Quant & Bonde - [2018] FamCAFC 150

FAMILY COURT OF AUSTRALIA

QUANT & BONDE

[2018] FamCAFC 150

FAMILY LAW – APPEAL – REASONS FOR JUDGMENT – where the trial judge delivered brief ex tempore reasons for judgment and later published “Addendum” reasons – where the “Addendum” reasons substantially added to the content and effect of the reasons delivered extemporaneously – where only the parties can relieve a judicial officer from the obligation to provide adequate reasons – where the obligation is not discharged by purporting to provide adequate reasons upon specific request of either party – where the trial judge erred in purporting to deliver “Addendum” reasons at a subsequent time to the ex tempore reasons delivered – where the trial judge erred in purporting to deliver reasons other than in open court – where the respondent acknowledged errors of law made by the trial judge during the hearing of the appeal and withdrew her opposition to the appeal – appeal allowed.

FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – where the appellant was not afforded any opportunity to cross-examine the respondent or make final submissions prior to the dismissal of his application with indemnity costs – where a party to litigation has a prima facie entitlement to have an opportunity to be heard before an order affecting some right, interest, entitlement or privilege of the party is made – where the trial judge fundamentally failed to provide the appellant with procedural fairness.

Family Law Act 1975 (Cth) ss 4AA, 90SM
Federal Proceedings (Costs) Act 1981 (Cth)

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
De Winter and De Winter (1979) FLC 90-605
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kyriakos & Kyriakos (2013) FLC 93-528; [2013] FamCAFC 22
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Richmond v BMW Australia Finance Limited (No 2) (2009) 174 FCR 232; [2009] FCAFC 25
Sargent & Selwyn (2017) FLC 93-812; [2017] FamCAFC 228
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38
Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64; [2008] FCAFC 7

APPELLANT:

Mr Quant

RESPONDENT:

Ms Bonde

FILE NUMBER:

BRC

4907

2016

APPEAL NUMBER:

NOA

2017

DATE DELIVERED:

10 August 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy, Aldridge & Kent JJ

HEARING DATE:

31 July 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

22 August 2017

LOWER COURT MNC:

[2017] FCCA 2520

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Waterman

SOLICITOR FOR THE RESPONDENT:

Jones Leach Lawyers

Orders made 31 July 2018

The Application in an Appeal filed by the appellant on 16 July 2018 be dismissed.
Leave be given for the respondent to rely upon her Summary of Argument filed 30 April 2018.
The appeal be allowed.
The orders made by Judge Vasta on 22 August 2017 be set aside.
The proceedings be remitted for rehearing by a judge of the Federal Circuit Court of Australia other than Judge Vasta.
The Reasons for Judgment of the Full Court be reserved to a date to be fixed.
Pursuant to s 117(1) of the Family Law Act 1975 (Cth) there be no order as to costs.
The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
The Court grants to the appellant and respondent costs certificates pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney General to authorise a payment under that Act to the appellant and respondent in respect of the costs incurred by each of them in relation to the rehearing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Quant & Bonde has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 47 of 2017
File Number: BRC 4907 of 2016

Mr Quant

Appellant

And

Ms Bonde

Respondent

REASONS FOR JUDGMENT

On 31 July 2018 this Court allowed an appeal from the orders made by Judge Vasta in the Federal Circuit Court of Australia on 22 August 2017. Those orders were set aside and the proceedings were remitted for rehearing by a judge of the Federal Circuit Court other than Judge Vasta. Costs certificates, pursuant to the relevant provisions of the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal, and for the rehearing, were granted to each party.
These are our reasons for making those orders.
In circumstances where the respondent withdrew her opposition to the appeal soon after the hearing of the appeal commenced, acknowledging that errors of law were made by the trial judge, it is unnecessary that we discuss in detail each and every challenge which was foreshadowed on the appeal. All that is necessary, given the orders we have made including with respect to the grant of costs certificates, is that we explain our satisfaction that this appeal has been allowed by reason of errors of law on the part of the trial judge.[1]
[1] See, Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64 at [43].

Central issue at trial

On 26 May 2016 the appellant filed an Initiating Application in the Federal Circuit Court seeking, inter alia, property settlement orders[2] as between himself and the respondent.
[2] Pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”).
The appellant swore, in support of his application, that a de facto relationship[3] had subsisted between the parties between 1996 and 3 February 2016. It was not in issue that the parties had two children, namely X born in 1999 and Y born in 2002.
[3] Within the meaning of s 4AA of the Act.
The respondent denied the existence of a de facto relationship and sought the dismissal of the application.
On 27 September 2016 the trial judge determined that the issue as to whether there was, or had existed, a de facto relationship between the parties should be determined as a discrete issue.
It was that issue which proceeded to a trial on 22 August 2017. On that date the trial judge found that there was no de facto relationship between the parties, and dismissed the application. The appeal is from that dismissal.

