Nabers & Nabers
[2011] FamCAFC 145
•7 July 2011
FAMILY COURT OF AUSTRALIA
| NABERS & NABERS | [2011] FamCAFC 145 |
| FAMILY LAW – APPEAL FROM DECISION OF FEDERAL MAGISTRATE – PROPERTY – PROCEDURE – Where the husband appeals the orders of a Federal Magistrate effecting a property settlement between the parties – Where the Federal Magistrate refused the husband’s application for an adjournment – Where the trial proceeded in the husband’s absence – In circumstances where the husband was self-represented and had a history of anxiety and depression, whether the Federal Magistrate denied the husband natural justice in refusing to allow the husband to read a statement in support of his application for an adjournment, following the withdrawal of his solicitor – The husband was not afforded natural justice – Appeal allowed and remitted for rehearing before a different Federal Magistrate – Costs certificates granted. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) Family Law Rules 2004 (Cth) |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Allesch v Maunz (2000) 203 CLR 172 Antoun v R (2006) 224 ALR 51 Collins & Collins (1990) FLC 92-149 Gallo v Dawson (1990) 93 ALR 479 Johnson & Johnson (1997) FLC 92-764 Johnson & Johnson (No 3) (2000) FLC 93-041 Re F: Litigants in Person Guidelines (2001) 93-072 Stead v State Government Insurance Commission (1986) 161 CLR 141 |
| APPELLANT: | Mr Nabers |
| RESPONDENT: | Ms Nabers |
| FILE NUMBER: | DUC | 46 | of | 2008 |
| APPEAL NUMBER: | EA | 15 | of | 2010 |
| DATE DELIVERED: | 7 July 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Strickland and Murphy JJ |
| HEARING DATE: | 20 May 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 7 April 2009, 8 July 2009 and 15 January 2010 |
| LOWER COURT MNC: | [2009] FMCAfam 69 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Nabers appeared in person |
| COUNSEL FOR THE RESPONDENT: | Mr Kenny |
| SOLICITOR FOR THE RESPONDENT: | McIntosh Emerton & Thomas |
Orders
The husband’s oral application to adduce further evidence be dismissed.
The appeal be allowed.
The orders made by Federal Magistrate Demack on 15 January 2010 be set aside.
The matter be remitted for rehearing as soon as possible before a Federal Magistrate other than Federal Magistrate Demack.
There be no order as to costs.
The Court grants to the husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 husband in respect of the costs incurred by the husband in relation to the appeal.
The Court grants to the wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 wife in respect of the costs incurred by the wife in relation to the appeal.
The Court grants to each party a costs certificate pursuant to the provisions of
s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the rehearing.
IT IS NOTED that publication of this judgment under the pseudonym Nabers & Nabers is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 15 of 2010
File Number: DUC 46 of 2008
| Mr Nabers |
Appellant
And
| Ms Nabers |
Respondent
REASONS FOR JUDGMENT
Introduction
A Notice of Appeal filed by the husband on 27 January 2010 sought to appeal three sets of orders: orders for costs made by Sexton FM on 7 April 2009 and 8 July 2009, and orders made by Demack FM on 15 January 2010.
The appeal against each of the orders made by Sexton FM was significantly out of time. An application for extension of time within which to appeal those orders was dismissed by Boland J on 10 February 2010.
The appeal against the orders of Demack FM was, initially, deemed abandoned as a result of the husband’s failure to file a draft appeal index within the time specified in the Family Law Rules 2004 (Cth). On 16 March 2010, Boland J, upon an application by the husband, ordered the reinstatement of that appeal.
This appeal relates, accordingly, to four grounds of appeal against the orders made by Demack FM which effected a settlement of property between the parties.
The circumstances of the hearing which resulted in those orders are unusual. The husband attended that hearing initially with a solicitor who had been instructed only some two days prior to its commencement. The Federal Magistrate, at the solicitor’s request, stood the hearing down for about two hours so as to allow better instructions to be given by the husband to his solicitor. At the end of that period, the solicitor sought an adjournment. That application was refused. As a result the solicitor withdrew.
Very soon thereafter, an interchange occurred between the then self-represented husband and the Federal Magistrate. The nature, tone and substance of that interchange lies at the heart of the husband’s complaints about the process before the Federal Magistrate.
As a result of the interchange between him and the Federal Magistrate, the husband left the courtroom and the trial of the property proceedings was heard, and determined, in his absence.
The events just described also have a broader context. In written submissions on behalf of the wife, it is said that “[t]his matter had a tortured and expensive history leading up to the final hearing which took place in January 2010”. That description is apt, and the procedural history relevant to the issues in this appeal will be referred to below.
