O v G
[2013] WASCA 161
•5 JULY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: O -v- G [2013] WASCA 161
CORAM: PULLIN JA
MURPHY JA
HEARD: 21 JUNE 2013
DELIVERED : 21 JUNE 2013
PUBLISHED : 5 JULY 2013
FILE NO/S: CACV 2 of 2013
BETWEEN: O
Appellant
AND
G
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram :JORDAN AJ
Citation :G and O [2012] FCWA 127
File No :PTW 5149 of 2010
Catchwords:
Appeal - Respondent's application to restrain solicitors and counsel appearing for the appellant - Application dismissed - Application to adduce additional evidence - Application referred to hearing of the appeal
Legislation:
Nil
Result:
Application to restrain solicitors and counsel dismissed
Application to adduce additional evidence referred to hearing of the appeal
Category: B
Representation:
Counsel:
Appellant: Dr R S Ingleby
Respondent: In person
Solicitors:
Appellant: O'Sullivan Davies
Respondent: In person
Case(s) referred to in judgment(s):
G and O [2012] FCWA 127
REASONS OF THE COURT: The respondent made two interlocutory applications in this appeal. They were:
(a)For an order that:
The appellant's solicitors and counsel to be [sic] struck from the register on CACV 2 of 2013 and PTW 5149 of 2010 and all related matters concerning the Family Court of WA and Supreme Court of Appeals WA [sic] and the Supreme Court of WA between [G] and [O].
(b)For 'permission to submit additional evidence'.
On 21 June 2013, the application concerning the appellant's solicitors and counsel was dismissed with reasons to follow. The reasons for that decision follow. The application to adduce additional evidence, and the order made in relation to it, is referred to later in these reasons.
Background
The appeal in this court is an appeal by the appellant against an order dated 13 December 2012 by Jordan AJ in the Family Court of Western Australia. The order granted leave to the respondent to commence proceedings for property settlement pursuant to the Family Court Act 1997 (WA) (the FC Act) outside of the prescribed time limit. Jordan AJ, in his reasons (G and O [2012] FCWA 127), explained that the order was made following earlier proceedings in August 2011.
The August 2011 proceedings concerned an application for property settlement pursuant to s 205ZB of the FC Act, lodged by the respondent in September 2010. The respondent claimed that she had been in a de facto relationship with the appellant from 2000 until October 2008. The appellant claimed that the relationship was of a 'boyfriend/girlfriend' nature only or, alternatively, if a de facto relationship had existed, that the relationship had ended in July 2007.
The only question for determination at the proceedings in August 2011 related to the nature and duration of the relationship. If the relationship was found not to have been a de facto relationship, the respondent had no entitlement to property settlement under s 205ZB of the FC Act. If the relationship was found to have ended in July 2007, as the appellant claimed, then the respondent's application would have been out of time, in which case the respondent would not have been entitled to proceed with her application for property settlement without leave of the court.
During the course of the August 2011 proceedings, counsel for the appellant alerted the court and the respondent's counsel to the fact that there was no application by the respondent before the court for leave to file the application out of time. Counsel for the respondent raised the prospect of amending the pleadings to include an application for leave in the alternative. Counsel for the appellant informed the court that his client was not able to properly meet an extended case which would arise if the amendment were permitted and that his instructions were to oppose any application for leave to amend the pleadings.
The matter was stood down for some 15 minutes for reasons not related to the question of leave. When it resumed, counsel for the respondent indicated that he did not intend to seek the leave of the court to amend the pleadings. The matter was determined on the issues and materials before the court at that time.
At the conclusion of the proceedings, Jordan AJ found that the relationship had ended on 1 July 2007 and that, as there were no properly constituted proceedings before the court (that is, no application for leave to bring proceedings out of time), the court did not have jurisdiction to determine the matter. As a result, the application was dismissed. His Honour made no finding about the nature of the relationship prior to 1 July 2007: see G [17] ‑ [26].
The proceedings on 13 December 2012
On 17 February 2012, the respondent filed an application for leave to apply out of time for property settlement pursuant to s 205ZB of the FC Act. That application was the basis for the proceedings before Jordan AJ on 13 December 2012 that gave rise to the order now under appeal in this court.
