QUARTO & EMMERT
[2018] FamCAFC 19
•7 February 2018
FAMILY COURT OF AUSTRALIA
| QUARTO & EMMERT | [2018] FamCAFC 19 |
| FAMILY LAW – NOTICE OF APPEAL – LEAVE TO APPEAL – Where the applicant challenges the exercise of discretion by the trial judge and the adequacy of the reasons – Where there is merit in three of the five grounds of appeal relied on to establish leave to appeal – Where the decision of the trial judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court – Where substantial injustice would result if leave were refused, supposing the decision to be wrong – Leave granted - Appeal allowed – Matter remitted for rehearing by a judge other than the trial judge. FAMILY LAW – COSTS APPEAL – Where the parties agreed that in the event that the substantive appeal succeeded the costs order should be set aside – Appeal allowed and the costs order set aside. FAMILY LAW – COSTS – Where both parties sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Costs certificates ordered. |
| Family Law Act 1975 (Cth) – s 44 and 79 Federal Proceedings (Costs) Act 1981 (Cth) – ss 6, 8 and 9 |
| Federal Circuit Court Rules 2001 – r 13.12 Carlon and Carlon (1982) FLC 91-272 |
| APPLICANT: | Mr Quarto |
| RESPONDENT: | Ms Emmert |
| FILE NUMBER: | DGC | 1025 | of | 2014 | |
| APPEAL NUMBERS: | SOA | 21 & 22 | of | 2017 |
| DATE DELIVERED: | 7 February 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 14 September 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 February 2017 20 March 2017 |
| LOWER COURT MNC: | [2017] FCCA 301 [2017] FCCA 510 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Dr R Smith |
| SOLICITOR FOR THE APPLICANT: | Peter Lynch |
| COUNSEL FOR THE RESPONDENT: | Mr O’Connor |
| SOLICITOR FOR THE RESPONDENT: | MW Law |
Orders
SOA 21 of 2017
Leave be granted to the applicant to appeal the order made on 24 February 2017.
The appeal be allowed.
The order made on 24 February 2017 be set aside.
The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge O’Sullivan.
The court grants to the applicant a costs certificate pursuant to the provisions of 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 applicant in respect of the costs incurred by him in relation to the application for leave to appeal and the appeal.
The court grants to the respondent a costs certificate pursuant to the provisions of 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 application for leave to appeal and the appeal.
The court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (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 each of the parties in respect of the costs incurred by the applicant and respondent in relation to the re-hearing of the application.
SOA 22 of 2017
By consent the appeal be allowed and order (1) made on 20 March 2017 be set aside.
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 Quarto & Emmert 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).
|
Appeal Numbers: SOA 21 & 22 of 2017
File Number: DGC 1025 of 2014
| Mr Quarto |
Applicant
And
| Ms Emmert |
Respondent
REASONS FOR JUDGMENT
Introduction
There were two appeals before the court. The first appeal, which I will refer to as the substantive appeal, was against an order made by Judge O’Sullivan on 24 February 2017 dismissing the application by Mr Quarto (“the applicant”) for leave to file an application for property settlement out of time. The second appeal was against the order for costs that his Honour made on 20 March 2017 against the applicant consequent upon the order referred to above. I pause to note that there is no appeal against the second order made on that day whereby the injunction granted on 31 August 2016 was discharged.
The applicant sought leave to appeal in both appeals, but subject to some comments that I will make shortly, leave is only required in the substantive appeal.
Ms Emmert (“the respondent”) opposes the granting of leave to appeal the substantive appeal and, if leave is granted, the appeal. As for the second appeal, that is also opposed, but both parties accepted that the outcome of that appeal should follow the event; i.e., if the substantive appeal succeeds then the costs order must be set aside, but if the substantive appeal is dismissed then the second appeal needs to be determined.
The substantive appeal
The relevant background
The applicant who is aged 68 years operates a business.
The respondent who is aged 66 years was employed as a receptionist at the time of the hearing before the trial judge.
The parties commenced a de facto relationship in 2002. The parties separated under the one roof, according to the applicant in August 2012, but according to the respondent in December 2011. The parties then physically separated in April 2014.
There are no children of the relationship.
Following the separation the applicant commenced proceedings seeking orders for property settlement in 2014. However, on 9 February 2016 those proceedings were dismissed pursuant to r 13.12 of the Federal Circuit Court Rules 2001, as a result of non-compliance with orders made in those proceedings.
