Nghiem & Truong & Ors

[2014] FamCA 267

FAMILY COURT OF AUSTRALIA

NGHIEM & TRUONG AND ORS [2014] FamCA 267

FAMILY LAW – De facto relationship – Case management – Unrepresented litigants – Solicitors responsibility to act promptly if they remain on the record.

Family Law Act 1975 (Cth)

APPLICANT: Mr Nghiem

RESPONDENT: Ms Truong

2^ND RESPONDENT: Ms Luong

3^RD RESPONDENT: Mr D Nghiem

FILE NUMBER: MLC 4291 of 2011

DATE DELIVERED: 7 April 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 7 April 2014

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

2^ND RESPONDENT No appearance

3^RD RESPONDENT No appearance

Orders

1. That all outstanding applications are adjourned to 10.00am on 7 July 2014.

2. That the applicant file and serve an amended initiating application with precise orders to be sought by no later than 4.00pm on 9 May 2014.

3. That the applicant serve upon the respondents as he understands remain parties, a copy of this order requiring their attendance on 7 July 2014 if there are extant claims for relief against all or any of them.

4. That reasons be transcribed.

IT IS DIRECTED

1. That the Registrar write to Moores Legal and request an explanation as to why the order of 4 February 2014 was not communicated to the applicant until mid-March 2014.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4291 of 2011

Mr Nghiem

Applicant

And

Ms Truong

Respondent

And

Ms Luong

2^nd Respondent

And

Mr D Nghiem

3^rd Respondent

REASONS FOR JUDGMENT

1. This matter came on for hearing for management purposes today.  It is a matter that arises out of a hearing that I conducted some years ago as a result of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth). I have a very vague recollection of what I then heard, but trawling through the file I can see that I made a declaration under s 90RD of the Act that the parties were in a de facto relationship that was extant on 1 March 2009 and concluded in July 2010.

2. The matter is complicated by the fact that the applicant is not longer represented by a lawyer.  I am someone disconcerted by all of that because I noted that in 2012, the matter was listed by Macmillan J for management purposes.  Her Honour conducted at least two hearings, one of which culminated in the applicant’s claims against one, if not two, respondents being struck out.  The matter is also complicated by the fact that her Honour made an order for costs against the absent applicant, in favour of the second respondent.  Two years later, that costs issue remains unresolved.  The second respondent, who seems to be in Country AA, is now making a claim for the costs that were foreshadowed by Macmillan J’s orders.  That issue makes it very complicated because it would seem that the second respondent considers that she is still a part of the ongoing proceedings.  To add to the difficulty, the applicant appears today unrepresented. 

3. On 4 February this year, I made an order in chambers setting today’s management hearing.  That order shows that the address for service of the applicant was Moores Legal.  The applicant says, today, from the bar table, that he was contacted in the middle of March to be told that his solicitors were no longer acting for him, and that seems consistent with the fact that the firm had had no contact with him for at least six months. 

4. What I find disconcerting about all of that is that at least five weeks appears to have gone by, during which the solicitors did not contact the applicant.  I appreciate that lawyers are very busy, but having regard to the fact that they were still on the Court’s record, I would have thought they had a professional obligation to at least notify their client or former client of the fact that they were no longer acting.  That now seems to be the purport of the conversation between the applicant and the solicitors. 

5. The solicitors decided to file a Notice of Ceasing to Act on 13 March.  That seems to coincide with a conversation that the applicant has told me about.  Even if that is the case, it is some two to three weeks ago.  The applicant says that he owes the solicitors nothing, but has been to another firm who want money up front, which is not surprising.  Somebody has given him some advice to file an amended initiating application to comply with the orders that I made on 4 February, albeit late. 

6. The application clearly just replicates the original document he filed, including seeking the declaration under s 90RD, which is an obvious sign that the document is really not the current position.  To compound the problem, however, the application seeks:

   There be an overall split such that each of the applicant and the respondent receive 50 per cent of the assets.

7. That is not an order that the Court can make under s 90 of the Act because it does not alter interests in property.  But the application gets more complicated because there are orders sought for the declaration of shareholdings that appear to be in the names of parties other than the applicant and the first respondent. 

8. There are a number of companies involved in this particular case, as well as trusts.  It is not the function of the Court to go trawling through material to try and work out what the parties’ cases are.  Because the solicitor seems to have been somewhat tardy in responding to his own client, I feel it would be an injustice to simply then follow what the respondent wants me to do today which is to strike out the applicant’s flawed application.

9. The first respondent does not have English as her first language and is assisted today by an interpreter.  She did file an amended response in accordance with the orders that I made on 4 February and filed it on time.  Her application simply seeks that the applicant’s application be dismissed.  In addition to that document, she also filed an outline of submission which supports the orders she seeks, and I compliment her on the document.  It would put some lawyers to shame.  It is comprehensive and sets out not only the historical facts, but the legal basis upon which various orders could be made. 

10. Notwithstanding her urging for the Court to dismiss the applicant’s application completely today, having regard to what I have said, it would not be appropriate for me to do that.  This case has gone on for a number of years and it is not simple.  I think the applicant needs an opportunity to get his house in order.  I propose to give him two months to do that, only because I do not have another date in a month’s time in any event.  The applicant has been warned that if he does not comply with the orders this time and cannot explain to me in precise terms what exact orders he is seeking, bearing in mind the duration of this case has been in the court system, he faces every probability that I will treat the application made by the first respondent, as a strikeout or dismissal application.  I appreciate that he does not understand the complexities of the system and he is unrepresented, but the Court has to do the best it can. 

11. The final issue is the question that I am uncertain about, and that is whether or not I should hear the substantive proceedings.  I cannot recall whether I made findings for the purposes of the s 90RD order on the basis of credit, or whether it was on the basis of submissions.  I will read the judgment in the meantime and if I am disquieted about what I have there said, such that I should not hear the substantive proceeding, then on the next occasion I will probably set the matter down, if indeed it is ready, before another judge.  I will leave that issue open for discussion on the next occasion. 

12. I think it also is important that the Court not just ignore what has happened to the applicant.  I propose to direct that these reasons be transcribed and a copy be made available to the solicitors who were on the record until 13 March, and to require that they put in writing to the Court why it is that they took the course of action that they did, which has contributed to the problem today.  Accordingly, the proceedings are adjourned to 10 o’clock on 7 July.  The applicant is to file and serve an amended application with particularity, with precise orders, by no later than 4 pm on 9 May. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 7 April 2014.

Associate:

Date:  23 April 2014