Jordan AJ set out the applicable law as follows:
Under the provisions of section 205ZB, the Court is vested with a discretion to grant leave to proceed out of time if the Court is satisfied that hardship may be caused to an applicant if leave is not granted. In presenting such an application, the applicant, of course, carries the onus. Establishing hardship is not itself sufficient to secure leave of the Court and the establishment of hardship is, as it were, a pre-requisite to the enlivenment of a discretion to be vested in the Court. If the pre-condition is met, the Court is obliged to consider hardship occasioned to the applicant if leave is refused and hardship and/or prejudice occasioned to the respondent, if leave is granted.
In determining those matters, the Court must be satisfied that the applicant has produced evidence sufficient to establish to a prima facie level:
(a)that a de facto relationship existed for the requisite period; and
(b)that the applicant has a viable claim for property settlement: G [28] ‑ [29].
Jordan AJ was satisfied that the respondent should have leave to commence proceedings out of time and the order dated 13 December 2012 was made.
The proceedings in the Supreme Court on 2 July 2012
After the dismissal of the August 2011 proceedings and before the 13 December 2012 order, proceedings were brought by the appellant against the respondent in the General Division of the Supreme Court of Western Australia, in which the appellant claimed there was a business relationship between the appellant and the respondent that was not a 'formal partnership', but involved the purchasing of properties and the borrowing of money. The appellant claimed that he made payments which were disproportionate to payments made by the respondent. The appellant sought equitable contribution from the respondent: see transcript, O v G, Supreme Court of Western Australia, 2 July 2012.
The matter came before Master Sanderson on 2 July 2012. By then, the respondent had instituted the application for an extension of time to bring proceedings for a property settlement out of time in the Family Court of Western Australia. As a result, on 2 July 2012, the master adjourned the proceedings sine die pending the determination of the hearing before the Family Court of Western Australia and to allow mediation to take place.
Subsequently, Jordan AJ made the 13 December 2012 order. The respondent was represented by solicitors in the Family Court of Western Australia proceedings in August 2011, but was not represented by the time of the Family Court proceedings in December 2012, and is not now represented by any solicitor or counsel.
The appellant was represented by O'Sullivan Davies in the Family Court of Western Australia, with Dr Ingleby appearing as counsel. The appellant is again represented by that firm and that counsel in this appeal.
In the proceedings in the General Division of the Supreme Court of Western Australia, which resulted in the hearing before the master, the appellant instructed different solicitors, namely Richard Payne & Associates.
The respondent's application to restrain the appellant's legal representatives
The respondent's application for an order striking O'Sullivan Davies and Dr Ingleby 'from the register' is, in effect, an application to invoke the court's implied incidental power to control its own proceedings and to restrain the lawyers and counsel from representing the appellant. The respondent makes the following allegations in support of the application:
(a)The respondent alleges 'misappropriation of documents'. The affidavit filed by the respondent on 23 May 2013 and dated 22 May 2013 reads:
The verifiable procession of abuse started in December 2011 by Trevor O'Sullivan of O'Sullivan Davies by passing over my confidential and private files to Richard Payne & Associates without my knowing, consent or instructions.
It was obvious O'Sullivan Davies were working in collusion with Richard Payne (commercial lawyer for the Appellant) to have their client, [the appellant], win against me in the Supreme Court before Master Sanderson without any concern as to the legal ramifications for their actions.
There are two points to be made about this allegation. First, there is no particularisation or identification of the documents which would allow any consideration to be given to this allegation. In that sense, it is scandalous. Secondly, the respondent did not contend that the documents relate to this appeal, which is restricted to whether Jordan AJ was correct to grant leave to bring proceedings out of time.
(b)Next, there is an allegation by the respondent that the solicitors for the appellant in these proceedings misrepresented the reason why there was an adjournment of the hearing before Jordan AJ in 2011. This allegation is based on the fact that, in the appellant's grounds of appeal, the particulars to ground 1 (par (e)) stated that the proceedings before Jordan AJ in August 2011:
were stood down to enable counsel for the Respondent to obtain instructions on whether he would seek leave to amend the Respondent's application to enable a leave application to be made pursuant to s 205ZB(2), which is in the following terms: 'However, the court may grant a de facto partner leave to apply after the application period if satisfied that hardship would be caused to a de facto partner if leave were not granted'.