The applicant recommenced the proceedings by filing an Initiating Application on 10 August 2016. However, by then the applicant was out of time, and to be able to pursue those proceedings he required leave pursuant to s 44(6) of the Family Law Act 1975 (Cth) (“the Act”).
The legislation
Section 44 of the Act relevantly provides as follows:
INSTITUTION OF PROCEEDINGS
…
44(5)Subject to subsection (6), a party to a de facto relationship may apply for:
(a) an order under section 90SE, 90SG or 90SM; or
…
only if the application is made within the period of 2 years after the end of the de facto relationship (the standard application period).
44(6)The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:
(a)hardship would be caused to the party or a child if leave were not granted; or
…
The authorities make it clear that the first question to be addressed is whether the court is satisfied that hardship would be caused if leave is not granted. If it is, the second question is, should the court in the exercise of its discretion grant or refuse leave to institute the proceedings (Whitford and Whitford (1979) FLC 90-612).
Here his Honour found hardship, and that finding is not challenged in this appeal. What is challenged though is the exercise of the discretion to refuse leave.
Leave to appeal
Although leave to appeal is sought in relation to this appeal, the submission was made that because of an inconsistency between the authorities, leave to appeal may not in fact be required.
In the Full Court decision of Emamy and Marino (1994) FLC 92-487 at 81,075, it was said that an order dismissing an application for leave pursuant to s 44(3) of the Act was final, but interlocutory if leave was granted because property proceedings would then be instituted and the “substantive property rights of the parties under s 79 remain to be determined”. However, in decisions such as Hedley & Hedley (2009) FLC 93-413 (“Hedley”), Taffa & Taffa [2014] FamCAFC 106, Montano & Kinross [2014] FamCAFC 231, and Slocomb & Hedgewood (2015) 93-678, the Full Court treated the dismissal of an application pursuant to s 44 as requiring leave to appeal.
Although both parties addressed this issue in their respective written summaries of argument, and it was touched on in oral argument, I propose to follow the more recent Full Court decisions because I do not consider that this matter is an appropriate vehicle for this issue to be addressed, and with all due respect to counsel, there was no fulsome consideration of the same. Thus, I will proceed on the basis that leave to appeal is required.
There is uncertainty though as to the test to be applied in determining whether to grant leave to appeal.
Until relatively recently the test has been that established in 1991 by the Full Court in Rutherford & Rutherford (1991) FLC 92-255, namely whether there has been an error of principle and/or a substantial injustice caused. However, in Medlow & Medlow (2016) FLC 93-692 the Full Court attempted to alter the test to whether, in all the circumstances, the decision below is attended by sufficient doubt to warrant it being reconsidered, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong. Whether the Full Court was successful in that attempt is a matter of conjecture, and in that regard I refer to the Full Court decision in Lindsey & Christieand Anor [2016] FamCAFC 132 (per Strickland J at [1] – [9]).
However, it would be an unnecessary diversion to further discuss that issue, given that both parties have proceeded on the basis that the test in Medlow is the one to be applied.
As is required, in the Amended Notice of Appeal, the applicant set out the facts relied on in support of the application for leave to appeal. However, it is readily apparent from those facts that they raise the same issues as the grounds of appeal relied on in the Notice of Appeal if leave is granted. Accordingly, it is convenient to address those grounds of appeal in determining the application for leave, because if those grounds, or any of them, have sufficient merit, then the test for leave to appeal will be satisfied.
Discussion
Ground 1
In exercising the discretion pursuant to s 44 of the Family Law Act 1975, the learned judge at first instance erred and his Honour’s discretion miscarried in failing to consider, or failing to adequately consider, or placing insufficient weight on, the nature and/or degree of hardship to be suffered by the Applicant if leave were not granted.
The challenge here (as in all but one of the other grounds) is to the exercise of discretion by the trial judge. The principles upon which a discretionary judgment can be appealed are well settled, and I need do no more than refer to what the High Court said in House v The King (1936) 55 CLR 499, at 504 – 505, namely:
… It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance …
As can be seen, the specific challenge raised is that his Honour failed to consider, or adequately consider, or placed insufficient weight on “the nature and/or degree of hardship to be suffered by [the] applicant if leave were not granted”.
In relation to a weight challenge such as that, the principles are also well established by the High Court. For example, Stephen J said this in Gronow v Gronow (1979) 144 CLR 513 at 519 – 520:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight …
There is no doubt that in exercising the discretion under s 44 of the Act the nature and/or the degree of hardship that would be suffered if leave were not granted needs to be considered (Whitford; Sharp & Sharp (2011) 50 FamLR 567).
