Post & Jeffries
[2021] FCCA 1398
•23 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Post & Jeffries [2021] FCCA 1398
File number(s): BRC 9216 of 2020 Judgment of: JUDGE COATES Date of judgment: 23 June 2021 Catchwords: FAMILY LAW – property – application out of time – application for summary dismissal – leave granted to proceed out of time – application for summary dismissal dismissed Legislation: Family Law Act1975 (Cth), ss 44, 75
Federal Circuit Court Rules2001, r 13.10
Cases cited: Legione v Hateley (1983) 152 CLR 406
Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSCA 158
Mahoney & Dieter [2020] FamCAFC 88
Slocomb & Hedgewood [2015] FamCAFC 219
Spencer v Commonwealth of Australia [2010] HCA 28
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 38
Number of paragraphs: 115 Date of last submission/s: 17 March 2021 Date of hearing: 17 March 2021 Place: Brisbane Counsel for the Applicant: Ms K. Carmody Solicitor for the Applicant: Waller Family Lawyers Counsel for the Respondent: Mr T. Matthews QC Solicitor for the Respondent: Berck Solicitors ORDERS
BRC 9216 of 2020 BETWEEN: MS POST
Applicant
AND: MR JEFFRIES
Respondent
ORDER MADE BY:
JUDGE COATES
DATE OF ORDER:
23 JUNE 2021
THE COURT ORDERS:
1.That the Response to an Application in a Case filed 9 September 2020 be dismissed.
2.That pursuant to s.44(6) of the Family Law Act 1975, the wife be granted leave to proceed out of time.
3.That in the alternative pursuant to s.44(3) of the Family Law Act 1975, the parties consent to the institution of proceedings out of time.
4.That the husband file and serve a Response, Financial Statement and any supporting affidavit material that he intends to rely upon by no later than 4.00pm on 21 July 2021.
5.That the parties attend a conciliation conference in relation to the matters to which the proceedings relate in the presence of a Registrar of this Court and make a bona fide endeavour to reach agreement on relevant matters in issue between them, such conference to be held at 9.00am on 5 October 2021 at the Federal Circuit Court of Australia, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane.
6.That the Applicant pay the conciliation conference fee, or seek a waiver of or exemption from such fee, 28 days prior to the conciliation conference.
7.That both parties produce to the other 14 days prior to the conciliation conference, documents as prescribed in Annexure A to this Order.
8.That in the event the parties have not or are not able to comply with their disclosure obligations prior to the Conciliation Conference on 5 October 2021, the parties and/or their legal representatives are to advise each other and the Court so that the conciliation conference date may be vacated.
9.That this matter be adjourned for Mention at 9.30am on 11 October 2021 in the Federal Circuit Court of Australia at Brisbane.
IT IS NOTED:
A.That in the event the parties are not ready to proceed to the Conciliation Conference they are to notify Chambers so that the date can be vacated.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Post & Jeffries is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE COATES:
The wife applies for leave to commence property proceedings out of time.
Section 44 of the Family Law Act1975 (“the Act”) requires such litigation to begin within 12-months of the date of divorce.
The parties agree that 19 February 2020 was the last day for commencing proceedings within time.
The wife commenced proceedings on 16 July 2020. She subsequently filed an Application in a Case on 17 July 2020 seeking leave to proceed out of time – so she is about five months over the time limit for filing the substantive property application.
On an unopposed application, the husband was granted leave to not file his Response material to the substantive property application until the leave to proceed case was determined, although he did file a Response to that Application in a Case. While not filing may save him costs, that he sought and was granted leave not to file in answer to the substantive application did not relieve him of having to meet any case contended by the wife when seeking leave to proceed. His decision was also a tactical decision.
His Response to the wife’s leave out of time application relies on an affidavit from his solicitor, without committing himself to sworn evidence. He is free to do that.
He seeks summary dismissal of the wife’s Application in a Case, and if he is successful, such would cause a dismissal of her Initiating Application.
