Pencious and Searle (No 2)
[2015] FamCAFC 112
•6 May 2015
FAMILY COURT OF AUSTRALIA
| PENCIOUS & SEARLE (NO. 2) | [2015] FamCAFC 112 |
| FAMILY LAW – APPEAL – ORAL APPLICATION TO ADJOURN HEARING – Where the applicant seeks to adjourn the hearing of the applications listed for hearing today – Where the application is opposed – Where the applicant submits that there is evidence that needs to be before the court in order for him to pursue his applications – Where the applicant has had ample time to properly prepare his case – Where the applicant is an experienced litigant who well knows the process of the court – Where the application smacks of an attempt to delay finalisation of these proceedings – Where the proceedings have been before the Court for over six years – Where it is imperative that the applications listed be dealt with – Where there is nothing put by the applicant that persuades the court that the further evidence is necessary – Application dismissed. FAMILY LAW – APPEAL – ORAL APPLICATION TO RESTRAIN COUNSEL FOR FIRST RESPONDENT FROM APPEARING – Where there is no evidence before the court which would demonstrate the necessity for such an order – Application dismissed. |
| Family Law Act 1975 (Cth) |
| Family Law Rules 2004 (Cth) |
| APPLICANT: | Mr Pencious |
| FIRST RESPONDENT: | Ms Searle (formerly Pencious) |
| SECOND RESPONDENTS: | Mr and Mrs Searle |
|
| DATE DELIVERED: | 6 May 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 6 May 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 February 2012 |
| LOWER COURT MNC: | [2012] FamCA 74 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Wood with Mr Guthrie |
| SOLICITOR FOR THE RESPONDENT: | Tasiopoulos Lambros & Co |
| COUNSEL FOR THE SECOND RESPONDENTS | Mr Halperin |
| SOLICITOR FOR THE SECOND RESPONDENTS | Halperin & Co Pty Ltd |
Orders
The applications in an appeal filed by the applicant husband on 27 April 2015 in appeal numbers SOA 24 of 2012, SOA 3 of 2015 and SOA 5 of 2015 seeking that the Honourable Justice Strickland be disqualified from further hearing this matter be dismissed.
The oral application made by the applicant husband seeking to adjourn the hearing of the balance of the applications in an appeal filed in appeal numbers SOA 24 of 2012, SOA 3 of 2015 and SOA 5 of 2015 be dismissed.
The oral application made by the applicant husband seeking to restrain Mr Wood, counsel for the first respondent, from further acting in this matter, be dismissed.
The affidavit filed by the applicant husband on 10 February 2015 in appeal number SOA 5 of 2015 be uplifted and returned to him this day.
Judgment be reserved in relation to the application in an appeal filed by the applicant husband on 8 January 2015 as amended on 4 May 2015 in appeal number SOA 3 of 2015.
Judgment be reserved in relation to the application in an appeal filed by the applicant husband on 27 January 2015 in appeal number SOA 5 of 2015.
Judgment be reserved in relation to the application in an appeal filed by the applicant husband on 16 February 2015 seeking to review the decision of the Appeal Registrar made on 4 February 2015 in appeal number SOA 24 of 2012.
Judgment be reserved in relation to the application in an appeal filed by the first respondent wife seeking costs in appeal number SOA 24 of 2012.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pencious & Searle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 24 of 2012
File Number: MLC 11069 of 2008
| Mr Pencious |
Applicant
And
| Ms Searle (formerly Pencious) |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
I have before me an oral application made by Mr Pencious (“the applicant”) seeking to adjourn the hearing of the applications that he has filed in appeal numbers SOA 24 of 2012, SOA 3 of 2015 and SOA 5 of 2015. The application is opposed by Ms Searle (“the first respondent”) and by Mr and Mrs Searle (“the second respondents”).
I confirm that it seemed to me that that application could not relate to the application that the applicant also made that I be disqualified in relation to the proceedings listed today. Thus, I proceeded to hear and determine that application before I addressed the oral application to adjourn. I dismissed the application made by the applicant that I be disqualified, and I will deliver my reasons for that in due course.
The next comment I make about the application to adjourn is that both Mr Halperin and Mr Wood have submitted that the basis of that application cannot and does not relate to the application that he makes in appeal number SOA 3 of 2015.
