RIGNEY & BLAISE - [2012] FamCAFC 23

FAMILY COURT OF AUSTRALIA

RIGNEY & BLAISE

[2012] FamCAFC 23

FAMILY LAW – APPEAL – APPLICATION FOR LEAVE TO APPEAL – where the husband seeks leave to appeal against costs orders made by the Federal Magistrate in two applications, including the husband’s application to enforce consent orders providing for the wife to pay the husband $200,000 upon the completion of certain pre-conditions – where the husband’s primary complaint is that the Federal Magistrate dismissed his enforcement application as well as failing to deal with all of the orders sought – where a substantial injustice has been caused to the husband given his evidence that he had satisfied the pre-conditions for payment – leave to appeal granted.

FAMILY LAW – APPEAL – DELAY – where there was a delay of over two years in the Federal Magistrate delivering judgment, the husband argued that the Federal Magistrate failed to clearly demonstrate he had taken into account all relevant evidence and submissions and that the delay had not affected the decision making process – where both parties filed written submissions in accordance with the Federal Magistrate’s directions but heard nothing further from the Federal Magistrate until judgment was delivered by post, accompanied by a letter from the Federal Magistrate’s Deputy Associate explaining that the Federal Magistrate decided to deliver the judgment by post, rather than being handed down in open court, to avoid further costs to the parties – where the husband argued that the Federal Magistrate “took a significant shortcut” by failing to refer to evidence and submissions of the husband and by dealing with the “complex problems” of the compliance or non-compliance with the payment pre-conditions in a “simplistic manner” – merit found in these grounds of appeal – appeal allowed.

FAMILY LAW – APPEAL – EVIDENCE AND ADEQUACY OF REASONS – where as a pre-condition of payment the consent orders required the husband to provide the wife with documentation from the parties’ business – where at the trial before the Federal Magistrate the wife argued the husband had not returned some of the business’ accounting records, whilst the husband argued he never had possession of such material – where the Federal Magistrate assumed that if the husband did not have the documentation then he would not have agreed to hand over the records – where the Federal Magistrate failed to refer to or analyse in his reasons for judgment the evidence which clearly explains the husband’s position in relation to the documentation and why his enforcement application should succeed on the evidence presented, and where the Federal Magistrate did not afford the husband the opportunity to address the assumption – merit found in these grounds of appeal – appeal allowed.

Family Law Rules 2004 (Cth) r 17.02
Federal Magistrates Court Rules 2001 (Cth) r 16.05(2)(e)
Federal Proceedings (Costs) Act 1981 (Cth)

DJL v Central Authority (2000) 201 CLR 226
Expectation Pty Ltd v PRD Realty Pty Ltdand Anor (2004) 140 FCR 17
Hourd & Hourd [2011] FamCAFC 177
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Kioa v West (1985) 159 CLR 550
L Shaddock & Associates Pty Ltd v Parramatta City Council [No. 2] (1982) 151 CLR 590
Milham v Stanford (2001) FLC 93-073
Murray v Director, Family Services, ACT (1993) FLC 92-416
Russell v Russell (1999) FLC 92-877
Rutherford & Rutherford (1991) FLC 92-255

APPLICANT:

Mr Rigney

RESPONDENT:

Ms Blaise

FILE NUMBER:

CAM

563

2004

APPEAL NUMBER:

2010

DATE DELIVERED:

21 February 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, Strickland and Cleary JJ

HEARING DATE:

11 July 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

1 April 2010

LOWER COURT MNC:

[2010] FMCAfam 328

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Pappas

SOLICITOR FOR THE APPLICANT:

Tetlow Tigwell Watch Lawyers

THE RESPONDENT:

Self represented - no appearance

Orders

To the extent that it is necessary, leave is granted to the applicant husband to appeal against orders 2 and 3 made by Federal Magistrate Brewster on 1 April 2010.
The appeal is allowed.
Orders 2 and 3 made by Federal Magistrate Brewster on 1 April 2010 are set aside.
The enforcement application of the husband and the application for costs in relation to the respondent wife’s application for review are remitted to the Federal Magistrates Court for re-hearing before a Federal Magistrate other than Federal Magistrate Brewster with a request that the re-hearing be expedited.
There be no order as to costs.
The Court grants to the applicant husband 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 husband in respect of the costs incurred by the applicant husband in relation to the appeal.
The Court grants to the applicant husband a costs certificate pursuant to the provisions of s 8 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 husband in respect of such part as the Attorney-General considers appropriate of any costs incurred by the applicant husband in relation to the new trial granted by these orders.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 47 of 2010
File Number: CAM 563 of 2004