That history, and the emotional and financial consequences of it upon each of the parties makes it particularly unfortunate that we have formed the view that the husband was denied natural justice in the proceedings before the Federal Magistrate and that, consequently, the appeal must succeed and the matter be remitted for re-hearing before a Federal Magistrate other than Federal Magistrate Demack.
Application to Adduce Further Evidence
On 3 November 2010 the Appeals Registrar, inter alia, ordered that the husband file and serve a further appeal book to be labelled appeal book regarding documents sought to be adduced as further evidence in the appeal and comprising the documents described as “correspondence between [the husband] and the court and miscellaneous documents”.
The husband complied with that order and in December 2010 prepared, filed and served this further appeal book with a blue cover.
On 27 January 2010 the husband filed an application in an appeal seeking primarily an extension of time to appeal the orders for costs made by Sexton FM on 7 April 2009 and 8 July 2009, but also seeking an order that he have leave to file further evidence both in respect of his mental and physical health as being relevant to the financial and property settlement matters.
On 10 February 2010 Boland J dismissed this application. As to the issue of further evidence though, her Honour said that an application in relation to the same would need to be made to “the members of the Full Court who hear and determine the appeal against Demack FM’s orders”.
Accordingly, the husband made an oral application to us to adduce further evidence, in addition to what was comprised in the further appeal book, in the form of various medical reports and medical records dated between 4 August 2008 and 25 February 2011.
In relation to the further appeal book, documents contained therein were extensively referred to by the husband in the document entitled “Summary of Argument” that he filed on 18 May 2011, namely only one clear day prior to the hearing of this appeal. That book was referred to by the husband in this document and during the hearing of this appeal as the “blue volume” or the “blue book” because of the colour of its cover.
In any event, the husband sought to put the contents of this book before us.
As to the further medical reports and records, we note that at least two of them were in fact in evidence before the Federal Magistrate. In any event, the husband’s “Summary of Argument” foreshadowed the asserted need for that material to be before this Court. He said as follows:
[The Appeals Registrar], in particular since this appeal commenced has caused significant damage and has, in my opinion, blocked the ability to make sure the Full Bench know all the evidence and as an example, to make sure the psychiatric reports have been furnished as evidence. I will have to hand documents up. In general there are pieces of information that substantiate my claims and they have not been included in the Appeal books. I asked for mediation and she agreed then refused.
We received the further medical reports and records and indicated that we would consider the application to lead further evidence, including the documents in the further appeal book, in the course of determining this appeal.
Counsel for the wife opposed the application, but as will emerge in these reasons, nothing turns on the further evidence and we propose to dismiss the application. Our conclusion that the requirements of natural justice have not been met has been arrived at without reference to any of the material the subject of the husband’s application
Further Written Submissions
The husband was due to file his written summary of argument by
15 April 2011. However, he only filed this document on 18 May 2011. This caused difficulties for the wife given that her summary of argument was due to be filed by 6 May 2011. In the end result after receiving the husband’s document the wife tendered her summary of argument to us at the hearing of the appeal. In these circumstances we gave the husband leave to file any written submission in reply within 7 days.
On 27 May 2011 the husband filed further written submissions.
Relevant Procedural History
As will already be apparent, the husband’s appeal, and, our decision, focuses upon the interchange between the husband and Federal Magistrate Demack. It is, however, necessary to emphasise that this interchange did not occur in a vacuum. It can very much be seen to be a product of the actions (and inaction) comprising part of the procedural history which preceded it and it is necessary for us to record some of that history here.
On 19 June 2008 the wife filed an application for property settlement orders. The husband filed his response on 4 November 2008. The primary asset in the property pool at the time of trial was real property situated in L. The parties are also the members of a self-managed superannuation fund, in which the husband has a significantly greater member benefit entitlement than the wife. The fund’s primary asset was originally a property but, consequent upon its sale, is now represented by cash.
A litigation guardian was appointed for the husband on 21 October 2008, primarily, it seems, as a result of reports from the husband’s then treating psychologist, Dr F. In a report dated 4 August 2008, Dr F said the husband was:
… significantly distressed, and would have many problems trying to evaluate future courses of action. Therefore, the reliability of his judgment in critical areas of litigation must be questioned…Unless the complexities of his current situation can be simplified, he could experience a serious “breakdown effect”.
…
… Mr [Nabers] is in fact vulnerable to a form of mental disorder resulting from significant stress.
The husband made a plethora of complaints against the litigation guardian, including that it was as a result of the guardian’s “irresponsible behaviour” that the husband lost his father’s inheritance; that the guardian “had been intimidating [him] and causing [him] to melt down”; and that the documents prepared by the guardian for the purposes of the conciliation conference “were all wrong and do not reflect the true financial situation” (Annexures B and D to the affidavit of [the litigation guardian] filed 8 July 2009).