The basis the applicant puts in support of his application to adjourn is this. He says that in order for him to be able to pursue the applications that he has filed and which were listed for hearing today, and in that I do not include the applicant’s application that I be disqualified, he says that there is evidence which he wants to put before this court which is vital to his arguments in support of those applications. That evidence comprises, as I understand it, two categories. First, a letter which as I also understand it is a letter from the first respondent’s solicitors to the first respondent’s counsel, and which is a letter that was sought to be produced to the Family Court of Australia by way of a subpoena issued by the applicant in the first instance proceedings. The applicant also, as I understand it, sought to have that letter produced in the applications that were listed before this court today, and he sought to do that by way of an application in an appeal supported by an affidavit. It seems that that application was forwarded to the Appeal Registrar on or about 27 April 2015. It is apparent from the appeal file, and the applicant has confirmed this, that that application and the affidavit were returned to him by the Appeal Registrar under cover of a letter of 28 April 2015, providing reasons for refusing to accept those documents for filing, and referring the applicant to the relevant Family Law Rules 2004 (Cth) (“the Rules”).
The applicant then amended the application and sought to file that on 1 May 2015. That application came before the Appeal Registrar and on 4 May 2015 the Appeal Registrar again returned the document to the applicant, and in a covering letter the Appeal Registrar indicated that the same was not accepted for filing, and referred the applicant to the earlier letter of 28 April 2015. The applicant was also urged to seek legal advice as to the appeal proceedings.
In summary then, although there has been an attempt by the applicant to put in place a process for the letter to be before this court in relation to the applications to be heard today, the fact is that his application in that regard has been rejected, and therefore that application is not before this court. As I have explained to the applicant, if he wishes to pursue that, what he needs to do is to file an application in an appeal, supported by an affidavit, seeking a review of the exercise of power by the Appeal Registrar.
The applicant, as he has indicated, has not done that. He explains that he has not yet received the letter of 4 May 2015, and was unaware when he came to court today of the fact that the Appeal Registrar had rejected the document for filing. In any event, as I have explained to the applicant, that is in fact what has happened, the decision of the Appeal Registrar is in place, and the fact that he has not yet received that letter does not change the facts.
Given those circumstances I raised with the applicant whether he wanted to seek an adjournment of the hearing of his applications today to enable him to pursue an application to review the exercise of power by the Appeal Registrar. It took approximately an hour and a half to two hours of valuable court time for the applicant to ultimately indicate that he was making an application to adjourn, and that of course is the application that I am now dealing with.
The second category of evidence that the applicant wishes to put before this court can be explained in this way. The applicant indicated that he wanted to revisit evidence given by Ms D, an employee of the solicitors for the first respondent, some time ago, because the applicant submits that that evidence and the involvement of Mr Wood, who appears as counsel for the first respondent today, is not only supportive of his applications that are listed for hearing today, but also supportive of an oral application he has made today that Mr Wood be restrained from appearing for the first respondent.
In regard to that evidence, I indicated to the applicant that it was evidence that had been put before me previously in the context of an application in an appeal filed by him on 21 March 2014 in appeal number SOA 24 of 2012, seeking reinstatement of an appeal that had been deemed abandoned. I indicated quite clearly my position in relation to that evidence in my reasons for judgment delivered on 13 January 2015, when I dismissed that application for reinstatement. There was nothing put to me today by the applicant which demonstrated a basis for revisiting that evidence, and for this court to treat it in any other way than it was treated in my reasons for judgment just referred to.
I am unclear as to whether the applicant is accepting of that position, but be that as it may, it was that evidence together with the evidence of the letter that the applicant submitted was central to his applications listed for hearing today. Without that evidence he said he was not able to realistically pursue those applications, and that has ultimately led to the oral application to adjourn.
To repeat, the oral application to adjourn is opposed, and I have earlier today recorded the submission of counsel for the first and second respondents in relation to the application to adjourn the application in appeal number SOA 3 of 2015. To repeat, that submission is that the basis for the application to adjourn which I have just outlined has no relevance to that application. I agree with that submission. I cannot see how the evidence that the applicant wishes to present to this court has any relevance to the application in an appeal filed in SOA 3 of 2015. I say that because that application seeks an extension of time to appeal against two orders made by Cronin J. The first order is an order made on 20 July 2010 whereby his Honour dismissed the applicant’s application to join the first respondent’s parents to the proceedings that were then before his Honour. The second order is the order made on 9 September 2010, and specifically only paragraph 8 of that order, which was a consent order that the applicant pay to the first respondent’s solicitors the sum of $9,000 in full satisfaction of the first respondent’s costs in respect of the application that his Honour dealt with in July 2010.
