Pearce and Pearce

[2013] FamCA 811

FAMILY COURT OF AUSTRALIA

PEARCE & PEARCE [2013] FamCA 811

FAMILY LAW – PRACTICE AND PROCEDURE – where the wife seeks orders adjourning the partially completed trial and asking the Court to take into account new particulars upon which she is basing her proceedings pursuant to s 79A of the Family Law Act 1975 (Cth) – consideration of the provisions of s 79A and the principles discussed in AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 – orders made adjourning the trial and permitting the wife to rely upon the new particulars upon which she now bases her proceedings that were brought pursuant to s 79A.

Family Law Act 1975 (Cth) s 79; 79A; 117

AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Bermert & Swallow [2010] FamCAFC 100

APPLICANT: Ms Pearce

RESPONDENT: Mr Pearce

FILE NUMBER: DNC 462 Of 2009

DATE DELIVERED: 3 October 2013

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 3 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Looney QC (with Ms Farmer)

SOLICITOR FOR THE APPLICANT: Withnalls Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lloyd SC (with Ms Giacomo)

SOLICITOR FOR THE RESPONDENT: Cater & Blumer

Orders

1. The question of costs thrown away generally (and in particular of the husband arisen out of the change of the case of the wife and the necessary adjournment) is reserved.

2. The wife has leave to issue twelve [12] subpoenas for documents PROVIDED THAT the same are issued within fourteen [14] days from today and made returnable before a Registrar in the usual course of events.

3. It is directed that the wife file and serve any further affidavit of evidence upon which she seeks to rely and any change in particulars pursuant to s 79A PROVIDED THAT they are filed and served by 4.00 pm on Thursday 21 November 2013.

4. The husband has leave to issue six [6] subpoenas for documents (with leave to apply for an increased number) PROVIDED THAT the same are filed and served no later than Friday 29 November 2013 and made returnable before a Registrar in the usual course of events.

5. The husband to file and serve any further affidavit of evidence upon which he seeks to rely PROVIDED THAT they are filed and served by 4.00 pm on Thursday 19 December 2013.

6. The part heard trial proceedings are listed to resume before the Honourable Justice Dawe sitting in Darwin week commencing Monday 13 January 2014 allowing nine [9] days.

7. The proceedings are adjourned for a compliance check to Friday 20 December 2013 at 11.00 am (Adelaide time) by telephone link before the Registrar.

8. Any application in relation to adversarial experts to be filed and served by 4.00 pm on Thursday 7 November 2013 and listed before me on a date to be advised to be heard by telephone link.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pearce & Pearce (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNC 462 of 2009

Ms Pearce

Applicant

And

Mr Pearce

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I am being asked this morning by the wife’s counsel to adjourn the trial, and for the Court to take into account the new particulars upon which the wife is basing her section 79A proceedings being an amendment to the particulars which has been handed up to me this morning at 9.15 am. It is the wife’s application to adjourn the trial. That is on the face of it opposed by the husband’s counsel on the husband’s behalf. On the husband’s behalf I am being asked to note that the husband no longer consents to his cross-examination continuing before the wife’s case is closed.

2. I am being asked by counsel to abort the proceedings, which I assume means to dismiss the applications or adjourn the trial.  This was not clear.  He also seeks to restrain the wife from bringing any further proceedings without leave, that she pay the costs, and if she is ever given leave for further proceedings, to provide security for costs. 

3. The adjournment request by the wife is opposed by the husband because the wife is now proceeding to change her case or the particulars of her case and that the basis for the new case is the interpretation of the husband’s evidence, particularly the husband’s evidence given in cross-examination.

4. This is a trial which, anyone looking briefly at the Court file would understand has been on foot in what was the Federal Magistrates Court (now the Federal Circuit Court) and this Court for years.  A large amount of material has been filed and is being relied upon. 

5. The trial which was originally set for 10 days could not start on the allocated day due to difficulties with the husband’s counsel.  It did start. Actual evidence has been heard this week. 

6. We have heard most of the wife’s case to the extent that we have heard her evidence and those of the numerous witnesses who have been cross-examined.  The wife’s case was not closed but it was agreed that, notwithstanding that, the husband’s case would commence and consideration of the further material (which was anticipated may be documents or other evidence) would be heard in due course sometime this week.

