MOY & PAO
[2020] FamCA 1034
FAMILY COURT OF AUSTRALIA
| MOY & PAO | [2020] FamCA 1034 |
| FAMILY LAW – PRACTICE AND PROCEDURE – parties ignoring directions for the case to advance to trial – wife seeking extension of time to file submissions in opposition to judgment creditor’s submissions – respondent, by agreement, allowed extension – extension granted. |
| Family Law Act 1975 (Cth) ss 79, 90AE(2), 97(3) Family Law Rules 2004 (Cth) rr 1.07, 1.14 |
| Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 Hinton v Alpha Westmead Private Hospital (2016) 242 FCR 1 In the Marriage of Biltoft (1995) 19 Fam LR 82 In the Marriage of Petersens (1981) 7 Fam LR 402 In the Marriage of Prince (1984) 9 Fam LR 481 In the Marriage of Rowell; Deputy Commissioner of Taxation (Intervener) (1989) 96 FLR 449 Panwar & Panwar [2020] FamCA 480 Re Chemaisse & Commissioner of Taxation (No 3) (1990) 13 Fam LR 724 Shrestha v Migration Review Tribunal (2015) 229 FCR 301 SZWBH v Minister for Immigration and Border Protection (2015) 229 FCR 317 |
| APPLICANT: | Ms Moy |
| RESPONDENT: | Mr Pao |
| INTERVENOR: | B Pty Ltd |
| FILE NUMBER: | MLC | 6493 | of | 2011 |
| DATE DELIVERED: | 9 December 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Wilson J |
| HEARING DATE: | 19 & 26 October 2020, 9 & 26 November 2020 & 2 December 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr J. Moore (2 December 2020) |
| SOLICITOR FOR THE APPLICANT: | Avia Lawyers |
| COUNSEL FOR THE RESPONDENT: | Dr R. Ingleby (26 November 2020 & 2 December 2020) |
| SOLICITOR FOR THE RESPONDENT: | Tao Jiang Lawyers |
| COUNSEL FOR THE INTERVENOR: | Mr G. Combes (19 & 26 October 2020 & 9 November 2020) and Ms D. Isaacson (26 November 2020) |
| SOLICITOR FOR THE INTERVENOR: | Mcdonald Lawyers |
Orders
On or before 4pm on 11 December 2020 the applicant wife must file and serve her written submissions in accordance with paragraph 1 of my orders made on 9 November 2020.
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 Moy & Pao 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 MELBOURNE |
FILE NUMBER: MLC 6493 of 2011
| Ms Moy |
Applicant
And
| Mr Pao |
Respondent
And
| B Pty Ltd |
Intervenor
REASONS FOR JUDGMENT
Introduction
In April 2016, the intervenor obtained judgment in the Supreme Court of Victoria against the respondent in the sum of $5,762,345.50 (“the judgment debt”). In September 2017 the wife sought leave to commence a property settlement proceeding out of time. In her initiating application to commence this proceeding the wife sought orders under s 90AE(2) of the Family Law Act restraining the judgment creditor from enforcing the judgment debt.
By orders made after a contested inter partes application, in May 2017 her Honour Judge Bender made an order restraining the intervenor from enforcing its judgment.
Three and a half years have elapsed since that restraining order was made. The intervenor has applied for the discharge of that order. The wife has scarcely participated in this proceeding in recent times yet she resists the making of any order that alters the orders made by her Honour Judge Bender.
On 26 October 2020 and again on 9 November 2020 the intervenor sought orders for the discharge of the restraints granted by her Honour Judge Bender in mid-2017. On both occasions the wife was not represented. On the latter date I ordered that the applicant and respondent were required to file and serve written submissions in response to the intervenor’s submissions by 16 November 2020. I also ordered that the intervenor’s amended application in a case was to be determined on the papers.
This proceeding next came before me on 26 November 2020 following the respondent husband’s request for an extension to file written submissions pursuant to paragraph 1 of my orders on 9 November 2020. On that occasion the husband was represented and the intervenor and respondent had reached an agreement for the husband to rely on his submissions filed on 25 November 2020, albeit some 9 days late. Although present, the wife did not meaningfully contribute to the discussion on that day.