THE APPLICABLE LAW
As to leave out of time, s.44(4)(a) of the Act states that leave shall not be granted unless the court is satisfied “that hardship would be caused to a party … if leave were not granted”.
As to summary dismissal, r.13.10 of the Federal Circuit Court Rules2001 applies, which allows for a matter to be dismissed on stated grounds. The Respondent identified the ground relied upon being that the Applicant had “no reasonable prospect of successfully prosecuting the proceeding or claim”.
There was some dispute as to which matter the court had to determine first.
There can be absolutely no doubt that the court needs to proceed in a logical manner, the sequence being that the husband’s application for summary dismissal be determined first.
The summary dismissal case is based on no reasonable prospects. The ‘defence’ against summary dismissal in this case is the ventilation of the factors being relied upon to grant leave out of time and refers to circumstances going to hardship. Such does not displace the test of hardship as the ground for granting leave out of time.
RELATIONSHIP BACKGROUND
The wife is aged 70 years and the husband is aged 74 years.
They were married for 43 years, separation occurring in 2013 and the divorce order being made final on 19 February 2019.
Both parties came from Country A, where they had married in 1976.
They lived in Australia for a year around 1982, returned to Country A and then immigrated in late 1987.
There are two children of the marriage who were obviously young when the parties came to Australia – Mr B born 1981 and Ms C born 1984.
As to contributions – I will describe the evidence in the briefest of terms because it is unopposed – the wife was the primary child carer and homemaker and the husband worked in the public service. Neither role can be diminished in importance in the consideration of contributions. It is obvious that there has been significant contribution by both parties on the evidence, which appears at least to be equal. No further assessment can be made and as to the s.75(2) considerations, the wife states she has some medical issues to confront.
The husband has chosen not to swear to his contributions or, in fact, challenge the wife’s claims, relying on some references made to his alleged post-separation contributions by his solicitor, which I will refer to later.
The parties lived under one roof after separation in 2013 in the marital home in Suburb D, Brisbane. The husband moved out in 2018 and the wife remained until its sale in August 2019. The house was sold and after paying out attached debts, utilities, charges and expenses of sale, the sum of $757,743.41 was placed in trust for the parties (in the trust fund of the husband’s solicitors but nothing turns on that).
There was no dispute that those monies are available to the parties to be divided equally, if there is no other decision, as soon as both parties give the appropriate direction to the solicitor to release those funds.
The wife is not prepared to give such direction, obviously, because she seeks more than half of that money as part of her substantive application for an alteration of property interests.
The wife seeks 55 percent of the pool. That would be achieved by taking an amount of the proceeds held in trust from the sale of the house, keep what other property she has in her possession and a cash payment from the husband’s superannuation if there is insufficient in the trust account. The husband seeks to keep what he has and that the wife keep what she has, dividing the trust funds equally.
COURSE OF HEARING
I had ordered the filing of written submissions. I received submissions on the ‘hardship’ case but none on the ‘no reasonable prospect’ case.
Both counsel orally referred to authorities as to the meanings to be attributed to a no prospect case and a hardship case.
AUTHORITY DECISIONS ON THE LAW
I will not refer to all the authorities mentioned as there was no challenge as to the meanings attributed in the decisions.
I was referred to Mahoney & Dieter [2020] FamCAFC 88 as to the meaning of having no reasonable prospect of success.
From paragraph 44 of that decision, the Full Court of the Family Court of Australia stated that the test is different from rules which allowed for summary dismissal on a ‘doomed to fail’ test (the two tests sometimes being loosely mixed).
Referring to and following the High Court decision in Spencer v Commonwealth of Australia [2010] HCA 28, the court repeated that there need not be demonstrated a “hopeless” or “bound to fail” case and that the words should be applied by reference to the language of the rules.
In Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSCA 158 the Supreme Court of Victoria summarised the position at paragraph 35 of its decision, stating:
35. Upon the present state of authority:
a)the test for summary judgment … is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
b)the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
c)it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.