Mr Rigney

Applicant

And

Ms Blaise

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for leave to appeal by Mr Rigney (“the husband”) against orders made by Brewster FM on 1 April 2010. The respondent to the application is Ms Blaise (“the wife”), but she did not appear at the hearing before this Court and nor did she file any documentation in relation to the application.
The Federal Magistrate made orders for costs in respect of four applications that were before him, namely:
·an enforcement application by the wife;
·an application by the Law Society of the ACT in relation to a subpoena;
·an enforcement application by the husband in relation to certain property settlement orders made by consent; and
·the wife’s application for a review of a Registrar’s decision.
In summary, the Federal Magistrate ordered that the wife pay the costs of the Law Society and the husband in relation to the subpoena, and that the husband pay the wife’s costs in relation to her enforcement application, her review application, and his enforcement application.
The husband seeks leave to appeal against the orders for costs made in two of the four applications, namely his enforcement application and the wife’s application for a review of a Registrar’s decision.
Primarily though the husband seeks to complain about the apparent dismissal by the Federal Magistrate of his application for enforcement and his Honour’s failure to deal with all of the orders sought in that application.
In the event leave is granted, and the appeal is successful, the husband seeks a declaration that he has complied with previous consent orders in relation to property settlement and that an order be made requiring the wife to pay him the sum of $200,000 pursuant to those consent orders. As to costs, the husband seeks an order that the wife pay his costs in relation to his enforcement application and that the orders requiring him to pay the wife’s costs in relation to her review application be “vacated”.
Despite the unexplained non appearance by the wife at the hearing of the application and her failure to file any documents, we are satisfied from the affidavit of service filed on 21 May 2010, and from a letter dated 3 August 2010 from the husband’s solicitors to the wife and which was tendered before us and made Exhibit 1, that the wife was served with all relevant documents in the application. We also observe that by letter dated 31 March 2010 the Appeal Registrar advised both parties of the hearing date of the application.

Background

The parties married in 1991 and separated around February/March 2003.
Both parties are legal practitioners in the Australian Capital Territory.
The parties have two children, S, born in 1995, and H, born in 1996.
On 16 November 2004 orders were made by consent in the Federal Magistrates Court in relation to the arrangements for the children.
On 9 April 2006 consent orders were made in the Family Court in relation to child support and property settlement. Significantly those orders provided for the wife to pay to the husband an initial sum of $100,000 and a further sum of $200,000 upon the satisfaction of certain conditions.
The wife had previously filed an application seeking orders to restrain the husband from involving the parties’ children in activities involving firearms. That application was successful and on 7 August 2006 Brewster FM ordered that the husband pay the wife’s costs of $1,500.
On 13 October 2006 the wife filed an application to enforce that costs order (“the wife’s enforcement application”). The husband’s defence to that application was that he had paid the $1,500 to the wife, but in any event, rather than incur the expense of a hearing the husband paid the sum of $1,500 again. That brought the proceedings to an end but the wife, who continued to deny that the husband had made the first alleged payment of $1,500, subsequently sought that the husband pay her costs of the enforcement application.
As part of her enforcement application the wife issued a subpoena to the Law Society of the ACT seeking the production of certain files in relation to the husband. The Law Society objected and when the enforcement application did not proceed sought an order that its costs be paid by one or other or both of the parties (“the Law Society’s application”).
On 29 November 2006 the husband filed an application in a case seeking to enforce the property orders made by consent in the Family Court on 9 April 2006, including the order requiring the wife to pay him $200,000 (“the husband’s enforcement application”). The wife had not made the payment by the date stipulated because she claimed the husband had failed to comply with other provisions of the orders. Each party sought costs.
In relation to the husband’s enforcement application, Registrar Parker ordered the wife to file a Financial Statement. The wife sought a review of this decision, which later turned out to be unnecessary (“the wife’s review application”). The wife subsequently sought that the husband pay her costs in relation to this review application.

Reasons for judgment of the Federal Magistrate

The Federal Magistrate commenced his reasons for judgment by outlining the four costs applications that he said were the subject of the hearing.
Turning firstly to the wife’s enforcement application, the Federal Magistrate noted that had the issue of the $1,500 been pursued it would have been necessary for the Court to make a finding of fact as to whether or not the monies had been paid. The husband alleged that he paid the $1,500 by way of two cash instalments, whilst the wife alleged that no such payments were ever made. For the purpose of making costs orders, the Federal Magistrate found that the husband did not make either of the payments alleged, although