Errors of law on the part of the trial judge

Reasons for Judgment

On 22 August 2017 the trial judge dismissed the Initiating Application and ordered the appellant to pay the respondent’s costs of that application in the sum of $55,734.46. That is the amount of the respondent’s costs on an indemnity basis. The trial judge delivered extemporaneously a single conclusion, by way of reasons, for dismissing the application and making the order for costs referred to. The first four paragraphs of the trial judge’s written reasons, containing the reasons expressed extemporaneously and including the conclusion referred to in the first paragraph, are as follows:
1.I am of the view that there is totally insufficient evidence before me in any way, shape or form to come to any conclusion that there is a de facto relationship that existed between the Applicant and the Respondent.
2.Coming to that conclusion, I have no jurisdiction to hear this matter because my jurisdiction only originates when it has been proven to me that there was a de facto relationship.
3.So, for those reasons, I am dismissing this application and I am dismissing it with costs.
4.If either party wishes me to provide fuller reasons, then I will do so, but it is enough what I have said to justify the decision that I have made.
On 18 September 2017 the appellant filed his Notice of Appeal from the orders made by the trial judge on 22 August 2017.
It seems that it was on 18 October 2017, given that is the date appearing at the conclusion of the written reasons ultimately published, that the trial judge delivered what are described as “Addendum” reasons for judgment following upon the first four paragraphs quoted above. The first paragraph within the “Addendum” reasons reads:
5. I have now been asked to provide fuller reasons. I do so now.
We are satisfied that it was an error of law on the part of the trial judge to purport to deliver, on 22 August 2017, some brief ex tempore reasons for judgment and for the trial judge to otherwise purport to reserve to himself some right to “provide fuller reasons” in the event that either party were to request that.
Reference to the “Addendum” reasons, occupying some 44 paragraphs in total, make it readily apparent that the so-called “Addendum” reasons are substantive. That is, they add substantially to the content and effect of the four paragraphs delivered extemporaneously, already quoted above.
The approach taken by the trial judge in this respect is contrary to authority. In this context we acknowledge that in Kyriakos & Kyriakos[4] Finn and Strickland JJ expressed, by way of obiter, some support for the proposition that it might be legitimate for a trial judge to deliver supplementary reasons. At [31] their Honours said:
…However, we do not agree, as presently advised, with the proposition, which was expressed as “arguable” in the Federal Magistrate’s expanded reasons, that he was not entitled to add anything of substance to his

ex-tempore reasons after the appeal was filed (at least in circumstances where he had reserved the right to do so)…
[4] (2013) FLC 93-528.
However, it must be emphasised that their Honours made no reference to any authority in support of that statement, and that it was entirely obiter. In fairness to their Honours it should be noted that the Court did not have the benefit of considered submissions on the point as, ultimately, the ground was not pressed. In contrast, the other member of that Court, Forrest J, in expressing his disagreement with their Honours on the point, cited numerous authoritative pronouncements in support of his Honour’s expressed disagreement with the proposition stated by Finn & Strickland JJ.
Forrest J, having noted authorities for the proposition that the judicial obligation to provide adequate reasons is an obligation owed to the parties, founded in judicial accountability, was clearly correct in observing (at [67]) that only the parties can relieve the judicial officer from the obligation; and the duty to provide adequate reasons is not discharged by the judicial officer purporting to reserve the right to discharge the obligation upon specific request of either party.[5]
[5] His Honour cited Richmond v BMW Australia Finance Limited (No 2) (2009) 174 FCR 232 (“Richmond v BMW”); Bennett and Bennett (1991) FLC 92-191; Pettitt v Dunkley [1971] 1 NSWLR 376; Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.
We interpolate here that it was confirmed on the hearing of the appeal by both parties that the parties did not, at the trial, relieve the trial judge from his obligation to provide adequate reasons for his decision.
Forrest J also discussed relevant authorities concerning the extent to which reasons delivered extemporaneously may be subsequently revised by a judge.[6] Those authorities confirm that reasons delivered ex tempore may be revised provided that the substance of the reasons is not altered.
[6] Citing Bar-Mordecai v Rotman [2000] NSWCA 123; Kirby J Ex Tempore Judgments — Reasons on the Run (1995) 25 UWALRev 213 at 229–30; Bromley v Bromley [1965] P111 at 116 per Danckwertz LJ; Lam v Beesley (1992) 7 WAR 88, Loughnan (Principal Registrar, Family Court of Australia) v Altman (1992) 111 ALR 445 and Wentworth v Rares (Court of Appeal, 19 November 1990, unreported).
We would endorse Forrest J’s conclusions, by reference to the authorities referred to, as expressed at [70] to [72] as follows:
70.However, the right to revise ex-tempore reasons already delivered and the right to pronounce judgment and reserve the giving of the reasons to a later time do not combine to create a right to deliver some reasons at one point in time and to expand upon, or alter the substance of those reasons at a later time, if required by one of the parties or, by choice, after an appeal against the orders has been filed [R v Tupou; ex-part AG (Qld) [2005] QCA 179 and DPP (Cth) v Thomas [2005] VSC 85 at [17]].
71.It cannot, therefore, be legitimate for a judicial officer to deliver some reasons, or partial reasons, and invite the parties or either of them to request further reasons. Such an invitation expressly acknowledges that the reasons already provided are, or may be, inadequate to explain the decision. In the matter under appeal, the learned Federal Magistrate’s own determination not to provide “expanded” reasons once the notice of appeal had been filed must be viewed as an acknowledgment by his Honour that the substance of his reasons already delivered would likely be altered by the further reasons he might otherwise have provided.
72. The process of arriving at a discretionary judgment is a single,