That evening, that is to say on 26 November 2020, the wife emailed my associates requesting an extension to 11 December 2020 for the filing of her submissions pursuant to paragraph 1 of my orders on 9 November 2020. She indicated in that email that she had now found legal representation. The intervenor opposed any extension being given to the wife. The matter was listed again on 2 December 2020.
The wife’s application
On behalf of the wife, her legal practitioner sought an extension of time within which to file submissions to respond to the intervenor’s submissions. Dr Ingleby of counsel for the husband submitted that agreement had been reached for his client to have an extension. The wife’s legal representative said the same extension should be given to her.
In the course of argument the value of the matrimonial assets the subject of the s 79 application was canvassed. I was told the pool’s value was in the order of $1m. That was to be contrasted with the judgment debt of $5,762,345.50, plus accumulated (and accumulating) interest.
On 2 December 2020 when I heard this application the wife’s legal representative told me the wife had not filed trial evidence by 30 September 2020 as she was ordered to do. One portion of the exchange was as follows –
HIS HONOUR: Now, Mr McDonald has been extremely patient in this case. And your client, Mr Moore, has been less than diligent in her approach to this case. She now wants to file submissions, but she doesn’t seem to want to square up to the main game; so what am I to make of that?
MR MOORE: Well, that’s an important point, your Honour, in that my client has not put a formal application to extend time for filing trial material, and it was due by 30 September, and she didn’t file trial affidavits of witnesses. My client says she has a case to make, and it’s simple enough in terms of the marriage and the comparison of, or the balancing of the creditor’s interest against any claim my client has under section 78 or 79.
HIS HONOUR: But what is the claim that she makes? She hasn’t put any material before me.
MR MOORE: The claim that she makes is arising from the marriage of the parties, she has an interest in the properties that are in the name of the husband, but acquired by the parties during and shortly following the marriage.
HIS HONOUR: Where do I derive that information from?
MR MOORE: That, I can’t tell you, your Honour, if I don’t have the file ..... of the wife initiating the proceedings at this point, in my hand. They’re with a barrister who has appeared previously. My instructor is the process of getting hold of them as of yesterday, but the wife initiated proceedings in 2017 for property settlement as between her and her husband. The Intervenor joined at the time or shortly after. And it’s on the premise that there were two properties of the marriage, and it was a marriage with children. And there is a –
HIS HONOUR: Well, this is, largely, submission from the bar table. So what
MR MOORE: It is.
Later in the debate I asked counsel for the wife about the purpose to be served in acceding to the wife’s request. The debate unfolded as follows –
HIS HONOUR: Just a moment. Just a moment. How does your argument run that, let’s assume your client is entitled to half of the one, which is $500,000, and the judgment creditor has his hands out for 5 million, how is the argument run that your client would derive anything from this?
MR MOORE: That the creditor is as against the husband and not the husband’s creditor, that it would need to be established that the wife had in some way either benefited from or known of or been involved in the husband’s business dealings giving rise to this claim for the wife’s entitlement to be nil after the creditor’s claim. That is the wife’s entitlement be entirely applied ... satisfy the creditor’s claim as well, is the husband’s – and what would otherwise have been the husband’s entitlement.
In my respectful submission, that must be a matter for trial, and I can’t make submissions today about the evidence that the wife has already filed because I haven’t seen it, and what my client is effectively asking is for an extension of time to file submissions on the interlocutory application to dismiss the wife’s application which partly relies on the very point that your Honour has raised, as well as the wife’s failure to file material by the 30th, and so she would need to explain in sworn evidence why she – well, the efforts she made to find a solicitor and why she wasn’t able to file affidavits and ..... the outlines on 30 September.
HIS HONOUR: But you tell me
MR MOORE: So in
HIS HONOUR: You tell me that she wants to file submissions and she needs an extension to file submissions. She has a mountainous task ahead of her to explain why she has failed to comply with other dates, and that’s evidence, not submissions, so what am I to do with this?