his Honour emphasised that “no issue involving the probity of the husband is involved in this finding”. In essence, the Federal Magistrate determined firstly that it was “unusual” that a person “in the position of the husband” would make cash payments to the wife without requesting a receipt and secondly, had the monies been paid the wife would not have reason to institute enforcement proceedings.
The Federal Magistrate then outlined s 117 of the Family Law Act 1975 (Cth) (“the Act”), determining paragraph (2A)(d) to be of particular relevance as it requires the Court to have regard to “whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court”.
His Honour ultimately determined that the husband did fail to comply with the costs order made on 7 August 2006 and, as there were “no matters concerning the parties’ financial circumstances which would militate against … making a costs order”, the Federal Magistrate ordered that the husband pay the wife’s costs of her enforcement application.
Turning to the Law Society’s application for costs, the Federal Magistrate noted that the material sought from the Law Society “had no direct bearing on the issues before the Court” but it was hoped that material obtained might “be used in cross-examination of the husband on matters of credit”.
His Honour referred in some detail to an extract from Fried & Ors v National Australia Bank Limited & Ors [2000] FCA 911 as to the cautionary use of subpoenas to obtain documents relevant to the credit of a witness.
His Honour considered the wife’s concerns as to the implications for her as a legal practitioner in the event the Court rejected her evidence in favour of the husband’s evidence, that being the reason for issuing the subpoena. Ultimately however, the Federal Magistrate concluded that he would have struck out the subpoena, and in the circumstances it was appropriate for the wife to pay the Law Society’s costs. Subsequently his Honour also indicated that the wife should pay the husband’s costs with respect to that subpoena.
Turning to the wife’s application to review Registrar Parker’s order that the wife file a Financial Statement, his Honour found it “difficult to understand why the wife’s financial circumstances would be relevant to the exercise of that discretion”. The Federal Magistrate set aside the Registrar’s order and noting that the husband had resisted the review application, proposed to make an order that the husband pay the costs of that application.
Turning to the husband’s enforcement application, his Honour outlined the relevant procedural background, specifically noting the property settlement orders made by consent on 9 April 2006. Firstly, Order 4 required the husband within 14 days to transfer to the wife his shareholding in the family company, R Pty Ltd, along with any interest in the company’s loan account. Secondly, Order 11 required the husband to return to the wife, within seven days, all the property in his possession or control owned by the company and/or the Rigney-Blaise Family Trust, including various types of accounting and financial records.
The orders also required the wife to pay the husband $100,000 within seven days of the husband “executing these orders” and a further $200,000 within 30 days of the husband “complying with Orders 1 to 14 herein”. The first $100,000 was paid, but the further $200,000 was not paid. The wife said this was because the husband had not complied with the orders, but the husband argued that he had complied.
His Honour went on to consider each party’s evidence as to the husband’s compliance with Order 11. In summary, the wife argued that the husband had not returned the accounting records, whilst the husband argued that he never had such material in his possession.
The Federal Magistrate again considered why the wife would draw consent orders for the husband to return the documentation “if she was aware that he did not have it in his possession and indeed that she had it in her possession” and similarly, the husband would not have signed the consent orders “if he did not have in his possession the documents that order 11 required him to furnish to the wife”. His Honour therefore determined that the wife was justified in refusing to comply with the husband’s demand for payment of the $200,000. In saying that he would dismiss the husband’s enforcement application, the Federal Magistrate ordered the husband pay the wife’s costs.
The Federal Magistrate then assessed the costs of the appearances by counsel for the Law Society and counsel for the husband in relation to the subpoena hearing. The Federal Magistrate noted at paragraphs 24, 25 and 27 of his reasons for judgment that he did not recall whether either counsel had an instructor and said that he would make provision for the costs of instructors in his orders.
His Honour then assessed the costs of the other applications, which were run together. At paragraph 29 his Honour assessed the costs payable by the husband to the wife at $12,380, indicating again that he would allow for the costs for an instructor if there had been one.
Ultimately, the Federal Magistrate offset the amount to be paid by the wife to the husband in relation to the subpoena ($1,560) against the amount to be paid by the husband to the wife ($12,380).

Orders made 1 April 2010 and the challenges to them

Brewster FM made the following orders:
(1)That within 60 days the wife pay the Law Society’s costs in the sum of $3,120.
(2)That within 60 days the husband pay the wife’s costs in the sum of $10,820.
(3)That these costs may be varied having regard to the matters set out in paragraphs 24, 25 [sic] 27 and 29 of this judgment. Any party may relist the matter by writing to my associate if there is any dispute as to this.
In his Notice of Appeal filed on 23 April 2010 the husband states that he is not seeking to appeal against all of the orders, however, rather than specifying the actual orders which he challenges, he states only that “[t]he Magistrate failed to grant the relief sought in the husband’s application”. It would be logical though that he is not concerned about Order 1, and we proceed on the basis that he is seeking to appeal against Orders 2 and 3. Indeed, this was confirmed by the husband’s counsel at the hearing before us.
In relation to the comment that the Magistrate failed to grant the relief sought in the husband’s application, as referred to above, the husband is here complaining that the Federal Magistrate in effect dismissed his application for an order by way of enforcement of the order that the wife pay to the husband the sum of $200,000. However, no formal order was made to this effect.
In addition the husband complains that the Federal Magistrate omitted to address paragraph 2 of the orders sought in his enforcement application, namely “[t]hat [the husband] deliver to [the wife] all remaining property under Order 17 of the Terms of Settlement within 14 days.”

Leave to appeal

There is an argument that orders for costs are final orders and thus leave to appeal is not required, but given the major challenge that the husband seeks to pursue is to the Federal Magistrate’s apparent dismissal of his enforcement application and his failure to deal with all of the orders sought in that application, and that application was probably an interlocutory application, leave to appeal may be required in that regard.
As is beyond doubt on the authorities, to obtain leave it is necessary to demonstrate that the Federal Magistrate has made an error of principle and/or caused a substantial injustice (Rutherford & Rutherford (1991) FLC 92-255).
The bases on which the husband sought leave to appeal here are:
1.Supposing the decision at first instance to be wrong, substantial injustice will result if leave is not granted because:
a.The applicant will never be able to comply with condition 11 of the Consent Orders dated 9 April 2006 and will be held out of the sum of $200,000.00 indefinitely, subject to those Consent Orders being set aside, that being highly unlikely.
b.The primary order in respect of which leave to appeal is sought has the effect of denying the applicant the payment of a substantial sum of money to which he is entitled.
c.The order has the practical effect of finally determining the applicant’s entitlement to performance by the respondent of the Consent Orders dated 9 April 2006.
2. The decision failed to address each of the orders sought.

Having read the written outline of argument of the husband and heard the oral submissions of the husband’s counsel we are persuaded that leave to appeal should be granted, certainly in relation to the major challenge of the husband identified above. In summary, the reason for this is that by in effect dismissing the husband’s application to enforce the orders for payment of the sum of $200,000, a substantial injustice has been caused to the husband given that he says that he has satisfied the pre-conditions for that payment to be made. He has been effectively shut out from pursuing that issue by the Federal Magistrate.
Given this outcome, we consider it appropriate to also grant leave to appeal against Orders 2 and 3 made by his Honour. They are at the very least consequential upon the apparent dismissal of the husband’s application.
Thus, turning to the grounds of appeal and orders sought.