I pause to note that in the written submissions of the applicant, he also suggests that there was no true consideration of “the strengths and weaknesses of the [applicant’s] proposed claim”, but that is not the subject of any ground of appeal.
His Honour addressed the exercise of the discretion at [35] – [44], but as submitted by the applicant, nowhere there does his Honour consider the nature and/or degree of hardship.
Certainly, as referred to above, his Honour found hardship to the applicant, and the respondent seeks to rely on that in responding to this complaint, but plainly that is insufficient. His Honour needed to specifically address this in exercising his discretion, and he failed to do so.
In these circumstances this ground has merit. The question remains though whether despite this, leave to appeal should be granted. That will depend on what if any merit there is in the other grounds of appeal.
Ground 2
In exercising his discretion pursuant to s 44 of the Family Law Act 1975, the learned judge at first instance erred and his Honour’s discretion miscarried in:
2.1 Giving too much weight to the lack of explanation of delay;
2.2 Failing to consider or failed to adequately consider whether the nature and/or degree of hardship to be suffered by the Applicant if leave were not granted was sufficient to outweigh an inadequate explanation of delay.
I note that Ground 2.1 can no longer be pressed, given that it was not raised before the primary judge, and it was open to his Honour to accept the evidence of the respondent that there was a six month delay when nothing was done by the applicant. That leaves Ground 2.2.
It is plain that the length of the delay, and the explanation for that delay, are relevant factors that must be given appropriate weight in the exercise of the discretion (Carlon and Carlon (1982) FLC 91-272, at 77,533).
As referred to above, another relevant factor is the nature and/or degree of the hardship to be suffered by the applicant if leave were not granted.
Certainly, it is a necessary aspect of the exercise of discretion to weigh and balance all of the relevant factors, but it would seem that the real issue here is that, as identified in Ground 1, his Honour failed to consider at all the nature and/or the degree of the hardship, and thus, in weighing and balancing the relevant factors his Honour could not have taken this factor into account.
Accordingly, again there is merit in this ground of appeal, but the question still remains whether it is sufficient for leave to appeal to be granted, and if granted, for the appeal to succeed.
Ground 3
In exercising his discretion pursuant to s 44 of the Family Law Act 1975, the learned judge at first instance erred and his Honour’s discretion miscarried in:
3.1 Giving too much weight to the prejudice caused by the delay to be suffered by the Respondent if leave were granted;
As can be seen this is another weight argument, and as such, the applicant must demonstrate that his Honour was “plainly wrong”.
His Honour said this about the prejudice the respondent would suffer if leave was granted:
40.… In the belief that the applicant would not be filing another application after the first proceedings, the respondent has proceeded thereafter to manage her financial affairs and plan for her future on the basis that the property retained by her was hers to deal with. …
As to this claim by the respondent that she had moved on with her life, including financially, the applicant submits that the evidence as to that “is limited and lacks particulars” (paragraph 46 written summary of argument filed on 21 August 2017).
However, that is simply incorrect, and in her affidavit filed on 31 August 2016, which his Honour quoted from extensively at [23], the respondent set out in detail how she had moved on with her life and, in particular, financially.
Thus, there was ample evidence upon which his Honour could find that the respondent would suffer real and significant prejudice if leave were granted.
The applicant also challenges the acceptance by his Honour that the respondent had a reasonable expectation that further litigation would not be instituted by the applicant. Again though I do not agree that his Honour erred in this regard.
The evidence of the respondent, again as quoted by his Honour at [23] was as follows:
After the dismissal of the Proceedings
46. Neither party appealed the decision to dismiss the proceedings.
47. Neither the applicant nor his solicitor contacted me or my solicitor with respect to the proceedings that had been dismissed.
48. The applicant/applicant’s solicitor took no step to bring any application to reopen the proceedings or notify me of any intention or desire to do so.
49. As the proceedings were dismissed, that decision was not appealed and I heard nothing further from the plaintiff or the plaintiff’s solicitor I finally moved on with my life on the basis of the final court orders dismissing the proceedings. I was greatly relieved.
All that did occur was that the applicant’s solicitor sent a letter to the respondent’s solicitors on 27 April 2016 confirming the dismissal of the previous proceedings, and advising of their client’s instructions as to the winding up of a company set up by the applicant during the relationship. There was then a follow-up letter on 5 July 2016 which also referred to the application by the respondent to remove the caveat lodged by the applicant on a property [overseas].
