. I would re-exercise the discretion and, in doing so, I would grant to the applicant leave, pursuant to s 44(6) of the Act, to bring proceedings, pursuant to s 90SM out of time.

20. In addition, we sought from counsel submissions in respect of costs.  The effective submissions by both parties was to the effect that if the appeal was allowed then certificates pursuant to the Federal Proceedings (Costs) Act 1981 should be granted.  I am of the opinion that the facts and circumstances of this case point to each party bearing their own costs (s 117(1)).  In those circumstances it seems to me appropriate, given that the error identified is one of law by the trial judge, that certificates should issue pursuant to that Act.

AINSLIE-WALLACE J

1. I agree with the orders proposed by Justice Murphy and the reasons given for them.

TREE J

1. I agree that the appeal should be allowed, the discretion to grant leave re-exercised in favour of the appellant for the reasons given by Justice Murphy.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 13 November 2014.

Associate: 

Date:  3 December 2014