Grounds of appeal and orders sought

The husband’s grounds of appeal as amended at the hearing before us are as follows:
1. The Learned Magistrate determined the question of the husband’s compliance with condition 11 of the Consent Orders dated 9 April 2006 by reference to his supposition relating to the husband’s state of mind when he signed the Consent Orders without his intention to do so being made plain to the husband or his counsel so as to afford the husband a fair chance to comment upon or correct that supposition.
2.The Learned Magistrate determined the question of the husband’s compliance with condition 11 of the Consent Orders dated 9 April 2006 without any or any proper regard to the evidence that:
a. The husband had systematically complied with the other 13 of the 14 conditions precedent to the payment in question.
b. The wife made no enquiry; received no advice and had undertaken no search nor reconciliation in support of her allegation that company records were missing, which might reasonably be supposed to be in the husband’s possession.
c. The company’s taxation returns had been prepared [sic] the company’s accountant, notwithstanding the wife’s evidence that she did not have a MYOB code, which was held by the husband and could not therefore access records locked in a computer for the purpose of preparing those taxation returns.
d.The company’s accountant raised no concerns with the wife in relation to supposedly missing documentation or records.
e. The wife could not describe even one supposedly missing company record.
f. The wife undertook no search for supposedly missing records between the 4^th of April 2007 and the resumption of her evidence on the 4^th of December 2007.
3.The Learned Magistrate determined the question of the husband’s compliance with condition 11 of the Consent Orders dated 9 April 2006 without affording any or any sufficient or appropriate weight to the fact that:
a.The wife only abandoned her allegation that the husband had not complied with the pre-condition 4 under cross-examination on the 4^th of December 2007 and when any other position became completely untenable.
b. The wife instructed her counsel to oppose and seek to set aside a subpoena issued at the request of the husband requiring the records of the company to be produced to the court in order to determine if any records appeared to be missing.
4.The Learned Magistrate failed to use or palpably misused his position of advantage in assessing the wife’s credit and in accepting her evidence that the husband had withheld some unidentified and undescribed property or record of the company, that evidence being inconsistent with the facts incontrovertibly established by the evidence set out in (a) to (f) in 2 above or, in the alternative glaringly improbable.
5.The Learned Magistrate denied the husband the opportunity to present oral argument in supplementation of this written submission filed on 18 December 2007, with the result that the decision under challenged [sic] were unfair to the husband.
6.The Learned Magistrate reserved his decision for more than two years, with the result that the decisions under challenge were inherently unfair or would be perceived by right thinking members of the public to be unfair.
7.The Learned Magistrate failed to address any of the arguments advanced by the husband in writing in support of his application to enforce the financial obligation owed by the wife and thereby denied to the husband a fair hearing of his application.
8.The Learned Magistrate’s judgment betrays fundamental confusion concerning the nature of the dispute between the husband and wife in that at paragraph 1(c) of his judgment he described the wife’s claims that the husband had failed to comply with the provisions of the Consent Orders as an “issue” which “in the end was sorted out” noting “but both the husband and the wife…claim costs in relation to that application”.
9.The Learned Magistrate erred in ordering the husband to pay the wife’s costs of her application to review the decision of Registrar Parker that she file a Financial Statement because the husband had a legitimate forensic interest in resisting the application, having regard to the wife’s failure to make the first payment of $100,000.00 contemplated by the Consent Orders by the date due for that payment and because of what the husband alleged, and demonstrated to, [sic] be, frivolous and baseless assertions he had not complied with the conditions precented [sic] to the second payment by the wife in the sum of $200,000.00 due from the wife.
10.The Learned Magistrate erred in failing to make any decision in relation to Order 2 sought in the husband’s application in a case.
In his Notice of Appeal the husband initially sought a declaration that he has complied with orders 1 to 14 of the consent Orders made 9 April 2006, noting that the last of such orders was satisfied by 13 March 2007. However at the hearing of the appeal the husband’s counsel conceded that there was now only a dispute about Order 11 and that even then no declaration was strictly required. The husband then seeks an order that the wife pay him the sum of $200,000 within 21 days of the date of the order, with interest calculated from 13 April 2007.
The husband also seeks an order that the wife pay his costs of and incidental to his enforcement application on an indemnity basis, or in the alternative on a party and party basis. Furthermore, the husband seeks that the order requiring him to pay the costs of the wife’s application for review be “vacated”. Lastly, the husband seeks an order that the wife pay his costs of and incidental to this appeal.

Discussion

We first need to address the failure by the Federal Magistrate to formally dismiss the husband’s application for enforcement. As referred to above,

his Honour specifically addressed paragraph 1 of that application, namely, “[t]hat [the husband] pay $200,000 to [the wife] within 14 days” in his reasons for judgment. In paragraph 21 of his Honour’s reasons he found “that the wife was justified in refusing to comply with the husband’s demand for payment of the $200,000” and he indicated that therefore he was dismissing the husband’s enforcement application. However, his Honour omitted to make a formal order to that effect.
His Honour’s failure to make a formal order dismissing the husband’s enforcement application could be remedied by this Court making such an order pursuant to the slip rule. However, given our later conclusions that his Honour erred in the manner in which he determined the enforcement application and that accordingly that application must be re-determined, it is of no practical consequence that his Honour failed, erroneously of course, to make the necessary formal order.
As to the appeal generally, we observe that in breach of the Rules of Court the husband’s outline of argument failed to discretely address the grounds of appeal, and simply provided a narrative which in effect summarised the complaints made by the husband. Despite this, we propose to specifically address the grounds of appeal and take as much as we can from the outline of argument in that process.
It is plain though that the grounds of appeal can be grouped together. Grounds 1 and 5 can be dealt with together, as can Grounds 2, 3, 4 and 7. Grounds 8, 9 and 10 still need to be addressed individually though. With Ground 6, prima facie that can be seen to be a stand alone ground, but it is apparent from the outline of argument that a number of the other grounds of appeal relate to this ground, and it would be convenient to address this ground first.