As I have said, it should be perfectly obvious that the evidence that he wishes to present to this court can have no relevance to that application for an extension of time. Thus, I propose to dismiss the application to adjourn the application in an appeal filed in SOA 3 of 2015.
That leaves the application to adjourn insofar as it relates to the applications in an appeal filed in SOA 24 of 2012 and in SOA 5 of 2015.
In appeal number SOA 5 of 2015, the application in an appeal sought to be adjourned is an application seeking an extension of time to file a Notice of Appeal against orders made by Cronin J on 5 April 2012, which in summary were orders for costs following on from earlier decisions made by his Honour. In appeal number SOA 24 of 2012, the application in an appeal listed today, and which was filed on 5 February 2015, is an application by the first respondent that the applicant pay her costs of the application to reinstate the appeal on an indemnity basis. That relates to what I earlier referred to, namely my orders made on 13 January 2015 dismissing the applicant’s application to reinstate his appeal in appeal number SOA 24 of 2012.
I observe that on 16 February 2015 the applicant filed an application in an appeal seeking to review the decision by the Appeal Registrar to refuse to accept an application in an appeal sought to be filed by the applicant in appeal number SOA 24 of 2012, seeking an extension of time to appeal against orders made by Cronin J on 28 February 2012. Plainly a futile attempt to circumvent my order of 15 February 2015.
In any event, I am not prepared to adjourn the applications that are listed today.
By letter dated 12 March 2015 the parties and their legal representatives were advised by the Appeal Registrar that the husband’s applications which I have earlier identified were listed for hearing on 6 May 2015.
The applicant of course has, when filing the applications that I have referred to, filed affidavits in support of each of those applications. It was not until 27 April 2015 though, that he sought to file an application which, as I understand it, had as its purpose to put before this court the letter to which I have earlier referred. In my view the applicant has had ample time to properly prepare his case and to file appropriate documents, including affidavit material, before 27 April 2015.
The applicant, to use the words of Mr Wood, is a very experienced litigant. He has filed numerous applications. He, in my view, well understands the process of this court, and attempting to file documents as late as he did smacks of an attempt to delay the finalisation of these proceedings.
It is imperative that the applications the applicant has filed, and which are listed today, as well as the application listed today by the wife for costs, be dealt with. These proceedings have been in the Family Court of Australia and the Full Court now for over six years. It is time to bring these proceedings to a conclusion one way or the other.
The applicant has attempted to suggest to me that he does not understand the process, but I reject that. To repeat, he is an experienced litigant, he has filed numerous applications, and he very well knows the process of this court.
For those reasons I propose to dismiss the oral application to adjourn the applications in an appeal filed in appeal numbers SOA 24 of 2012, SOA 3 of 2015 and SOA 5 of 2015.
I now turn to the oral application made by the applicant at the outset of the hearing today seeking to restrain Mr Wood from appearing as counsel for the first respondent in these proceedings.
The basis of that application is said to be that Mr Wood in some way was involved in the issues that arose some time ago, and which have been the subject of evidence by Ms D. The context of those issues was an application made by the applicant to restrain the first respondent’s solicitors to continue to act for her, and that application was dismissed by Cronin J on 28 September 2012. In any event, the generality of the application that I am now addressing is that in some way it is said that Mr Wood is conflicted, and he should be restrained from appearing for the first respondent.
The difficulty the applicant has, and the difficulty that he himself has recognised, is that he has no evidence before this court which would demonstrate the necessity for such an order to be made. As the applicant himself has said there is a letter which he feels needs to be seen by this court in support of that application, and which apparently would demonstrate in some way the inappropriateness of Mr Wood continuing to act. However, as I have expressed above in relation to that issue, that letter is not before me.
The other evidence which the applicant says I would need to consider and he would want to refer me to in support of the application is the evidence of Ms D which I have also mentioned above. However, to repeat what I have said above in relation to his application to adjourn, the issue of Ms Dr’s evidence was addressed by me when I heard and determined an application in an appeal by the applicant seeking to reinstate an appeal against the orders made by Cronin J on 28 February 2012, and I dismissed that application.
In any event, as I explained to the applicant, he was unable to put anything to me which would persuade me that I should revisit, or reconsider that evidence or my assessment of it in my reasons for judgment delivered on 13 January 2015.
Given therefore that there is no new evidence before this court, and that I am not persuaded that the evidence to which I have just referred demonstrates the necessity for an order restraining Mr Wood from appearing as counsel for the wife, I propose to dismiss the applicant’s oral application to that effect.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on
6 May 2015.
Associate:
Date: 15 June 2015