Phillips v Herne - [2015] QCA 236

SUPREME COURT OF QUEENSLAND

CITATION:

Phillips v Herne [2015] QCA 236

PARTIES:

ROBIN PATRICK HENRY PHILLIPS
(applicant)
v
KANJANA HERNE (ALSO KNOWN AS THIYAVUTIGAN)
(respondent)

FILE NO/S:

Appeal No 1163 of 2015
SC No 5538 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time/General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 26 July 2013

DELIVERED ON:

20 November 2015

DELIVERED AT:

Brisbane

HEARING DATE:

5 August 2015

JUDGES:

Margaret McMurdo P and Gotterson JA and Ann Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for an extension of time is refused with indemnity costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the applicant and the respondent were in dispute over a property they owned as tenants in common – where the respondent commenced proceedings in the Supreme Court seeking an order in respect of the property alleging they were in a de facto relationship – where the applicant denied any de facto relationship and applied to the court for a declaration under s 320 Property Law Act that no de facto relationship existed between them – where the parties then entered into a deed of settlement and applied to the court for consent orders that both parties’ applications be dismissed and there be no order as to costs – where the applicant later applied to the Supreme Court for orders under Part 19 Property Law Act for the deed of settlement to be set aside and to vary the consent orders so that his original application for a declaration would be upheld – where at the hearing of his application, he applied to the court for a “McKenzie friend” to speak on his behalf – where the application was adjourned for two days to allow the applicant to consider the respondent’s written submissions – where at the second hearing, the applicant did not renew his application for a “McKenzie friend” – where the applicant contended that the respondent had committed a fraud on the Supreme Court by alleging before the Social Security Appeals Tribunal that she was not in a de facto relationship with the applicant, while claiming in the Supreme Court proceeding that she was in a de facto relationship – where the primary judge found that the Supreme Court never made a finding that a de facto relationship existed – where the deed of settlement did not state that it was entered into on the basis of a de facto relationship – where the primary judge found the applicant’s submissions were so tenuous as to amount to an abuse of process and dismissed his application with indemnity costs – where the applicant applied to this Court 17 months out of time – where the applicant contends that the reason for his delay is that only in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Phillips v Herne

Details

AGLC: Phillips v Herne [2015] QCA 236
Case: [2015] QCA 236
Decision Date: 20 November 2015

CaseChat Overview and Summary

In Phillips v Herne, the Court of Appeal considered an appeal by Mr Phillips against a decision of the Supreme Court of Queensland. The primary dispute was over a property owned as tenants in common by Mr Phillips and Ms Kanjana Herne. The initial proceedings began when Ms Herne sought an order concerning the property, alleging a de facto relationship with Mr Phillips, which he denied. They eventually entered into a deed of settlement and obtained consent orders dismissing their respective applications and imposing no costs. Subsequently, Mr Phillips sought to set aside the deed and vary the consent orders, which was dismissed by the Supreme Court. The Court of Appeal then examined an application for an extension of time to appeal the Supreme Court's decision, considering whether the delay in bringing the appeal was justifiable and whether the appeal itself had any merit.

The legal issues involved the principles governing the extension of time for appeals and the merits of the appeal itself. Specifically, the Court of Appeal had to determine whether Mr Phillips had provided a plausible explanation for the delay in lodging his appeal and whether the appeal had any prospect of success. Additionally, the Court assessed whether Mr Phillips' allegations of fraud and procedural unfairness were substantiated and whether they justified setting aside the consent orders.

The Court of Appeal found that Mr Phillips' explanations for the delay were not entirely satisfactory and that his proposed appeal was misconceived, unmeritorious, and fatally flawed. The Court held that the primary judge had not acted in breach of natural justice or procedural fairness when she refused Mr Phillips' request for a McKenzie friend. The Court also dismissed Mr Phillips' claims of fraud and impropriety, finding no evidence to support them. The Court concluded that the deed of settlement and consent orders were valid and binding, as Mr Phillips had entered into them after receiving prudent legal advice. Consequently, the Court of Appeal refused the application for an extension of time and ordered that Mr Phillips pay indemnity costs.

The final orders of the Court of Appeal were that the application for an extension of time was refused with indemnity costs. This decision underscores the importance of timely appeals and the requirement for applicants to provide credible explanations for any delays, while also highlighting the stringent standards for setting aside consent orders and deeds of settlement.