As to hardship, again numerous cases were referred to, the consideration arising from them being that limitation periods allow people a defined period in which proceedings can be brought and after that people can get on with their lives. First and foremost hardship has to be established with individual considerations being taken into account, after which the court exercises a discretion. Generally the cases state: that it is a discretion to grant leave, not to refuse leave; that if hardship is not alleviated then the discretion should not be exercised; a prima facie case for the substantive relief sought should be identified; an analysis of the probable outcome should be undertaken; whether a denial of opportunity amounts to hardship; whether there is an explanation for the delay and prejudice to the Respondent are among the considerations which may arise.
So while hardship is the test to be applied in the Applicant’s case before leave can be granted to proceed out of time, inevitably other factors not stated in the legislation sometimes arise so that the application has a contextual basis upon which to determine hardship.
It is here of course that the cases come together, as the Respondent must look to and examine the case being put forward by the Applicant to argue she has no reasonable prospects of success, and cannot simply ignore the Applicant’s case.
THE CASES
I am keeping in mind that the cases are separate, but that there are many components of each case which need to be considered in both cases.
As the husband’s case is based on the wife having no reasonable prospect of success the components of his case include post-separation contributions, trial costs, there would be no alleviation of hardship and the wife being the architect of her own position because of her delay in filing material.
A major component of the husband’s case is that the wife has benefitted from his post-separation contributions.
As to post-separation contributions, he relies on the affidavit filed by his solicitor Ms Kathleen Berck.
His position can be seen at paragraphs 21 and 22, where Ms Berck states:
21.Based on documents I have viewed and which I can produce to the Court if required, I verily believe that Mr Jeffries made a total of at least $350,705.48 in post-separation contributions from the parties’ separation in January 2013 to the sale of E Street, Suburb D Queensland in August 2019, being:
a.mortgage payments, outgoings, and costs of preparation for sale of E Street, Suburb D Queensland, totalling approximately $285,667.00;
b.$65,038.00 in total credit card payments for Ms Post’s credit card; and
c.All spending by Ms Post on the parties’ joint EFTPOS card, which was being utilised by both parties during that period so the amount spent by Ms Post is unable to be properly calculated.
22.Based on documents I have viewed and which I can produce to the Court if required, I verily believe that Mr Jeffries had a Superannuation entitlement totalling: $375,716.24 as at 8 September 2020.
What stands out is that:
(a)The claims the husband wants the court to accept as the truth are statements and views of someone else, about his expenditure on mortgage payments and outgoings and the wife’s credit card. It is not the sworn evidence of the husband. That is not a criticism of Ms Berck, but is a criticism of the husband who should have been prepared to reduce his evidence to sworn testimony, and
(b)There is no way of knowing how to consider the wife’s alleged expenditure on a joint EFTPOS card, which Ms Berck states she cannot properly calculate. Obviously the husband has not given particularised instructions as to the make-up of that expenditure.
On an assessment of the claims that he paid at least $350,705.48, counsel for the wife has given a calculated figure – unchallenged – on what should be left, and stated: (see transcript p19 line 4):
Then there’s a suggestion … the husband, according to the asset pool, has disclosed no other source of income other than a pension – doesn’t say there’s any other assets – which should leave the superannuation fund with 204,530.
Instead, we’re told in the husband’s submissions that the super fund consists of $365,716 as of today’s date. It beggars belief that that amount of money has been spent. There are only two possibilities: (1) the husband has another source of income or assets which he hasn’t disclosed; or (2) those untested assertions … need to be examined at trial. So the suggestion that, in reality, the superannuation fund has been significantly depleted by the contributions or payments made by the husband can’t be supported on the figures.
The alleged expenditure lacks details and particulars in my view, yet the court is being asked to consider great post-separation contributions by the husband which is not possible on the evidence he relies upon. I do wonder as to why all evidence of this claimed expenditure was not disclosed to the wife’s solicitor so he could advise her.
The affidavit, as can be seen, reveals the husband’s superannuation records showing a value of $375,716.24 as at 8 September 2020, and it is this figure which is in question in the wife’s case [I note there is a $10,000 difference between the figure quoted by counsel for the wife in paragraph 40 above and his figure, but any mathematical calculation at his stage of the proceeding could not be precise].
