Ruane and Bachmann-Ruane

[2009] FamCA 1100

FAMILY COURT OF AUSTRALIA

RUANE & BACHMANN-RUANE [2009] FamCA 1100

FAMILY LAW – PRACTICE AND PROCEDURE - Adjournment pending changes of legislation - Adjournments and exercise of discretion - Reopening of case having regard to impending changes in the law

Family Law Act 1975 (Cth)

Black and Black (2008) FLC 93-357
Humphris v Harbour Radio Pty Ltd and Ors (1999) 32 ACSR 537
In the Marriage of D J and S E Van Essen (2000) 26 Fam LR 456; (2000) FamCA 775
Jeans West Corp Pty Ltd v Archer [2004] WASCA 132
Jupp v  Computer Group Limited and Anor (1994) 122 ALR 711
Meggitt Overseas Limited (now known as Wallaby Grip Limited) and Ors v Grdovic [1998] NSWSC 233
Re Minister for Minerals and Energy; ex parte Wingate [1987] WAR 190
Willow Wren Carrying Co Limited v British Transport Commission [1956] 1 WLR 213

APPLICANT: Mr Ruane

RESPONDENT: Ms Bachmann-Ruane

INTERVENOR: F Firm

FILE NUMBER: SYC 1991 of 2009

DATE DELIVERED: 20 November 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 13 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wheelahan SC with Mr Thompson

SOLICITOR FOR THE APPLICANT: Taussig Cherrie & Associates

COUNSEL FOR THE RESPONDENT: Mr North SC with Dr Ingleby

SOLICITOR FOR THE RESPONDENT: Gadens Lawyers

COUNSEL FOR THE INTERVENOR: Mr Jackson

SOLICITOR FOR THE INTERVENOR: Wotton Kearney

Orders

1. That the application to delay the delivery of judgment and reopen the substantive case is dismissed.

2. That any party seeking costs arising out of these orders may do so in writing by no later than 4.00pm on 4 December 2009 and any recipient of such written application with supporting submissions may respond thereto by 4.00pm on 11 December 2009 and judgment in respect of the issue of costs shall be determined by me in chambers.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including the attendance of senior counsel and two counsel for each party.

IT IS NOTED that publication of this judgment under the pseudonym Ruane & Bachmann-Ruane is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: SYC 1991  of 2009

Mr Ruane

Applicant

And

Ms Bachmann-Ruane

Respondent

And

F Firm

REASONS FOR JUDGMENT

1. On the eve of delivering judgment on the validity of a financial agreement, an application was made by the wife who was the respondent in the proceedings to reopen her case because of legislative activity in the Australian Senate relating to amendments to the Family Law Act 1975 (Cth) (“the Act”).

2. In the substantive proceedings between husband and wife, the husband sought to set aside a financial agreement on the basis that it was not binding.

3. The husband had relied inter alia upon a decision of the Full Court in Black and Black[1].

   [1] (2008) FLC 93-357

4. It is common knowledge that the legislative proposals which are currently before the Australian parliament are said by the Attorney-General to ameliorate the problems for people as a result of Black and Black.

5. In February 2009, the House of Representatives passed a bill[2] to amend the law which it is said would overcome the authority of Black and Black . 

   [2]          Federal Justice System Amendment (Efficiency Measures) Bill (No 1) 2008

6. On 26 October 2009, the Senate amended the bill and referred it back to the House of Representatives.  That event seems to have activated the current application.

7. It is asserted by Senior Counsel for the wife that it is highly likely that the bill will be passed and become substantive law.  Just when it will become law is not known.

8. The husband opposed the wife’s application to reopen the case and asked that judgment on the substantive validity issue be delivered. 

9. On 13 November 2009, I heard submissions and argument from Mr North SC for the wife and Mr Wheelahan SC for the husband.  Mr Jackson on behalf of the third party respondent attended but did not put any matters in argument.

10. At the conclusion of the hearing on 13 November, I reserved judgment.

11. This dispute is really about whether this Court should take into account pending legislative change.

12. The wife tendered and I accepted into evidence, a series of documents which included the historical copies of the bill, memoranda and second reading speeches.  I did so over objection from the husband.  In my view, regardless of the nature of the wife’s application, that material is important and admissible. It was certainly considered by the New South Wales Court of Appeal in Meggitt to which I shall refer below. That material is important in understanding whether or not there is to be some change in the law. Whether or not that is a basis to consider the delay as was sought by the wife is another matter.

The wife’s position

1. Senior counsel for the wife argued that it was his client’s desire to reopen the argument on the preliminary point about the summary determination of the validity issue. 

2. The reopening was said to be justified because apart from impending changes to the law, had the substantive issue been left to the normal trial process, there was a high degree of probability that the law would be different at the time that the trial might have occurred in this Court. If so, the wife’s rights thereunder would probably be enhanced.  It was argued that the process the husband had pursued had accelerated the hearing and he had taken advantage of the law as it currently stood.

3. The wife was asking no more than to leave all issues to be tried as a final hearing.

4. It was also the wife’s case that as part of the exercise of discretion, I should take into account the possibility of impending changes. If that was the thrust of the submission, for reasons to which I shall turn, I disagree that it is an appropriate matter to contemplate if I determine that what the wife is seeking is an adjournment of the husband’s interim application.