A conciliation conference took place on 12 December 2008 but the matter was not resolved. The conciliation conference has been the source of significant complaint by the husband throughout the proceedings. In his “Summary of Argument”, for example, the husband asserts that he was intentionally excluded from the conciliation conference and “wanted to give vital evidence as my affidavits were done wrongly by [the litigation guardian]…”. The husband contends that it was at this point that he asked the litigation guardian to remove himself and “asked him many times in writing” thereafter.
The husband states that he sought to have the matter mentioned before Sexton FM on 18 March 2009 so as to inform her Honour that the litigation guardian “could not be trusted”. On that date, Sexton FM set the property proceedings down for final hearing before her on 6 and 7 April 2009. The husband asserts that, during the hearing on 6 and 7 April 2009, “FM Sexton instructed [the litigation guardian] to remove himself”. The transcript of proceedings before Sexton FM on 6 April 2009 reveals an oral application by the litigation guardian’s counsel for an adjournment to enable the obtaining of a psychiatric report regarding the husband’s capacity for future employment. The adjournment was granted but a costs order was made against the husband. The transcript reveals this exchange indicative of the fact that Sexton FM had at least some concerns about the performance of the litigation guardian:
HER HONOUR: … But on this question of costs, I can’t see how, if the matter couldn’t proceed yesterday in any event from your side, Ms Gibbons, because [the litigation guardian] simply hadn’t prepared the case adequately which is what it seems, all the difficulties in the world doesn’t change the role of the person. Everyone appreciates that this is not an easy case and certainly I have been a solicitor for a litigation guardian and I am well aware of the difficulties that a litigation guardian can face but it was [the litigation guardian’s] position to not be represented until the last hour and despite my suggesting a number of times he may be in difficulty, and it is clear that he is in difficulty and it seems to me that the case hasn’t been prepared adequately and that falls on the [litigation guardian] as harsh as that may seem….
MS GIBBONS: Well, your Honour, I don’t want to speak over your Honour but I understand that [the litigation guardian] did recognise the difficulties with [the husband] and did, in fact, make an application to withdraw as the litigation guardian ---
HER HONOUR: Well, he was given an opportunity to do that and didn’t take it. He sent an email to the Court, Ms Gibbons. He did not do it properly when he was told how it be [sic] done. I gave him leave to do that and I gave him a time before which he had to file his application to be discharged as a litigation guardian with supporting affidavit evidence and there was no such application before the Court.
On the date set for the adjourned trial, 8 July 2009, the litigation guardian applied to withdraw and an order was made to that effect. The husband (now self-represented) again sought, and was granted, an adjournment by Sexton FM.
It is important to record that, on this occasion, the Federal Magistrate made it clear to the husband that he needed to be prepared to have the matter heard and determined on the next occasion. Sexton FM said, for example:
… Even though I am well aware that your former wife – and I’m sure all of this is having an impact on her and on your children, probably, as well, I’d imagine – the Court still must do what is fair, but my concern is that, if I put this matter over, I’m going to be in exactly the same position next time, with you standing here saying you couldn’t get a lawyer, or the lawyer wouldn’t do what you wanted, or that there are problems, and then I’ve got something that tells me that you’ve had another anxiety attack and you’re not coping well and here we are again and on it goes. We need to be able to see some way through this, to the end of it, because this is not good for anybody, probably most particularly you.
The Federal Magistrate attempted to ascertain from the husband whether or not he understood the nature of the proceedings and what was expected of him. The husband informed Sexton FM that he felt he was capable of instructing a lawyer (T 12, 8 July 2009) and that he would “prefer it” if her Honour adjourned the matter so that he could obtain legal representation (T 20, 8 July 2009). It is important to record that, within appropriate bounds, Sexton FM made very significant efforts to facilitate that representation for the husband. (See e.g. T 21 – 22, 8 July 2009). In a further attempt to assist the husband, Sexton FM enlisted Registrar Hurditch to assist the parties “…particularly in light of [the husband’s] difficulties…” and to attempt to “work out or broker an agreement between the [parties], just for the purpose of this short-term arrangement…” pending the further hearing.
The matter was set down for mention on 11 September 2009 and for a final hearing on 4 December 2009.
Sexton FM also made an order requiring the husband to “attend upon a psychologist/psychiatrist within 21 days for the purposes of seeking a report addressing whether the husband is capable of understanding the nature and possible consequences of the proceedings or is capable of adequately conducting or giving adequate instruction for the conduct of the proceedings.”
It is not entirely clear on the record before us why the trial did not proceed on
4 December 2009. Nevertheless, on 22 October 2009, the matter was listed to a final hearing on 14 and 15 February 2010 before Demack FM.