As to trial costs, the husband relies on the affidavit filed by his solicitor Ms Berck.
She estimates litigation costs as follows:
24.I would estimate the costs of a pre-trial mediation, being a mediator and a venue providers fee, would total $5,500, which would be borne equally by the parties.
25.Not including the costs of the Application for leave to apply out of time, for all preparation and attending on this matter up to and including a 2 day final hearing and a pre-trial mediation, I would estimate costs to each party of at least $50,000 in solicitors’ fees, being:
a. Drafting material: $12,500
b. Consultation with Counsel and preparation of Brief: $2,500
c. Preparation for and attendance at pre-trial Mediation: $10,000
d. Preparation for and attendance at directions hearing: $5,000
e. Preparation for and attendance for Final Hearing: $20,000
26.Based on my counsel’s fee disclosures, not including the costs of the Application for leave to apply out of time, I would estimate costs to my client of at least $44,500 in Counsel’s fees, being:
a. Settling material: $2,500
b. Consultation with instructing solicitors: $2,500
c. Preparation for and attendance at pre-trial Mediation: $9,000
d. Preparation for and attendance at directions hearing: $4,500
e. Preparation for and attendance at Final Hearing: $27,000
27.Not including the costs of the Application for leave to apply out of time, I estimate that the cost to Ms Post in Counsel’s fees, assuming Waller Family Lawyers brief a senior Junior Counsel to be at least $31,000 as follows:
a. Settling material: $1,000
b. Consultation with instructing solicitors: $2,500
c. Preparation for and attendance at pre-trial Mediation: $10,000
d. Preparation for and attendance at directions hearing $2,500
e. Preparation for and attendance at Final Hearing: $15,000
In response, counsel for the wife stated the valuations are known, there are no expert witnesses and the only real issue which would take time would be examining the mortgage and other payments which have been referred to in the husband’s case, so the costs would be much lower than the estimate given.
That sounds like a fair assessment on what has been put before the court. It is at best only an estimate which can be made.
On this issue, I would estimate the trial to be a maximum of one day. I cannot further assess costs claimed, or a litigant’s preparedness to pay such costs.
As to no alleviation of hardship the husband’s case stated that the best case the wife can achieve is 55 percent of the pool based on the case she intends to run, which would achieve $634,564.51, with litigation costs to take into account as stated above (the $634,564.51 was calculated on the figures available).
He calculated the costs being at least $92,000 (figure taken from Ms Berck’s material and rounded up), which would leave her with $543,000 (figure rounded up).
The figures with regard to costs are estimates – and do not take into account any costs order which could be sought and made.
The husband’s point of raising the costs issue is that the wife would not gain a great deal, and thus there is no real alleviation of hardship, if there is a finding of hardship, and thus there is little prospect of success.
The wife gave evidence, unchallenged, of her financial position.
From her sworn material it can be seen she has an average weekly income of $537 and total expenditure weekly of $551. Her income is from Social Security payments of about $400 and a pension from Country A of about $137. She has outgoings for rent at $460 and usual costs of utilities, health insurance and essentials. She has two bank accounts with $1,326 and $1,194 respectively. She has a 2008 vehicle valued at $3,000. The wife had inherited a block of land in Country A and it was valued at $18,045. She stated it had been gifted to the parties’ daughter. I have considered this aspect of her case as to assets because it could always be claimed that she could have sold the land to help alleviate hardship. In my view I should exclude it from the pool, on the basis that the husband clearly had an opportunity to file material and did not, and so he may not later allowed to challenge the gifting of the land. I have also considered this gifting from the point of view of the family unit, and while generally a person should not be allowed to claim hardship while giving away assets, it is the very nature of the gift, kept within the family, that sets the gift apart. Viewed from that angle, it may well be the case that the husband does not challenge the gifting of the land to the parties’ daughter.
The wife also states the husband has not paid her any money from his superannuation (F Superannuation), which is in the payment phase.