MR MOORE: Well, that would be, your Honour – because it would be moot or irrelevant for my client to seek an extension of filing dates for trial if your Honour determines in favour of the Intervenor on the interlocutory application because then the case will end for my client. What I would propose is that my client, at the same as time as filing her submissions, which we propose be by the 11th of this month, December, so nine days hence, but she also file an application under rule 1.14 of the Family Law Rules supported by an affidavit seeking in the extension of time from 30 September, which she failed to meet, for filing of her trial affidavit evidence.
And I’m foreshadowing, not formally seeking today, but foreshadowing, that that application under rule 1.14 to extend time would be seeking that the wife be permitted to file her trial affidavits by 18 December. And that’s acceded to or agreed with the husband, but not the Intervenor. The husband says he can file his material by 24 December, and the proposal would be then that the Intervenor would have until mid-February, so the same period of time that’s contemplate by your Honour’s orders of July this year to file the Intervenor’s material.
HIS HONOUR: Well, I will hear from Mr McDonald. Mr McDonald what do you say about this?
Unsurprisingly, Mr McDonald complained about the course proposed by the wife’s counsel. Mr McDonald submitted that the wife had not filed material putting in issue any aspect of the judgment debt. The debate evolved in the following way –
HIS HONOUR: Yes. But let’s just put under the microscope the point that’s put against you which is your client is a judgment creditor only in respect of and against the husband, not the wife. So it’s true, your client has a substantial claim in this case, but it’s not an absolute claim against both parties; that’s a fair point, isn’t it?
MR McDONALD: That’s her point, your Honour, but in the material that the applicant has filed to date, it doesn’t appear to address the issues and the basis upon which she can challenge the judgment debt. There’s a lack of material which was one of the reasons why we brought the application, because based upon – it would appear, we would submit, that based upon material that has been filed, that there be no chance of success at a trial.
HIS HONOUR: But wait a second. That might be the case as against the husband. I mean, it’s not an easy task for a judgment debtor to apply to set aside the judgment after the lapse of such an amount of time, but the point is that the applicant is not a party to that judgment debt. So according to Mr Moore, his client is entitled to participate in a property settlement application and to the extent that your client is relevant, that could only be relevant in respect of the husband’s entitlement, but not hers; what do you say to that?
MR McDONALD: Well, your Honour, the applicant wife has to establish that it is just and equitable for the court to interfere with the judgment for judgment debt. And my understanding of the
HIS HONOUR: But that’s the point. The judgment debt doesn’t bind her; isn’t that right?
MR McDONALD: Well, the judgment debt is on the husband, your Honour, but it is a liability, your Honour, to the asset pool, and the wife, the applicant wife, is to be able to establish that it would be just and equitable for her to interfere with the judgment debt. Our interest is as good as or better than the tax office. We’ve got a judgment debt. The applicant hasn’t addressed the issues as to why there should be – that judgment debt be interfered with. And unless, your Honour – and I think it is under section 98(e)(k), that there’s some just compensation to our client for an interference of a judgment debt, then the judgment debt should stand and the assets that have been frozen since 2012 should no longer be restrained.
HIS HONOUR: Yes. But wait a second, the judgment debt binds Dr Ingleby’s client. In any property adjustment, you’re right, it goes to make up the balance sheet, but the balance sheet in respect of the judgment debt which, for all intents and purposes, is impervious to assault at this stage, is on the side of the ledger that affects the husband, not both, unless it’s possible to say that by the provision of goods and services for which your client has a judgment debt, there was some contribution to the matrimonial activities; isn’t that right?
MR McDONALD: Look, your Honour, we also say that in relation to the judgment debt, and this would be if this matter was to go to trial, your Honour, ..... be part of the evidence, but – and I’m not sure if it’s appropriate to mention that here, but the applicant wife has been claiming that she’s an innocent party. However, during the period of when this debt came about, the wife was very much involved in the company and was a bookkeeper and received a substantial benefit from the proceeds from my client.
HIS HONOUR: Well, that’s a triable issue, though. At the moment, I
MR McDONALD: It’s a triable issue.
HIS HONOUR: it would be impossible for me to make a determination on that point unless – until I heard
MR McDONALD: Of course, your Honour.