Grounds of Appeal and Orders Sought
The Notice of Appeal filed on 27 January 2010 contained six grounds of appeal, of which four were in relation to the orders made by Demack FM on 15 January 2010, and they are as follows:
3.With respect to the Orders appealed from made by Federal Magistrate Demack on 15 January, 2010, Her Honour failed to have any or any sufficient regard to S.75(2) factors and in particular, to the Husband’s (Appellant’s) relative disadvantage vis-à-vis the wife, with respect to:
(a)his age and state of health;
(b) the income, property and financial resources which would be available to him if the Orders made by Her Honour were carried into effect;
(c) the Husband’s/Appellant’s lack of physical or mental capacity for appropriate gainful employment;
(d) the inability of the Husband/Appellant to secure for himself a standard of living which, in all of the circumstances, would be reasonable in the event that the Orders were carried into effect, upon the premise that he were to achieve average male life expectancy.
4.The Learned Magistrate failed to give any or any appropriate weight or consideration to the great financial contributions made by the Husband towards the maintenance and conservation of jointly owned matrimonial property, including his sole payment of instalments due on joint mortgage and other debts, from the date of separation;
5.Her Honour, Federal Magistrate Demack failed properly to consider the evidence before her or to afford any or any reasonable opportunity for the Husband’s case to be properly advanced and hear by Her Honour;
6.Her Honour, Federal Magistrate Demack, failed to accord natural justice to the Appellant, having regard to the knowledge of the Court, based upon the history of the litigation, that the (Husband) Appellant was or might reasonably be suspected to be, operating under a mental disability.
In relation to the orders sought, given the basis on which we propose to determine this appeal it is unnecessary for us to address those orders. They seek different orders for property settlement than those made by the Federal Magistrate, but relevantly, in the alternative, the husband seeks an order that “the matter proceed by way of a full rehearing”.
Procedural Fairness and Natural Justice - Grounds 5 & 6
The Law
Counsel for the wife refers in both written and oral submissions to the well known statement by McHugh J in Gallo v Dawson (1990) 93 ALR 479 that self representation “…is a misfortune, not a privilege”. So much is true, but, as has been pointed out by this and other courts, proper consideration needs to be given to the particular disadvantages suffered by a self represented litigant. Guidelines have also been developed so as to better facilitate a consideration of that “misfortune”. (See e.g. Johnson & Johnson (1997) FLC 92-764; Re F: Litigants in Person Guidelines (2001) FLC 93-072).
Further, it is by no means an uncommon experience that litigants in this Court can suffer from a form of mental illness or psychological disturbance. That, too, is a particular misfortune and judicial officers need to give proper consideration to it when it is present.
The means by which the proper recognition of each of these considerations is achieved is to ensure a fair trial or, as it has often been expressed, to ensure that there is a “level playing field” between the represented and the self represented litigant.
Equally though, a trial judge’s responsibilities include, among other things, “… a responsibility to ensure the prompt disposal of proceedings before that court…” (Collins & Collins (1990) FLC 92-149). Within that context litigants – both represented and unrepresented – might expect, on occasions, a robustness of approach. In the context of an application to recuse for bias, the High Court (Gleeson CJ; Gaudron, McHugh, Gummow and Hayne JJ) has said (Johnson [13]):
… at the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain until the moment of pronouncement of judgment, as inscrutable as the Sphinx.
Obviously enough, however, robustness, has its limits. One such limit is creating the impression in a reasonable observer that the judicial officer will give proper and unbiased attention to the matter. A second such limit is that “…normally at least, it is essential that the judge give parties or their representatives at least some time to advance their submissions” (Antoun v R (2006) 224 ALR 51). Thirdly, and more fundamentally, the conduct of a judicial officer in and about proceedings before him or her must make clear that the decision is made according to law, as distinct, for example, from an idiosyncratic personal reaction to a party or parties or the merits or otherwise of the case.
As was said by Kirby J in Antoun (at 58):
27.So far as the first point is concerned, it is certainly true that the trial judge’s remarks were strong and forthright. In some circumstances, that will be a permissible expression to adopt, especially where the trial judge is conducting a trial as the sole judge of fact and law and the parties are legally represented by counsel able to respond with clarity and forthrightness. Judicial indignation at a particular course of action, or proposed action, may on occasion be understandable. Couched appropriately, at the proper time and in due sequence, it may give rise to no reasonable apprehension of bias. For centuries in courts of our tradition, judges have been telling parties and their lawyers, sometimes in quite robust terms, that they consider that a particular submission or course of action is hopeless, a waste of the court’s time or doomed to fail. I would not want to say anything that needlessly mollycoddled candid judicial speech addressed to trained advocates. (footnotes omitted)
And, per Gleeson CJ in the same case (at 57):
22.Judges do not have to devote unlimited time to listening to unmeritorious arguments. Sometimes, a brief hearing will suffice. Judges may anticipate events at trial, and foresee lines of argument that may be developed … Perhaps the judge felt indignant about the conduct disclosed by the evidence, or about the tactics adopted by the appellants. Indignation is a natural reaction to some facts that are disclosed, or some events that occur, at a criminal trial or, for that matter, on an appeal. It should never be permitted to compromise the appearance of impartiality that is required of judges.
