R and D
[2008] FCWA 22
•21 FEBRUARY 2008
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: R and D [2008] FCWA 22
CORAM: THACKRAY CJ
HEARD: 14 JANUARY 2008
DELIVERED : 21 FEBRUARY 2008
FILE NO/S: PT 2324 of 2007
BETWEEN: R
Applicant
AND
D
Respondent
Catchwords:
APPEAL - From decision of Family Law magistrate - interlocutory financial orders - leave to appeal - part of the appeal is moot - slip rule is plainly applicable - application for leave to appeal refused
Legislation:
Evidence Act 1906, s 11
Family Court Act 1997, s 211(1) s 211(2)
Interpretation Act 1984, s 13A
Category: Not Reportable
Representation:
Counsel:
Applicant: Mr P Dowding SC
Respondent: Ms G Braddock SC
Solicitors:
Applicant: Paterson & Dowding
Respondent: O'Sullivan Davies
Case(s) referred to in judgment(s):
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170
Bellette & Mackie [2007] FCWA 60
Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 at 210
Rutherford and Rutherford (1991) FLC 92-255
1I am required to determine [Mr R]s’ application for leave to appeal against two interlocutory orders made by Family Law Magistrate Vander Wal on 23 November 2007. [Ms D] resists the application. The orders sought to be impugned are these:
1.The time for compliance with the orders made on 6 August 2007 be extended for a period of a further 28 days.
…
5.The Form 2 application filed on 14 November 2007 and the Form 2 application filed on 19 November 2007 be and are hereby dismissed…
Background
2As the parties have been referred to interchangeably as “the applicant” and “the respondent” in numerous documents filed in the proceedings, I propose to refer to them by their given names to avoid confusion.
3[Ms D] commenced proceedings for property settlement on 2 May 2007 pursuant to Part 5A of the Family Court Act 1997 (“the Act”). Part 5A of the Act applies only to persons who have lived together in a “marriage-like relationship” within the meaning of s 13A of the Interpretation Act 1984. At the same time, [Ms D] filed an Application in a Case seeking orders for [Mr R] to provide full and frank disclosure of his financial circumstances.
4The matter came before the Court on 31 May 2007, by which time [Mr R] had filed a Notice of Address for Service, but no other documents. He was directed to file documents in answer to [Ms D]’s application on or before 12 July 2007. On the deadline, [Mr R] filed a Form 1A Response, in which he sought the dismissal of the application. The Response indicated that [Mr R] did not admit that he and [Ms D] had ever lived together in “a marriage-like relationship”. The Response further indicated that [Mr R] sought “particulars” from [Ms D] as to the facts relied upon in support of her claim that the parties had lived in a de facto relationship.
5On 23 July 2007, [Mr R] filed a Response to an Application in a Case seeking the dismissal of [Ms D]’s application requiring him to make a full and frank disclosure. [Mr R] also sought an order that -
“within 28 days [Ms D] file and serve particulars as to the facts and circumstances relied upon by [Ms D] in support of her claim that the parties had “lived together in a marriage-like relationship” within the meaning of that term within Section 13A.(1) of Interpretation Act 1984 as amended by Family Court Act 2001.”
6On 24 July 2007, [Mr R] filed a Notice to Admit Facts. One of the facts he asked [Ms D] to admit was that she had made a statement in the form of a document, a copy of which was attached to the Notice. The document is reproduced verbatim below:
1. [Ms D] is a 32 year old female of [a suburban address].
2. Previous to this I lived with my boyfriend of seven years, [Mr R] [at another suburban address].
3. In June of this year I took photographs of my belongings because I became suspicious items of mine were going missing as we had employed a new housekeeper in the last week of February 2006.
4. At the beginning of August 2006 I decided to purchase my own home. I packed all of my belongings and stored them in the spare bathroom, replacing the privacy lock with a deadbolt. We agreed that I could store my belongings in the bathroom until I returned to collect them once I had purchased a home.
5. After a period of approximately 5 weeks, unbeknown to my knowledge, the deadbolt was drilled through and the housekeeper packed my belongings.