HIS HONOUR: evidence about that. So I’m trying to work out if I were to dismiss the wife’s application for extensions of time, and if I were to consider this matter by reference to whether you are entitled to the interlocutory relief that you seek, whether that decision would be sound given that we will still ultimately have a fight about whether the wife has in some way benefited from the activities which give rise to the judgment debt.
MR McDONALD: Well, look, your Honour, what we would say is that there were orders made by your Honour back on 9 November, one of which required strict – or I should say I think back on 27 July in relation to the payment of costs. And that was as – required strict compliance, your Honour, and that was – it was, we would submit, in effect, a self-executing order that if that was not complied with, then the matter would proceed undefended. It was not an order that your Honour made allowing or requiring us to make a further application to apply to have the matter proceeded undefended. It was, in effect, a self-executing order. And, your Honour, we have, I believe, provided to the court our client’s written submissions in relation to this.
HIS HONOUR: All right. Okay. Thank you. Anything else that you would like to add, Mr McDonald?
MR McDONALD: Your Honour, if your Honour was to provide some indulgence to the applicant, then we would submit that that could only be for her then to require to make an application supported by affidavit and to then by a particular date, to provide her submissions. The submissions then provided to the court in relation to our application could be made by your Honour on the papers.
HIS HONOUR: Yes. All right. Thank you very much, Mr McDonald. Dr Ingleby.
DR INGLEBY: I’ve got the indulgence that my learned friend, Mr Moore, is seeking because that indulgence was given me by my learned friend, Mr McDonald’s counsel last week. So I’ve really got nothing to say other than I’m sailing on Mr Moore’s coattails today.
HIS HONOUR: Well, I can understand that. And I must say I’m suspicious that there’s agreement between the two of you given that Mr McDonald is an unsatisfied creditor in a pool where the assets are well and truly disproportionate as to one fifth of the judgment debt that is against your client, Dr Ingleby. So walk me through that; how can any purpose be served in this litigation given that your client is the holder of a five – is the – yes, your client is the judgment debtor of a 5 million dollar debt where the assets are $1 million, and even if what Mr Moore says may come to pass, it’s conceivable that the debt for Family Law purposes is, in truth, a joint debt.
DR INGLEBY: Conceivable, but not to be determined summarily. I concede conceivable, but the point which remains to be argued and which the, with respect, the indulgence should be granted, is for the husband and wife to argue the position that, effectively, the assets in the name of the husband should be shared between the wife and the creditor, rather than be retained entirely by the creditor.
HIS HONOUR: Yes.
MR MOORE: Your Honour, may I briefly add two points just respect of
HIS HONOUR: No, not yet. Not yet. I’m still dealing with
MR MOORE: Yes, your Honour.
HIS HONOUR: Dr Ingleby.
MR MOORE: Of course.
HIS HONOUR: Well, Dr Ingleby, there is a procedural aspect of this, if I accede to the request that Mr Moore and you have come to and send this case off to trial, I will not get to it until the end of next calendar year. The judgment debt will remain unsatisfied. Interest is little consolation. There’s still $1 million in assets of a judgment debt worth $5 million. We will have a nice debate about whether the debt, while a judgment debt in the name of the husband is, in truth, one to be shared as between husband and wife, but in terms of balancing, Mr McDonald’s client suffers. In the face of Mr Moore’s client who has gone AWOL, essentially, for a lot of this litigation and only has emerged at the last minute, one could say in response to a self-executing order in respect of costs. So that’s not a particularly attractive set of circumstances for the exercise of my discretion; what do you say about that?
DR INGLEBY: First of all, I say the matter is set down for trial in May, so the end of next calendar year is, with respect, not a relevant consideration.
HIS HONOUR: Okay. Thank you.
DR INGLEBY: There’s a trial set down for May but can remain set down with material filed if the indulgences that are sought are granted.
HIS HONOUR: Okay. Well, that addresses
DR INGLEBY: And, in fact, there’s
HIS HONOUR: one of the many points that I’ve put to you.
