On and On (No. 9)

[2007] FamCA 998

FAMILY COURT OF AUSTRALIA

ON & ON (NO. 9) [2007] FamCA 998

FAMILY LAW - PRACTICE AND PROCEDURE – Husband required further time to prepare a summary of re-examination topics with production of documents to be relied upon.  Adjournment granted in the circumstances on the basis of fairness and greater expedition in the despatch of the trial.

Section 39 of the Evidence Act (Cth) 1995

APPLICANT: Mr ON

RESPONDENT: Mrs ON

FILE NUMBER: MLF 7114 of 2001

DATE DELIVERED: 6 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 6 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: M Kirkham QC with Mr Sweeney of counsel

SOLICITOR FOR THE RESPONDENT: Kennedy Wisewoulds

Orders

1. That the proceedings be adjourned to 10.00am on 7 March 2007.

2. That the wife’s costs thrown away this day be reserved.

IT IS DIRECTED

1. That the husband do deliver and/or cause to be delivered by 3.00 pm this day to the Chambers of Mr D Sweeney, of counsel:

   3.1a Summary in dot point form of the matters sought to be adduced in the course of further re-examination to re-commence on 7 March 2007; and

   3.2all documents sought to be tendered in support of the issues to be relied upon by the husband arising from the said re-examination.

IT IS FURTHER 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.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest delivered this day will for all publication and reporting purposes be referred to as ON & ON

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 7114  of 2001

Mr ON

Applicant

And

Mrs ON

Respondent

REASONS FOR JUDGMENT

1. This is day nine in the hearing of the contested property applications between the husband and the wife.  Yesterday afternoon, as the transcript will reveal, the process of the husband’s re‑examination descended into what I described as “chaos”.  This day is no different.

2. I have also made it clear to the husband this morning that I have allowed him considerable latitude and in so doing endeavoured to balance the benefits and/or detriment to both parties in that process.  I carefully explained to him what is required in re-examination and pointed out that the wife’s case had been set out in a lengthy, detailed Case Summary Document.  I pointed out yet again that he had been accorded considerable courtesy in the provision of documents by Mr Kirkham and Mr Sweeney in order to make his task as a Litigant in Person a little easier. 

3. It is doubtless that the Case Summary relied upon by the wife, in setting out the “add‑backs” and “wastage” in particular, provided in clear form the foundation to her case.  Furthermore, lest it be forgotten, Mr Kirkham went to the trouble of preparing a narrative summary in writing of his opening to the court which was provided to the husband.  It is history, yet a fact that the trial affidavits of the husband were prepared by senior counsel, Mr St John, and highly‑experienced family law practitioners.  So much so is plain from reading the husband's affidavit of evidence‑in‑chief filed 13 February 2007 and his very detailed Form 13 Financial Statement also filed that day. 

4. As Mr Kirkham correctly pointed out, the husband has now had some six years as an experienced litigant, that he attended many interlocutory proceedings, he was present at the first trial before Bell J and has been rendered considerable professional assistance.

5. Having had the process of re‑examination tortuously explained to the husband yesterday and having made it perfectly clear that it was a process to elicit evidence by way of clarification to remove any ambiguities and the like and not an avenue to reopen his case, the husband, in discussion, which included further submissions from Mr Kirkham, agreed to provide “a dot‑point summary” in short form of those matters he wished to address, together with supporting documents.  I well recall in the course of the proceedings yesterday afternoon asking him how many documents he proposed to tender.  He said, "Not many”.  When I sought clarification in relation to what that meant, he indicated  that it would involve some 15 documents.

6. I have no doubt whatsoever that at the close of the court proceedings yesterday the husband clearly understood the process of re-examination.  True it is that he sought until 2 pm this day.  I rejected that application as I saw the preparation of a short document in dot form with supporting documents to be a reasonably simple task.  It was on that basis that I saw no reason why the document could not be provided to Mr Kirkham this morning and the husband proceed with his own re‑examination.

7. The husband was present in court at 10 am this morning.  He informed me that he did not have time to prepare the promised document and also explained that he had not had time to prepare written submissions in support of his closing address.  That later aspect was never the point.  I find that hard to understand why the husband failed to attend to his task as the requirements were made singularly clear to him yesterday. 