6. Mid-September 2006 I moved into [my home].
7. I had begun unpacking but it wasn’t until mid‑October I finally unpacked all of my belongings.
8. I noticed 39 items were missing. (Attachment 1)
9. On the 19th October I went to [the address] where I previously lived to ask the housekeeper if she had seen the missing items. As she was not there I went around to look for her and in her bedroom and bathroom found 10 items which were missing that belonged to me. (Attachment 2)
10. I took photographs of some of the items before I removed them. (Attachment 3,4,5)
11. I have photographic evidence and receipts for 3 of the items worn and found in the possession of the housekeeper to substantiate the items belong to me. (Attachment 3,4,5)
7The matter was listed for a directions hearing on 26 July 2007, at which time the parties agreed there should be a separate hearing of the threshold jurisdictional issue. The matter was adjourned to a directions hearing before me on 6 August 2007 to ensure readiness of the jurisdictional issue for trial. On that date, the parties consented to the making of the following orders, which are of central importance to [Mr R]’s proposed appeal:
1.On or before 14 September 2007, [Ms D] provide to [Mr R] a list of all documents to which the duty of disclosure applies and, in particular, documents in her possession, custody or control in any form whatsoever (whether electronic or otherwise), which relate to the issue of their relationship, including the nature and period of their relationship.
2.On or before 14 September 2007, [Ms D] provide to [Mr R], particulars of the facts and circumstances upon which she relies to establish that [Ms D] and [Mr R] resided together in a de facto relationship for the relevant period prescribed by the Family Court Act 1997 and the date or dates of those facts and circumstances.
3.On or before 19 October 2007, [Mr R] provide to [Ms D] a Response to [Ms D]’s Particulars, setting out the facts and circumstances upon which he relies if there is any dispute as to the Particulars provided by [Ms D], and a list of any documents in his possession, custody or control to which the duty of disclosure applies in relation to the issues referred to in paragraph 2 hereof…
8On 16 August 2007, [Ms D] filed a Notice Admitting and Disputing Facts. She admitted she had prepared the document attached to the Notice to Admit filed by [Mr R] on 24 July 2007. On 14 September 2007 she also filed a lengthy document called “Particulars of De facto Relationship”.
9[Mr R] failed to comply with both paragraphs 1 and 2 of the consent orders made on 6 August 2007. On 14 November 2007, [Ms D] filed an application seeking to enforce compliance. The application was listed for hearing on 23 November 2007.
10On 19 November 2007, [Mr R] filed an Application in a Case. I will reproduce the orders sought in full, since the proposed appeal relates to the decision of the Magistrate to dismiss the entire application:
1.Insofar as the orders made 6th August 2007 relate to [Mr R] those orders be set aside.
2.The listing as a pre-trial conference for Friday 30th November 2007 at 9.45am be vacated.
3.Until further order [Ms D] be restrained from taking any further steps in the proceedings which had been commenced by the filing by her of a Form 1 Application on 2nd May 2007 but save and except for [Ms D] being able to seek further procedural orders as a consequence of compliance with these orders.
4.Within one clear working day following the making of these orders [Ms D] deliver to the offices of Paterson & Dowding at Level 2, BCG Centre, 28 The Esplanade, Perth, Western Australia:
(a)all computers and computer equipment removed by [Ms D] or caused to be removed by her from the property [at the home of [Mr R];
(b)all copies of any file paper writing or document whether electronically or otherwise of anything from or which was stored in the computers made by [Ms D] or any other person known to her;
(c)all papers and writing of any nature whatsoever removed by [Ms D] or caused to have been removed by [Ms D] from the [the address of [Mr R]’s property] on or after 24th October 2006.
5.Within one clear working day of the making of these orders [Ms D] provide to Paterson & Dowding a statement on oath which sets out in relation to each of the computers, copies and documents the subject of these orders (the stolen material):
· to the best of her knowledge information and belief the name and address of any person who has or has had in his or her possession at any time since removal from [the home of Mr R] any of the stolen property.
· The reasons why to the best of her knowledge, information and belief, anything falling within the scope of these orders has been within the power, possession or control of any such person since removal from [the home of Mr R].