self-contained and indivisible exercise. The provision of reasons, delivered orally or in writing, is merely the articulation of that process for the benefit of the parties and the public administration of justice. An invitation to parties to request further reasons, or a reservation of the right to review and expand upon reasons, after some have already been given simply reveals that the process of arriving at the discretionary judgment has not been adequately disclosed, and the obligation of the judicial officer thus not discharged.
The conclusions referred to are consistent with what was said by the Full Court of this Court in Sargent & Selwyn (2017) FLC 93-812 (“Sargent”) in an analogous context. Sargent primarily concerns another point of principle about the approach taken by the trial judge in the present case.
There is nothing to suggest that the “Addendum” reasons were delivered by the trial judge in open court.
In Sargent, the Full Court (Strickland, Aldridge & Gill JJ) said:
36.In Wainohu v New South Wales (2011) 243 CLR 181 at 213–214 (“Wainohu”) French CJ and Kiefel J said:
54.The centrality, to the judicial function, of a public explanation of reasons for final decisions and important interlocutory rulings has long been recognised. In a passage from the first edition of Broom’s Constitutional Law, published in 1866, the author said:
“A public statement of the reasons for a judgment is due to the suitors and to the community at large – is essential to the establishment of fixed intelligible rules and for the development of law as a science … A judgment once delivered becomes the property of the profession and of the public; it ought not, therefore, to be subsequently moulded in accordance with the vacillating opinions of the judge who first pronounced it.”
That passage was said in the Supreme Court of Victoria to have “general application to all persons exercising judicial functions”. Its universality was qualified in Public Service Board (NSW) v Osmond by Gibbs CJ, who said that there was no “inflexible rule of universal application” that reasons be given for judicial decisions. His Honour, however, accepted that the requirement to give reasons is “an incident of the judicial process”.
(Footnotes omitted)
37.It follows that the usual and appropriate course for delivery of reasons, as with the making of orders other than procedural orders, is that they be published or made in open court after the appropriate notice has been given to the parties. Not only does this create a record of the making of the orders or the delivery of the reasons, it accords the parties the equal opportunity to receive them at the same time.
38.In the Family Court this is made quite plain by r 11.16(3) of the Family Law Rules 2004 (Cth), which provides:
(3)      If a judgment is given in proceedings:
(a)      the judgment must be pronounced in open court; and
(b)if the reasons for judgment are reduced to writing—the written reasons must be published by delivering them        to the Registrar or an associate in open court.
39.There is no equivalent rule in the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”), so r 11.16 may well apply to proceedings in the Federal Circuit Court. This is by virtue of r 1.05(2) of the FCC Rules, which provides that “if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Family Law Rules … as necessary”. Whether it applies or not, r 11.16(3) highlights the point that the publication or delivery of reasons is a public act of making the reasons available to the parties and the world at large.
40.Further, the making of orders or the delivery of reasons is a significant judicial act which ought take place in public. This is also the view of the Court of Appeal in Victoria: Esso Australia Pty Ltd v Robertson [2005] VSCA 138 at [9]; Di Benedetto v Kilton Grange Pty Ltd [2017] VSCA 119 at [97]–[98].
To similar effect, in Richmond v BMW, Rares J said:
[22] As the Chief Justice has pointed out, there was no evidence before us that the Federal Magistrate did not give his reasons in open court, albeit at a later time than when he made the sequestration and other orders. However, I wish to emphasise what Griffith CJ, speaking for the Full Court of the Supreme Court of Queensland, said in Melville v Phillips (1899) 9 QLJ 114 at 116:
But pronouncing judgment upon a trial is a judicial proceeding -- perhaps the most important part of the judicial proceeding -- and I confess that I do not see how a judge can pronounce judgment except in open court, unless under the authority of some statute.
[23] I am of opinion that it is an essential incident of the exercise of judicial power to publish reasons in open court for making orders after a contested hearing. If reasons are reserved after the making of orders it is important that they be delivered as promptly as possible. In a case such as the present, where a sequestration order is made against a person's estate, the importance of prompt publication of reasons, if reserved, cannot be understated. I agree with the Chief Justice's observations that there is no suggestion in this case that the 21-day gap between the making of the orders and the date of authentication of the reasons was inappropriate. But, it is obviously desirable in cases where important orders are made, particularly those affecting a person's status, that a court give reasons as soon as possible if it has reserved giving them: Palmer v Clarke (1989) 19 NSWLR 158…
In summary, we are satisfied that the trial judge made errors of law in purporting to deliver “Addendum” reasons at a subsequent time to the brief ex tempore reasons delivered on 22 August 2017 and, moreover, the trial judge was in error in purporting to deliver reasons other than in open court.

