O v G [No 2] - [2013] WASCA 265

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: O -v- G [No 2] [2013] WASCA 265

CORAM: McLURE P
NEWNES JA
MURPHY JA

HEARD: 18 SEPTEMBER 2013

DELIVERED : 22 NOVEMBER 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
File No  :PTW 5149 of 2010

Catchwords:

Family law - De facto relationship - Application for property settlement - Application for leave to proceed out of time pursuant to s 205ZB(2) of Family Court Act 1997 (WA) - Whether primary judge failed to consider Anshun estoppel argument - Whether primary judge failed to take into account relevant considerations in assessment of hardship - Whether trial judge should have allowed inspection of subpoenaed documents - Turns on own facts

Legislation:

Family Court Act 1997 (WA), s 205ZB

Result:

Appeal dismissed

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):

Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16
House v The King [1936] HCA 40; (1936) 55 CLR 499
In the Marriage of Frost & Nicholson (1981) FLC 91‑051
Ling v Commonwealth (1996) 68 FCR 180
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Re Minister for Immigration and Multicultural Affairs; Ex parte Yusuf [2001] HCA 30; (2001) 206 CLR 323
Secure Parking (WA) Pty Ltd v Wilson [2012] WASCA 230
Soliman v University of Technology, Sydney [2012] FCAFC 146; (2012) 207 FCR 277

McLURE P: I agree with Murphy JA.
NEWNES JA: I agree with Murphy JA.
MURPHY JA: This is an appeal against an interlocutory order dated 13 December 2012 of Jordan AJ of the Family Court of Western Australia (Family Court) granting leave to the respondent to proceed with an application for property settlement outside of the application period. The appellant alleges, amongst other things, that the primary judge erred in failing to find that the respondent was precluded from pursuing her application by reason of an Anshun estoppel.

Background

The commencement of proceedings in the Family Court

The appellant and the respondent were in a relationship from the year 2000 to July 2007. During this period, the appellant and the respondent engaged in acquisitions of property of substantial value and incurred substantial joint liabilities in respect of these acquisitions.
On 10 September 2010, the respondent filed an application in the Family Court seeking an order for property settlement pursuant to div 2 of pt 5A of the Family Court Act 1997 (WA) (the Act) on the basis that the parties had lived in a de facto relationship. The appellant, by a response filed 6 October 2010, sought dismissal of the respondent's application for want of jurisdiction (incorrectly referred to by the primary judge in his reasons dated 2 August 2011 (the 'August 2011 reasons') at [3] as an application to dismiss for want of 'prosecution').
Relevantly, s 205ZB of the Act outlines when a party to a de facto relationship may apply for an order under div 2 of pt 5A of the Act:
205ZB.Applications, and notifications to spouses
(1)A de facto partner whose de facto relationship has ended may apply for an order under this Division in relation to the relationship only if the application is made within 2 years (the application period) after the relationship ended.
(2)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.

(3)If a de facto partner who is a party to an application under this Division has a spouse, that person is to give that spouse notification of the application in accordance with the rules.

Section 13A(4) of the Interpretation Act 1984 (WA) defines 'de facto partner' as a person who lives, or where the context requires, has lived, in a de facto relationship. A 'de facto relationship' is defined as a relationship between two persons who live together in a marriage‑like relationship: Interpretation Act s 13A(1). Indicators of the existence of a de facto relationship include the length of the relationship; whether the two persons have resided together; the degree of financial dependence or interdependence, and any arrangements for financial support, between the two persons; the ownership, use and acquisition of their property (including property they own individually); and the degree of mutual commitment by them to a shared life: see Interpretation Act s 13A(2).

