On and On (No 3)

[2007] FamCA 954

FAMILY COURT OF AUSTRALIA

ON & ON (NO. 3) [2007] FamCA 954

FAMILY LAW - PROPERTY – Adjournment and Funding – At the commencement of the property proceedings in the Long Defended List and following opening by Senior Counsel for the wife, the husband sought an adjournment and funding for his legal fees in the same terms as sought by him in an application dismissed on 16 February 2007.  In the circumstances, the application was dismissed.

Re F Litigants in Person Guidelines (2001) FLC 93-072
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 148 at 170

APPLICANT: Mr ON

RESPONDENT: Mrs ON

FILE NUMBER: MLF 7114 of 2001

DATE DELIVERED: 22 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 22 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Kirkham QC with Mr Sweeney

SOLICITOR FOR THE RESPONDENT: Kennedy Wisewoulds

Orders

1. That the husband’s Oral Application for funding and for an adjournment be dismissed.

IT IS DIRECTED

1. That the ex tempore judgment delivered this day be transcribed, a copy placed on the Court file and made available to the parties.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 7114  of 2001

Mr ON

Applicant

And

Mrs ON

Respondent

REASONS FOR JUDGMENT

1. At 2.30 pm this day, after the complex contested proceedings in the Long Defended List had commenced this morning and following opening by Mr Kirkham, QC on behalf of the wife, the husband sought an adjournment. 

2. In the course of that application, he further renewed an application that was made by him in similar terms to that filed on 13 February 2007, and which I considered on 16 February 2007.  That particular application was supported by a concise affidavit sworn by the husband.  The wife rapidly filed a Form 2A Response on 13 February 2007 together with a detailed affidavit in support.  Having given the husband’s Application and the Form 2A Response of the wife my careful consideration, I dismissed it on 16 February 2007.  Reasons for my judgment will appear on the court file. 

3. Accordingly, the husband again sought to agitate that very application and which, I explained to him, I did not propose to revisit, for nothing had since occurred that could be said to vary the circumstances in which I made my orders.  However, the central theme otherwise to the husband's application for an adjournment is that he asserts he has no skill nor ability to present his case, claiming that he could not represent himself and that he did not understand the law nor the court procedures. 

4. The husband submitted that in the event he was obliged to proceed he would be denied "natural justice".  Further, that he required legal representation in order to enable a “fair and equitable presentation” of his case.  The husband claimed that his former barrister, Mr St John SC would appear for him if his fees were secured in the manner sought in his Form 2 Application filed on 13 February 2007.  In that I had already dealt with that very situation and which I did not propose to revisit, for obvious circumstances I outlined to the husband in the course of argument the difficulties he faced with his present application.

5. The husband went on to assert, and I use his descriptive term, that he would be "massively disadvantaged".  In the course of his courteous submissions he said, for example, that "in his view" (again, a phrase I emphasise) the former matrimonial home at T was substantially undervalued.  That of course will be a matter for contest in evidence. 

6. Mr Kirkham opposed the application.  He submitted in relation to the latter aspect of the husband's argument, that the single expert engaged to value the T property was one and the same valuer who presented the valuation at the trial before Bell J in August/September 2004.  Indeed he was selected by the husband.  That valuer has now provided three valuations of the T property. 

7. In relation to the husband's other substantive application, Mr Kirkham relied upon the fact that I had already dealt with it and that it would be, in the circumstances, incorrect to revisit the position as nothing had changed from the situation as determined by me on 13 February 2007.  He pointed out that the husband's affidavit recorded that his professional representatives sought payment or security of the fees and that he could not meet their requests.  In the course of his affidavit, the husband deposed that he was informed by his professional representatives that they required five days preparation and that a trial would take from seven to ten days in duration. 

8. It is a fact that Mr St John had acted for the husband and some time ago, in an application before me, he gratuitously offered that he may not be available to appear in this matter on the basis of a “not before 19 February 2007” listing.  I well recall Mr St John, in his submission acknowledging, and properly so, that his potential unavailability was not a matter that should attract my attention to any great degree but that, as I assessed his submission that day, he was informing me of that fact as a matter of courtesy. 