· Details of any matters relevant to [Ms D] being unable to comply with any portion of the orders.
6.The obligations of [Ms D] pursuant to these orders are obligations which are intended to be interpreted widely as to the scope and extent of the obligations created pursuant to the orders.
7.[Mr R] be at liberty to apply for further or other orders as a consequence of the making of these orders.
8.[Ms D] be at liberty to apply for further or other procedural orders as to the further hearing of her Form 1 Application filed 2nd May 2007 but with the requirement that at the time of making any such application:
· [Ms D] file a further Form 2 Application setting out with precision the procedural orders then being sought by her;
· [Ms D] file with the Form 2 Application [an] affidavit detailing the ways in which she states that she has complied with these orders;
9.[Ms D] pay [Mr R]’s costs of and incidental to this application.
11In his affidavit sworn in support of the application filed on 19 November 2007, [Mr R] said inter alia:
3I have been unable to comply with the orders made on 6 August 2007 for me to provide various particulars and various documents because [Ms D] has stolen or caused to be stolen from my residence including various items without which, I cannot properly conduct my case namely:
· my computers;
· many papers which relate to various aspects of my life during periods the subject of [Ms D]’s claims;
· my files containing my own notes and many communications to and from my legal advisers in relation to the proceedings.
4.files stored on the computers included events and attendances and thousands of photographs arising from my keen interest in photography.
5.[Ms D] has been charged with theft and burglary from [the home of Mr R]. As at swearing this affidavit I do not have details of the charges except that the charges relate to removal by [Ms D] of items from my home. I am informed that, [Ms D] is due to appear in Court on 19th November 2007 for these charges.
6.I need access to my computer records files and documents to answer the claim against me.
12[Mr R]’s affidavit went on to refer to an article published in the [newspaper], a copy of which was annexed to his affidavit. [Mr R] had this to say concerning that article:
7.… This article was caused by [Ms D] contacting the [newspaper] and providing that newspaper with information about her claim and our relationship. I refer to the quotations in the second column relative to [Ms D] claiming she had “… hundreds of photographs …” and “… as well as 2 lever-arch files full of documents.”
13[Mr R]’s affidavit concluded with the following assertion:
8.I am grossly prejudiced in trying to deal with [Ms D]’s claims by her removal from me of my evidence relative to the proceedings. I cannot fully instruct my advisers as to factual matters without having access to the records which have been removed.
14On 20 November 2007, [Ms D] filed an affidavit in support of her application seeking enforcement of the consent orders. She said that on 14 September 2007 her solicitors had provided to [Mr R]’s solicitors a list of documents by way of disclosure. A copy of the list was attached to [Ms D]’s affidavit and included “various photos”. The affidavit went on to say that [Mr R] and his solicitors inspected the documents disclosed on 20 September 2007 and that between 24 September and 3 October 2007, [Mr R]’s solicitors had been provided with 898 pages of photocopies of documents and 100 pages of photographs they had requested.
15On 18 October 2007, [Ms D]’s solicitors requested [Mr R]’s solicitors to provide his response to [Ms D]’s Particulars pursuant to the consent orders. On 19 October 2007, [Mr R]’s solicitors responded, advising that [Mr R] was aware of the terms of the orders made on 6 August 2007 and was “endeavouring to comply”. The letter went on to say that [Mr R] would not be able to comply “within the strict timing provided for in the orders” because he had “experienced difficulties generally in complying with the orders” for a number of reasons. The first of these was stated in the following terms:
“There has been a theft from [his home]. Items stolen include his computer and also, various paperwork and documents to which he had been expecting to be able to refer and provide in accordance with his obligations under the orders.”
16[Ms D]’s solicitors replied in the following terms:
“Our understanding is that, if anything was stolen from your client’s home, it was stolen prior to Orders being made on 6 August 2007 requiring your client to provide his Response to our client’s Particulars by today. Your client was present in Court and provided instructions to his Senior Counsel, before Orders were made by consent. Consequently, your client was aware of, and consented to an obligation after an event had occurred, which he now seeks to use as an excuse for his failure to comply with the Orders to which he consented.”