The hearing of the jurisdictional issue before Jordan AJ on 1 and 2 August 2011

Following a conciliation conference in the Family Court on 10 January 2011 before Registrar Vanderfeen, the Registrar recorded:
There is a preliminary issue of whether the parties resided in a marriage‑like relationship and therefore whether this Court has jurisdiction. The matter will be included in the Defendant List as to the jurisdiction issue only (BAB 98).
On 1 and 2 August 2011, the jurisdictional issue was heard by Jordan AJ. At that hearing, the respondent submitted that the parties were in a de facto relationship that commenced in the year 2000 and ended in October 2008. The appellant asserted that the relationship was not a de facto relationship, but rather that of a boyfriend/girlfriend relationship, and that the relationship finally ended on 1 July 2007.
During the course of submissions on 1 August 2011, a question arose as to the scope and relevance of certain evidence filed by the respondent in connection with alleged hardship to the respondent. Counsel for the respondent, Mr Jones, argued relevance on a number of bases, including that if the court did find a de facto relationship, but that it ended not in October 2008, but at some earlier time, the respondent would seek leave to commence proceedings out of time pursuant to s 205ZB(2) of the Act.
Counsel for the appellant, Dr Ingleby, objected to any such application, including by reference to the Registrar's memorandum of 10 January 2011 referred to in [8] above. Dr Ingleby said:
But what my learned friend has raised now is absolutely objectionable. I need to take your Honour through my argument in relation to that. The application for final orders that was filed on 10 September 2010 is the application that your Honour is determining in these proceedings.
…
You will see that the order that is sought in paragraph 24 is an order for property adjustment. There is no application for leave in that application filed in September. The matter has been listed before your Honour on the issue of jurisdiction, and the parties have filed material and prepared their papers for the judge, or what is sometimes the outline of case document, the case management document, whatever you call it.
When you look at the way that each party has prepared their papers for your Honour, there is no reference to a leave application in the [respondent's] documents, that were received as recently as 26 July, and it's a lengthy document. It extends over 20 pages on a brief run. No reference to an application for leave. We have prepared our case entirely on the basis that there is no application for leave. … - and this is not a trivial point …
Now, your Honour is familiar with those rules over the years, but in brief, some years ago the Full Court in [In the Marriage of S and J L Tormsen (1993) 18 Fam LR 232] said that rather than having to jump through specific hoops of explanation for delay and relative hardship and so on, that there was a general test of the interest of justice. Those particular issues that used to be part of the formula were relevant but not determinative.
Now, my learned friend cannot, with respect, stand up at 10.30 on the day of a trial, where everything has been conducted to date on October 2008, and then, without any application and having filed documents as recently as last week not indicating any such application, say 'Oh, if I lose, I've got another application,' because that other application requires your Honour to consider matters that are not before the court.
They include the matters that are in the material, but if those matters were to be properly before the court, the parties can't give evidence of the value of properties. That would require properly qualified valuers, number one. Number two, there would have to be proper evidence about the parties' financial circumstances at the start of the relationship. Also, in the context of this case more than any other, what are the parties' competing entitlements in this court before your Honour as a Family Court judge in the broad and the parties' rights as co‑contributors and as parties to various commercial and investment dealings, having given guarantees and having rights against each other pursuant to commercial law for indemnities and contribution and the like there's an entire body of law in the Supreme Court for any two people who borrow money together or guarantee each other's debts and their rights against each other.
There's an entire body of law which requires an entire body of facts, which is absolutely not before your Honour. Now, my learned friend is doing what he's doing, but he had been retained throughout. If he seriously is saying that part of the reason for those paragraphs is because he in any way seeks to rely on section - although it's different numbers to what your Honour and I might be used to, the wording is not totally unusual. [Section] 205ZB provides that a de facto partner whose de facto relationship has ended may apply for an order under this division in relation to the relationship, only if the application is made within two years after the relationship ended.
That's a fairly standard section across the country and the various State jurisdictions as they were. Then the next subsection is equally standard. However, the court may - discretion - 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.
Now, hardship in this case is far more complex, a factual and legal issue, than in most matters because of the laws relating to co‑contributors and guarantors and commercial law generally. That material is not properly before the court on the applicant's case, and we can only respond to what we're dealt with. So, if my learned friend is seeking to amend his application to seek leave, your Honour needs to consider that as a specific application.
There needs to be an explanation for why it is being raised at absolutely the last minute, and it's obvious that there would be serious cost implications, given the amount of money that has been expended to date on the basis that that application is made at half past 10, day one of a trial.
…
[C]an I just also take you to the note of the conciliation conference that is annexed to, for convenience, to my client's papers for the judge. This matter was before Registrar Vanderfeen. Yes, that appears from the face of the document. Did we attach - - -
HIS HONOUR: You did.
INGLEBY, DR: We did. If your Honour looks there, that was dated the start of the year, 10 January. …
It's quite clear from the face of this note, and that's why we annexed it to our case management documents. There's a preliminary issue of whether the parties resided in a marriage‑like relationship and therefore whether this court has jurisdiction. No indication of any application for leave here. With the greatest of respect, your Honour, you cannot just slip in a plan B at 10.30 on day one.
…
Now, if an issue for determination was a leave application, we would have prepared accordingly. We're being told now, at the very last minute, that that is an issue for determination. You can't change the application in your opening (ts 11 ‑ 14).
Counsel for the respondent, Mr Jones, in response submitted that:
Now, my learned friend says, well, if in fact this issue had been raised about whether there was hardship at all, then we would have prepared our case differently. The act requires the [respondent] to establish hardship. It would be my respectful submission that she has no difficulty in doing so. But my respectful submission is it's not a question of hardship to the [appellant], it's a question of whether the [respondent] can establish that there is hardship.
So, in my respectful submission, simply to alert the court that there's this out of time issue is not to change the case at all. I would want to hear from my learned friend how it might be that he has been prejudiced in any way about exploring the issue of hardship with the [respondent], when she deposes at length to the financial difficulties that she is in.
So, it's my respectful submission that there is no prejudice. It's a matter properly for the court to consider. I note that, your Honour, there was a case recently decided by his Honour Magistrate Moroni in the Magistrates Court in this jurisdiction. Sir, that case was the case of, to anonymise, S and J. It bears reference number (2010) FCWA M25.
In that case, the path taken by his Honour was to - I know about that case, sir, because I appeared on behalf of the respondent de facto husband, as it were. He was successful in establishing that the de facto relationship had ended quite some years prior to when the de facto wife had said. So, his Honour found that, yes, there was a de facto relationship. It wasn't for quite as long as the applicant was asserting.
He then went on to consider, well, on that basis, I'm then obliged to consider section 205ZB(2). I've got a copy of this case here. I can get a copy for your Honour and my learned friend. The only thing that I'm unclear about, sir, is whether, in fact, the application to extend the time in the event that the de facto relationship was found to be shorter than asserted. I'm not sure whether that was actually pleaded, and I concede that.
But what I'm suggesting is that in the reasoning process, the court has to consider, at some stage, the hardship question. I'm suggesting, for the benefit of the parties, that it's appropriate for the court at this hearing to deal with the matter. They're my submissions (ts 15).
After hearing submissions from counsel, his Honour adjourned the hearing for 15 minutes to allow Dr Ingleby, counsel for the appellant, time to consider subpoenaed documents. Prior to the adjournment, his Honour addressed counsel as follows:
HIS HONOUR: Yes. Given the significance of the point, I might use the 15 minutes that you require, Dr Ingleby, to view those documents just to formulate a ruling upon those submissions. But the ruling is going to be to the effect that I do regard them as separate and distinct issues which may require or entitle each of the parties to produce evidence, which might include the need to access relevant experts, and that in those circumstances, unfortunately, it needed to either be specifically pleaded to put [the appellant] on notice or, alternatively, it may have to be considered as a subsequent issue, depending upon my ruling on the matter that is before me.
So, I will formulate a slightly fuller ruling during the 15 minute break and deal with that as a preliminary matter. I'll incorporate, so that we save some time, the morning tea break with this being stood down for that purpose and for the purposes of inspection (ts 16).
(It is convenient to interpolate here that in his grounds of appeal in this court, the appellant alleged that the proceedings were stood down on the morning of 1 August 2011 to enable counsel for the respondent to obtain instructions on whether he would seek leave to amend the respondent's application for property settlement to include an application for leave (WAB 7). As the above transcript excerpt reveals, and as counsel for the appellant has since accepted, this contention was wrong. The hearing on the morning of 1 August 2011 was adjourned to enable counsel for the appellant to inspect certain subpoenaed documents and to enable the primary judge to formulate reasons with respect to the question of leave to proceed out of time raised by counsel for the respondent earlier that morning. This error also somehow crept into the decision under challenge dated 13 December 2012 (the 'December 2012 reasons') when his Honour said at [10] that 'I note that the matter was stood down on the first day of the August trial for the express purpose of enabling instructions to be taken [by Mr Jones concerning an application to proceed out of time]'.)
After the brief adjournment on the morning of 1 August 2011, Jordan AJ delivered reasons for decision in relation to evidentiary issues, in which he stated that he would not then entertain an application for leave to proceed out of time. He did so in terms that he recognised that his ruling would expose the parties to 'another intermediate step', ie, a subsequent, separate application for leave to proceed out of time. His Honour said:
In the course of those submissions, Mr Jones acknowledged that his client had asserted that a de facto relationship existed in this case between the year 2000 and until October of 2008. He identified that his client's application was filed just inside the two year period in September of 2010.
He went on to explain that he proposed, on behalf of his client, to press a proposition that, if the Court determined firstly that there was a de facto relationship, but that it ended some time prior to September of 2008, he would be seeking leave to invoke the jurisdiction of the Court notwithstanding expiration of the limitation period.
Dr Ingleby, counsel for the [appellant], objected to the notion that the [respondent] should be permitted to conduct such a case. He argued that no such application was before the Court and that it could not be introduced as it were through the back door at 10.30 am on the first day of trial.
In response Mr Jones said that the [appellant] should have been on notice of this aspect of the [respondent's] case and that if I followed the arguments of counsel for the [appellant] I would expose the parties to the prospect of three separate trials, one to deal with the existence of a relationship, the second to deal with the need to apply for leave out of time and the third to deal with any substantive claims for property settlement.
In my view, an application for leave to proceed out of time is a specific application which stands on its own and gives rise to separate and distinct considerations to those which might be applied to the matter in issue before me.
…
I accept that the [appellant] was not placed on sufficient notice of this prospect to be required to address such issues. I note that the entirety of his evidence produced in these proceedings addresses the question of the existence of the relationship in issue.
It is unfortunate that this ruling exposes the parties to yet another intermediate step prior to addressing any substantive claims. Of course, it was open to the [respondent] to include in her application an application for leave. In my view, an application for leave to amend to include an application for leave would almost necessarily involve an adjournment of the proceedings consistent with my earlier ruling and orders for costs.
The alternative, subject to my determination on the matter referred, is to contemplate further proceedings dependent upon my determination on those matters. In any event, they are not matters of the [appellant's] doing. He is, in my view, entitled in the circumstances to take the objection he has, and I uphold that objection.
I do not propose to entertain an application for leave to proceed out of time as part of the proceedings before me today (BAB 104 ‑ 105, 106 [5] ‑ [9], [13] ‑ [16]).