The respondent, in her answer, disagreed that the proceedings were stood down for the purpose of enabling her counsel to obtain instructions on the making of a leave application. The respondent referred to the transcript of the proceedings, from which it was clear that the adjournment was for the purpose of allowing the appellant's counsel time to consider legal documents, and Jordan AJ time to consider a ruling upon other submissions in the proceedings.
The appellant, in a reply to a notice of contention filed by the respondent, stated:
There is an error in the submissions made by the Appellant and the Appellant seeks to use this reply as an opportunity to correct the error.
The Appellant concedes that page 16 of the Transcript for 1 August 2011 makes it clear that the purpose of the proceedings being stood down was not to enable counsel for the Respondent to obtain instructions.
The Appellant's practitioners apologise to the Court and to the Respondent for their recollection being incorrect (an error which was shared by the learned trial judge in para 10 of his Reasons for Decision 13 December 2012) and trust that both the Court and the Respondent will accept that there was no intention to deliberately mislead anybody.
However, the point remains that the Respondent had the opportunity to seek leave to amend her application by seeking leave by reason of the following sequence of events …
Dr Ingleby, appearing on this application, explained that the statement in ground 1(e) was a mistake and on behalf of himself and O'Sullivan Davies apologised to the respondent and the court for the error. That error provides no justification for the order sought by the respondent.
(c)The respondent also asserted that there were misrepresentations made to the Family Court of Western Australia by counsel instructed by the appellant. If that were so - and it is not possible to form any view at all about this from the out‑of‑context extracts in the respondent's affidavit - then this court would not be the place to deal with those allegations.
(d)Finally, the respondent alleges that the appeal is 'baseless'. Whether that is so will be decided on the hearing of the appeal.
None of the matters raised by the respondent provide any justification for this court to make orders which might prevent the appellant's solicitors and counsel either appearing or remaining on the record in this court.
There is no basis for this court to regulate the appellant's solicitors' and counsel's appearance in the Family Court of Western Australia, or in the General Division of the Supreme Court of Western Australia.
For those reasons, the respondent's application concerning the appellant's solicitors and counsel was dismissed.
The respondent's application to adduce additional evidence
The respondent's application for 'permission to submit additional evidence' was, in effect, an application for leave to adduce additional evidence at the hearing of the appeal pursuant to r 47(3)(d) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules).
The respondent submitted that the evidence she wished to adduce was the transcript of proceedings before Master Sanderson in the Supreme Court of Western Australia on 2 July 2012, including the transcript of the draft judgment of Master Sanderson of the same date. The court ordered that the respondent prepare, at her own expense, a supplementary appeal book containing the additional evidence which she wished to adduce on appeal, and to otherwise refer the application for leave to adduce that evidence to the hearing of the appeal. The respondent did not oppose the making of those orders. As a result, orders were made by the court in those terms.
The respondent's application for an adjournment
Finally, the respondent made an application at the hearing on 21 June 2013 for an adjournment. That application was dismissed at the hearing with reasons to follow. These are the reasons.
The respondent submitted that she sought the adjournment to allow her further time to consider written submissions by the appellant entitled 'Outline of Argument by the Appellant in Response to the Respondent's Application in an Appeal'. The submissions were provided to the court on 18 June 2013 without any order of the court requiring them. The respondent said that she only received the submissions late on the evening of 19 June 2013, and that she did not have sufficient time in which to prepare a response to the submissions before the hearing on 21 June 2013.
Having received the written submissions, the respondent had longer to consider her response to those submissions than she would have had, had the appellant relied solely on oral submissions at the hearing on 21 June 2013. When inquiry was made of the respondent by the court during the course of the hearing, the respondent said that, should the application for an adjournment be granted, she would prepare further submissions for the court in response to the appellant's submissions. She did not state that she wished to file an affidavit in response to the appellant's submissions. The time for submissions was at the hearing on 21 June 2013. It would have been inconvenient to the parties to have adjourned the hearing.
As a result, the application for the adjournment was dismissed.
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