Pond and Thurga and Ors (No 2)

[2009] FamCA 1241

FAMILY COURT OF AUSTRALIA

POND & THURGA AND ORS (NO. 2) [2009] FamCA 1241

FAMILY LAW – PROPERTY SETTLEMENT – adjournment of proceedings – principles in Aon applied – lack of adequate explanation for delay – issue of prejudice to party seeking adjournment – application dismissed

The State of Queensland v JL Holdings (1997) 141 ALR 353
Aon Risk Services Australia Limited & Australian National University (2009) 258 ALR 14

Family Law Rules 2004 r.15

APPLICANT: Ms Pond

FIRST RESPONDENT: Mr Thurga

SECOND RESPONDENT: Mr Hedger

THIRD RESPONDENT: B Pty Ltd

FOURTH RESPONDENT: X & T Pty Ltd

FIFTH RESPONDENT: S Pty Ltd

SIXTH RESPONDENT: Ms X Thurga

SEVENTH RESPONDENT: Mr Bradbury

FILE NUMBER: SYF 3665 of 2005

DATE DELIVERED: 2 December 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 2 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:	D A Harris
SOLICITORS FOR THE APPLICANT:	Central Coast Lawyers
COUNSEL FOR THE FIRST RESPONDENT:	J Costigan
SOLICITORS FOR THE FIRST RESPONDENT:	York Family Law
COUNSEL FOR THE SECOND RESPONDENT:	G Craddock SC
SOLICITORS FOR THE SECOND RESPONDENT:
COUNSEL FOR THE THIRD, FOURTH AND SEVENTH RESPONDENTS:	D Sulan
SOLICITORS FOR THE THIRD, FOURTH AND SEVENTH RESPONDENTS:	Clayton Utz
SIXTH RESPONDENT:	In person

Orders

1. That the Application in a Case filed in Court today on behalf of the second respondent is dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYF3665 of 2005

MS POND

Applicant

And

MR THURGA

First Respondent

And

MR HEDGER

Second Respondent

And

B PTY LTD

Third Respondent

And

X & T PTY LTD

Fourth Respondent

And

S PTY LTD

Fifth Respondent

And

MS X THURGA

Sixth Respondent

And

MR BRADBURY

Seventh Respondent

REASONS FOR JUDGMENT

Introduction

1. By an Application in a Case filed in Court today the second respondent seeks an order inter alia that the hearing of the part-heard proceedings due to resume before me on 7 December 2009 and to continue if necessary to 11 December 2009 be vacated.  In addition, orders were sought that pleadings be filed and served and that the second respondent be granted leave to file and serve what is described as “any expert report” and other affidavit material following the pleadings having closed.

2. In relation to the question of a further expert report, I briefly observe that since 2004, the Family Law Rules 2004 have provided for there to be single experts on the provisions set out in those Rules and that a party may seek leave to call a further expert on the grounds set out in r.15.

3. Consequently, the order that is sought in terms of “any expert”, on the face of it, is doomed to failure.

4. However, returning to the principal application and that is that the part-heard proceedings be adjourned, that application is opposed by all other parties with the exception of the second respondent’s wife, Ms X Thurga (the sixth respondent) who supports the application.

5. These proceedings have a long and intensive history.

6. The matter had been closely case managed by another Judge, and at one point, dates for trial had been fixed and vacated.

7. Ultimately, the matter proceeded before me in my docket.

8. The issues were revisited and dates for hearing fixed.

9. The second respondent at one time had been legally represented.  So far as his appearances before me are concerned, he has been unrepresented.  The second respondent continued to be unrepresented following the commencement of the hearing before me on 29 September 2009 which continued until 2 October 2009.

10. During the course of that hearing evidence was given by Mr P, a lawyer from Singapore, who was interposed with the consent of the parties or, at least without opposition.  His evidence was extensive.  Following the conclusion of Mr P’s evidence the applicant was cross-examined.  The applicant’s oral evidence was concluded.

11. On 2 October 2009 the resumption of the hearing was fixed by me to take place for the week commencing next Monday, 7 December 2009.  I ensured that listing arrangements were readjusted to enable this hearing to resume on a part‑heard basis at the earliest convenient date in view of the background to which I have referred.

Conclusion

1. The principles upon which an adjournment should be considered have been stated recently by the High Court in Aon Risk Services Australia Limited & Australian National University.[1]

   [1] (2009) 258 ALR 14.

2. The High Court distinguished the previous leading authority in that Court The State of Queensland v JL Holdings.[2]  In doing so it emphasised a number of matters which fall to be considered in the proper exercise of the trial Judge’s discretion.  In doing so, it became clear that it requires a balancing of relevant factors and prominent in those factors in terms of past authorities, namely whether an adjournment can be adequately compensated for by an order for costs, no longer, as a general proposition, has the prominence that it did have in days gone by.

   [2] (1997) 141 ALR 353.

3. Amongst the matters to be considered include an adequate explanation for delay in seeking, in this case, an adjournment.

4. In support of the second respondent’s application is his affidavit sworn today and filed in Court.  I drew counsel’s attention to what seemed to be a lacuna in that affidavit, namely, a lack of any evidence to explain the delay between the last day of the part-heard hearing, namely 2 October 2009, and seeking counsel’s advice on about 6 November 2009.

5. Whilst I accept the inference that an unrepresented party no doubt had to give consideration to his position including his financial circumstances when contemplating possible legal representation again, nonetheless as the High Court has emphasised, the question of delay needs to be a matter which is properly explained on the hearing of an application such as an adjournment application.

6. I find that the evidence in relation to that matter is not properly explained, given the lack of any explanation for it for the period to which I have referred.  In addition, a further conference was apparently held by the second respondent with counsel on 24 November 2009.  Again, the question arises as to why it has taken until yesterday for some notification to be given or perhaps it was on Monday that an adjournment application would be made, when it should have been perfectly obvious to those advising the second respondent that any application must be made with the utmost urgency, given that the part-heard proceedings are fixed to resume on 7 December 2009.

7. Equally, if not more to the forefront of matters to be considered, is the issue of the prejudice that the second respondent may suffer in the event that his application is unsuccessful.

8. I invited the second respondent’s counsel to refer me to those parts of the affidavit which specify the issues that cannot be met and those that need to be particularised so that any prejudice that the second respondent claims he has incurred will be alleviated.  The affidavit does not do so.  The affidavit contains a number of assertions as to the strength or weakness of certain of the evidence and the inconsistencies that are alleged to be apparent from the orders sought by the husband and the wife.

9. As I pointed out to counsel, should those assertions have substance, and be accepted, then it may well be that the second respondent’s case will enjoy a large measure of success.

10. Consequently, the matters raised did not seem to me to be matters which, in terms of the administration of justice, require an adjournment to be granted.

11. The High Court has emphasised that a relevant consideration is the time of the court being, what is described by the Chief Justice as “a publicly funded resource”.  He stated that:

    “Inefficiencies in the use of that resource arising from the vacation or adjournment of trials are to be taken into account.  So too is the need to maintain public confidence in the judicial system.” (at [5])

12. That matter is further emphasised again in the judgment of the plurality in Aon.

13. I have concluded that for those reasons, the second respondent’s application will be dismissed.

14. That being so, the issue of legal costs does not arise so far as that application is concerned.

15. However, in the event that the application for interim costs is pursued irrespective of the adjournment application, I will invite further brief submissions from counsel for the second respondent.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  10 December 2009