Following the delivery of these reasons, the court proceeded to hear evidence on the jurisdictional issue. In the course of that hearing, Mr Jones informed the court that, with respect to certain evidence given by the respondent on the topic of her intimate relations after 1 July 2007, he was under an obligation to disclose that his instructions from his client were that on one or two occasions the respondent had sexual intercourse with another man. (Subsequently, on a costs application, the primary judge described the respondent's evidence in this regard as involving 'a deliberate untruth' (BAB 177).)
At the conclusion of the hearing on 2 August 2011, Jordan AJ delivered reasons dismissing the respondent's application for property settlement. His Honour concluded, without making a finding as to the nature of the relationship between the appellant and the respondent, that their relationship ended on 1 July 2007, and that the court had no jurisdiction to entertain the respondent's application for property settlement in the absence of an application for leave to proceed out of time.
His Honour subsequently, on 23 September 2011, ordered the respondent to pay the appellant's costs, which were later taxed at approximately $51,000 (BAB 174, 182).

Respondent's application for leave to proceed out of time and subsequent events

The leave application

On 17 February 2012, some six months after the determination of the jurisdiction issue, the respondent filed an application in the Family Court seeking leave to pursue her application for property settlement pursuant to s 205ZB(2) of the Act. By this date, the respondent no longer had legal representation.
On 29 May 2012, the appellant filed a response seeking the dismissal of the respondent's application for leave.
The respondent's affidavit in support of her application for leave to proceed out of time was filed on 18 September 2012. The full version of the affidavit has not been made available to the court. However, it appears from those portions of the affidavit included in the appeal books that the respondent deposed that her former lawyers had failed to apply for leave prior to the hearing on 1 August 2011 and had failed to 'agitate' that matter at the hearing on 1 August 2011 (GAB 105 [37]); that her former lawyers had not followed her instructions urgently to apply for leave after the hearing on 1 and 2 August 2011 and were thereby negligent (GAB 106 [44], [47]); and that her former lawyers had not advised her of the disparity in dates in the parties' affidavits as to the cessation of the relationship and that this might be a problem, and that they had not filed an application for leave 'just in case' or 'as a precaution' (GAB 109 [699]; 110 [712]).

Proceedings commenced by the appellant in the Supreme Court of Western Australia

On 24 February 2012, the appellant commenced proceedings against the respondent in the General Division of the Supreme Court of Western Australia (Supreme Court). The appellant claimed that there was a business relationship between the appellant and respondent that involved the purchasing of properties and the borrowing of money. According to the appellant, he made payments that were disproportionate to payments made by the respondent, and thereby sought equitable contribution from the respondent.
On 2 July 2012, Master Sanderson, at a hearing to consider the appellant's application for summary judgment, adjourned the Supreme Court proceedings sine die until the determination of the Family Court proceedings.