17The letter went on to seek an assurance that [Mr R]’s response to the Particulars would be provided by 24 October 2007. [Mr R]’s solicitors responded by letter dated 25 October 2007, in which no issue was taken with the proposition that the computer and other documents were stolen prior to the order made on 6 August 2007. The letter said:
“It has not been our client’s fault that the theft from his premises included his information sources, including his computer and that he also found that various documents had been included in what was taken.
Although you make reference to the theft as being prior to 6th August, our client did not then know what your client might in fact put forward and therefore, what might become “relevant” for purposes of a response.”
18On 31 October 2007, [Ms D] received a summons to appear in the Perth Magistrates Court inter alia on charges of burglary. [Mr R] was named as the complainant. [Ms D] said in her affidavit concerning this issue, “The criminal proceedings is [sic] currently adjourned to 31 December 2007 and I intend to plead not guilty to the charge.”
19On 2 November 2007, [Mr R]’s solicitors wrote to [Ms D]’s solicitors. The letter contained the following:
“We understand that your client has been charged with an offence or offences.
We are told this in the context of our client having difficulties putting together his Response Particulars and List of Documents, without having his computer/computer records and various other papers which have been removed from his residence.”
20On 7 November 2007, [Ms D]’s solicitors wrote to [Mr R]’s solicitors asking them to advise “whether there has been any change in your client’s situation between the date when your client consented to procedural orders … and the date when your client was due to provide both his Response and his List of Documents?” The letter also enquired whether or not [Mr R] proposed to file an application seeking to be relieved from compliance with his obligation under the orders made on 6 August 2007.
21The matter came before Magistrate Vander Wal on 23 November 2007, at which time her Honour made the orders which are now the subject of the application for leave to appeal. As noted at the commencement of these reasons, these were the orders extending the time within which [Mr R] had to comply with the consent orders made on 6 August 2007 and the order dismissing his Form 2 application filed on 19 November 2007.
The Magistrate’s reasons
22If [Mr R]’s application for leave to appeal is successful, the appeal will proceed by way of rehearing and in that event it would be unnecessary to demonstrate that the Magistrate erred in arriving at her decision. Accordingly, on the hearing of the appeal, it would be unnecessary to consider her Honour’s reasons at all. However, as the legislation requires a party to obtain leave before being able to appeal against an interlocutory decision of a Magistrate, it is appropriate for me to give consideration to the way in which the matter was argued before the Magistrate and to have regard to her reasons. This is especially so here, since [Ms D] claims that the Magistrate did not err in dismissing [Mr R]’s application because his counsel failed to agitate any portion of that application (save for paragraph 1 by which he sought to discharge the consent orders).
23It was common ground that [Mr R]’s application was heard in a very busy list and the Record of Proceedings indicates the matter took just over 15 minutes to determine. The proceedings commenced with Mr Dowding, Senior Counsel for [Mr R], advising her Honour “it is matter which concerns our obligation to file particulars of our defence to a de facto claim”. Mr Dowding went on to say it was [Mr R]’s contention that [Ms D] had entered [Mr R]’s home and stolen “all of our books and records and our computer records and our solicitor’s files which make it impossible for us to comply with the order”. He also noted that [Ms D] had been charged.
24Mr Childs, counsel for [Ms D], interrupted Mr Dowding’s submissions and advised her Honour that the alleged theft had taken place prior to the date on which [Mr R] had consented to the orders of 6 August 2007. (Nowhere in [Mr R]’s documents had it been made clear when the alleged theft was said to have occurred.) Mr Dowding responded, “I am not disputing the date issue but the point is that when it came to prepare the material we found that all of that material had been stolen”. After interchanges between counsel and her Honour, Mr Dowding proposed that the matter be adjourned to another hearing for viva voce evidence to be taken, “because we would want to ask [Ms D] questions as to the whereabouts of our material”. Mr Dowding went on to note that [Ms D] could apply for a certificate pursuant to s 11 of the Evidence Act 1906 if there was a hearing of the nature he proposed.
25Later in the hearing, Mr Dowding said:
But the fact is this Court had made an order, we anticipated that we would have these documents back, they have been kept from us, they are – effectively my client’s records of his life during the alleged period in which it is said that my client has now got to provide details of facts and circumstances and he had to supply the documents”.