In a very real sense, the less a person has, any gain may improve their position greatly, and from the wife’s point of view, this is part of the hardship she is referring to. In her case, that would relieve hardship to the extent that she would have extra money. In my view there is no other way of describing her case and the identification of hardship is not necessarily a precise mathematical calculation when generally, people accept it is better to have an extra dollar than not have it.
Without any further order, both parties also have available to them half of the $757,743.41 held in trust, proceeds of sale of the marital home. The husband’s case is that the wife will have this money, and could have it now, and has refused to refer to it in her material as to how that would not relieve any hardship position she states she is in.
If the wife received this money now it would most certainly be available to her, and remove any immediate cause of hardship. It may always be a point of discussion as to whether hardship is relieved for the immediate time or into the future, and I am conscious of the wife stating that she may need some health care into the future. That has just gone as another unchallenged statement.
I need here to compare what she has with what the husband has.
While the wife has stated what she believes he has, the husband’s counsel put the position in terms of assets each would take, if leave was not granted. He stated the position at paragraph 53 of his written submissions:
53.If this Court were to not grant the Wife leave to apply out of time, (and thus all current assets remain with the party who has current possession with the exception of the E Street Trust Monies which would be split equally as discussed above) the effective percentage distribution of net assets based on the Wife’s calculated property pool would be 35.20% to the Wife ($406,165.71) and 64.80% to the Husband ($747,587.95).
It is not the unfairness of that after a long marriage which is in issue, because unfairness is not the test, it is the position of the alteration of property interests which she may be denied in circumstances she states will cause and is causing hardship.
The husband also based his case on the wife’s delay in filing and it was caused by her and her alone.
This is also a major component of the husband’s case, with the wife having no reasonable prospect because she should not be afforded an otherwise discretionary decision in her favour, because of her delay.
The husband presses the court to put a great deal of weight on the wife’s delay, because she was told on four occasions by her solicitor, three times in writing, that she had time limits in which to file an application.
Letters from the solicitor to the wife were made an exhibit (it was stated that the wife had waived legal professional privilege and so the letters were tendered, however the point was not argued as there was no objection).
Three letters, dated 27 November 2018, 16 January 2019 and 19 February 2019 (exhibit one) each tell the wife that she has one year to finalise the property matter or make an application to the court, otherwise she would have to make an application out of time. The letters dated 16 January 2019 and 19 February 2019 state that she would need to begin court proceedings by 17 February 2020, or seek permission from the court to proceed. The warnings are clear and unequivocal. That the letters state she needs to begin proceedings by 17 February 2020 and 19 February 2020 is of no consequence as to the minor difference in dates (19 February being the last day for filing within time).
In a sense his case is one of identifying, possibly, what could be described as the wife’s negligence in not listening to her legal advice.
The wife’s affidavit filed 10 March 2021 also refers to her solicitor telling her she had 12-months in which to file proceedings.
At its highest, the husband’s case is that the wife had clear warning, did nothing and as such, put herself into the position where she knew she had to file and did not do so. In his case, the submission amounts to a fact that she blatantly ignored her own legal advice. His case is one of identifying the wife’s negligence in not listening to her legal advice.
Without more, that is a powerful argument and goes a long way to the position that she has a ‘no reasonable prospect’ case because of her own omission in not filing.
The wife addressed her delay – which was to the effect that the husband had always told her that they should settle their matters out of court because the costs would be so great.
But the position of the wife that she relied on the husband telling her that they should not go to court because that was an expensive exercise, if taken alone, would not seem to be much of an excuse, as she had notice of the legal position.
But there is more to the wife’s position.
Her position is that the parties were in negotiation – her evidence being that on 4 July 2019 the husband made an offer to her, which she did not accept, but she made a counter offer on 11 September 2019. That offer was not accepted. These offers were in writing and conducted through the solicitors.
But what I find to be negotiations continued and the parties were still exchanging correspondence on a dispute over the value of the inherited block of land in Country A, as late as 23 June 2020, which was well after the last date to file (being 19 February 2020).