The issue of subpoenas to the respondent's former lawyers in the leave application to the Family Court

On 7 November 2012, the appellant issued subpoenas to Ms Bodeker, the respondent's former solicitor, and Mr Jones, the respondent's former counsel. The subpoenas required Ms Bodeker and Mr Jones to produce documents. The documents sought for inspection by the appellant may be grouped into the following broad categories:
•any documents that directly or indirectly related to the issue of leave to institute proceedings out of time;
•any documents that directly or indirectly related to complaints made by the respondent to the Law Society of Western Australia or the Legal Profession Complaints Committee;
•any documents from the respondent to Ms Bodeker, Mr Jones or their respective insurers relating to any actual or foreshadowed claim against Ms Bodeker or Mr Jones; and
•any documents passing between Ms Bodeker and her insurer, and Mr Jones and his insurer, relating to the conduct of the respondent's affairs.
On 22 November 2012, the parties appeared before Registrar De Maio in respect of the subpoenas. Present at the hearing were counsel for the appellant, counsel for Mr Jones, Ms Bodeker and the respondent.
The appellant's counsel asserted that the purpose of the subpoenas was to provide the court with a contrasting statement to the respondent's contention that her lawyers failed to seek her instructions in relation to an application for leave at the hearing before Jordan AJ on 1 August 2011. According to the appellant's counsel, the subpoenaed documents might provide contrary evidence showing that the respondent's lawyers had given the respondent advice on an application for leave to proceed out of time. This, in turn, he said, would be relevant to the determination of whether the respondent had a reasonable excuse for seeking leave to proceed out of time, as well as the appellant's contention that an Anshun estoppel had arisen on the facts.
Counsel for the appellant also contended that the respondent had waived privilege by reason of statements made by her at a directions hearing before Jordan AJ on 24 October 2012 and in her affidavit of 18 September 2012 to the effect that she had not received legal advice concerning the making of an application for leave to proceed out of time.
Registrar De Maio ordered that Mr Jones and Ms Bodeker each file a notice of objection to the production of documents and any submissions in support of their objections. Those matters were taken up at the hearing on 13 December 2012, referred to below.

Hearing of the respondent's leave application before Jordan AJ on 13 December 2012