26There were further exchanges between counsel and her Honour concerning the future hearing of the matter, during which both counsel appeared to be proposing that the dispute should be referred back to me for determination, given my previous involvement. Having heard these submissions, her Honour was about to adjourn the matter to the Duty Judge list but then observed that she had just noted on the Court file that I had already directed that she ought to deal with the matter. Her Honour then proceeded immediately to say:
“… so I am going to tell you what the answer is now. All right. So in respect of the form 2 applications before the court today orders were made on the 6th of August, parties to comply with various procedural orders in the way of responding to the threshold issue that is before the court. The husband now contends that he is not in a position to do so. And he ‑ counsel has submitted that he expected that documents that he had in his possession which are no longer in his possession which he alleges the wife has removed which she and has had her charge in respect of that which she is defending would be returned to him. The orders of the 6th of August were not provisionally on the basis of any documents being returned, as far as I can see nothing has changed since those order were made and therefore the form 2 application of [Mr R] is dismissed. And in respect of the form 2 I will extend the time. How long do you need Mr Dowding?”
27The following exchange then took place between counsel and her Honour:
DOWDING MR: Well we will obviously have to consider your Honour’s order but I don’t see how we can possibly comply with your Honour’s order with respect because we have got to give disclosure of documents and she has got them ‑ ‑ ‑
HER HONOUR: Well you can disclose what is in your possession can’t you?
DOWDING MR: But that is not what the order is with respect.
HER HONOUR: Well ‑ ‑ ‑
CHILDS MR: Well your Honour there is nothing unusual about compliance in a case where documents have gone astray, there are numerous cases where documents go astray and the obvious answer is that the person providing disclosure describes what there was when they last knew the material was there and when it was last there and generally what it comprised. There is nothing unusual about that.
HER HONOUR: Well I think both parties – obviously if you your client does have documents in her possession she needs to disclose them as well.
CHILDS MR: Your Honour she is well aware of and there has been a comprehensive ongoing disclosure from her side with nothing from [Mr R].
HER HONOUR: All right well I will extend the time for compliance with the orders of the 6th of August, 2007 for a further period of 28 days. Both parties have agreed that the [pre-trial] conference which is currently listed for the 30th of November should be vacated and I will do that. Do you want me to give it another date now?
CHILDS MR: That would be prudent your Honour. Thank you.
HER HONOUR: See if we can get one for you.
DOWDING MR: Your Honour in relation to my learned friend’s suggestion that we can give a list of documents, that is not what paragraph four of the order calls for. We want to rely on the computer and the electronic files and the materials that have been removed from our residence and they are not in our possession so paragraph is an order that we exchange any material on which we intend to rely. It is just – it is odd that a court would contemplate enabling her to steal these documents and prevent us from not only dealing with that offence but actually complying with the terms of paragraph four.
HER HONOUR: Mr Dowding the contention is in issue that they were stolen by the ‑ ‑ ‑
DOWDING MR: It is not in issue with respect ‑ ‑ ‑
CHILDS MR: Well it is.
DOWDING MR: It is a plea of not – it is not in issue. There is a plea of not guilty to a criminal offence, yet she nowhere says in her affidavit I did not take the material and now where in her affidavit does she say I don’t have it. And nowhere in her affidavit does she say I don’t know where they are or I gave them to someone else. And our affidavit demonstrates that she took some of these documents to the [newspaper] in an attempt to gain publicity for her case. Now your Honour ‑ ‑ ‑
HER HONOUR: Mr Dowding you can comply to the extent you are able and you can address the extent that you are not able but those orders were made by the Chief Judge, I don’t see that anything has changed and I am not prepared to change my mind.
DOWDING MR: May it please you.
28There was then discussion about the adjournment date of the pre-trial conference and her Honour dealt with the question of costs. It will be noted that whilst Senior Counsel for [Mr R] sought to quarrel with her Honour concerning her clearly stated intention to require [Mr R] to comply with the order made on 6 August 2007, he made no mention at all of the order dismissing [Mr R]’s Form 2 application.
