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)…
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- O v G [No 2] [2013] WASCA 265
- Case
- [2013] WASCA 265
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CaseChat Overview and Summary
The legal issues before the court were whether the primary judge failed to consider the Anshun estoppel argument and whether the primary judge failed to take into account relevant considerations in the assessment of hardship. The court also had to determine whether the trial judge should have allowed the inspection of subpoenaed documents. The court considered the principles of Anshun estoppel and the importance of considering all relevant factors in the assessment of hardship. The court noted that the finding of Anshun estoppel requires an evaluative judgment and that the likelihood of conflicting judgments is an important consideration. The court also considered the appellant's argument that the primary judge should have allowed the inspection of subpoenaed documents, which would have provided additional evidence in support of the appellant's application.
The court found that the primary judge did not fail to consider the Anshun estoppel argument, as it was unlikely that his Honour omitted consideration of the argument. The court also found that the primary judge had taken into account relevant considerations in the assessment of hardship, and that the likelihood of conflicting judgments was not a significant factor in this case. The court held that the primary judge's decision to deny the appellant leave to inspect subpoenaed documents was not an error of law or fact, and that there was no basis for the court to interfere with the primary judge's decision in this regard. The court concluded that the appeal should be dismissed, as the primary judge's decision was correct and there were no grounds for the appellant's claims.
The court ordered that the appeal be dismissed and that the appellant pay the respondent's costs of the appeal, to be taxed if not agreed. The court also noted that the primary judge's reasons were clear and comprehensive, and that there was no basis for the court to interfere with the primary judge's decision in this case. The court held that the primary judge had properly considered the relevant factors in assessing the appellant's application for leave to proceed out of time and had not failed to consider the Anshun estoppel argument or to take into account relevant considerations in the assessment of hardship. The court also held that the primary judge's decision to deny the appellant leave to inspect subpoenaed documents was not an error of law or fact, and that there was no basis for the court to interfere with the primary judge's decision in this regard.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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.