On 13 December 2012, the respondent's application for leave to proceed out of time came on for hearing before Jordan AJ. His Honour stated that given the nature of the proceedings, he was placed in a position to inform the parties of his preliminary view of the matter to facilitate the efficient disposal of the matter. Before he could do so, the appellant's counsel, Dr Ingleby, requested an adjournment to seek instructions from his client.
When the hearing resumed, Dr Ingleby submitted that the respondent's evidence with respect to her failure to pursue an application for leave to proceed out of time should be rejected. Dr Ingleby submitted, in effect, that it was inherently improbable that counsel for the respondent, Mr Jones, would have acted without seeking the respondent's instructions.
In the course of this submission, Dr Ingleby told Jordan AJ that Mr Jones had 'stood up before [his Honour] and said' on 1 August 2011:
We seek to proceed. We do not seek to amend so as to include an application for leave (GAB 69).
It should be noted here that the transcript from 1 August 2011 indicates that Mr Jones did not say the words attributed to him by Dr Ingleby referred to in [31] above. In that regard, Dr Ingleby appears to have misstated the position to the court on 13 December 2012, and the error was not corrected prior to the primary judge's determination of the matters before him on 13 December 2012. Indeed, the error was replicated in the December 2012 reasons:
In the course of submissions in this regard, Dr Ingleby made particular reference to and highlighted one aspect of the [respondent's] evidence on these points relating particularly to the prospect that Mr Jones and Ms Bodeker did not seek her instructions on the first day of the hearing on 1 August prior to informing the court of an election not to amend the pleadings.
…
I note that the matter was stood down on the first day of the August trial for the express purpose of enabling instructions to be taken.
…
The matter was stood down and when it was resumed Mr Jones, counsel appearing for the [respondent] at that time, indicated that he did not intend to move the Court to seek leave to amend the pleadings [9], [10], [24].
It appears that his Honour was not reminded that on the morning of the hearing on 1 August 2011, after Mr Jones had, in effect, invited his Honour to treat the hearing of the jurisdictional issue as including an application for leave to proceed out of time, his Honour had determined that he would not 'entertain an application for leave to proceed out of time' on that occasion.
Returning to the events of the hearing on 13 December 2012, in addition to relying on Mr Jones's alleged express statement to the court on 1 August 2011, Dr Ingleby, in effect, invited the court to infer that Mr Jones sought, or at least had the opportunity to seek, instructions from the respondent on 1 August 2011 on the basis that the appellant had deposed in an affidavit that he had seen the respondent speak with Mr Jones in the break that morning.
Dr Ingleby raised the question of the costs of the hearing on 1 and 2 August 2011, not in the context of a submission that the respondent had a chose in action against her former lawyers referrable to the costs subsequently awarded against her on 23 September 2011, but in the context that the judge should infer that the prospect of an adverse costs order provided the impetus to the respondent on 1 August 2011 to instruct her lawyers to proceed with the determination of the jurisdictional issue and not to apply to amend to seek leave. Dr Ingleby said that, by reason of her 'election', 'on instructions', not to make the application at that time, an Anshun estoppel arose to preclude the respondent from making the current application for an extension of time (GAB 71 ‑ 72).
Dr Ingleby contended that the subpoenas to Mr Jones and Ms Bodeker would shed light on the truthfulness of the respondent's evidence in this regard. He asked the primary judge (presumably rhetorically) '[f]or example, has [the respondent] made any allegation to the Legal Practice Board or equivalent that her counsel or solicitors acted without instructions on 1 August 2011?' (see GAB 71 ‑ 72).
In relation to the question of whether the respondent had received advice to make a s 205ZB(2) application in the period prior to the hearing on 1 August 2011, his Honour, in debate with Dr Ingleby, expressed a preliminary view to the effect that it was unlikely that if the respondent had received such advice prior to the hearing on 1 August 2011, she would have rejected it - which suggested that she had not received such advice in the first place (GAB 74 ‑ 76).
Dr Ingleby also submitted, in effect, that even if the respondent had not consciously elected not to apply to amend on 1 August 2011, the respondent had remedies against her former lawyers in negligence. Dr Ingleby asserted that the respondent was under a duty to disclose whether she had instituted such proceedings against her former lawyers, and that the availability of other remedies to the respondent was relevant to the court's exercise of discretion to grant leave. In this regard, Dr Ingleby referred to, and sought to distinguish, the decision in In the Marriage of Frost & Nicholson (1981) FLC 91‑051, where Nygh J had said, in effect, that delay occasioned by the client's solicitors would not necessarily be ascribed to the applicant/client in the context of an application to commence proceedings out of time (see GAB 77 ‑ 79).
Dr Ingleby concluded:
We … have the Anshun point, which says well really we were here last year [1 August 2011] and this could and should have been raised then, and in relation to that we have the added factual complication of [the respondent] swearing to a matter which is in our view inherently implausible, that is Mr Jones acting without instructions. We also have non‑disclosure in relation to the availability of other remedies in circumstances where we say there's quite clearly an implied waiver (GAB 80).
His Honour then expressed his preliminary views in these terms:
Yes. As I say, I appreciate those submissions and if necessary those matters can be addressed. A striking aspect of this case which I acknowledge is, in a sense, at the end of the exercise which highlights for me the perils of refusing the [respondent] to grant leave, assuming that she meets her obligations to place sufficient evidence before me to establish on a prima facie basis that the potential existence of a de facto relationship for seven years on a prima facie basis a viable claim for property orders is the existence of proceedings in another place.
Proceedings in the Supreme Court are for civil remedies seeking to recover against another person payments made during a relationship. I pose the question how intolerable would a position be that parties to a marriage or parties to a marriage‑like relationship are exposed to the prospect of a civil suit against one another, notwithstanding the marriage or the marriage‑like relationship, where a court would not be able to take into account all of the matters parties to a marriage or a marriage‑like relationship are entitled to have taken into account and would expose the parties to a determination on civil grounds as if it was not in fact a marriage or a marriage‑like relationship but some artificially commercial arrangement and prevented that court from taking into account all of the other contributions, direct and indirect, the circumstances of the parties during the relationship and subsequent to separation, the level of physical, emotional support and all of those things that would need to be taken into account.
I saw and read of the discomfort exhibited by the (indistinct) about that very prospect. If these parties were in a de facto relationship for seven years it would be intolerable to think that one of them could conduct proceedings on an entirely inappropriate basis having regard to the fact that they were parties to a marriage‑like relationship.
That really highlights to me the need to have the appropriate court determine and consider whether there was a de facto relationship. It can only do that if it is satisfied on the evidence that a prima facie case is made out. In this matter, there are elements of all of the criteria described in detail in the [respondent's] material. I acknowledge that some of the facts are contested. Some of them aren't contested, as I understand it, but that's a matter for another day.
The [respondent's] material is riddled with examples of all of the ingredients of a marriage‑like relationship so that there is a prospect that in the fullness of time, after each of the parties have produced all of their evidence, the court may well find that there was a de facto relationship.
What emerges from it is a complex set of financial circumstances where, unfortunately, each of the parties have suffered loss and they are left with substantial liabilities. Of course, the obligation of the court is to not only consider the property of the parties, but to consider their assets, liabilities and financial resources and have regard to the provisions of the Family Court Act and determine how those assets, liabilities and financial resources should be dealt with beyond separation.
The Supreme Court of Western Australia could not do justice to parties to a marriage or marriage‑like relationship. We don't review marriages as commercial enterprises subject to audit. If I paid bill A and you paid bill B, you've got to give me 50 per cent of A, as you know, and that is just such a striking feature of the possible consequence for these parties if leave isn't granted.
So, on the hardship issue, provided there is prima facie evidence of a de facto relationship and a need to have these property issues addressed, I'm not only reassured by the alternatives of remedies in civil courts, I'm most concerned about that prospect. That's what is an overwhelming feature for me in this case (GAB 80 ‑ 81).
Dr Ingleby then sought a further adjournment. After this second adjournment, Dr Ingleby, in effect, sought production of the documents the subject of the subpoenas issued by the appellant to Mr Jones and Ms Bodeker. Ms Bodeker and counsel for Mr Jones maintained the objections to the subpoenas that were raised in written submissions following the hearing before Registrar De Maio on 22 November 2012. Counsel for Mr Jones added, in effect, that documents between Mr Jones and the Legal Profession Complaints Committee or documents between Mr Jones and his insurer were irrelevant because they went beyond the appellant's forensic purpose of establishing that the respondent had lodged a complaint against her former counsel (GAB 88 ‑ 90). The primary judge indicated that he would uphold the objections to the production of documents under the subpoenas for reasons that his Honour delivered following a third adjournment.