29[Mr R]’s application for leave to appeal was provided to the Registry on 14 December 2007, but for some reason it was not sealed and filed until 24 December 2007. Properly, no issue was taken in relation to the date of filing of the application.
30In his affidavit in support of his application for leave to appeal, [Mr R] said:
2.Apart from the orders made by the Magistrate not granting me the procedural orders sought in my Form 2 filed 19th November 2007, order 1 creates for me an impossibility. I simply cannot file particulars or a list of documents all because of the actions of the other party.
3.The actions of those parties have involved amongst other matters, the theft of substantial property from my home but also, my computers and hard copy files. Those hard copy files include my documents and paperwork as to historical matters and which I would want to be able to produce to comply with the orders.
4.I am advised that pursuant to Section 211(2) of the Family Court Act 1997 I must seek leave to appeal as I now do, claiming that I will be highly prejudiced if I am not granted leave to appeal and the appeal were then not to be granted. This would be because [[Ms D]] would then have put herself at considerable advantage in the case, by putting me in a position in which I cannot properly respond.
31On 21 December 2007, [Mr R]’s solicitors filed a document entitled “List of Documents”. Paragraph 1 of the document noted that pursuant to the consent orders made on 6 August 2007, [Mr R] was required to provide to [Ms D] a list of documents in his possession, custody or control. Paragraph 3 of the document read:
“What is in [Mr R’s] “possession, custody or control” has been limited by [Ms D] having stolen from [Mr R] various items which have included his computers and hard copy documents including hard copy records relating to some events which occurred during the relationship of the parties and matters relative to the factual legal issues relevant to the proceedings.”
32Attached to the List of Documents was a further document called “Respondent’s (Qualified) List of Documents”, which made reference to 16 different categories of documents.
33On 21 December 2007, [Mr R] also filed a document entitled Response to Particulars. That document read in part:
1.Pursuant to Orders made 6th August 2007, on 14th September 2007 [Ms D] filed and served a document entitled “Applicant’s Particulars of De Facto Relationship”.
2.Pursuant to orders made 23rd November 2007 the time for [Mr R] to file a Response, was ordered to be 21st December 2007.
3.The orders made 23rd November and to the extent that those orders still require [Mr R] to file a Response in the circumstances that have transpired in this case, are orders which are the subject of an appeal and stay application.
4.By “circumstances of this case” [Mr R] refers to [Ms D] having taken from [Mr R]’s residence chattel items including money, computers containing [Mr R]’s records and hard copy files of [Mr R]. These included hard copy records relating to some events which occurred during the relationship of the parties and matters relative to the factual legal issues relevant to the proceedings.
…
6.In these contexts [Mr R] supplies the following particulars but will seek to be able to rely on further particulars, following [Ms D] returning to [Mr R] the computers, hard copy records and other items which [Ms D] has taken from [Mr R].
34Attached to the Response to Particulars document was a detailed response to [Ms D]’s Particulars, which ran to more than 9 pages.
35At the hearing before me Mr Dowding SC (who again appeared for [Mr R]) was unaware that [Mr R]’s solicitors had filed the Response to Particulars and the List of Documents. When Ms Braddock, Senior Counsel for [Ms D], drew attention to the fact that the Particulars and List of Documents had already been provided and hence at least part of the appeal was moot, Mr Dowding responded by saying that the documentation [Mr R] had provided was clearly deficient and that there would no doubt be an application made to require him to provide better particulars. In this regard it is noted that whilst the Response to Particulars was provided on 21 December 2007, there was no suggestion by the time the matter came before me that [Ms D] had given any indication that she regarded the Particulars as being in any way deficient. Indeed, brief perusal of the Response to Particulars would suggest it is highly unlikely that such an assertion could reasonably be made.
Applicable law
36The application for leave to appeal is made pursuant to s 211 of the Act. The effect of s 211(1) is that a party aggrieved by an interlocutory order of a Family Law Magistrate cannot appeal as of right, but must first obtain leave to appeal. The effect of s 211(2) is that if leave is granted, the appeal must proceed by way of re-hearing.