Ground 6

The complaint here is not about the delay per se of over two years in delivering judgment, but the failure by the Federal Magistrate as a result to clearly demonstrate that he has taken into account all relevant evidence and submissions, that he has taken every step possible to overcome the obvious difficulties arising from the delay, and that the delay has not affected the decision making process. The Full Court of the Federal Court (Carr, Emmett and Gyles JJ) expressed it this way in Expectation Pty Ltd v PRD Realty Pty Ltdand Anor (2004) 140 FCR 17:
72In cases not affected by delay, an appellate court is entitled to assume that the mere failure to refer to evidence does not mean that it has been overlooked or that other forms of error have occurred. However, where there is significant delay, no favourable assumptions can be made. In such circumstances, it is up to the trial judge to put beyond question any suggestion that he or she has lost an understanding of the issues. Where there is significant delay, it is incumbent upon a trial judge to inform the parties of the reasons why the evidence of a particular witness has been rejected. It is necessary for the trial judge to say why he or she prefers the evidence of one witness over the evidence of other witnesses (Hadid v Redpath (2001) 35 MVR 152 at [34] and [53]).
73Of course, where the trial judge, notwithstanding significant delay, demonstrates by his or her reasons that full consideration has been given to all of the evidence, the parties and the public may be satisfied that the delay has not affected the decision. More specifically, if the reasons demonstrate that the delay has not weakened the trial judge’s advantage, confidence will be maintained in the decision. For example, it would be open to a trial judge to explain in the course of giving reasons that contemporaneous notes were made of impressions formed as evidence was given by witnesses of importance (see R v Maxwell (unreported, Court of Criminal Appeal, NSW, Spigelman CJ, Sperling and Hidden JJ, No 60282 of 1998, 23 December 1998)).
74The problem is not restricted to fading memory. A judge who comes to make an inordinately delayed decision will inevitably be subject to great pressure to complete and publish the judgment. A conscientious judge could not but feel that pressure. It is almost inevitable that there will also be some form of external pressure – whether from the parties, the management of the Court, the press or parliamentarians. That pressure could well unconsciously affect the process of decision-making and the process of giving reasons for decision. The decision that is easiest to make and express will have great psychological attraction. As was recently said by the Western Australian Court of Appeal in Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149, in the course of a valuable review of the significance of delay in the delivery of judgments:
… a long delay can give rise to disquiet … because of the suspicion, on the part of the losing party, that the task may have become too much for the trial Judge and that he or she had been unable, in the end, to grapple adequately with the issues.
Here, it is said, the Federal Magistrate failed to analyse or even refer to the evidence relating to the issues in dispute, and in particular the compliance or not with Order 11 of the consent orders made on 9 April 2006 which provided the only outstanding precondition to the requirement of the wife to pay the sum of $200,000 to the husband pursuant to those consent orders following the wife’s reluctant but appropriate concession in cross-examination that the husband had complied with Order 4.
Further, it is submitted that his Honour failed to address the submissions put on behalf of the husband in writing and failed to allow the husband to “supplement his written submissions orally despite a specific request to that effect”.
The hearing before the Federal Magistrate took place on 4 April 2007 and 4 December 2007. At the conclusion of the hearing on the latter date his Honour directed that written submissions be filed and he set out a timetable for that. Then, in response to a request by the husband’s solicitor in relation to a time for “submissions by telephone” the Federal Magistrate said this:
If I feel that it’s desirable I will do so, or if either Counsel wish to talk to their submissions could they indicate that. (Transcript, 4 December 2007, page 48, lines 29-30).
Both parties filed their written submissions in accordance with his Honour’s directions and timetable and at the conclusion of the husband’s written submissions filed on 11 December 2007 the following appears:
The husband wishes, via counsel, to supplement these submissions orally.
However, nothing was then heard from the Federal Magistrate until his Honour delivered his reasons for judgment on 1 April 2010, and that judgment together with the orders made on that day were accompanied by a letter from the Deputy Associate to the Federal Magistrate which letter was tendered to us and marked Exhibit 2. That letter reads as follows:
Dear Sir/Madam,
RE: THE MATTER OF [RIGNEY & BLAISE] – CAM 563 of 2004
I refer to this matter and enclose the judgment and orders of Federal Magistrate Brewster made 1 April 2010.
Federal Magistrate Brewster decided to mail the judgment and orders to you rather than handing them down in open court as he considers that too much has been paid by way of costs in this matter to date and he would not wish to increase those costs by requiring lawyers to attend court again. On scale this would be a total of $720. In addition it would involve the issue of apportioning part of those costs between the husband and the wife given that neither was wholly successful in this litigation.
Federal Magistrate Brewster apologises for the inordinate delay in handing down this judgment.
In summary, in relation to this ground of appeal, we consider that there may well be force in the criticisms contained in the following passage from the husband’s written outline:
The appellant complains of the simplistic manner in which in [sic] the Learned Magistrate dealt with the complex problems of compliance or non-compliance with order 11; his failure to refer even obliquely to the husband’s arguments as illustrated by cross-examination; his failure to refer to the husband’s written submissions and his failure to allow the husband’s counsel to address him orally all pointing strongly to the conclusion that His Honour took a significant shortcut to bring to an end his every [sic] lengthy delay in finalising this matter. That shortcut was taken in a way which simply failed to address the various issues raised by the evidence.
We consider this complaint to be made out as will also become apparent by our consideration of the other grounds of appeal.