DR INGLEBY: Yes. I can’t say it’s an attractive sight, and on any reasonably view, my client and Mr Moore’s client have not acted as of respect to the court. I have to concede that. The question, though, is whether Mr Moore should have the same indulgence that I was allowed to have last week in that my submissions against the matter being determined summarily were given leave to file and that decision is, effectively, reserved to your Honour in chambers. All Mr Moore is seeking is the same indulgence on behalf of his client.
HIS HONOUR: Yes. Okay.
DR INGLEBY: Your Honour, I’m extremely embarrassed in that I’m due before another judge
HIS HONOUR: You go. You go, Dr Ingleby. Thank you.
DR INGLEBY: at 12 o’clock.
HIS HONOUR: Thanks for your contribution.
DR INGLEBY: Thank you, your Honour.
HIS HONOUR: Now, Mr McDonald, Dr Ingleby tells me this trial date is May. If you are – nothing that I do today will please your client and that’s to be well understood, but that’s not really the touchstone. The touchstone is to do justice between all. So I’m wondering whether a costs order in your favour might go some way to solving the wound; anything you wish to say about that?
MR McDONALD: Look, your Honour, what we would say, your Honour, is that there have been some considerable time that has been spent in preparing submissions, written submission, both from our office and with the help of Mrs Isaacson which have been submitted to the court. And we would seek that before his Honour makes a decision that those submissions be referred to.
HIS HONOUR: Okay. I’m not going to make a decision right here on the spot. I just wanted to hear your point on what I just mentioned, and I follow what you say. Now, Mr Moore
MR McDONALD: Your Honour, sorry, your Honour, if I could just – in relation to the point that you’ve made on costs, only to say that similar orders have been made in the past. There was another order back in, I believe, in April of this year by his Honour, Mr McGuire, for
HIS HONOUR: Who’s Mr McGuire?
MR McDONALD: In the Federal Circuit Court, your Honour.
HIS HONOUR: You mean his Honour, Judge McGuire.
MR McDONALD: Sorry, his Honour, Judge McGuire, yes. I believe that was on 27 April
HIS HONOUR: Well, anyway, what’s your point?
MR McDONALD: of this year. In any event – well, your Honour, those – there was a costs order then for approximately $3500 with payment to be made in 42 days, and that payment has not been made and is still outstanding. So if there’s a further costs order made, how does our client know that that will be paid?
HIS HONOUR: Okay. I follow. Mr Moore, anything you want to say in reply.
MR MOORE: Just a couple of points, your Honour. My friend for the Intervenor referred to a self-executing order, but the order is 27 July. Your Honour’s trial directions were accompanied by the order of – in the usual terms, which is that the party who has complied, if there’s non-compliance by the other, may file an application seeking for the matter to proceed.
HIS HONOUR: Anyway, no, get to the more substantive points. I want to hear the more substantive points in reply. I’ve got another case waiting, so
MR MOORE: Of course.
HIS HONOUR: try to be quick.
MR MOORE: Well, they’re triable matters. If the creditor was the ATO, as my friend said, there would still be a triable matter as between the husband and the creditor – the wife and the creditor. The husband will get nothing at of it, there’s no doubt about that. Perhaps, he would rather it went to his family than the creditor, but, ultimately, it’s the wife and the creditor, and there’s a balancing to be undertaken. And all my client is seeking is that she be able to put in submissions on the application to proceed undefended or dismiss the wife’s application, whichever way you cast the interlocutory application of the Intervenor. And that indulgence, as Dr Ingleby mentioned, was granted to the husband for a stay, and he has put those documents in.
HIS HONOUR: Well, that doesn’t bind
MR MOORE: The only other
HIS HONOUR: me as to the outcome for today.
MR MOORE: Of course. Of course.
HIS HONOUR: So what’s the strength of that submission?
MR MOORE: Because my client’s circumstances are rather different. She’s a pensioner who speaks no English. She has had difficulties during COVID obtaining a lawyer and has had some, frankly, totally inept representation, and that’s her responsibility in the eyes of the court, I understand that, of course, but it’s not to suggest that what she filed on 30 September can’t be readily remedied in a short space of time this month with no prejudice to the existing directions for trial to occur in May and no prejudice to the creditor’s claim which is always going to be far in excess of anything that’s available to divide between the wife and the creditor. It’s always going to be 4 million and something short.