Their Honours were, in that case, speaking of criminal proceedings, but in our view, the passages are equally applicable to cases in this Court and the circumstances of this appeal noting, however, Kirby J’s references to legal representatives standing between the Court’s robustness and a party.
In the context of proceedings emanating in the Family Court, Kirby J held in Allesch v Maunz (2000) 203 CLR 172 (at 184–85):
35.It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as "an indispensable requirement of justice". It is a rule of natural justice or "procedural fairness". It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
36.The rule is also implicit in international principles of human rights. It is inherent in the proper conduct of judicial proceedings in a court of law. It may even be an implied attribute of the Judicature established under, and envisaged by, the Constitution. So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions, to administrative tribunals and other decision-makers. The principle governed the Family court of Australia in determining the rights of the present parties. (footnotes omitted)
In Stead v State Government Insurance Commission (1986) 161 CLR 141 the High Court said (at 145-46):
The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker LJJ) in Jones v National Coal Board [1957] 2 QB 55 at 67, in these terms:
There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge.… No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.
That general principle is, however, subject to an important qualification … That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Discussion
To repeat, a reading of the husband’s “Summary of Argument”, together with his oral submissions at the hearing of this appeal, make it clear that the central thrust of this appeal lies in an attack on the process at the final hearing before the Federal Magistrate.
While sections of the “Summary of Argument” can be seen to attack the whole of the court processes in which the husband has been engaged, it seems clear that particular attention is directed to the process in the trial resulting in the orders appealed against. For example, the husband contends in that document:
I have been suffering from depression extreme range, but I am not a lunatic and all I wanted to do was tell the truth. The Family Court and Federal Magistrates Court have not wanted to promote this or understand my Mental Health Issues. This process has been the catalyst for my depression, as I did not suffer depression before I was dragged through this and it’s a wonder I have not committed suicide. The decisions made have not been impartial. I will document later. …There has been significant procedural unfairness…
…By allowing the [assets and liabilities] of April 09, meant that the January 2010 [hearing] was going to be a waste of time and that is why I had an anxiety attack when being forced to sign the handwritten document and then in the court, as I was not even allowed to try and read out a statement to turn FM Demack around when representing myself. If she would not understand that statement then I had no chance of staying and her accepting any of my evidence, which she later admitted to anyway. That is part of the reason why the solicitor ceased to act, he did not say it in front of Magistrate Demack, but he put it in writing to me later that he believed that FM Demack was being extremely aggressive towards me and out of context and that I was prejudiced on the day 14th January 2010. Refer Letters pages 232 and 233 Blue Volume. I only wish I had the audio transcript. FM Demack completely lost her temper and went ballistic and did not take into account my Mental Health issues she makes it very clear in the reasons she does not believe I am suffering from depression. More explanation later.
Counsel for the wife conceded, properly, that there was a “robust” interchange between the husband and the Federal Magistrate. However, as can be seen, the husband suggests that it was far more than just “robust”.
The extracts from the husband’s “Summary of Argument” reveal, relevant to what we consider to be the real gravamen of this appeal, a focus upon an asserted procedural unfairness by reason of the Federal Magistrate’s tone and manner of expression in her conduct toward him, and concerns about the manner in which a list of assets and liabilities “from April 09” was to be used in the trial proceedings in February 2010.
We have carefully considered the relevant parts of the transcript of proceedings before the Federal Magistrate. In light of the husband’s reference to her Honour’s tone and demeanour, and his specific reference to the desire to have “an audio tape” of the proceedings, we have also listened carefully to the relevant part of the audio recording of the proceedings before the Federal Magistrate. We consider it important to quote from the former at some length and to record our observations and impressions gained from listening to the latter.
The transcript reveals (T 12 – 13) that the Federal Magistrate was alive to her responsibilities to explain the proceedings and what was to occur within them to a self represented litigant (Johnson). No challenge is mounted to her Honour’s approach in that respect. Having done so, her Honour then asked Counsel for the wife to call her to the witness box. Thereafter, the following exchange ensues (T 14 – 18):
MR [NABERS]: Excuse me, Federal Magistrate.