The first indication of any further litigation as to the de facto relationship was in a letter dated 29 July 2016, almost six months after the initial proceedings were dismissed. The proceedings were then filed on 10 August 2016.
I note that in paragraph 8 of the applicant’s affidavit sworn on 8 August 2016 he said this:
[T]he Respondent and I have since been unable to resolve our property dispute in the interim period and a number of significant issues remain outstanding which we have made attempts to resolve.
Disappointingly, the fact of the matter is that on the evidence accepted by his Honour there were no attempts to resolve the property dispute.
Thus, on the evidence, it was open to the trial judge to find that the respondent had no reason to expect that there would be further litigation about the issue of property settlement.
No error of fact or law or of principle has been established here by the applicant, and there is no basis to find that his Honour was plainly wrong. Accordingly, this ground of appeal has no merit.
Ground 3
In exercising his discretion pursuant to s 44 of the Family Law Act 1975, the learned judge at first instance erred and his Honour’s discretion miscarried in:
3.2 Failing to consider or failed to adequately consider whether any such prejudice could be ameliorated by the Court in the substantive property proceedings.
It is correct that when specifically considering the issue of prejudice his Honour did not address whether that prejudice could be ameliorated by the court in the substantive property proceedings.
It is plain that his Honour was aware of this being something that deserved consideration, because when addressing whether there was hardship on the part of the applicant in [33], his Honour referred to the relevant paragraph from the judgment of Cronin J in Hedley where Cronin J identified how prejudice can be ameliorated in many cases.
However, as was conceded by the applicant’s counsel during the hearing in this Court, this possibility was not raised by the applicant before his Honour and thus it is not open to raise it on appeal (Metwally v University of Wollongong (1958) 60 ALR 68).
There is no merit in this ground of appeal.
Ground 4
The learned judge at first instance exercised his discretion pursuant to s 44 of the Family Law Act 1975 in a manner that was plainly wrong in circumstances where:
4.1 The [Applicant] had established a prima facie case;
4.2 The [Applicant] had established hardship if leave were not granted;
4.3 The length of the delay was only a period of 6 months;
4.4 The [Applicant] had explained (albeit briefly) the delay;
4.5 The purported prejudice to the Respondent was minimal;
4.6 Such prejudice was likely to be ameliorated by the Court in the substantive property proceedings;
4.7 The Court’s discretion pursuant to s 44 of the Family Law Act 1975 is to be exercised liberally.
As can be seen, there are seven factors relied on by the applicant to demonstrate that his Honour’s decision was plainly wrong.
Grounds 4.1 and 4.2 do nothing more than confirm that the first step in the process has been satisfied, namely that there would be hardship if leave was not granted. Thus they do not say anything about the second step, namely the exercise of discretion.
Ground 4.3 does not help either. It is neither here nor there that the delay was for a period of six months. The fact is that there was a delay which was unexplained.
Similarly, Ground 4.4 does not demonstrate error by the trial judge. Indeed, on the evidence accepted by his Honour, it is not correct to say that the delay was explained “briefly”.
As to Ground 4.5, I have found that his Honour was correct in proceeding on the basis that the prejudice was real and significant. With Ground 4.6, as identified above, there can be no error by the trial judge.
Finally, there is no warrant here to find that his Honour erred in failing to exercise the discretion “liberally”.
The circumstances referred to do not demonstrate that his Honour’s decision was plainly wrong. This ground of appeal has no merit.
Ground 5
The learned judge at first instance failed to provide inadequate [sic] reasons in:
5.1 Failing to identify the nature and/or degree of hardship to be suffered by the [Applicant] if leave were not granted pursuant to s 44 of the Family Law Act 1975;
5.2 Failing to weigh the hardship to be suffered by the [Applicant] against the other factors relevant to the exercise of the discretion to grant leave pursuant to s 44 of the Family Law Act [sic];
5.3 Failing to address whether any prejudice to be suffered by the Respondent were leave to be granted pursuant to s 44 of the Family Law Act 1975 could be ameliorated by the Court in the substantive property proceedings.
The principles which govern challenges to the adequacy of reasons are not in doubt, and do not require extensive treatment. However, reference to some of the leading authorities is helpful.
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279, McHugh JA said:
… without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.