37The law governing applications for leave to appeal against interlocutory orders is well established. In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170, Gibbs CJ, Aickin, Wilson and Brennan JJ said at 177:
Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v. Electronic Industries Ltd [[1978] VR 431 at 440]; on the other hand, De Mestre v. A.D. Hunter Pty. Ltd. [(1952) 77 WN (NSW) 143 at 146]. For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F.B. Gilbert (dec.) [(1946) 46 S.R. (N.S.W.) 318, at p. 323]:
“... I am of opinion that, ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”
38In Rutherford and Rutherford (1991) FLC 92-255 the Full Court of the Family Court of Australia (Ellis, Nygh and Wilczek JJ) said (at 78,715):
As counsel for the husband rightly remarked there is not as yet any reported authority on the principles to be applied in granting leave [to appeal] under section 94AA(1). However, there are a number of authorities dealing with equivalent provisions in relation to the Federal Court of Australia and the Supreme Courts of the States. In our view, counsel rightly invited us to seek guidance in the remarks of the High Court in Adam P Brown Male Fashions Pty. Ltd. v. Philip Morris Inc. (1981) 148 CLR 170 at 177 per Gibbs CJ, Aickin, Wilson and Brennan JJ.
39The Full Court in Rutherford went on to say:
Counsel submitted that the test should be read disjunctively, relying on the remarks of Street CJ, Owen J and Hardie AJ in De Mestre v A.D. Hunter Pty. Ltd. (1952) 77 WN (NSW) 143 at 146 where they said:
“… an appellate court should not … interfere with the exercise by the judge of first instance of his discretionary power unless a clear case has been made out that he has acted on some wrong principle or has made an order which works a substantial injustice to one of the parties.”
In the view we have taken it is not necessary to resolve that particular issue. Like their Honours in the High Court we “believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria.”
40In Bellette & Mackie [2007] FCWA 60 (unreported, delivered 11 May 2007), Penny J was required to determine an application for leave to appeal pursuant to s 211 of the Act. Having referred to the relevant authorities, her Honour determined that the criteria of error of principle and/or substantial injustice should be applied disjunctively given that the matter related to the welfare of a child.
41The present application for leave to appeal does not relate to a child. In the context of the present litigation, I would be inclined (were it necessary to decide) that it would be appropriate for leave to be granted only if it were established there was an error of principle and a substantial injustice to one of the parties as a consequence of the orders made. In coming to this view, I have taken into account the fact that the matter in issue is entirely one of practice and procedure, notwithstanding the painstaking efforts made by [Mr R] to suggest that the question is of the utmost importance to his case. It is, as Sir Frederick Jordan has said, very important to keep in mind that:
“The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”
Discussion
42I accept the submission made on behalf of [Ms D] that the appeal against paragraph 1 of the Magistrate’s orders made on 23 November 2007 has no merit whatsoever. [Mr R] has now complied with the orders made on 6 August 2007 and has complied in such a way that it is highly unlikely that [Ms D] could suggest that his compliance is deficient. In the event she did take further enforcement proceedings, [Mr R] would no doubt plead in defence the alleged theft of his documents. In these circumstances, the appeal against paragraph 1 of the orders made on 23 November 2007 is moot and that part of the appeal will be dismissed.
43The second aspect of the proposed appeal relates to the dismissal of the entire Form 2 application [Mr R] filed on 19 November 2007. In relation to this aspect of the matter, I accept there is merit in the proposition that [Mr R]’s counsel failed to agitate any part of Form 2 application at the hearing before the learned Magistrate, apart from that relating to compliance with the consent orders. However, the transcript indicates that [Mr R]’s counsel clearly anticipated that her Honour was going to adjourn the entire proceedings for hearing either before me (or another Judge), and in those circumstances I accept it was unnecessary for him to make submissions concerning the balance of the orders sought. Reference to the transcript indicates that her Honour discovered, more or less in “mid-stream” of adjourning the proceedings, that I had already directed that she should deal with the matter. Having made this discovery, and without seeking further submissions, her Honour not only gave brief reasons for refusing to discharge the consent orders, but also went on to dismiss [Mr R]’s Form 2 application. Perusal of her Honour’s reasons indicates that at no time did she have any regard to the orders sought at paragraphs 3 to 9 inclusive of [Mr R]’s application, which had not been mentioned at all in the submissions.