HIS HONOUR: Right.
MR MOORE: It’s simply a question of the costs issue. And I appreciate what my friend for the Intervenor says about that; if there’s a costs order outstanding, I understand another it was paid, your Honour may have some pause about the value of that to the Intervenor, but that’s my submission or otherwise, as I put earlier in respect to the triable issues and the prejudice.
That exchange with all legal representatives was less than edifying. On the one hand I had the reasons for judgment of a judge of the Supreme Court of Victoria,[1] incorporating his Honour’s adverse credit findings against the respondent in this case and in this litigation I had s 79 litigation that had been on foot since 2017 most recently culminating in the wife’s statement of claim in which she asserted a 75% entitlement to the property pool yet she had not filed any trial material.
[1] In 2016.
The orders I made by consent on 27 July 2020 have been largely ignored. Importantly, despite this proceeding being fixed for trial before me on a five day estimated duration –
a)the wife did not comply with paragraph 3 of those orders by filing her trial evidence by 30 September 2020;
b)the respondent did not file his trial evidence by 3 November 2020; and
c)by reason of those two events of defaults, the intervenor will be unable to file its trial evidence on 15 December 2020.
It is fair to say that the wife is currently exhibiting a high degree of disinterest in this proceeding.
It is impossible to assess with any, let alone any reliable accuracy the applicant’s claim to 75% of the assets. But even if she were wholly successful in that contention, the husband’s 25% share would be consumed entirely by the judgment creditor and the judgment debt.
Where the intervenor stands
The law reports are full of decisions in this jurisdiction where an unsecured creditor asserts an entitlement to assets that would otherwise be divisible under s 79. I examined them in Panwar & Panwar[2] in the following terms –
[2] [2020] FamCA 480 (at [110]-[113]).
110.Several important decisions of the Full Court of the Family Court have addressed the issue. In In the Marriage of Biltoft[3] the court[4] held that where it is not possible for a judge to quantify the debt owing to others the court must ascertain the value of the property of the parties by deducting their total liabilities including unsecured liabilities from the gross value of their assets. That was the course adopted in In the Marriage of Prince[5] and In the Marriage of Rowell; Deputy Commissioner of Taxation (Intervener).[6] Where an unsecured liability is vague or uncertain, unlikely to be enforced or unreasonably incurred, it is competent for the court to determine that such an amount is not to be taken into account, as was held in In the Marriage of Petersens.[7] Relying on the High Court’s decision in Ascot Investments Pty Ltd v Harper,[8] the Full Court in Biltoft held that the court must take the property of a party to the marriage as it finds it and that the Family Court cannot ignore the interests of third parties in the property.
[3] (1995) 19 Fam LR 82.
[4] Nicholson CJ, Ellis & Buckley JJ.
[5] (1984) 9 Fam LR 481.
[6] (1989) 96 FLR 449.
[7] (1981) 7 Fam LR 402.
[8] (1981) 148 CLR 337.
111.In Biltoft the court examined the contention that one of the spouses to the marriage enjoyed a priority in the division of assets. Relying on the observations of Re Chemaisse & Commissioner of Taxation (No 3),[9] the court embraced the following statement –
[9] (1990) 13 Fam LR 724.
It was the submission on behalf of the wife that in the circumstances she was entitled to some degree of “priority” over the rights of third parties, that is that the rights of a third party creditor of the husband may be diminished in order to give effect to the wife’s rights.
In our view that does not represent the law in Australia. Rights arising under s 79 come into existence when an order is made under that section. Neither that section nor any other provisions of the Family Law Act establish rights, however described, in a party to a marriage over the property of the other spouse either arising from the existence of the marriage or the activities of the parties during that marriage or the institution of proceedings under s 79, where those rights do not otherwise exist under the laws in Australia.
112.The court in Biltoft then stated the point of principle in the following terms –
There is no requirement that the rights of an unsecured creditor or a claim by a third party must be considered and dealt with prior to the court making an order under s 79, nor is there a rule of priority as between a creditor claimant and a spouse. Those rights, however, cannot be ignored. They must be recognised, taken into account and balanced against the rights of the spouse.