HER HONOUR: Yes, Mr [Nabers]. You stand up when you’re speaking with me, thank you.
MR [NABERS]: Yes, I will. I will. In all due respect, your Honour, I would like to make a statement.
HER HONOUR: No. I don’t take statements. I take matters which are – I have already said to you we take the evidence first ‑ ‑ ‑
MR [NABERS]: Would you ‑ ‑ ‑
HER HONOUR: Listen to me, please.
MR [NABERS]: Do you ‑ ‑ ‑
HER HONOUR: Do not interrupt me. You will wait for me to finish speaking. I am in charge of this court case and you will comply with my directions and I direct you to be quiet. You will not make any submission at this stage. You may make submissions at the end.
MR [NABERS]: With due respect, your Honour, this is going to be on record either you listen to what I say or I’m going to ask for an appeal.
HER HONOUR: We will proceed with the case.
MR [NABERS]: I’m not proceeding ‑ ‑ ‑
HER HONOUR: We take the evidence at this stage. Do you seek an adjournment?
MR [NABERS]: I seek an adjournment.
HER HONOUR: On what basis?
MR [NABERS]: I’m going to read this. On the basis of this, so would you like to listen to what I’ve got to say?
HER HONOUR: How dare you speak to me like that? How dare you speak to me like that? I am the Federal Magistrate presiding in this case.
MR [NABERS]: And I understand that, your Honour.
HER HONOUR: Well, you start respecting the office which I represent. If you wish to make an adjournment for an application you can do that now but do not follow that up by suggesting to me that I might like to listen to you. Do you understand me?
MR [NABERS]: I understand you.
HER HONOUR: Right, then stop and make the submission now.
MR [NABERS]: I'll make the submission now. I am concerned that there are defamatory and false accusations that are being made in the assets and liabilities statement that I can explain. Number 2: I'll explain these if the courts will be impartial enough to allow me to. The applicant's legal representatives have been given documents many times and not acknowledged receipt of them. I have already made a complaint to the office of the Legal Services Commissioner about the defamatory and unscrupulous behaviour of the solicitor. I have had solicitor letters, bank statements, and the financial information to explain this to the courts to refute these wrong accusations made. I pre - - -
HER HONOUR: I'll stop you there.
MR [NABERS]: I pre - - -
HER HONOUR: I'll stop you there. None of this has to do with an adjournment. That has to do with the trial process and you testing the evidence through the process of cross-examination. Have you got any submissions to make as to why you need an adjournment?
MR [NABERS]: Well, I am saying to the courts that the assets and liabilities, and if you let me read on - - -
HER HONOUR: No. No. Those are the things that you will ask the wife about in your cross-examination. That is why we are going to start a trial. That's precisely why we would start the trial now, so that I can see the things that you want to hear - - -
MR [NABERS]: I am not going to get a fair hearing, your Honour, so we may as well - - -
HER HONOUR: Well, you're not going to get a fair hearing anywhere, unless you actually start. So let's start - - -
MR [NABERS]: No, I'm not - - -
HER HONOUR: - - - and see if you get a fair hearing.
MR [NABERS]: I'm not starting, because I don't believe I'm going to get a fair hearing so - - -
HER HONOUR: Well, the hearing is commencing now so, Mr - - -
MR [NABERS]: Well, I'm not going to be here if the false accusations are made. There's all - - -
HER HONOUR: Well, then you're not here to cross-examine her, Mr [Nabers]. Be here to cross-examine her if you want a hearing.
MR [NABERS]: No, I am not doing this because from the start this morning in the settlement they won't accept solicitor's letters and property files.
HER HONOUR: Then put the evidence before the court and see if the court is interested, Mr [Nabers].
MR [NABERS]: I'm sorry. I'm sorry, but I am very, very disappointed in your attitude - - -
HER HONOUR: All right.
MR [NABERS]: - - - and I'm not going to be here, okay? I'm going right now.
HER HONOUR: Thanks, Mr [Nabers].
MR [NABERS]: Thank you.
HER HONOUR: And, Mr Kenny, if you can call your client, please?
MR KENNY: Thank you.
MR [NABERS]: I'll be making a formal complaint about this whole episode.
HER HONOUR: Thanks, Mr [Nabers].
MR [NABERS]: And there's - - -
HER HONOUR: Just stand there, Mrs [Nabers].
MR [NABERS]: - - - there's witnesses here to see what your ongoing attitude was also.
HER HONOUR: Thanks, Mr [Nabers].
MR [NABERS]: Thank you.
HER HONOUR: Feel free to remain in the back of the court, Mr [Nabers].
MR [NABERS]: I will not be here, okay? I'm not getting a fair hearing here and - - -
HER HONOUR: We will place on the record when you leave the courtroom.