Extraneous matter

At [33] of the “Addendum” reasons the trial judge records the following:
An affidavit of the daughter of the Respondent, [Ms C], confirms that, to her memory, the Applicant did not ever live with her and her brothers and mother. She also confirms the incident on 1 February 2016.
Both parties acknowledged on the hearing of the appeal that the affidavit referred to by the trial judge was not read before his Honour.
In referring to that affidavit the trial judge thus allowed extraneous or irrelevant matters to guide or affect him, as referred to in House v The King (1936) 55 CLR 499.
Obviously, a mistake as to the evidence is an error of law rather than an error of fact as referred to in De Winter and De Winter (1979) FLC 90-605.

Procedural fairness

In the proceedings before the trial judge the appellant was cross-examined by counsel for the respondent.
Following that cross-examination the appellant was not afforded any opportunity to cross-examine the respondent. Moreover, the appellant was not provided with any opportunity to make final submissions prior to the trial judge proceeding to judgment and dismissing his application with indemnity costs.[7]
[7] Transcript, 22 August 2017, p 57 ln 39 to p 59 ln 41.
From our review of the transcript of the proceedings it is unclear whether the trial judge was purporting to adopt the procedure for summary dismissal. If his Honour was purporting to adopt that procedure, then his Honour was obliged to consider the appellant’s evidence and disregard the untested evidence in the respondent’s case, given the trial judge’s failure to afford the appellant the opportunity to test that case or explain the procedure being adopted.
However, it is clear from the “Addendum” reasons that the trial judge had regard not only to the appellant’s evidence (which he obviously discounted) but relied upon the untested evidence filed in the respondent’s case in reaching the conclusions made. For example, apart from [33] referring to an affidavit which was not in fact read before him, there are numerous paragraphs within the “Addendum” reasons referring, with apparent acceptance, to evidence in the respondent’s case which went untested.
It is a fundamental general principle of natural justice that a party to litigation has a prima facie entitlement to have an opportunity to be heard before an order affecting some right, interest, entitlement or privilege of the party is made. The opportunity to be heard usually includes the right to dispute the opponent’s case by cross-examination of the opponent’s witnesses and to make submissions before an order is made.[8]
[8] See Taylor v Taylor (1979) 143 CLR 1; Kioa v West (1985) 159 CLR 550; Stead v State Government Insurance Commission (1986) 161 CLR 141; Allesch v Maunz (2000) 203 CLR 172 and the authorities cited and discussed in those cases.
We are satisfied that the trial judge fundamentally failed to provide the appellant with procedural fairness in the respects referred to.
The appellant was not afforded any meaningful opportunity to make any submissions about the dismissal of his application, or about an order that he pay the respondent’s costs on an indemnity basis, before the trial judge proceeded to make those orders.
Counsel for the respondent properly acknowledged, on the hearing of the appeal, that the trial judge made the errors of law to which we have referred and, as already noted, the respondent withdrew her opposition to the appeal.

Conclusion

For the reasons expressed we are satisfied that the trial judge made the errors of law to which we have referred.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Murphy, Aldridge & Kent JJ) delivered on 10 August 2018.

Associate:

Date: 10 August 2018