7. The husband has commenced his evidence, and has indeed been cross-examined for most of yesterday.  His cross-examination has not concluded.  There were approximately 12 other witnesses upon which the husband was seeking to rely who were required for cross-examination, many of those dealing with a limited issue concerning the renovations to the former matrimonial home, and the dates of those observations. 

8. I am now faced this morning with the wife’s change in the particulars of her case under section 79A. Some of the changes relate to the time of the information upon which the wife was relying and the allegation of a failure to disclose either at the time the wife signed the Consent Orders or at the time the Consent Orders were made, the time being a difference of approximately one calendar month. There are also changes to the wife’s case upon which she is seeking to rely in deleting reference to some particulars and adding in references to changes in the wife’s claim based upon what is asserted to be the husband’s evidence of the value of E Pty Ltd at the time of the Consent Orders, the availability of other funds and the value of assets held by the husband.

9. The question is, however, whether taking into account the evidence the material currently before me, and the Rules and the principles of this jurisdiction, it is appropriate to give the wife leave to rely upon those new particulars. 

10. I consider that in the circumstances of this case and in particular the provisions of section 79A (which require consideration of whether there was been a miscarriage of justice or not) combined with the High Court decision of AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 and the Full Court of this Court’s consideration of Aon Risk in various matters, including Bermert & Swallow [2010] FamCAFC 100, that it is appropriate to balance the factors that should be weighed in this case when considering both the amendment to the particulars of the wife’s claim and the application for the adjournment.

11. The overall situation is that there must be where possible, a timely and cost-effective resolution of a dispute between the parties, but at the same time ensuring that any appropriate amendment should be considered, and whether the justice of the case requires the amendment and the adjournment which is sought.  The clear fact is that the wife has presented her case, but now seeks an adjournment in order to gather what she says is further evidence which she will seek to rely upon to support the new case, based upon what she says is the evidence which has been given by the husband during his cross-examination.

12. Much of the large amount of material before the Court has been supplied by both of the parties at a very late stage, notwithstanding previous directions which had been made in relation to preparing the matter for trial.  Witnesses having been added in as possible witnesses even after the time that the trial was due to start had been reached. 

13. The question arises in relation to how the Court balances the obvious cost to the parties and the Court of a further delay in concluding these proceedings, and the extra cost of further witnesses.

14. The Court takes into account that these are proceedings that relate to setting aside a Consent Order that was made in 2005, over eight years ago.  The difficulty, however, is that the Court must balance the need to determine whether, when that order was made, there has been a miscarriage of justice based upon any circumstances yet to be determined and if that is the case, whether that order should be set aside, and what, if any, other order should be made.

15. The husband’s counsel now asks that if the matter does proceed, that there should be a determination of the section 79A discretion first, and that matter heard discretely before proceeding with any evidence in relation to the overall question that may need to be determined if the wife is successful under section 79A.

16. Considering all of the matters that have been put before me and on the basis that the Family Court has not been set up as a Court of strict pleadings, I would allow that variation, particularly as it has now been the wife’s case that she is bringing those amendments on the basis of evidence which only came to light during the cross-examination of the husband.

17. I consider that that change to the wife’s case would be on the basis that the husband should be given opportunity to prepare his reply to that case if any further evidence would be necessary to be called by the husband in that regard. 

18. However, I do not accept that the particulars in the section 79A changes would necessarily require a long adjournment if the matters which are sought to be obtained relate to subpoenaing documents from five or six institutions. This could be done quite promptly, and the adjournment could be short. However, the difficulty is that I am sitting in a different Registry and I am not able to continue to sit in this Registry just to finish this case in the next few weeks.

19. I am therefore proposing to grant the application for the wife to rely upon the changed particulars provided to me this morning. I turn to the question of whether there should be an adjournment, and how I should deal with the husband’s application to abort the hearing thus far and have the section 79A further proceedings dealt with by another judicial officer.

20. Paragraph 3 of the written submissions of the wife says:

    The wife seeks an adjournment of the trial to enable her to obtain further documents and to consider the need to lead further evidence in light of the matters that have come to light to date.

21. In his submissions, counsel referred to a number of subpoenas which would be sought to be issued, and the possibility of considering a further valuation to be obtained of one of the entities, which I have described as E Pty Ltd, as at the time of the Consent Orders in 2005.  The subpoenas for which leave would be sought relate to primarily bank statements, accountants and lawyers and persons who have supplied work on the property at D Street, Suburb F.  The material which counsel referred to is material which would take some time to collect pursuant to subpoenas, and to inspect with a view to considering the relevance of that evidence.