8. In the course of his submissions, the husband reverted to statements made early in the proceedings concerning “natural justice”.  He asserted that he had not received “natural justice”, and went on to say that he did not understand “the protocols of the court”.  He said that he had no understanding of the concept of re‑examination, nor how to present the further documents he proposed to tender.  For reasons I have outlined, I find that hard to understand, particularly his assertion concerning re‑examination, which I made painfully clear to him yesterday, several times, as the transcript would clearly record.

9. The husband is not inexperienced in court procedures and I do not accept his assertion that he does not understand “protocols” of the court, to use his term.  However, as Mr Kirkham in the course of his submissions correctly outlined, the husband has had years of experience in this court, he has attended most of the numerous interlocutory proceedings and participated in the first hearing before Bell J in August and September 2004.  I have tortuously explained to him various procedural matters when appropriate for me to do so.  I have endeavoured at all times to ensure that he received a fair trial. 

10. It concerns me that the husband falls back on the bald unsubstantiated assertion that "the reality" is he has “not received natural justice”.  I have outlined in summary form the assistance he has received from Mr Kirkham and Mr Sweeney.  I carefully observed his cross‑examination of the expert real estate valuer, for example, and without wishing to embarrass the husband, his cross‑examination was excellent as was his cross‑examination of Mr I, the single expert engaged to value the business. 

11. The husband had at his command, when cross‑examining the wife, a whole raft of facts dating back to the time of separation and onwards, putting aside his propensity to stray into irrelevant matters that he nonetheless regarded as important concerning his relationship with the wife and/or her contributions prior to the date of separation.  Overall, I regard the husband as a highly intelligent individual.  He had at his command all factual data concerning the pharmacy. 

12. In his response, Mr Kirkham firstly submitted that it was obvious the husband was getting some “sort of advice”, from a solicitor.  I do not know one way or the other, other than that he informed me he has had the documents upon which he has relied from time to time sworn in front of a solicitor.  Mr Kirkham firmly rejected what he described as the husband's constant assertions that he did not understand “protocols or procedures” and firmly rejected that he was not receiving "natural justice". 

13. Mr Kirkham submitted that the husband had been clearly informed yesterday about the process of re‑examination.  He said that the husband did in fact understand the process of re-examination and reminded me that he said he had some “eight points”, or thereabouts that could be covered in about five pages with an estimated  15 documents to be relied upon.

14. Mr Kirkham submitted that it was simply untrue to assert that the husband did not understand the procedures for this morning thereby requiring further time.  Mr Kirkham rejected what he described as the husband's “mantra”, which he submitted may well have another purpose, namely for the Court of Appeal.  He rejected that the husband had been denied natural justice and pointed out that every aspect of the proceedings had been designed from their side to provide to him as much assistance as was fair and proper in the circumstances, yet without detriment to his own client. 

15. Mr Kirkham addressed the husband's history in litigation.  He pointed out that he had been provided documents in advance, a narrative summary of closing submissions and that he had agreed, as a matter of professional fairness, to go first in the addresses.  He pointed out, and such is the fact, that he had made few objections when it was appropriate to make objections, but did so in order to ensure a fair disposition of the proceedings and not waste time.  He made it clear that, so far as their side is concerned, the husband had received a fair a trial. 

16. Mr Kirkham referred me to section 39 of the Evidence Act (Cth) 1995 and again made it clear for the benefit of the husband that re‑examination cannot be used to elicit evidence that could have been given in chief.  It is to clarify or to solve any ambiguities that may have arisen. 

17. Mr Kirkham said there were two courses now open, namely to have the husband proceed in the witness box which would however be a time‑wasting exercise having regard to what occurred yesterday.  With that I agree.  The second alternative was to provide to the husband an opportunity to produce his “eight dot‑point summary” in narrative form together with the annexed documents sought to be relied upon, such documents to be provided it to him by 1 pm.  Then the parties could move to their addresses. 

18. The husband made it clear however in his submissions in reply that he could not have the document ready by 1 pm.  It appears therefore that he requires more time.  He said he could have his summary and annexures delivered to the chambers of Mr Sweeney by 3 pm this day.  That appears to me to be the only course available at this stage. 

19. In the circumstances, I propose to allow the husband further time to prepare the documents and adjourn the proceedings to 10.00 am on 7 March 2007.

I certify that the preceding nineteen  (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  27 August 2007.