Orders

Orders of the court

The application for an extension of time is refused with indemnity costs.

Background

Background to the litigation

Ordinarily, an extension of time is granted after a lengthy delay only when applicants have provided plausible explanations for the delay in pursuing their appeal rights and demonstrated that an extension of time is in the interests of justice. The applicant has not given an entirely satisfactory explanation for the 17 month delay. More importantly, for the reasons which follow, his proposed appeal is misconceived, entirely unmeritorious and ultimately is fatally flawed so that the application for an extension of time must be refused.The background facts and the decision at first instance Mr Phillips and the respondent, Ms Kanjana Herne, were in dispute over a property they owned as tenants in common at Molendinar. Ms Herne commenced proceedings in the trial division of this Court seeking an order in respect of the Molendinar property under Part 19 Property Law Act 1974 (Qld), alleging that they had a de facto relationship. Mr Phillips denied any de facto relationship and applied to the court for a declaration under s 320 Property Law Act that no de facto relationship existed between them. Mr Phillips’ former solicitors subsequently prepared a deed of settlement which provided that he would pay Ms Herne $25,000 within 28 days; a further $40,000 from his fifty per cent share of the proceeds of the sale of the property; and otherwise they were to share the proceeds fifty/fifty. The deed recorded that Mr Phillips denied the existence of any de facto relationship; that he had continually maintained that no de facto relationship existed between them; that their relationship was a business one and that he had entered into the deed based on that understanding. The deed also recorded that the parties released each other from any past or future claim relating to any issue concerning these proceedings. On 14 April 2009, the parties signed the deed and, with their consent, Byrne SJA made orders including that both parties’ applications be dismissed and that there be no order as to costs. On 18 June 2013 Mr Phillips applied to the Supreme Court for orders under Part 19 Property Law Act for the deed of settlement to be set aside and to vary the consent orders of Byrne SJA so that Mr Phillips’ original application for a declaration was upheld, with Ms Herne paying his costs. His application came on for hearing before Philippides J on 24 July 2013. Mr Phillips, who was self- represented, asked for an adjournment to enable him to respond to the written outline of argument handed to him shortly before the hearing by Ms Herne’s barrister. The judge adjourned for 20 minutes to allow Mr Phillips further time to read counsel’s submissions. Mr Phillips then told the judge that he had damaged vocal cords which made it difficult for him to speak. He asked her Honour to allow a “McKenzie friend” to speak on his behalf. The judge asked whether he had any difficulty in responding to the barrister’s submissions. Mr Phillips told the judge that when he spoke aloud he was unable to use his mind properly and he could not think and speak at the same time; this was a “very great difficulty”. Her Honour then granted Mr Phillips’ application for an adjournment until Friday, 26 July 2013, explaining that he would need to prepare and argue the case then.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

