FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Quinn & Lawson [2023] FedCFamC1F 164
File number(s): SYC 7896 of 2015 Judgment of: SCHONELL J Date of judgment: 20 March 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to re-open – Where the applicant sought leave to re-open proceedings – Where the application was opposed – Where the applicant sought to re-open the proceedings to cross-examine the respondent’s witnesses, provide updated evidence from her doctor and tender various documents – Where the proceedings have been before the Court for over seven years – Where the applicant was represented by experienced counsel and tactical decisions were made – Where there is significant prejudice to the respondent – Leave refused – Application dismissed. Legislation: Family Law Act 1975 (Cth) ss 90RD, 90SM
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: EB v CT (No. 2) [2008] QSC 306
Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36
Division: Division 1 First Instance Number of paragraphs: 29 Date of hearing: 16 March 2023 Place: Sydney Counsel for the Applicant: Mr Blackah Solicitor for the Applicant: Leeder Law Counsel for the Respondent: Mr Kenny Solicitor for the Respondent: Bartier Perry Lawyers ORDERS
SYC 7896 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS QUINN
Applicant
AND: MR LAWSON
Respondent
order made by:
SCHONELL J
DATE OF ORDER:
20 MARCH 2023
THE COURT ORDERS THAT:
1.The applicant’s application for an adjournment is refused.
2.The applicant’s Application in a Proceeding filed 14 March 2023 for leave to re-open is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under the pseudonym Quinn & Lawson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
On 10 March 2023, the applicant through her counsel made an oral application seeking leave to re-open proceedings that had concluded on 15 February 2023 subject to the filing of written submissions. The application (which was subsequently filed on 14 March 2023) was ultimately supported by an affidavit and listed for hearing on 16 March 2023. At the hearing, counsel for the applicant sought an adjournment of the application, so it was said, to enable his client to properly…
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CaseChat Overview and Summary
The legal issues before the court included whether the applicant's decision to now seek cross-examination of the additional witnesses, and reliance on a new report from Dr B, could be considered in the context of the lengthy litigation and the strain it imposed on the personal litigants. The court also had to consider whether the guiding principle of the interests of justice, which includes the need for finality, was being served by granting the application. The court needed to balance the prejudice to the respondent caused by the delay and the need for finality with the applicant's right to present their case.
The court observed that the case had been before it for over seven years and had multiple hearing dates. The respondent argued compellingly for finality in the litigation, although the court noted that finality might not be achieved merely by refusing the application. The court inferred that the applicant's change in approach for cross-examination followed questions raised by the court regarding the treatment of the evidence of the remaining witnesses. However, the applicant did not provide a clear explanation for seeking to cross-examine the additional witnesses or why this had not been considered by the experienced counsel previously. The court also noted that the further report from Dr B was something that had already been considered in previous proceedings. In light of these considerations, the court decided to refuse the application, emphasising the need for finality in the litigation.
The final orders of the court were to refuse the applicant's application to cross-examine the additional witnesses and to rely on the new report from Dr B. The court highlighted the importance of finality in litigation, particularly where prolonged litigation imposes a strain on personal litigants.
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Background
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Ratio Decidendi
Legal Principle Established
In EB v CT (No. 2) [2008] QSC 306, Applegarth J observed, referencing the High Court’s decision in Smith v New South Wales Bar Association, in the following terms:5.Reference by the High Court to prejudice to the other party, and the guiding principle of the interests of justice, require account to be taken of the strain that litigation imposes on personal litigants. The prejudice caused by delay in the delivery of an expected judgment at the end of stressful litigation cannot always be measured in terms of money or cured by an order for costs. The interests of justice are served by finality in litigation, particularly where prolonged litigation imposes a strain on personal litigants. CONSIDERATION OF THE APPLICATION These proceedings have been before the Court for over seven years. They have had a number of allocated hearing dates and the submission of the respondent that there is a need for some finality to the litigation is compelling, albeit not determinative. I say that in the context that there still remains, dependent on the outcome of the s 90RD determination, further hearings in relation to leave to proceed out of time and then under s 90SM. Thus, the finality desired by the respondent may not necessarily be achieved by just the mere refusal to grant this application. The applicant seeks to cross-examine the five witnesses in the respondent’s case. Before the matter went part heard to February 2023, the matter was before the Court for four days in August 2022. On that occasion, the applicant was represented by senior and junior counsel. On 26 August 2022, the applicant through her counsel informed the Court that the applicant did not require three of the respondent’s five witnesses for cross-examination. I am entitled to infer that such decision made by senior and junior counsel must have been on instructions after the giving of advice. That left only two witnesses to be cross-examined. When the matter resumed on 15 February 2023, there was no application to reconsider the issue of cross-examination of the three witnesses and the Court was informed that the remaining witnesses (Mr and Ms C), were not required for cross-examination. It appears that what might be described as the change in approach by the applicant follows questions raised by me with counsel for the applicant as to how I would treat Mr and Ms C’s evidence where it had not been the subject of cross-examination. I infer this because it is referenced in the affidavit of the applicant’s solicitor and raised in the submissions on behalf of the applicant. It does not, however, provide an explanation for why it is that the applicant now seeks to cross-examine the other three witnesses. Nor does it provide a basis for concluding that this had not been a matter considered by the experienced counsel who had previously appeared for the applicant. The applicant also seeks to rely upon a further report from Dr B. This too, however, was something that had been considered when the matter was last before the Court. In that respect, I note the applicant’s solicitor says to the following effect in her affidavit:11.… My client was last seen by [Dr B] some 18 months before her most recent report commenting on her ability to participate in the proceedings and the aides she would require to do so when giving evidence. I am instructed that an appointment with [Dr B] was made such that her report would have been available at the trial but was cancelled on the advice of my client’s former representation. An appointment with [Dr B] has been arranged for my client on 6 April 2023.