113. Accordingly, no priority is enjoyed by an unsecured creditor.
In this case the intervenor is a judgment creditor. It is nevertheless an unsecured creditor. Strictly speaking, it does not enjoy any rights in specific property of either the applicant or the respondent. It has a right to be paid the full amount of its judgment debt. It also has a right of execution applicable in the court in which it obtained its judgment debt. Relevantly here, that translated to the right to engage the Sheriff to enliven the seizure and sale process, which the intervenor engaged and which Judge Bender enjoined over three years ago thereby denying the intervenor the fruits of its judgment.
No explanations for non-compliance
It became relevant to ascertain, as best the evidence revealed, why the applicant and the respondent had been so dilatory and cavalier in their approach towards this litigation. Neither filed affidavit material explaining their delays and for their non-compliance with my orders made in July 2020.
The intervenor’s application
On behalf of the intervenor Mr McDonald pointed out in written submissions dated 2 December 2020 that the wife has chosen to disregard the intervenor’s application for orders discharging the injunction ordered by Judge Bender. Mr McDonald cited the following –
4.On the following occasions, the applicant ignored or disregarded orders and the Rules of the Court:-
(a)At the first return on 16 October 2020, the Court accommodated her nonappearance and adjourned the application to 26 October 2020;
(b)At the second return on 26 October 2020, the Court further adjourned the application to accede to her request for time to appoint legal representation for 14 days to 9 November 2020;
(c)At the third return on 9 November 2020, the Court adjourned the applicant (sic) to allow the applicant an opportunity to respond to the intervener’s submission by 16 November 2020; and
(d)On 16 November 2020, the applicant disregarded order 1 of 9 November 2020;and
(e)At the fourth return on 26 November 2020, the applicant did not appear.
Sensibly, Mr McDonald acknowledged that a lack of procedural fairness would be exhibited if the wife was not permitted to be heard on her submissions against a summary dismissal of her claim (inferentially, under s 79). Mr McDonald relied on three decisions in that regard, namely Shrestha v Migration Review Tribunal,[10] SZWBH v Minister for Immigration and Border Protection[11] and Hinton v Alpha Westmead Private Hospital.[12] At least one of those cases went on further appeal.
[10] (2015) 229 FCR 301.
[11] (2015) 229 FCR 317.
[12] (2016) 242 FCR 1.
Mr McDonald submitted that s 97(3) of the Family Law Act requires the court in a proceeding under the Act to ensure that the proceeding is not protracted. In my view this proceeding has been on foot for much longer than it should have been and very little progress has been demonstrated. One would imagine that the applicant was keen for this case to progress with expedition. Yet she displays a bewildering degree of sloth and lethargy. That must stop. Mr McDonald submitted as follows –
7.It has been procedurally unfair to the intervener to have waited for the applicant to prosecute her claim at her convenience for almost the last 4 years. It is submitted that orders and the rules of court should accord procedural fairness to the intervener to have in this proceeding disposed of in a timely manner in accordance with s. 97(3) of the Act and r. 1.07 of the Rules.
I agree.
The respondent somehow obtained an indulgence for the filing of submissions beyond the date previously ordered. The wife seeks an extension for her submissions. It would be odd for the husband to have time to do the same thing as the wife seeks yet she be denied the same request.
In the circumstances I regret to say that procedural fairness compels me to accede to the wife’s application for time to file submissions in opposition to the intervenor’s application. She has had long enough to formulate her position.
The intervenor is entitled to be heard on its application to discharge the injunction that prevents it from executing its judgment debt.
I order the wife has until 4pm on 11 December 2020 to file and serve her submissions in accordance with paragraph 1 of my orders made on 9 November 2020.
I propose to entertain any application for costs of and incidental to this application. I regard the conduct of the applicant and the respondent as most unsatisfactory. I will also entertain any application for orders vacating the trial date. These parties (save for the intervenor) should not have the benefit of the court accommodating their request for expedition when they exhibit unacceptable dilatory conduct in their approach to this case.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 9 December 2020.
Associate:
Date: 9 December 2020
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