22. It would therefore be appropriate, having allowed the wife to alter her submissions to give her an opportunity to present that evidence. 

23. Mr Lloyd, SC seeks that the case be aborted and that the wife be restrained from bringing further proceedings.  At this stage, I am not able to determine, having not heard all of the relevant evidence, whether I would be accepting the husband’s case or the wife’s case in these proceedings.  But I have heard a considerable amount of evidence.  On that basis, and in particular taking into account the principles set out by the High Court of AON Risk Services (Supra) (to consider the effect of orders made upon the cost to the parties and the cost to the Court and case management principles) at this stage it is not appropriate for me to abort the proceedings or to excuse myself from further hearing in the matter, because I have already spent a considerable amount of time hearing a lot of relevant evidence and matters which were relevant to the final determination of both the section 79A proceedings and section 79 proceedings.

24. I therefore do not consider it appropriate to either abort the proceedings or cease to hear the proceedings in this matter.  For those reasons it is obvious, therefore, that it would not be appropriate to restrain the wife from any further proceedings without leave, but it would be appropriate to insist that the wife present her case (as to the material upon which she is seeking to rely and the basis upon which she is making her 79A) claim in a final form after the leave to issue the subpoenas and inspection time has expired, giving the husband appropriate time to consider his case and the evidence which he might seek to call in response. 

25. I accept without any reservations the submissions that it is up to the wife to prove her case under section 79A. In relation to the question of whether the threshold issue should be determined separately (being the threshold issue under section 79A), I accept the submissions of counsel for the wife that the authorities clearly indicate that in the usual case it is appropriate for the evidence to be heard together, but that there can be exceptional cases in which it is appropriate for the section 79A determination to be heard as a threshold issue and separately.

26. In this particular case there is also the extra factor that has to be considered and that is that I have heard a significant amount of evidence already, both from the wife and her witnesses and the evidence of the husband and one or two of his witnesses who have been interposed in this case. It is therefore, in my view, not a case in which the Court should exercise its discretion to now alter the method of hearing of the matter to restrict it to a preliminary hearing on the section 79A issues.

27. In relation to the question of costs, I fully understand the basis upon which the husband’s counsel would seek costs and security for costs, it being the wife’s application to adjourn these proceedings at this stage. 

28. However, some of the factors which I have to determine in relation to the provisions of section 117 when making a decision in relation to costs are matters which remain to be determined both in relation to the financial circumstances of both of the parties and in relation to whether a party has been wholly unsuccessful.   At this stage of the proceedings it is not appropriate to make a determination in relation to the costs of either party, nor am I in a position to determine whether it would be just and equitable to require the wife to give security for costs for the further litigation. 

29. I am proposing, therefore, to indicate that the orders that I will make will be on the basis that it is noted that the wife has permission to rely upon the amended particulars of her section 79A case and that the application to adjourn the conclusion of the trial will be granted to enable the wife to issue subpoenas and present further evidence. If it remains the case that the husband seeks to not be further cross-examined pursuant to the consent he gave previously, then his evidence cannot continue to be heard today. But I would like to hear from counsel as to the reason why many of the witnesses which are listed as on notice to give evidence today and tomorrow cannot be heard.

30. It would appear that much of the evidence from those witnesses would not be related to the amended case of the wife either now or in the future and relate to matters which could be easily dealt with in the time that is now available today and tomorrow. Those witnesses have filed affidavits and were required for cross-examination, some of them for short cross-examination. I appreciate that that would be the husband’s case continuing whilst the issues in relation to the final particulars of the section 79A case are not known, but it would appear on the face of those affidavits that those factual matters can clearly be dealt with as they seem to deal with the issues which can be separated from any possible further amendment.

31. I have put the counsel on notice that I will stand the matter down for them to take instructions and give consideration to some sensible negotiations happening so that, even if the husband’s evidence cannot continue in cross-examination, the Court’s time and costs will not be wasted if we can continue to hear some of the evidence today and tomorrow.  The order is that I am proposing to adjourn the case to allow the wife to present her further case and further evidence.  The question of whether I adjourn it today or on Friday afternoon, I will stand down for further discussions and submissions.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 3 October 2013.

Associate: 

Date:  21 October 2013