Delivery of the December 2012 reasons

His Honour delivered reasons on 13 December 2012.
His Honour noted that ordinarily, as counsel for the appellant had accepted, applications in the Family Court for leave to proceed out of time were heard on the papers without cross‑examination, on the basis that the applicant's evidence was to be accepted at face value unless it appeared to be implausible. His Honour then considered whether it was inherently implausible that the respondent had not, as she had asserted, received advice to bring an application under s 205ZB(2) of the Act, and he addressed that matter with respect to three distinct periods. The first period concerned the period prior to 1 August 2011, the second concerned the period after the conclusion of the hearing and the dismissal of her application for property settlement on 2 August 2011, and the third concerned the day of the hearing on 1 August 2011 itself.
His Honour said, in effect, that with respect to the respondent's failure to commence an application for leave prior to 1 August 2011, it was not inherently implausible that she had not received advice to make such an application. On the contrary, his Honour found that it would be difficult to conceive that had the respondent received such advice, she would have rejected it prior to 1 August 2011 [12]. As to the position after the respondent's application for property settlement was dismissed on 2 August 2011, his Honour accepted that there were a number of possible explanations as to why the respondent's solicitors had not filed an application prior to the time when the respondent filed her own application, without solicitors, on 17 February 2012 [13]. As to the position at the hearing on 1 August 2011, his Honour rejected the respondent's evidence to the effect that she had not been advised to make an application on that day (see [9] ‑ [10]), although his Honour's rejection of her evidence appears to have at least partly been influenced by the erroneous submissions which had been made by Dr Ingleby referred to in [31] ‑ [33] above.
His Honour said that the purpose of the subpoenaed documents was to test the veracity of the respondent's evidence and that he did not propose to expand the scope of the hearing so as to allow cross‑examination. His Honour also found that the documents would likely contain statements of persons (presumably the respondent's former lawyers) 'who would not be witnesses to the proceedings, which could not be tested' [16]. As to the proper scope of the hearing and his ruling on cross‑examination, his Honour said:
On a number of occasions in the course of submissions, counsel for the [appellant] raised the prospect of being able to test some features of the [respondent's] case. I acknowledge that cross‑examination may be permitted in cases such as this, however, the question of whether or not cross‑examination should be permitted and the extent of such cross‑examination is a matter for the trial judge, having regard to the circumstances of the case.
In that regard, I observe in this matter, unlike any other I have had occasion to determine in my many years on the Bench, the volume of material filed was vast. There was, I think, some 150 pages of affidavit material accompanied by hundreds of pages of annexures provided by the [respondent]. The [appellant] provided a comprehensive affidavit in reply, which, in turn, referred to comprehensive material filed in the August 2011 proceedings. That extensive material disclosed a vast range of matters in issue between the parties. Matters of credit are likely to be of considerable significance in any subsequent proceedings between the parties.
In this matter, neither party filed any affidavits by other deponents to corroborate their conflicting evidence. My previous involvement in the case draws me to observe that, when issues relating to the relationship were live for final determination, the parties elected to file a large number of affidavits by other deponents.
It is my view of the matter, having regard to the extent of the conflict on the testimony of the parties, the complexity of a number of the issues, including the complexity of their commercial transactions during the relationship and the need to explore many of them, all give rise to the prospect that a substantive hearing is likely to take many, many days.
The matter was listed before me for two days. I anticipated that preliminary arguments and submissions were likely to take a portion of that time. Abridged cross‑examination of each of the parties was not likely to be helpful because it would necessarily be incomplete. Given the scope of the issues and the complexity of the matters, I formed the view that, allowing some abridged cross‑examination on some issues, would not have been helpful and may have led the court into error. I had concluded that I should proceed on the material only [31] ‑ [35].

In all these circumstances, his Honour found, in effect, that there was no legitimate forensic purpose to be served by allowing inspection of the subpoenaed documents, and his Honour declined to grant an order for inspection [14] ‑ [16], [31] ‑ [35].
The primary judge then found that there was a satisfactory explanation for the respondent's delay [37] ‑ [40]; that there was sufficient evidence to establish a prima facie case that the appellant and respondent were parties to a de facto relationship between 2000 and July 2007 [41] ‑ [52]; that there was material to establish a prima facie claim for property settlement [53] ‑ [55]; and that the respondent had established hardship [56] ‑ [67].
In relation to hardship, his Honour said, inter alia:
Perhaps as the starkest illustration of the nature and extent of the hardship to which the [respondent] would be exposed should leave not be granted is to observe upon what has happened in recent months. On 24 February 2012, some seven days after the [respondent] filed her leave application, the [appellant] issued a writ of summons in the Supreme Court of Western Australia claiming damages against the [respondent] in the sum of $240,000, together with interest. That claim was for recompense for payments made by the [appellant] in relation to the joint property of the parties for past mortgage payments, rates payments and insurance payments made during the alleged relationship and subsequent to separation.
That application proceeded to judgment for the [appellant].
The [respondent] was subsequently granted leave to file a defence and interlocutory proceedings were before Master Sanderson on 2 July 2012. Attached to the material filed by the [respondent] is a transcript of the proceedings before the master and in that transcript I have observed upon features raised by Master Sanderson which included concerns about the application itself and particularly about, 'the possibility of making orders which in some way cut across the Family Court's approach to this on its jurisdiction'.
For my part, that action and its potential consequences exposes the potential harsh consequences in these proceedings for the [respondent] if the court refused leave. If there was indeed a de facto relationship between the parties covering seven years and, during that period of marriage‑like relationship, the parties jointly acquired property and incurred debts and made a variety of other joint contributions towards the support of one another, their rights and obligations would be determined in accordance with the provisions of pt 5A of the Act treating them effectively as a married couple.
In such situations, parties are not required to account to one another as if they are in a commercial relationship. In such proceedings, parties are not exposed to audits or having their rights determined on some contractual principles and certainly would not be exposed to civil suits against one another to take account of past payments for rates and insurance. Ordinarily, such matters heard under the Act would of course be decided by reference to some financial tracing exercise and undertaken in a way which disregard the considerations of other financial and non‑financial, personal and physical contributions.
If these parties were in a genuine de facto relationship, the prospect of a de facto wife being sued in a civil court for past payment of joint debts by her de facto husband, a person in an apparently stronger position to make such payments from time to time as the primary breadwinner, would, in my view, create an intolerable situation. In my view, that would be an outcome which would expose a de facto wife to intolerable hardship [61] ‑ [66].
Accordingly, his Honour exercised his discretion under s 205ZB(2) of the Act to grant leave to the respondent to proceed with an application for property settlement out of time.

Grounds of appeal

By his grounds of appeal, the appellant alleges, in effect, that, with respect to his decision on 13 December 2012, the primary judge:
(1)erred in law in failing to consider the appellant's submissions that, by reason of an Anshun estoppel, the respondent was precluded from bringing an application for leave to proceed out of time which could and should have been made at the proceedings on 1 August 2011;
(2)erred in law by failing to consider the availability of other remedies to the respondent in his determination of hardship under s 205ZB(2) of the Act; and
(3)erred in law in not allowing inspection of the subpoenaed documents by upholding the notices of objection to the subpoenas and by declining to make a finding in relation to the respondent's waiver of privilege.