MR [NABERS]: Yes, okay. And, as I said to you, I will be making a formal complaint.
HER HONOUR: There's an appeal process.
MR [NABERS]: Yes.
HER HONOUR: Takes some legal advice, Mr [Nabers].
MR [NABERS]: No. No. I will be doing an appeal because you wouldn't let me even read this statement out.
HER HONOUR: Well, it wasn't an application for an adjournment, Mr [Nabers].
MR [NABERS]: I was trying to explain to you why I couldn't get a fair hearing. If you want to keep on listening to all the lies and everything like that and people not wanting to accept documents on an ongoing basis, when I've got fax logs - you've seen it all in the affidavits - - -
HER HONOUR: Well, stay here and cross-examine, Mrs [Nabers].
MR [NABERS]: I'm not staying here, because I don't believe that I'm going to get a fair hearing - - -
HER HONOUR: All right.
MR [NABERS]: - - - while you're presiding in this matter.
HER HONOUR: Thanks, Mr [Nabers]. Silence, please, while the witness is sworn or affirmed.
(emphasis added)
It is important to record that a reading of the transcript and her Honour’s reasons reveals an impatience with the protracted nature and history of the litigation which preceded the trial before her Honour and which we, with respect, find perfectly understandable. The proceedings – which appear to us to be by no means complex – had had, to that point, a tortured history; the husband had been afforded considerable assistance during the course of those proceedings and he had plainly been informed of the necessity to ready himself for the trial before her Honour. Litigants should expect courts to place considerable emphasis on the importance of dealing with cases expeditiously. (See, e.g. Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175).
We consider it entirely understandable that a judicial officer confronted with the prospect of yet another adjournment of these proceedings, with yet further delay and the consequence that the resolution of the parties’ dispute would be further postponed was – and should have been – frustrated. We do not find it remarkable, that, in the circumstances of this case, that frustration might be expressed in very robust terms.
Such robustness might be present, and be entirely appropriate, notwithstanding the self represented status of a litigant or, as in this case, a self represented litigant with psychological difficulties. The question is whether the approach taken by this particular judicial officer was, by reason of the process afforded to this particular litigant and/or what occurred within a process marked by this particular robustness, crosses a line such that it can be said that the principles of natural justice have been infringed.
To repeat, we have listened carefully to the audio recording of the relevant part of the proceedings, and we consider it necessary to observe that we found her Honour’s tone to be, with respect, surprisingly loud and intemperate. We use the word “surprisingly” because nothing in either the transcript or audio recording suggests that any words used by the husband, any intonation, or, indeed, any other behaviour on his part, could be seen as provocative of such a reaction. We consider the description “aggressive” used by the husband in his “Summary of Argument” to be accurate.
Nevertheless, in light of the procedural history of this case and the principles to which we have earlier referred, we may well have been persuaded that these matters alone are (notwithstanding the self represented status and personality frailties of the husband) insufficient to attract intervention by this Court.
However, the procedural history provides an important context for, and adds weight to, two specific matters which arose in the hearing and which draw us to the conclusion that the requirements of natural justice have not been met.
The husband makes it clear (T 15) that he seeks an adjournment. When asked the basis for same by the Federal Magistrate, the husband refers to a statement which he wishes to read. He says, we consider, calmly, quietly and respectfully, “on the basis of this [statement], so would you like to listen to what I’ve got to say”. Her Honour responds, in what can only be described as a very loud and aggressive voice, “how dare you speak to me like that? How dare you speak to me like that? I am the Federal Magistrate presiding in this case”.
The husband (again, as we see it, quietly and politely) goes on to say in making his submission about the adjournment “I am concerned that there are defamatory and false accusations that are being made in the assets and liabilities statement that I can explain…”. He then asserts “unscrupulous behaviour” on the part of the solicitor and then refers to documents which he has. At this point, he is cut off by her Honour who says “I’ll stop you there”.
The husband attempts to continue and the Federal Magistrate says, again, “I’ll stop you there. None of this has to do with an adjournment. That has to do with the trial process and you testing the evidence through the process of cross-examination. Have you got any submissions to make as to why you need an adjournment?” The husband then says “[w]ell I am saying to the courts that the assets and liabilities, and if you let me read on…” Her Honour then says “No. No. Those are the things that you will ask the wife about in your cross-examination…”.
In our view it was neither correct to say that the husband’s statement “had nothing to do with an adjournment” nor was any proper opportunity given to the self-represented litigant with personality frailties to develop such submission as he wanted to make. We consider that the interchange (and subsequent passages within the transcript (T 16ff)) make clear that the husband was attempting, in making an application for an adjournment, to refer to matters directly relating to the assets and liabilities of the parties.