The Full Court followed the decision in Soulemezis and other authorities in Bennett and Bennett (1991) FLC 92-191. The Full Court said at 78,266:
Counsel for the wife urged that there was a failure by her Honour to give adequate reasons for judgment, and that this, of itself, amounted to an error of law. In this regard he relied upon the line of New South Wales Court of Appeal decisions commencing with Pettitt v Dunkley (1971) 1 NSWLR 376, and including Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378, and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In the latter case, McHugh JA said that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary decision. His Honour took the view that the requirement for reasons serves at least three purposes, namely, to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge's decision; secondly, to further judicial accountability; and thirdly, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.
In Bennett the Full Court further stated at 78,266:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments …
It is also beyond doubt that the duty to give reasons does not exist in respect of every matter which was or might have been raised in the proceeding (Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] NSWLR 378). Thus, as was identified in Bennett the circumstances of the case will determine the adequacy of the reasons.
As Coleman J sitting as the Full Court put it in Wen & Thom [2010] FamCAFC 81 at [57]:
As the authorities make clear, there is no absolute standard by which the adequacy of judicial reasons can be gauged. The authorities suggest that the essential requirement is that judicial reasons reveal why a case was decided the way it was. How much needs to be said for that requirement to be met will vary from case to case in the light of the issues raised which require adjudication. In many cases, very little will need to be said whilst in other cases a good deal of the reasoning process which leads to the ultimate decision will need to be revealed.
As can be seen, the applicant identifies three areas where it is said the reasons are inadequate, but in my view the inadequacy of the reasons are apparent throughout the entire judgment of the trial judge.
An analysis of the judgment reveals the following. The judgment comprises 36 pages of which two pages cover the background and what was before his Honour, three pages cover the relevant legislation and quotations from various of the authorities, three and a half pages quote the applicant’s affidavit, almost three pages quote the submissions of the applicant, seven pages quote the respondent’s affidavit, almost 13 pages quote the respondent’s submissions, leaving one and a half pages of “consideration” of the issue of hardship, and two pages of discussion of the “exercise of discretion”, and then a brief paragraph containing the trial judge’s conclusion.
On this basis the search for adequate reasons is in effect confined to three to four pages of the 36 page judgment, and although some reasons are displayed, it is readily apparent that they are not only inadequate, but in many respects there is a decided absence of relevant findings.
It is not sufficient for his Honour to say in the concluding paragraph that having “considered all of the factors relevant to the appropriate exercise of the discretion of the court” leave to proceed out of time should not be granted, when it is not apparent that all of the relevant factors have been considered, weighed and appropriate findings made.
In relation to the specific matters raised by the applicant, it is readily apparent that his Honour failed “to identify the nature and/or degree of hardship to be suffered by the [applicant] if leave were not granted”. All his Honour does at [34] is to find that the applicant would suffer hardship “in the relevant sense”. Further, his Honour “failed to weigh” that hardship against the other factors relevant to the exercise of the discretion to grant leave. However, as referred to above, it is not open to the applicant to raise on appeal the submission that the trial judge failed to address whether “any prejudice to be suffered by the respondent”, “could be ameliorated by the court in the substantive property proceedings”.
Despite this latter issue, there is plainly merit in this ground of appeal.
Outcome of the application
Despite finding no merit in Grounds 3 and 4, given there is merit in Grounds 1 and 2, and particularly in Ground 5, leave to appeal must be granted. It is plain that his Honour’s decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court, and that substantial injustice would result if leave were refused, supposing the decision to be wrong. Further, given the success of certain of the grounds of appeal, once leave is granted, the appeal must be allowed.
The question then becomes whether the matter should be remitted for rehearing or whether the discretion can be re-exercised. The applicant submits that the latter course is open, but the respondent submits otherwise.
Regrettably, given that the respondent would want to present further evidence on a re-exercise, and that evidence may very well be controversial, but also because of the absence of relevant findings and the inadequacy of the reasons, I have no option but to set aside the order and remit the matter for rehearing by a judge other than the trial judge.
The costs appeal
In relation to this appeal, I confirm that it was understood that if the substantive appeal succeeded then the costs order would need to be set aside. To do that it is also necessary to allow the appeal.
Costs
At the conclusion of the hearing submissions as to the question of costs were received.
If the application for leave to appeal and the appeal were successful both parties sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). In the circumstances it is appropriate for costs certificates to issue, but only for the substantive appeal.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 7 February 2018.
Associate:
Date: 7 February 2018
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