Ground 1 disposition

A failure to deal with an issue of importance in reasons for decision may support a conclusion that the issue was not, in fact, considered: Re Minister for Immigration and Multicultural Affairs; Ex parte Yusuf [2001] HCA 30; (2001) 206 CLR 323 [69]; Soliman v University of Technology, Sydney [2012] FCAFC 146; (2012) 207 FCR 277 [53] ‑ [57]; see also Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430, 443.
The principles applicable to an Anshun estoppel were recently outlined by this court in DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16 and Secure Parking (WA) Pty Ltd v Wilson [2012] WASCA 230. The finding of Anshun estoppel requires the making of an evaluative judgment, the nature of which has as its touchstone the question of unreasonableness: Secure Parking v Wilson [58]. The court must consider all aspects of the case, including the extent of overlap between the facts underlying each claim, and any difficulties that existed, or might reasonably have been perceived, in raising the matter earlier: Ling v Commonwealth (1996) 68 FCR 180, 184; DP World v Fremantle Port Authority [81]. The likelihood of conflicting judgments is also an important consideration for the court: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, 603 ‑ 604; DP World v Fremantle Port Authority [84].
In light of the exchange between his Honour and Dr Ingleby referred to in [34] ‑ [40] above, it is unlikely that his Honour omitted consideration of the Anshun estoppel argument. His Honour, in addressing in some detail the procedural history of the respondent's application for an extension of time, and finding that there was an adequate explanation for the failure by the respondent to bring the application prior to 17 February 2012, is to be taken, on a proper construction of the reasons, to have found that it was not unreasonable for the respondent not to have applied for an extension of time at the hearing on 1 August 2011: see December 2012 reasons at [8] ‑ [12], [14], [20] ‑ [26] and [37] ‑ [40].
Even if the above conclusion is wrong, the appellant's argument as to Anshun estoppel had no prospect of success and, even if the judge had omitted to consider the Anshun estoppel argument, any consideration of the argument could not and would not lead to any different outcome.
There are two reasons why the Anshun estoppel argument had no merit in this case. First, as the judge found on 1 August 2011, an application to proceed out of time 'stands on its own and gives rise to separate and distinct considerations to those which … applied to the matter in issue [on 1 August 2011]'. This accords with the appellant's submissions to the primary judge on 1 August 2011 to the effect that, in this particular case, the scope of the evidentiary and legal inquiry would have been materially different and much larger had the determination of the jurisdictional issue set down for hearing on 1 and 2 August 2011 included an application under s 205ZB(2) of the Act. As noted earlier at [11], in this regard Dr Ingleby, in his submissions to the primary judge, said '[t]here's an entire body of law which requires an entire body of facts, which is absolutely not before [the court on 1 August 2011] … Now, hardship in this case is far more complex, a factual and legal issue, than in most matters because of the laws relating to co‑contributors and guarantors and commercial law generally. That material is not properly before the court …'. Also, as in fact transpired, there was no real prospect of conflicting judgments if the leave application was dealt with subsequently to the jurisdictional issue.
Secondly, it was not unreasonable for the respondent not formally to apply to amend her application for property settlement to seek relief under s 205ZB(2) at the time of the hearing on 1 August 2011, as her counsel had, in effect, invited the court to treat the hearing of the jurisdictional issue as incorporating such an application, and his Honour had ruled that he was not prepared to do so and would not entertain any such application on that occasion.
In the particular circumstances of this case, there was accordingly no prospect of a finding of Anshun estoppel in favour of the appellant.
Ground 1 should be dismissed.

Ground 2 disposition

By ground 2, the appellant asserted that the primary judge erred by failing to consider the appellant's submissions on the availability of other remedies to the respondent in his assessment of 'hardship' under s 205ZB(2) of the Act. The appellant's written submissions in this regard referred to House v The King [1936] HCA 40; (1936) 55 CLR 499 and alleged a failure to take into account a material consideration.
In the particulars to this ground of appeal, it was alleged that the judge failed to take into account (1) actions in professional negligence against the respondent's legal advisers if she was not advised that leave was required; and (2) actions by way of contribution and other claims against the appellant under the general law.
The second of those particulars may be dismissed at the outset. The judge plainly had regard to what he considered to be the inadequacy of general law remedies in determining hardship (see [48] above). As to the first particular, the appellant, in oral argument in this appeal, alleged that the primary judge omitted from his consideration the fact that the respondent had a cause of action against her former lawyers for the loss of a chance to bring a subsequent application to seek leave to proceed out of time, and for costs ordered against her following the dismissal of her proceedings on 2 August 2011. As indicated below at [68], the appellant has not shown that the second matter, ie, the question of a claim for the costs ordered against her, was put to his Honour on 13 December 2012.
Section 205ZB(2) is, in effect, a conditional discretionary power. According to the subsection, the court must be satisfied that hardship would be caused to a de facto partner if leave was not granted. Once hardship has been established, the court must be persuaded that its discretion should be exercised to grant leave to proceed out of time.
It was not clear on the appellant's written submissions in this appeal whether the appellant was contending that the alleged availability of remedies against the respondent's former lawyers was:
(a)a matter which the court was required to take into account in determining hardship on the proper construction of the word 'hardship' in the context of s 205ZB(2) of the Act; or
(b)as implied by the reference to House v The King, a mandatory discretionary consideration that was required to be taken into account at the point of the exercise of discretion once the court had been satisfied as to the existence of hardship.
At the hearing of the appeal, in the appellant's oral submissions, it appeared that the appellant was alleging the former and not the latter. The appellant referred to s 205ZD(3)(b) of the Act (dealing, inter alia, with the 'income, property and financial resources' of a de facto partner) and s 205ZG(4)(e) of the Act (applying s 205ZD(3) to property settlements where relevant) and appeared to contend, in effect, that the respondent's 'resources' included causes of action against her solicitors which were relevant to the determination of 'hardship' on the proper construction of s 205ZB(2) of the Act.
No case law was advanced by the appellant in support of this proposition and it is not self‑evidently correct. However, it is unnecessary to decide that point here.
Whether the appellant's arguments depend on the proper construction of 'hardship' in s 205ZB(2), or a failure to take into account a relevant discretionary consideration, it cannot be inferred that the primary judge omitted any consideration of a potential claim by the respondent against her former lawyers. On the proper construction of the primary judge's reasons, he found, at least implicitly, in effect, that the respondent had no cause of action against her former lawyers for the loss of a chance to bring property settlement proceedings because he was of the view that she was not precluded by their conduct from making a subsequent application to commence proceedings out of time.
Furthermore, even if the primary judge did not take into account the appellant's submissions, no different result could or would be reached by taking that consideration into account. The primary judge's findings on hardship were plainly correct. They could not have been altered by reference to an alleged cause of action with respect to the loss of a chance, given that the primary judge found, correctly, that no chance was lost.
As to the respondent also having a claim against her former lawyers in respect of the costs order, there is nothing to indicate that this particular argument was drawn to the attention of the primary judge. It is incumbent on an appellant who, in an appeal against a discretionary decision, in respect of which a number of factors may be relevant, alleges that particular matters were not taken into account by the primary judge, to demonstrate that the primary judge's attention was drawn to those matters, at least unless they are fundamental and obvious: Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 [120]. In this case, as noted above at [35], whilst Dr Ingleby had made submissions about the costs of the hearing on 1 and 2 August 2011, it was in the context of inviting the judge to find, in effect, that the respondent had, with the benefit of advice, instructed her lawyers at the hearing on 1 August 2011 not to apply to amend to seek leave to proceed out of time. The contention that the respondent had made a conscious election not to apply to amend on 1 August 2011 was, in effect, accepted by the primary judge. Whilst Dr Ingleby had submitted to his Honour on 13 December 2012 that the respondent had 'remedies' against her former lawyers, the remedies were not, on the material before this court, particularised and the burden of the argument appears to have been that the respondent had lost the right to proceed out of time by reason of the conduct of her lawyers.
However, it was neither obvious nor fundamental that Dr Ingleby's submissions also extended to a submission that the primary judge should treat the respondent as having an asset in the form of a claim against her former lawyers with respect to the costs order against her. On the respondent's evidence, the only direct allegation of negligence against her former lawyers was with respect to the period after 2 August 2011.
Nevertheless, even if it is assumed that his Honour's attention was drawn to such an argument, it could not and would not have altered the correctness of the ultimate finding of hardship, or the appropriateness of the exercise of discretion, in the circumstances of this case, essentially for the reasons given by the primary judge.
Ground 2 should be dismissed.