9. As history relates, Mr St John was part‑heard before Cronin J and that his matter was due to resume next Thursday (1 March 2007), having been adjourned.  Mr Kirkham submitted that even if funds were obtained, the husband had acknowledged that no preparation had been undertaken by his former practitioners.  He submitted, that realistically Mr St John would not be in a position to appear for the husband in any event. 

10. Mr Kirkham then addressed the husband's complaint that he was not professionally trained and could “not cope” with a trial.  He pointed out that he had provided a narrative outline by way of aide‑memoire of his opening address to the husband in order to assist him and the court.  Mr Kirkham reminded me that I explained the issues to the husband at the conclusion of his opening and stressed the fact that the husband has had time to seek alternate representation. 

11. In relation to that, I take into account an affidavit was faxed to my chambers by the husband late yesterday afternoon (at 15.31 pm) in which he said that he had sought to obtain solicitors to represent him at the hearing to commence this day.  He said that he had contacted “seven” practitioners and deposed as follows:

    “(5)All the solicitors mentioned above told me that they required me to pay moneys up front for counsels fees, and some of the said solicitors wanted counsels fees and their fees paid prior to the hearing, and some of the said solicitors advised that they could not be ready for this hearing by 22 February 2007.”

12. That surprises me, given that there has been, since I dismissed the husband’s Application on 16 February 2007 a passage of sufficient time in which the husband could have addressed his problem.  I regard the husband's affidavit to which I have just referred as being somewhat diaphanously thin.  It is in broad narrative form without the provision of any proper particulars.

13. As I said, the husband has sought to resurrect his Form 2 Application filed 13 February 2007 in the same terms as when I dealt with it on 16 February 2007.  For the reasons stated, it was dismissed with costs.  I had before me a detailed Response and affidavit filed by the wife and which I substantially accepted.  In my view, the husband has had a full six days to secure representation and now seeks to rely upon the affidavit I have just referred to which was faxed on the afternoon of 21 February 2007. 

14. The defended applications commenced this morning without any application for an adjournment by the husband at that stage.  I stress the following.  In his helpful opening, Mr Kirkham provided the court and the husband with “an aide‑memoire” narrative summary of his opening.  It is not a complex document, but one which explains the issues that I have to determine in this matter.  Furthermore, the wife has provided through her practitioners a detailed Case Outline Summary to be relied upon by her.  This document clearly identifies all the issues. 

15. The husband's oral application to secure funding against the former matrimonial home is again refused.  It is clear that his former practitioners will not act for him without funding secured against that property.  Mr St John is committed, as I understand it, next week to another list and is, in the circumstances outlined to me, clearly unable to take up the brief, even if he could. 

16. This is not the first time such a situation has arisen in proceedings such as this.  I assess the husband as an intelligent man and quite capable of understanding the clear manner in which the wife's case has been launched and explained.  In that regard I have no doubt he will be able to comprehend the wife's affidavit, the Case Outline Document and Exhibit “W2”, being the aide‑memoire of the opening by Mr Kirkham.  I make it clear to the husband that I will be vigilant to ensure that he has a fair trial in accordance with, as put by him, “natural justice”.  I am aware of my obligations described in Re F Litigants in Person Guidelines (2001) FLC 93-072, and in particular the guidelines set out in paragraph 9. I will ensure that a photocopy of that judgment is provided to the husband.

17. I am also conscious, as I said in my extempore judgment of 16 February 2007, of case management considerations and also of what Kirby J had to say in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 148 at 170. It is a balancing exercise of the relevant considerations and an exercise of my discretion. I have, as the record will show, been judge manager of this matter for a long period of time and I am well familiar with the issues. So too is the husband. I rely upon those various matters set out by me in my judgment of 16 February 2007 and given the whole of the circumstances, I propose to dismiss the husband’s oral application for an adjournment and funding. The trial will proceed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  22 August 2007.