Rilak and Tsocas (No. 2)

[2019] FamCA 98

FAMILY COURT OF AUSTRALIA

RILAK & TSOCAS (NO. 2) [2019] FamCA 98

FAMILY LAW – PRACTICE AND PROCEDURE – Procedural fairness – Distinction between final and interlocutory proceedings – Right to cross-examine witnesses

Family Law Act 1975 (Cth)

Rice v Asplund (1979) FLC 90-725

APPLICANT: Ms Rilak

RESPONDENT: Mr Tsocas

FILE NUMBER: SYC 2062 of 2010

DATE DELIVERED: 27 February 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 21 February 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self Represented

SOLICITOR FOR THE RESPONDENT: Watts McCray

Orders

1. The s 102QB application and Rice v Asplund application made by Mr Tsocas is adjourned for further hearing, including the cross-examination of witnesses and the making of final submissions to 21 May 2019 at 10am.

2. The parties are at liberty to appear by video link from the Sydney Registry of the Family Court of Australia into the Canberra Registry of the Family Court of Australia.  The parties must advise the Court seven days in advance of the hearing of their intention to attend by video link.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rilak & Tsocas (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 2062 of 2010

Ms Rilak

Applicant

And

Mr Tsocas

Respondent

REASONS FOR JUDGMENT

1. This matter came before the Court on 21 February 2019 in relation to the question of what procedural steps were required to ensure that Ms Rilak and Mr Tsocas both receive a fair hearing in relation to Mr Tsocas’ applications pursuant to s 102QB of the Family Law Act 1975 to have Ms Rilak determined to be a vexatious litigant, and his further application, if unsuccessful on the first limb, to have the proceedings brought to an end pursuant to the principles contained in Rice v Asplund[1]. 

   [1] (1979) FLC 90-725

2. The question as to procedure arises because the matter was commenced to be heard on 24 January 2019 following various directions being made, and was then heard without the cross-examination of the witnesses relied upon by the parties (themselves in each case). Evidence in chief was taken in the form of the affidavits of each of the parties and submissions were taken on the basis that the matters were being dealt with on an interlocutory basis. As subsequently identified to the parties, during preparation of the judgment in the matter, it became apparent by virtue of s 102QB(5) that such proceedings are final in their nature. Accordingly, a procedure having been taken which was consistent with the determination of the question on an interlocutory basis may have been inappropriate for the determination of final proceedings. The matter was relisted, the issue was identified to the parties and they were each requested to advise what matters were in contest between them in terms of the evidence that had been filed and as to what procedure ought to be followed to ensure that each was accorded procedural fairness.

3. Critical amongst these questions was the issue as to whether or not the parties should have been afforded the opportunity to cross-examine the other.  Mr Tsocas resisted such an opportunity being given noting that the matters that were placed in contest by the Mother, at least insofar as they came from his affidavit material, were not matters that (he submitted) could sensibly be contested.  Ms Rilak pressed for the opportunity (should she be unsuccessful in her primary contention that the proceedings be dismissed or stayed) that there be cross-examination permitted.  Ms Rilak pointed to compelling principle as set out by Bentham as the fundamental nature of the right to confront one's accuser.

4. It should be observed that a general right of cross-examination in final proceedings is not contingent upon a likelihood of success of such cross-examination.  It is a right of challenge that is a fundamental part of procedural fairness where a court has been called upon to make findings of fact adverse to a party based upon a witness’s evidence.  Whether or not Mr Tsocas may be correct to say that there is no reasonable basis for an attack upon the evidence that he relies upon, likelihood or unlikelihood of success is not a sufficient basis to deprive Ms Rilak of her right of cross-examination.  It may also be observed that, even absent any challenge to the facts deposed by Mr Tsocas, Ms Rilak has the right to seek concessions from him in cross-examination.  Without determining it at this stage, even if Mr Tsocas’ material unequivocally demonstrates that Ms Rilak has been repeatedly unsuccessful in litigation against him, such lack of success may not necessarily be sufficient to determine that she is a vexatious litigant.  It is axiomatic that parties undertake unsuccessful litigation in almost every case, without being prone to being characterised as vexatious litigants.  The circumstances surrounding, and the conduct of the litigation, are matters properly taken into account and it is properly within the province of the cross-examination of Mr Tsocas that Ms Rilak may seek concessions from him in her favour. 

5. For these reasons, the parties will each be accorded the opportunity to cross-examine.

6. Ms Rilak also sought the dismissal or stay of the proceedings.  Although her submissions on that point were at stages opaque, the central proposition she appeared to rely upon was the notion that the proceedings had been irretrievably damaged by their manner of conduct to date.

7. It may be noted that the relevant conduct of the hearing can be described in the following manner.  The parties’ evidence in chief has been received.  That evidence has not yet been tested.  The parties have given submissions.

8. As well as now allowing the parties to cross-examine (should they choose to do so), the parties will also be accorded the opportunity to make further submissions.  No particular prejudice was identified by virtue of the parties having already given submissions, such as to mean that now allowing the opportunity to cross-examine followed by further submissions would render the proceedings inherently unfair.  Under those circumstances the parties will now have each been given opportunity to test the evidence and to argue their cases comprehensively.  Their right to be heard will have been accorded to them and procedural fairness will have been accorded to them.  To the extent that Ms Rilak sought stay or dismissal of the Rice v Asplund and s 102QB applications such an application will not be granted.

9. Ms Rilak and Mr Tsocas estimated that the proceedings would take another day of hearing time.  Ms Rilak asked that the proceedings not be listed within the next eight weeks in order to give her time to sufficiently prepare herself.  That request can be accommodated within the Court list.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 27 February 2019.

Associate: 

Date:  27 February 2019