Ground 3 disposition

By this ground, the appellant contended, in effect, that the primary judge erred in not requiring production of, and in not allowing the appellant inspection of, the subpoenaed documents because:
(a)the respondent had impliedly waived privilege in respect of the documents the subject of the subpoenas; and
(b)the documents were relevant to a fair disposition of the leave application, particularly where the appellant was alleging that the respondent's alleged causes of action against her former lawyers were disclosable as part of her duty of disclosure under ch 13 of the Family Law Rules 2004 (Cth).
The disposition of ground 3 materially turns upon the second of those allegations, because even if privilege had been waived, the ultimate question relevant to the orders sought by the appellant in this appeal is whether the primary judge's discretion miscarried in not allowing the appellant to inspect the documents the subject of the subpoenas for the purpose of contesting the leave application.
The appellant placed particular reliance on the primary judge's rejection of the respondent's evidence to the effect that she had not been advised on the occasion of the hearing on 1 August 2011 to make an application under s 205ZB(2) of the Act. However, that matter supports the primary judge's ultimate conclusion. Having rejected the respondent's evidence in that regard, the subpoenaed documents were plainly not required to test that aspect of her evidence.
The appellant also referred to the primary judge's subsequent finding in the costs application that the respondent had told 'a deliberate untruth' on oath concerning her sexual conduct after 1 July 2007, and invited this court to find, in effect, that the primary judge erred on 13 December 2012 in finding that the respondent's evidence that she had not been advised of the need to make an application for leave out of time prior to 1 August 2011 was not inherently implausible.
As to the primary judge's finding in that regard, no error is disclosed in his reasoning. The primary judge's conclusion that it was not inherently implausible that the respondent had not been advised of the need to make an application under s 205ZB(2) of the Act prior to 1 August 2011 was not only open, but correct for the reasons he gave. The conclusion is reinforced by the submissions made by Mr Jones to the primary judge on 1 August 2011 to the effect that, according to Mr Jones, in another case, the court had permitted such an application to be determined within the context of the hearing of a preliminary issue as to whether the parties had been in a de facto relationship within the meaning of s 205ZB(1). The submission is consistent with the proposition that Mr Jones had not seen the need for a formal application earlier. Indeed, it might have been expected that ordinarily those two matters could conveniently be dealt with together as proposed by Mr Jones, but it appears, for the reasons advanced by Dr Ingleby at the time and accepted by the primary judge, that in the particular circumstances of this case, that course could not reasonably be adopted.
Further, it was open to the primary judge to conclude that the documents would serve no legitimate forensic purpose. Even if, as unlikely as that was, the respondent had received and then rejected advice to include an application for leave in her proceedings for property settlement prior to 1 August 2011, for the reasons given earlier, in the circumstances of this case, there was no Anshun estoppel preventing her from bringing an application subsequently. Also, even if it is assumed that the appellant had raised with the primary judge on 13 December 2012 the contention that the respondent had a cause of action against her former lawyers in respect of the costs order, for the reasons given earlier, that could not have made any material difference to the primary judge's ultimate findings as to hardship and the exercise of discretion under s 205ZB(2) of the Act. Moreover, the appellant does not challenge the various other findings of the primary judge referred to in [45] ‑ [46] above, relevant to his decision not to allow inspection of the subpoenaed documents, concerning the proper scope of what was, after all, an interlocutory hearing, the unsuitability of cross‑examination and the inappropriateness of receiving evidence containing statements from third parties which could not properly be tested at that interlocutory hearing.

Ground 3 should be dismissed.

Notice of contention

It is not necessary to consider the notice of contention. It does not raise other grounds on which the court could uphold the primary judge's decision.

Conclusion

The appeal should be dismissed.