Quinn & Lawson
[2023] FedCFamC1F 164
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
Reid v Brett [2005] VSC 18
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 prepare the application in circumstances where counsel said that there was some significant difficulties in obtaining instructions. He indicated that it would take approximately five weeks to prepare the application to re-open.
The adjournment application was opposed and having heard short submissions was refused. The reason for the adjournment was to enable the applicant’s lawyers to obtain further instructions. I am not satisfied that any further delay in this matter would be determinative. I was not taken to any specific fact or matter about which a delay in determination would place the applicant’s lawyers in a better position to conduct the application to re-open as opposed to a hearing instanter.
The Court then proceeded to hear the application to re-open. Having heard each party’s short submissions, I determined that leave to re-open would be refused and reasons would be delivered shortly. These are those reasons.
The application to re-open needs to be seen within the context of the wider litigation between these parties, which has been before the Court now for in excess of seven years.
The proceedings first commenced on 1 December 2015 and have been listed for hearing on a number of occasions. Final hearing dates were allocated for two days in September 2019, only to be vacated. The matter was allocated further hearing dates in April 2020, which were also vacated. On 22 December 2021, directions were made for trial preparation with the intent to hear all outstanding applications, including the determination pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) and questions of leave, for six days commencing on 19 August 2022.
The applicant subsequently advised in July 2022 that she was without legal representation. Given the number of times the matter had been listed for hearing, the Court determined that in an attempt to at least salvage something from the allocated hearing dates, the matter should be listed for four days in relation to the s 90RD determination.
The proceedings commenced on 23 August 2022. The matter did not proceed on 24 August 2022 because of the applicant’s ill health and thereafter resumed on 25 and 26 August 2022. The matter did not complete and was adjourned part heard to 15 February 2023. On that date, further evidence was taken from the parties and documents were tendered. The parties sought to provide written submissions and directions were made, with the last of the written submissions to be provided by 24 March 2023.
As it was, the applicant did not comply with the timetable for the filing of written submissions and the matter was relisted by the Court on its own motion. On the relisting, the applicant sought to rely upon the application seeking leave to re-open.
Counsel for the applicant, by reference to the affidavit of the applicant’s solicitor filed on 14 March 2023, identified that the applicant had various asserted disabilities which restricted her capacity to provide instructions. He submitted that if leave to re-open were granted, the applicant would seek to cross-examine the witnesses in the respondent’s case, provide an updated report from Dr B in circumstances where there was an appointment for the interviews for that report on 6 April 2023, and tender various documents including what was said to be iCalendar evidence.
Counsel for the applicant conceded that the consequence of being granted leave to re-open would not just involve the tender of further evidence and cross-examination of witnesses, but also potentially further cross-examination of the applicant and the respondent. When asked when the applicant would be ready to undertake such further re-hearing if leave were granted, counsel for the applicant candidly responded that he “could not confidently predict when that would happen”.
Counsel for the respondent opposed the application for leave to re-open. He contended that these proceedings have been on foot for a long time, that there must be some finality to litigation, and that the applicant had not established that the additional evidence that she seeks to rely upon had the necessary quality of materiality.
APPLICABLE LAW
In Reid v Brett [2005] VSC 18, Habersberger J said:
41.The criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered have been said to be as follows:
(a) the further evidence is so material that the interests of justice require its admission;
(b) the further evidence, if accepted, would most probably affect the result of the case;
(c) the further evidence could not by reasonable diligence have been discovered earlier; and
(d) no prejudice would ensue to the other party by reason of the late admission of the further evidence.
…
(Footnote omitted)
In Smith v New South Wales Bar Association (1992) 176 CLR 256 (“Smith v New South Wales Bar Association”), the plurality observed at 265–266:
It has long been the common law that a court may review, correct or alter its judgment at any time until its order has been perfected. … The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation. Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review. And there may be more or less reluctance to exercise the power depending on whether there is an avenue of appeal. It is important that it be understood that these considerations may tend against the reopening of a case, but they are not matters which bear on the nature of the review to be undertaken once the case is re-opened …
…
It is again necessary to distinguish between the considerations which may bear on a decision to re-open and the processes involved in reconsideration once a case has been re-opened. If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to inquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete (10), or one in which reasons for judgment have been delivered. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised. …
(Footnotes omitted)
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.
I can only infer from the contents of that paragraph that, again, this was a decision made by the applicant upon instructions after having received advice. The other difficulty with any evidence from Dr B is that her prior report was admitted by consent on an agreed conditional basis. She is not a single expert and the applicant presumes that her report would be admitted without objection and contrary to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
As to the iCalendar evidence, I am told that the documents sought to be relied upon would be confirmatory of evidence that the applicant had already given and an additional perhaps fifty or sixty other dates that are not in evidence before the Court. Counsel for the applicant agreed that all of this evidence would have been available to the applicant at the time of the hearing in August 2023.
The applicant sought also to adduce further evidence she said would establish that the respondent knew at a time earlier than he accepts the extent of her disabilities. This evidence, so it was said, could establish the reasons why the respondent contended for an earlier date of separation.
The discretion to grant leave is guided by interests of justice; the essential issue being whether the Court is more able to do justice on the facts and circumstances of the case if the application is granted. However, what must be balanced is the granting of justice to both the applicant and the respondent.
It is not in issue that the evidence that is sought to be adduced was all available to the applicant before the evidence closed.
There has been no submission made to me that establishes that the evidence for which leave is sought to re-open is so material that the interests of justice require its admission. Nor has it been established before me that the evidence for which leave is sought to re-open would, if accepted, most probably affect the result of the case.
Nor am I satisfied that there would be no prejudice occasioned to the respondent by leave being granted.
These proceedings have been around for over seven years and still remain unresolved. The applicant’s counsel candidly conceded that he was not able to indicate as to when the applicant would be ready to prosecute her case. Doing the best I can on the material before me, it has the potential to add at least another two or three days of hearing to the proceedings. As to when the Court could hear the matter is somewhat difficult to ascertain in circumstances where it is not clear when the applicant would be ready to prosecute her case, but even assuming she were able to prosecute her case now, the reality is, given the current listings in the Court, that I would not be able to hear this matter until towards the end of this year. In my view that constitutes a significant prejudice to the respondent.
I further reiterate the observations of the High Court where their Honours observe to the following effect in Smith v New South Wales Bar Association at 266:
… If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to inquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. …
With the greatest of respect to their Honours, those observations are apposite to the evidence that is sought to be adduced if leave were granted on the re-opening.
These are my reasons for refusing the application.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 20 March 2023
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