By way of explaining the lengthy delay in seeking to progress his appeal rights, he states that only in July 2014 did he learn that he suffered from atherosclerosis with resulting mild cognitive impairment. He then investigated how to proceed with an appeal but it took him some time to understand the details of this process. He was hospitalised twice during this period. He progressed his appeal rights as quickly as he could in the circumstances.Conclusion There are several problems with Mr Phillips’ first contention that Philippides J acted without due regard for the rules of natural justice and procedural fairness in not allowing him a “McKenzie friend” on 26 July 2013. The first is that he applied for a “McKenzie friend” at the hearing on 24 July 2013, and did not renew that application on 26 July 2013. On 24 July the judge gave him every opportunity to address the court and treated him with courtesy and respect. She allowed him a 20 minute adjournment to read the outline of argument prepared by Ms Herne’s barrister. She explained to him the difficulties in his case but when he continued to press for an adjournment, she generously acceded to that request and adjourned the matter for two days. This could not possibly have amounted to a breach of natural justice and procedural fairness. As I have noted, when the hearing resumed on 26 July Mr Phillips did not renew his application for a “McKenzie friend”. Further, Mr Phillips did not appear to apprehend that a “McKenzie friend” could not speak on his behalf but could merely assist him at the bar table.[3] Another difficulty was that it seemed Mr Phillips wanted his proposed “McKenzie friend”, Mr Lake, to be a witness in his case so that it would have been most inappropriate for him to act as a “McKenzie friend”. [4] The primary judge on 24 July exercised her discretion to refuse the application for a “McKenzie friend” in an entirely orthodox way. She made no orders about a “McKenzie friend” on 26 July when Mr Phillips provided his written submissions and put his case as clearly and as well as it could be put. There was no breach of natural justice or procedural fairness on either 24 or 26 July 2013.[3]McKenzie v McKenzie [1971] P33, 38, 41, 42.[4]Coronis v Jilt Pty Ltd & Anor [2012] QCA 66, [49]. Nor are Mr Phillips’ allegations of fraud against Ms Herne and impropriety on the part of her present lawyers made out. He may genuinely believe that she told the Social Security Appeals Tribunal that they had never been in a de facto relationship; that this was inconsistent with her earlier statements to Centrelink; that she brought an application in the Supreme Court falsely alleging they were in a de facto relationship; and as that claim was ultimately settled by deed and consent orders so that she received a significant property settlement, she has acted wrongly. But there are at least five reasons why that reasoning is misconceived. First, the material he has placed before this Court as to what Ms Herne may or may not have said to Centrelink and the Social Security Appeals Tribunal is not in an admissible form and does not demonstrate that the deed or the consent orders made by Byrne SJA were tainted by fraud. Second, there is no evidence that Ms Herne’s present lawyers, who were not those advising her in the Social Security Appeals Tribunal, were doing anything other than acting on her instructions in bringing and pursuing her original application in the Supreme Court and in its subsequent settlement by way of deed and consent orders. Mr Phillips’ allegations that Ms Herne’s barrister and lawyer failed in their duty to the court is baseless. Third, it is clear from Mr Phillips’ own case that he entered into the deed of settlement and agreed to the consent orders after receiving and accepting prudent, pragmatic legal advice. He is bound by them. Fourth, the deed of settlement is neither a separation agreement under s 265 nor a recognised agreement under s 266, Part 19 Property Law Act which deals with property in de facto relationships; the deed specifically eschews on Mr Phillips’ part that they ever had a de facto relationship, and the agreement makes no mention of Part 19. There are no grounds for setting aside the deed under Part 19 Property Law Act. Fifth, it is only in rare circumstances that consent orders are set aside at the request of one party, for example, if it was demonstrated that the order was obtained by fraud: see UCPR r 667. But as I have explained, Mr Phillips’ allegation of fraud is misconceived and unproven. He signed the deed and agreed to the consent orders after receiving and accepting sound legal advice and he is bound by them.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Phillips v Herne [2015] QCA 236
PARTIES:	ROBIN PATRICK HENRY PHILLIPS (applicant) v KANJANA HERNE (ALSO KNOWN AS THIYAVUTIGAN) (respondent)
FILE NO/S:	Appeal No 1163 of 2015 SC No 5538 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time/General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – Unreported, 26 July 2013
DELIVERED ON:	20 November 2015
DELIVERED AT:	Brisbane
HEARING DATE:	5 August 2015
JUDGES:	Margaret McMurdo P and Gotterson JA and Ann Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for an extension of time is refused with indemnity costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the applicant and the respondent were in dispute over a property they owned as tenants in common – where the respondent commenced proceedings in the Supreme Court seeking an order in respect of the property alleging they were in a de facto relationship – where the applicant denied any de facto relationship and applied to the court for a declaration under s 320 Property Law Act that no de facto relationship existed between them – where the parties then entered into a deed of settlement and applied to the court for consent orders that both parties’ applications be dismissed and there be no order as to costs – where the applicant later applied to the Supreme Court for orders under Part 19 Property Law Act for the deed of settlement to be set aside and to vary the consent orders so that his original application for a declaration would be upheld – where at the hearing of his application, he applied to the court for a “McKenzie friend” to speak on his behalf – where the application was adjourned for two days to allow the applicant to consider the respondent’s written submissions – where at the second hearing, the applicant did not renew his application for a “McKenzie friend” – where the applicant contended that the respondent had committed a fraud on the Supreme Court by alleging before the Social Security Appeals Tribunal that she was not in a de facto relationship with the applicant, while claiming in the Supreme Court proceeding that she was in a de facto relationship – where the primary judge found that the Supreme Court never made a finding that a de facto relationship existed – where the deed of settlement did not state that it was entered into on the basis of a de facto relationship – where the primary judge found the applicant’s submissions were so tenuous as to amount to an abuse of process and dismissed his application with indemnity costs – where the applicant applied to this Court 17 months out of time – where the applicant contends that the reason for his delay is that only in…