Despite this ongoing correspondence between the parties on the issue, the husband directed his solicitor to inform the wife on 26 June 2020 that she was out of time and that he would not consent to an extension of time. That date is only three days after the letter of 23 June 2020, a letter continuing negotiations, as to the value of the land.
So the position is:
(a)At all material times the wife had been given notice by her solicitor that she needed to file an application;
(b)During negotiations, no warning or reminder was given by the husband that he would insist on the wife filing on or before the last date for filing in time, being 19 February 2020;
(c)Correspondence evidencing negotiations between the parties, through their solicitors, passed after the expiry date for filing being 19 February 2020;
(d)Two days later on 21 February 2020 the husband’s solicitors wrote to the wife’s solicitors with regard to the value of the land in Country A;
(e)Further correspondence was received from the husband’s solicitors on 18 March 2020 and 18 May 2020 in relation to the land; and
(f)On 26 June 2020, the husband’s solicitors wrote on the husband’s instructions that the wife was out of time and the husband would “… not consent nor in any way concede, agree, or grant an extension of time for such proceedings to be brought …”.
It is that history being relied on by the wife as a circumstance to be taken in to account about hardship.
Submissions for the wife turned to cases where consideration of the interests of justice had arisen.
The argument seemed to be that in the interests of justice even a long delay can be overcome.
The oral position was also supported in the written submissions, particularly at paragraph 26, referring to Slocomb & Hedgewood [2015] FamCAFC 219 where the decision of the primary judge in not allowing an application out of time after 18 years delay was overturned, counsel stating in written submissions:
26.… The Full Court overturned that decision on the basis of the interests in justice and held, relevantly at paras 41 and 42:
It is essential for the proper operation of a system of justice for time limitations to be imposed. In an application such as this the central consideration is that justice must be done between the parties (see Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479).
In appropriate cases the interests of justice might overcome long delay and on occasions an inadequate explanation for the delay, which is only one factor to be considered in determining an application for leave pursuant to s 44(3) of the Act. (The writer’s underlining).
As I understood the submission, what was being put was that if the interests of justice required leave to be granted, then leave should be granted.
If that is the position being agitated then it is incorrect if hardship is not identified in the wife’s case, because hardship is the only reason leave can be granted.
All other factors put the alleged hardship into context, where hardship is not necessarily apparent on the face of the material.
So the interests of justice factor must be connected to the issue of whether there is hardship, because alone the concept of the interests of justice cannot be the basis of granting leave out of time.
As to her delay, the husband’s case is that the wife was very clearly put on notice, in writing, that she had to file by a certain date, and so it becomes a matter of her making a choice despite being warned by her own solicitor.
So the evidence before the court is that the wife was told and understood she had to file, as opposed to her position, not challenged, that she acted on both the husband’s former words that they should not go to court as court proceedings were expensive, and because of the continued negotiations.
So is she in hardship?
On the husband’s own figures the wife would take, after a long relationship where she gives evidence of contributions and he does not, only 35.20 percent of the pool, valued at $406,165 compared with what he will keep, 64.80 percent valued at $747,587.95.
On those figures, the wife would have an arguable case to receive more because of the contributions, keeping in mind that the husband has not challenged her contributions. Having prospects is part of the consideration.
As well, any extra monies in a small pool must go to relieve some hardship, even if the evidence does not quantify just how it would do so. Extra money is extra money, and it may go to better accommodation, better comforts or assist with medical needs.
And it is here that the issue of justice may be considered. The wife has been placed in a position of prejudice compared with that of the husband, because the evidence I accept is that he continued to negotiate knowing she was out of time, and used the expiration of time against her interests in order to benefit his interests.
That has caused her hardship, by denying her the opportunity of litigation and her access to a larger part of the pool based on contributions alone, even if there is a s.75(2) of the Act factor which would need to be taken into account.
The husband gives no evidence of prejudice to him.
On that basis, the wife would suffer hardship, and the discretion ought be exercised in her favour, especially since the husband continued with negotiations and then without warning ceased them, knowing the wife was out of time.