Grounds 1 and 5

In relation to Ground 1, the “supposition” being referred to is his Honour’s assumption that if the husband did not have the documentation then he would not have agreed to hand over the records. The evidence in relation to this topic arose in the cross-examination of the husband by the counsel for the wife. For example, there was the following exchange:
On your evidence, sir, the only documents you had were a slip of paper that I take you created sometime after these orders with the password written on it?---Yes.
A few other documents that would have been less than six in number?--- Yes.
Six pages in number?---Six pieces.
Six pieces. And it’s fair to say it was a fairly difficult divorce that you were going through; it wasn’t one that was going easily, was it?---No.
No. Why then, sir, did you agree to include all these other documents in order 11 that you would pass over to the wife if, indeed, to your knowledge, she already had them?---Because I had one box that I had managed to get out of [R] Avenue, and I believed that anything that related to the Company would be in that box, and it would be easy for me to comply with the order.
(Transcript, 4 April 2007, page 10, lines 1–17)
Then later in cross-examination the following exchange took place:
MR THOMAS: Thank you, your Honour. So mainly personal papers in that box to your mind at the time?---Yes.
So why did you agree to sign a document in the form of the terms of settlement including paragraph 11, that referred to cheque books and butts, deposit books and butts, bank statements, invoices rendered, GST records and the password access to MYOB?---Because if I had them they would have been in that one box.
(Transcript, 4 April 2007, page 12, lines 4-8)
The husband’s unchallenged evidence was that he subsequently handed this box over to the wife.
There is no doubt that a judicial officer exercising a discretion as the Federal Magistrate was here, is not generally required to refer to each and every piece of evidence, and “to detail each factor which he has found to be relevant or irrelevant, or to itemize [all of the matters] … to which he or she has had regard” (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378, per Mahoney JA at 386). However, as referred to above that changes when there is substantial delay, and the responsibility on the judicial officer to delve into the detail increases as a result.
Nowhere in his reasons for judgment did his Honour refer to or analyse this evidence which clearly explains the husband’s position and militates against the assumption that his Honour apparently acted upon. Significantly his Honour also did not afford the opportunity to the husband to address that assumption. In our view this plainly smacks of a lack of natural justice. The authorities are clear, and we need to do no more than to refer to the decision of the High Court in Kioa v West (1985) 159 CLR 550 where Mason J said this (at 582):
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: …
Likewise, in relation to Ground 5, it is clear that the Federal Magistrate denied the husband the opportunity to supplement his written submission. Again this sounds in a lack of natural justice, but also demonstrates that the Federal Magistrate understandably must have been under pressure to deliver the judgment given the delay already, and thus perhaps misguidedly closed off the possibility of any further delay by not allowing further submissions.

Grounds 2, 3, 4 and 7

The issue of the compliance or not by the husband with Order 11 of the consent orders made on 9 April 2006 was plainly a significant one that required

his Honour to analyse and address the evidence that was presented and the submissions that were made before making his findings.
It has been demonstrated to us that there was substantial evidence put before the Federal Magistrate by the husband that bore upon this issue and there was also extensive cross-examination of the wife about “the allegedly missing or undelivered records”. Further, this issue was the topic of written submissions provided to the Federal Magistrate on behalf of both parties.

Despite this the Federal Magistrate did not refer to any of this evidence or to any of the submissions in his reasons for judgment. Instead his Honour determined this issue in one paragraph as follows:
21.Irrespective of the issue of whether the documents referred to were or were not in the possession of the husband I am of the view that the wife believed that they were in his possession and had reasonable grounds for that belief. The consent orders were drawn by the wife. I find it difficult to understand why she would draw an order requiring the husband to provide all this documentation if she was aware that he did not have it in his possession and indeed that she had it in her possession. Likewise the husband read the orders before he signed them and I do not accept that he would have signed them if he did not have in his possession the documents that order 11 required him to furnish to the wife. I therefore find that the wife was justified in refusing to comply with the husband’s demand for payment of the $200,000. I therefore dismiss his enforcement application. Again I order that he pay the wife’ costs. In relation to credit I repeat what I said in paragraph 4.
In our view this was unsatisfactory. This would have been the case even without the delay in delivering judgment, but as a result of that delay there was a clear onus on the Federal Magistrate to inform the parties through his reasons of how he had dealt with the evidence that was before him and the submissions that were made to him, and his Honour failed to do that.
We also observe that his Honour failed to explain how he could form the view “that the wife believed that [the documents] were in [the husband’s] possession and had reasonable grounds for that belief” despite the evidence given by the wife in cross-examination. We highlight the following exchange between counsel for the husband and the wife:
MR PAPPAS: Thank you. You see, you are not able to identify with any precision, are you, any record that your former husband had, to your knowledge, that he ought to have handed over pursuant to order 11 in those consent orders?
FEDERAL MAGISTRATE: I’m sorry, can you repeat that?
MR PAPPAS: I will go back and put it again. Leave aside for the moment what you say about the MYOB password. You are unable to indentify, I want to suggest, any single record that you say your former husband had at the time these consent orders were executed on 7 April 2006, that he has failed to hand over to you?---I can’t identify individual documents other than there must be invoices for work performed, receipts for payments made and for expenses incurred in the business.
FEDERAL MAGISTRATE: Well, your case is: you have got the records up to separation, basically, is that right?---I think I do, yes.
And you don’t have any after separation?
MR PAPPAS: Well, I object to that, your Honour, I’m sorry.
WITNESS: No, it’s not – no. I have some, but I dub they are incomplete.
FEDERAL MAGISTRATE: They’re incomplete, right. So you are not able to identify today, with precision, what it is you do have post 2003?---Not here now. But if I went and, I guess, and looked at the records, I could figure out what was missing.
(Transcript, 4 April 2007, page 41, lines 9-36).
Subsequently, this exchange also took place:
You heard your Counsel tell his Honour that you had forwarded documents to the company’s accountant in Melbourne with a view to compiling taxation returns outstanding for [R Pty Ltd]?---Yes.