44In my view, the appropriate course of action for [Mr R] to have taken in relation to the dismissal of paragraphs 3 to 9 of his application was to seek to relist the matter before her Honour and request that she recall Order 5 by which she dismissed his entire application. There would, in my view, be no doubt that her Honour could do so by application of the “slip rule”, the width of which was explained in the following terms by Lockhart J of the Full Court of the Federal Court in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 at 210:
The slip rule applies where the proposed amendment is one upon which no real difference of opinion can exist. It does not apply where the amendment is a matter of controversy, nor does it extend to mistakes that are the consequence of a deliberate decision: see Arnett v Holloway[1960] VR 22; Re Army and Navy Hotel (1886) 31 Ch D 644 and Ivanhoe Gold Corp Ltd v Symonds (1906) 4 CLR 642.
The slip rule may be invoked irrespective of whether the order has been drawn up, passed and entered: Milson v Carter [1893] AC 638 at 640 ; Fritz v Hobson (1880) 14 Ch D 542 at 560 ; Shaddock per Mason ACJ, Wilson and Deane JJ at CLR 594‑5; Gould v Vaggelas (1985) 157 CLR 215 ; 62 ALR 527 and Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1973] 1 WLR 300.
It is well settled that the application of the slip rule is not confined to giving effect to the intention of the judge at the [Mr R]e when the court's order was made, or judgment given. It extends to the intention which the court would have had, but for the failure that caused the accidental slip or omission: Symes v Commonwealth (1987) 89 FLR 356. The rule also extends to permit the correction of an order or decree where the omission results from the inadvertence of a party's legal representative: Fritz v Hobson (1880) 14 Ch D 542 at 561‑2; Chessum & Sons v Gordon [1901] 1 QB 694; Tak Ming Co Ltd at 304; Shaddock per Mason ACJ, Wilson and Deane JJ at CLR 594‑5; and Gould v Vaggelas at CLR 274‑5.
45As Kirby J said in DJL v Central Authority (2000) 201 CLR 226 at 263 “… when it can be shown that a court order does not correctly reflect the court’s decision as contained in its reasons, rectification of the order is viewed as nothing more than a mechanical task”. That observation is clearly pertinent here, where her Honour dismissed the entirety of an application in circumstances where only a portion of it had been argued and where both counsel had reasonably anticipated that the proceedings were to be adjourned and determined by another judicial officer. The discharge of Order 5 made by her Honour is clearly a matter “upon which no real difference of opinion can exist”.
46In any event I accept the submissions made on behalf of [Ms D] that there was no cogent admissible evidence before the Magistrate to indicate that [Ms D] had stolen anything from [Mr R]’s home. [Mr R] had done no more than make a bald allegation that “[Ms D] has stolen or causing to be stolen” various items and that [Ms D] has been charged with theft as a result of a statement he made to the Police (a copy of which has never been provided to the Court). The content of the [newspaper] article does not establish that [Ms D] was in possession of any of the items allegedly taken from [Mr R]’s home. The article referred only to a claim attributed to [Ms D] that “she had hundreds of photographs of the pair together, as well as two lever‑arch files full of documents”. It defies logic to assume that the only photographs or documents [Ms D] might have in her possession were those that she had allegedly stolen from [Mr R]’s home. Prima facie, [Ms D] is entitled to the presumption of innocence and the right of silence and in response to an allegation that she has been charged with an offence is entitled to say nothing more than that she proposes to plead “not guilty”. Her failure to go further cannot, in my view, give rise to an inference that she has stolen anything.
Conclusion
47The proposed appeal against paragraph 1 of the orders made on 23 November 2007 is moot. The proposed appeal against paragraph 5 of the orders is devoid of any obvious merit. In any event the better course for [Mr R] to take, if he seriously wishes to pursue the relief originally sought, is to request to have the matter relisted before the Magistrate for a hearing on its merits. [Mr R]’s application for leave to appeal will therefore be dismissed.
I certify that the preceding [47] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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