IMPLIED AGREEMENT TO ALLOW OUT OF TIME
If that is an incorrect finding, then there is another matter upon which the wife ought be allowed to continue proceedings.
It is clear that even after the expiry date to file was reached, negotiations continued as I have stated above.
The negotiations continued because of a dispute over the value of the land in Country A, with the husband claiming a much greater value than the valuer gave it.
I have accepted that the negotiations continued consistent with the claim that the husband always stated that he wanted to settle out of court.
During the submissions on this aspect of the matter I stated:
I’ve been thinking about this aspect, where he did continue what may well be held to be a negotiation, and if the test was the just and equitable test, he’s in the position where the court could find that he has acted in a manner which certainly was not just and equitable because he continued to negotiate.
I will point out that I was aware that the test was hardship and not what was just and equitable.
At that point, counsel for the wife stated: “Well, its promissory estopple …. he’s really estopped from saying that “I had forgone my right””.
Unfortunately, the submission stopped there.
It is then that I again considered the wording of the section.
Hardship is not the only way a matter may proceed out of time.
Under s.44(3) of the Act, parties can consent to a matter proceeding out of time which then does not contemplate a hardship being shown. The section states:
(3)Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983:
(a) a divorce order has taken effect; or
(b) a decree of nullity of marriage has been made;
proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage, after the expiration of 12 months after:
(c)in a case referred to in paragraph (a)--the date on which the divorce order took effect; or
(d)in a case referred to in paragraph (b)--the date of the making of the decree.
The court may grant such leave at any time, even if the proceedings have already been instituted.
While seemingly complex because of the need to refer to the various sub-sections stated, clearly, the section relates to property matters proceeding out of time, but by consent, even when there is not an issue of hardship.
The section allows the parties to bring a matter before the court for any reason, and consent to it proceeding out of time, where no issue of hardship arises. The court makes such orders from time to time by consent.
I return now to counsel’s statement that the acts of the husband amount to promissory estoppel.
I will start with a description of estoppel.
Putting aside the description of promissory, the basic essence of an estopple was described in Legione v Hateley (1983) 152 CLR 406 by Brennan J, in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 in the following terms:
In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant’s property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff’s reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs.
The various descriptions of estoppel such as promissory, equitable, by conduct, in pais or by record merely particularise the circumstances in which an estoppel may arise.
Taking those elements as laid out by Brennan J, the wife here:
(a)Assumed, because she knew of the time limitation, that the legal relationship between she and the husband required an alteration of property interests order;
(b)Because of continued negotiations, the husband was not free to withdraw so as to retrospectively trigger the limitation date (at least) without notice he may do so;
(c)Because he continued to negotiate over the value of the land in Country A, he induced the wife to assume or expect that there would be a settlement by consent of their property;
(d)The wife acted and abstained from bringing proceedings within the time limitation in reliance on her assumption and expectation;
(e)The husband knew or intended that the wife act on her assumption due to his representation that they needed to avoid court because of costs;
(f)The wife’s inaction in not filing within the limitation period will cause her detriment, and
(g)The husband failed to act to avoid the detriment to the wife whether by fulfilling the assumption or expectation or otherwise.
There was no challenge to the brief submission of counsel for the wife, yet as brief as the submission was, and although it took the matter no further than the statement that there was a promissory estoppel, the position was stated and s.44(3) of the Act exists.
I find:
(a)The correspondence relating to the obtaining of a valuation on the land in Country A, both before and after the expiry of the date for filing, confirmed by inference the stated position of the wife as to why she did not file despite knowing that she had to file, because of the husband’s representations that the parties ought to stay out of court because of the costs;
(b)That such amounted to an implied agreement pursuant to s.44(3) of the Act to allow filing out of time;
(c)Resulting in the husband being estopped from asserting otherwise, and
(d)It would not be just or equitable to prevent the wife from filing her Initiating Application.
On the basis of such implied agreement the wife be granted leave to file proceed out of time.
I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coates. Associate:
Dated: 23 June 2021
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