Natural justice required this particular litigant, with this particular litigant’s characteristics, to be given the opportunity to make submissions with respect to an adjournment and all the more so when the basis of that application was, apparently, in respect of a matter central to the determination of the proceedings before her Honour, namely, the establishment of “the property of the parties or either of them” within the meaning of s 79 of the Act.
We consider that the husband, in appropriate and temperate language, in a manner consistent with his lay status, was attempting to make submissions in support of an adjournment but was afforded no opportunity by the Federal Magistrate to do so. At the very least her Honour should have allowed the husband to read out his statement before challenging him.
We consider that, as a result, the husband was not afforded natural justice.
Conclusion
As has been seen, “not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial”. The question which must now be asked is whether a new trial “… would inevitably result in the making of the same order as that made by the primary judge at the first trial”. (Stead).
Given the history of these proceedings which preceded the hearing by the Federal Magistrate including, as earlier noted, Sexton FM specifically emphasising to the husband the need to be ready for a final hearing, it might well be thought that any application for an adjournment by the husband would, in any event, have been futile. However, the picture is more complicated than that.
In her Reasons for Judgment, the Federal Magistrate found:
18.It seems to me that that particular issue [the values to be ascribed to the particular assets] is important as the litigation guardian, having been properly appointed and having briefed Counsel, was in a position to compromise those particular issues at that stage. It seems to me that the parties are bound by the compromise which was made at that time and where it states that parties had agreed to particular values, it seems to me that it would be proper, absent cogent other evidence, for those assets to be valued in that way by me in this final decision. (emphasis added)
The Federal Magistrate is there referring to a list of assets and liabilities which, it is said, were agreed to by the husband. That agreement is said to have occurred at a time when a litigation guardian was conducting the litigation for the husband. As the history earlier outlined makes clear, the husband is, and had been for a considerable period of time, concerned about actions taken (and inaction) by the litigation guardian. As earlier referred to, Sexton FM had, at least, some concerns about the manner in which the litigation guardian had conducted the litigation on behalf of the husband.
Moreover, it is clear that the husband is, and had been for some time, concerned specifically about aspects of the identification of the property of the parties and certainly about its value. In particular, it is clear that the husband asserts unequivocally that there was in fact no compromise of either the identification of the property or its value.
It seems to us that there is merit in this specific complaint by the husband. It ought to be noted that in proceedings on 8 July 2009 before Sexton FM the husband represented himself consequent upon withdrawal of the litigation guardian that day. Sexton FM considered there was unfairness to him in proceeding with the matter that day in light of the withdrawal of the litigation guardian. In that context, Sexton FM observed that:
…[the husband has] got questions about the asset pool, he’s got questions about what is allegedly agreed in the asset pool, and there is a number of matters he raises which I think would have satisfied me that it would not be fair for this matter to – for me to proceed with it today with him in this situation…
…
FEDERAL MAGISTRATE: So there is a property there. You will see, [the Registrar], on the left-hand side of the file, that in April, in an effort to try and move this matter along, a list of assets and liabilities was prepared which, I noted – obviously it’s not binding but it was noted that that was the agreed position as at 7 April. [The husband], now acting for himself, says that that is not so and he has issues with that list. It seems to me that his representative needs an opportunity to have a look at that and obtain some instructions from him in relation to that… (emphasis added)
It seems to us tolerably clear that this is the very point which the husband was seeking to maintain before the Federal Magistrate during the course of the interchange earlier referred to.
The application for the adjournment which, in our view, the husband was impermissibly prevented from pursuing, was, it seems plain to us, so as to enable him to address this issue. In light of Sexton FM’s comments which we have quoted, this self-represented, anxious litigant was entitled to think that “the asset pool” had not been compromised – or, at least, not in a way that was binding upon him.
That being so, we are unable to conclude that, had natural justice been properly afforded to the husband, the result of either the adjournment application or the ultimate result reached (which was based upon the allegedly compromised pool of property) would have been the same as that arrived at by the Federal Magistrate.
Accordingly, we consider we have no alternative but to remit this matter for rehearing and before a Federal Magistrate other than Federal Magistrate Demack.
In light of this conclusion it is not necessary to address the husband’s other grounds of appeal.
Costs
At the conclusion of this matter we sought submissions on costs.
In the event of the appeal being successful and the matter being remitted for rehearing, both parties sought Costs Certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) both in respect of the appeal and the rehearing.
The appeal has succeeded on a question of law and given there is to be no order for costs we consider it appropriate that Costs Certificates issue to both parties in respect of the appeal and rehearing.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Strickland and Murphy JJ) delivered on 7 July 2011.
Associate:
Date: 7 July 2011
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