When did you do that?---Over various periods of time; not in one go.

When was the last occasion on which you forwarded those records to the accountant?---Some time after the filing cabinets were removed from my former offices back to my home.

Was that before April of this year when we were first in Court on these applications?---I think so.

There’s no doubt, is there, that by the time you came to be cross-examined in April this year those filing cabinets had been moved from one place to another, and then returned?---Yes.

There’s no doubt that you gave evidence on that occasion in April that you were concerned about a letter that you had received from the Australian Taxation Office requiring [R Pty Ltd] to file one or more taxation returns?
---Yes.

In attempt to comply with that demand you had forwarded some documents to the company’s accountant in Melbourne. Is that so?---Yes.

You’d asked the accountant, if I understood what your barrister said today, to try and prepare taxation returns based on the documents you’d forwarded?
---Yes.

Presumably at some stage the accountant wrote back to you, or contacted you, and said, “Look I just can’t do it because there are some records missing”?
---No.

Isn’t it part of your assertion that there are records missing which prevent those taxation returns from being prepared?---I think there are things missing which would prevent me from wanting to sign a tax return.

I don't want to be playing semantics with you. You can’t lodge a tax return if it’s not signed by an officer of a company, can you?---No.

You say to his Honour on oath I think there are documents missing which would prevent me from signing the taxation returning and thus lodging it on behalf of the company; is that right?---Yes, I would feel uncomfortable signing the tax returns.

But apparently you’ve received no notification from the accountant to the effect that he or she cannot prepare the taxation returns. Is that so?---I guess you could prepare a return on what is given.

I’m not asking you to guess anything [Ms Blaise]. Just answer my question. Is it so that you’ve received no notification from the company’s accountant that he or she cannot prepare taxation returns because there are documents missing?---Correct.

You see, on the last occasion that you gave evidence here, I want to suggest, that you were asserting on oath that the taxation returns simply could not be prepared and filed, weren’t you?---Yes.

Did you really mean to indicate that you weren’t prepared to sign off on the taxation returns?---Correct.

That the returns could be prepared but you wouldn’t sign them?---Correct.

Because you had a feeling in your water that there might have been things missing?---Yes.

It goes no higher than that does it; you have a sort of vague apprehension that there might be missing documents?---I have a sufficient apprehension that I would feel uncomfortable signing tax returns on the basis of the material I have.

Of course his Honour asked you about the missing documents on the last occasion, didn’t he?---Yes.

You told his Honour on oath that whilst you couldn’t identify the missing documents with precision on that day, that is 4 April 2007, “If I went and, I guess, and looked at the records I could figure out what was missing.” Do you remember giving that evidence on oath?---Yes.

Was that truthful evidence?---Yes.

Presumably, between 4 April and 4 December you’ve done that?---Sort of.

You’ve sort of done it?---Yes.

Have you produced a list of the documents that you now say are missing, have you?---No, I haven’t produced a list.

Have you notified your former husband, or your solicitors of documents you say are missing?---No.
(Transcript, 4 December 2007, page 31, line 18 - page 33, line 9).

Then there were the written submissions of the husband which addressed the evidence before the Federal Magistrate. For example, the following submissions were put:
Under cross-examination the respondent/wife was forced to concede time and again that she had made no enquiry; she had received no advice; she had undertaken no search; she had prepared no reconciliation nor taken any other reasonable step to verify her assertions that not all records held by or under the control of the husband in relation to [R Pty Ltd] had been made available to her.
On day one of the wife’s evidence (4 April 2007) the wife asserted under cross-examination that she was unable to comply with her obligations as a director of the company [R Pty Ltd] to lodge taxation returns because of a lack of records. By the time the respondent/wife came to be further cross-examined on the 3^rd of December it was clearly conceded that the taxation returns in question had been prepared by the company’s accountant and the most the respondent/wife could say was that she was reluctant to sign off on the returns because she “had a feeling in her waters” that there must be some missing records.
In conceding that the company’s accountant had prepared the subject taxation returns the respondent/wife was also forced to concede that the accountant had raised no concerns with her as to supposedly missing documentation.
On further cross-examination it became clear that the respondent/wife could not describe with any particularity the records of the company which she “believed” must have been missing and she could give no better basis for that belief than to point to a letter written by her former husband to her former partner relating to a single job of legal cost accounting undertaken by the husband for that solicitor. That letter became Exhibit “H1” in the proceedings.
In essence, the respondent/wife was prepared to allege fraud on the part of her former husband based on a letter which was clearly written on the husband’s letterhead which does not seem to have about it the hallmarks of sneaky or fraudulent activity and which does not in terms nor by necessary implication establish that which the respondent/wife suspected, namely that her husband had in some way been abstracting work from the company.
Under cross-examination on the 4^th of April 2007 the respondent/wife waxed and waned as to whether or not she had received company records from her former husband at about the time she excluded him from the property described as [R Avenue]. In response to questions from Your Honour, the respondent/wife indicated “if I went and, I guess, and looked at the records, I could figure out what was missing”.
Not only did the respondent/wife not do that, she then instructed her counsel to oppose and seek to set aside a subpoena issued by the applicant/husband after the 14^th of April designed to have all relevant records held by the company produced to the court so that any gap in the records might be identified either directly or under cross-examination of her.
Thus, we are persuaded that Grounds 2, 3 and 4 are made out given the evidence that was before his Honour and his Honour’s failure to address that evidence in his reasons for judgment. Equally, Ground 7 is made out given that there is no indication in his Honour’s reasons for judgment that he has taken any account of the arguments advanced by the husband as to why his enforcement application should succeed on the evidence presented.

