PATTON & PATTON

[2016] FCCA 1232

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATTON & PATTON [2016] FCCA 1232

Catchwords:
FAMILY LAW – Final property hearing – neither party properly prepared.

PRACTICE & PROCEDURE – Adjournment application – initially opposed then by consent – impact of adjournment on other cases wanting to be heard.

Cases cited:

Aon Risk Services Australia Limited v Australia National University [2009]

HCA 27

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Limited (2013) 250 CLR 303

Applicant: MS PATTON

Respondent: MR PATTON

File Number: DGC 3059 of 2014

Judgment of: Judge Harland

Hearing date: 12 May 2016

Date of Last Submission: 12 May 2016

Delivered at: Dandenong

Delivered on: 12 May 2016

REPRESENTATION

Counsel for the Applicant: Mr Moisidis

Solicitors for the Applicant: Michael Smith & Associates

Counsel for the Respondent: Mr Stanley

Solicitors for the Respondent: Roberts Beckwith Partners

ORDERS

1. The proceeding is adjourned for Mention hearing on 26 September 2016 at 9.45am.

2. The parenting application filed 2 October 2014 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Patton & Patton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3059 of 2014

MS PATTON

Applicant

And

MR PATTON

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. In this case the parties urged upon me to grant them an adjournment of their final property proceedings.  This has come about in circumstances where it is very apparent that neither party has prepared their case in a manner that the court is entitled to expect.  Both parties are represented by counsel and their solicitors today are present in Court are instructing counsel.  One of the features of this case and one of the issues that I frequently raise before practitioners in this Court is the failure of parties to properly particularise their claims when they first file their applications.  It is a very simple matter of due process or procedural fairness that each party is entitled to understand the case that they are faced with. 

3. When parties do not particularise their orders when they file their case they fail to inform the Court what the case is about and they fail to inform the other party.  It is in all too common circumstance.  In this case, what it has meant is that when an amended response is filed, it is only then clear as to what the case is in some material respects.  It is utterly unsatisfactory that it takes until that date.  This is a case where both parties have fallen well short of what is expected of people coming before this Court, particularly when they are represented. 

4. One of the issues the wife raises is that the real estate figures are based on appraisals not valuations. She was content to rely on that until now.  As I pointed out during submissions, the simple solution would be to order the house to be sold.  The wife’s counsel said the wife wants an opportunity to keep the property.

5. These proceedings have been on foot for some time.  The wife is legally represented. She had ample opportunity to obtain a valuation.  Mr Moisidis said that the wife received the husband’s trial affidavit yesterday which raised issues not previously deposed to with respect to contributions of sums of money including sums provided by his parents to one of the properties.

6. I indicated to the husband’s counsel that he would not be able to rely on that evidence if the matter is protracted. This is a consequence of filing material late and failing to particularise ones claims until shortly before the hearing.

7. The parties are facing Court action by the bank for the mortgage sale of their main asset.  There are other problems in both parties cases described during the course of submissions.

8. The pressures that the Court faces in terms of resources and demand from litigants for hearing time is well known.  It is compounded when all too often people come to Court underprepared and expect that the Court can accommodate that or, as has been said to me today, indulge it.  One phrase that has been used frequently today by the wife’s counsel is the wife the opportunity to perfect her case.  I am not aware of any authority that says that parties need to be given the opportunity to perfect their case.  Parties need to be given the opportunity to be heard.  That is the basic principle of procedural fairness.  It is an opportunity to be heard that they either take it up or they do not.  It is not an opportunity to be heard at whenever suits them as this would make proactive case management impossible.

9. Aon Risk Services Australia Limited v Australia National University [2009] HCA 27 makes this very clear and the High Court of Australia has made it clear again in cases since including Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Limited (2013) 250 CLR 303. Practitioners and litigants need to understand that it is not just their case that is impacted on when they come to Court unprepared. It has a knock-on effect of other cases. It only increases the pressure on resources. Because of the poor state of affairs in this case, if it is adjourned it means that another case has to wait longer than it would have. It also means that Court time that could have been taken today has not. In this case, it is clear that the problems are on both sides and there are issues that it seems that only in the harsh light of the court room that parties are realising that they are falling well short in preparation of their case and now seek to correct that.

10. What was an opposed adjournment application is now an application by consent, given the dawning realisation I suspect, of the parties themselves that there are real difficulties in the presentation of their cases.  This means that the parties will incur further costs and further delay.  As I have indicated during the course of submissions, if I accede to the request for the adjournment, I will not list this case for a further hearing until both sides are ready to proceed.  I will not have a situation of another case being delayed because these parties may not be ready for a second time.

11. I find it concerning that there seems to be an attitude amongst practitioners, not just limited to this case, that they should expect to be able to get an adjournment on the first go if they are not ready.  There just seems to be an attitude of:

    Oh well, we have not really done that well this time.  We have not really prepared.  That is all right.  We should be able to get it adjourned off.  Let us not worry about it.  Let us not take the process seriously.  Let us not actually show the court process the respect that it should deserve.

12. The Courts task is to dispense justice to people. It is very difficult to do this when practitioners, who are officers of the Court, who are part of the justice system, who the Court relies on for presenting cases in an efficient manner, in a manner that focuses on the issues and exercises a proper forensic judgment.  In this matter it appears to me that the practitioners have fallen well short of that.  It may well be that the parties themselves have contributed to this, whether by not wanting to prepare a case, not give instructions or other issues.  I certainly acknowledge that in this registry and in Melbourne there is a good settlement culture and practitioners do put a lot of effort into avoiding litigation and achieving good outcomes for their clients. 

13. However, there must be compliance with the Court process for the administration of justice.  Parties are not obliged to file an application.  If they are not ready with their position, then they should not file until they are.  The only circumstances where parties need to file is when there is a time limit.  It is not the time to file an application and then work out what the case is about later on.  Parties actually need to know what the scope of their case is when they file.  In most cases, except for urgent cases, there should be discussions well before that so the parties are aware of the scope of the dispute between them and it should be clear to the Court and everyone else when the matter first comes to court what the matter is about.  In my view, either result is utterly unsatisfactory. 

14. It would be utterly unsatisfactory for the Court to have to try and determine the issues in this case given the state of the evidence but it is also utterly unsatisfactory that this matter has to be adjourned because of the conduct of both parties.  In the circumstances and where the application is now by consent, I am going to accede to that request.  The matter will go into the next open slot in a duty list that is not until September.  If the parties think that is a long time away, that is a knock-on effect from the number of cases I see in every duty list I have in every sitting week I have where matters have to be adjourned because of various issues of lack of readiness, both when cases begin and when cases are there for a final hearing.  So I note that the matter is not ready.  I adjourn the hearing.  I list the matter for mention only on 26 September 2016 at 9.45am. 

15. By consent the parties seek the dismissal of the parenting proceedings. X is now 18 years old and Y is almost 15 years old. Given their ages it is sensible not to pursue the parenting application.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  20 May 2016