Ground 8

This is unfortunately another indication in his Honour’s reasons that the delay has affected the decision making process. There was no basis on the evidence before his Honour, or on the submissions put to him, for his Honour to conclude in paragraph 1(c) of his reasons that the issue of compliance or not with the provisions of the consent orders “was sorted out” in the end, and that the issue before him was simply that “both the husband and the wife each claimed costs in relation to that application.”
As is apparent, the issue of compliance or not with Order 11 of the consent orders was hotly contested and indeed was one of the principal issues that

his Honour was required to determine.
Thus, we consider that once again his Honour has erred and this time in his appreciation and understanding of the issues in dispute, and this may have come about because of the delay in delivering his judgment and the inevitable pressure that that imposes on a judicial officer.

Ground 9

We were unsure if the husband still pursued this ground of appeal given that this was not addressed in either the husband’s written outline of argument or in the oral submissions made at the hearing of the appeal. Nevertheless, given the unsatisfactory way in which his Honour determined this case, we consider that it would be unsafe to let this order stand. We cannot be satisfied that

his Honour has appropriately addressed the issues in dispute here, and exercised his discretion as he should.
In any event, we find that despite the lack of submissions by the husband the complaint detailed in the ground of appeal itself is sensible and logical. In other words, it resonates with us that the husband “had a legitimate forensic interest” in pursuing the filing by the wife of a Financial Statement in the context of the enforcement application that he made in relation to the wife’s initial failure to pay to him the sum of $100,000 provided for in the consent orders, and then her failure to pay the further sum of $200,000 also in accordance with those orders.
In the circumstances we consider that this ground also has merit.

Ground 10

Again there was no written or oral submission by the husband directed to this ground of appeal, but it plainly speaks for itself.
His Honour failed to deal at all with paragraph 2 of the orders sought in the husband’s application and thus there is a clear error on his part.

Conclusion

We have found merit in all of the grounds of appeal. Thus the appeal must be allowed, and orders 2 and 3 of the orders made by the Federal Magistrate be set aside.
The question then becomes whether the proceedings should be remitted to the Federal Magistrates Court for re-hearing, or whether this Court should re-exercise the discretion.
The husband’s solicitor submitted that we should re-exercise the discretion, and if we did that there would be no further evidence that would need to be presented.
There are factors here that indicate that the appropriate course is to re-exercise the discretion, and in particular the delay in the delivery of judgment by the Federal Magistrate, and the costs that would be incurred by the parties on a re-hearing. However, ordinarily this is a matter that should be remitted for re-hearing given that despite the confidence of the husband’s counsel we do not have sufficient evidence before us to enable us to re-exercise the discretion. Further, it cannot be said that the issue in dispute is de minimis given that the real issue is the non-payment by the wife of the sum of $200,000. Thus we propose to remit the proceedings.
We can do nothing about the delay in the delivery of judgment by the Federal Magistrate, but we can ameliorate any further delay by requesting that the re-hearing be expedited. Indeed, we would anticipate that the time to a re-hearing could very well be less than the time that would be taken to re-exercise the discretion. We say that because before we could re-exercise we would need to give an opportunity to the wife to make a submission about that and to detail any evidence that she would wish to adduce in the event that we did re-exercise the discretion. There is also the prospect that if the evidence that is to be adduced becomes controversial then a re-exercise of the discretion will not be possible and the matter would then have to be remitted in any event.

costs

At the conclusion of the hearing we sought submissions from the husband’s counsel as to costs.
The husband’s counsel submitted that if the appeal was successful then an order should be made that the wife pay the husband’s costs of and incidental to the application and the appeal. However, he further submitted that if there was no order for costs then on the basis of the appeal succeeding on a question of law the husband seeks a costs certificate pursuant to the Federal Proceedings (Costs) Act1981 (Cth).
In the circumstances of this case we do not consider it appropriate to make an order for costs against the wife. However, given that the appeal has been allowed on a question of law we consider it appropriate that the husband receive costs certificates pursuant to the Federal Proceedings (Costs) Act1981 (Cth) for both the appeal hearing and the re-hearing before a Federal Magistrate.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland and Cleary JJ) delivered on 21 February 2012.

Associate:

Date: 21 February 2012