The husband’s position

1. Senior counsel for the husband argued that it would not be a proper exercise of judicial discretion or judicial function to defer making a decision on the ground that the law may be changed by legislation in the future. 

2. It was further put that the Court had a duty to decide the case in a timely fashion according to the law as it stood and the husband had the right to an adjudication on his application having made it. 

3. Senior counsel for the husband argued that the Court would be in error in deferring the decision to give the wife the prospect of gaining an advantage under proposed legislation to the detriment of the husband.

AUTHORITIES

1. There is an array of legal authorities available and to which both parties referred. Some of them are distinguishable and others not helpful.

2. I have read all of the submissions and authorities provided to me but feel that I can determine the issue on the basis of the assistance that I have received from the authorities to which I now turn.

3. In Willow Wren Carrying Co Limited v British Transport Commission [1956] 1 WLR 213, after the case was readied for trial, a stay of the hearing was pursued until the “fate” of a bill in parliament was known which the applicant “hoped” would relieve them from statutory obligations.

4. Upjohn J declined to delay the progress towards the final hearing.  His Honour said:

   …I cannot take into account the possible effect of some Bill now before Parliament which, if passed into law in its present form, may have some effect upon the rights of the parties.

   His Honour then said:

   …it is a matter of speculation on which this court will not embark as to whether a Bill at present before Parliament will be passed into law in its present form.

5. Notwithstanding the age of this decision and the fact that it is from another jurisdiction, I say that it reflects the law in Australia.

6. There is argument that in the current proceedings, the case was not “readied for trial” but having regard to the fact that the husband made his application which had final consequences and in my view could be determined on the documents, little turns on the distinction.

7. Similarly, the fact that in Willow Wren there was uncertainty about the bill, there is also some (arguably less) uncertainty about this legislation. However, to place too much emphasis on when such legislation might become law in my view means that the court is being asked to begin to evaluate distinctly different rights for the parties and assist one to achieve an advantage that the other may have. That is not the function of the judiciary.

8. Jupp v  Computer Group Limited and Anor[3] was a case before the Industrial Relations Court of Australia.

   [3] (1994) 122 ALR 711

9. The applicant relied upon a media release to seek an early hearing to avoid proposed legislative amendments.

10. Gray J rejected the application to bring the hearing forward on the basis sought and held that a court should neither abridge time for a hearing nor delay such a hearing for the purpose sought by the applicant.  His Honour referred to a number of authorities where there was legislation before the parliament unlike the proposed legislation referred to in the media release.  His Honour referred to and adopted what Upjohn J said in Willow Wren (supra)

11. There are similarities between that case and what I am being asked to determine except that the applicant for the adjournment relied upon a media release rather than there being any legislation in the parliament as is the case before me.

12. Humphris v Harbour Radio Pty Ltd and Ors[4] was a case before the Supreme Court of Victoria. Because of a decision of the High Court of Australia[5], Federal Court proceedings had to be abandoned for jurisdictional reasons and a new action was commenced in the Supreme Court of Victoria as a replacement proceeding.  The Victorian Court proceeding was then effectively stymied by statutory time limitations. 

    [4] (1999) 32 ACSR 537

    [5]          Re Wakim; exparte McNally (1999) 163 ALR 270

13. Similar to the position in Jupp (supra), the applicant relied upon a press release from the Victorian Attorney-General which stated that remedial legislation would be introduced into the Victorian Parliament.  The applicant then sought to adjourn the proceedings pending the proposed legislation.

14. Byrne J allowed the application to be adjourned because it was essentially a matter of procedure.  His Honour did not refer to Jupp (supra) but he did refer to Willow Wren (supra) as part of the “high authority” for the view that cases in the courts must be determined on the law as it stood and not as it might be in the future.

15. However his Honour noted that the proposed legislation would make the previous proceedings in the Federal Court of Australia a “proceeding in the Supreme Court of Victoria”.  His Honour said no prejudice had been suggested by the respondents and that justice in the very unusual case, required a granting of the adjournment.

16. Humphris was about a procedural order. The proposed legislation was not about a change to substantive rights but rather about the capacity to pursue (if not continue) those rights.

17. Jeans West Corp Pty Ltd v Archer[6] was a decision of the Full Court of the Supreme Court of Western Australia.

    [6] [2004] WASCA 132

18. Because of an earlier Supreme Court decision, it was argued that a worker’s compensation claim by the applicant had been stymied.  A bill was introduced into the parliament to reinstate the rights of those workers denied because of the Supreme Court decision.  The Court of Appeal noted that there was no certainty that the legislation would be enacted but that it did constitute a significant indication of a possible change in the law.  It was held that there was “plainly a distinct possibility” that the obstacle might be removed and it was appropriate for an adjournment pending the outcome of the legislation.  In taking that view however, Em Heenan J with whom Malcolm CJ and McLure J agreed, referred to Re Minister for Minerals and Energy; ex parte Wingate[7].  In that case, a majority of the Supreme Court of Western Australia ruled that an adjournment was appropriate where a change in the law which would have altered the rights and obligations of the parties, was imminent. The basis of the decision was that the legal process or trial would be rendered moot upon the passing of the legislation but in addition, the respondent would not suffer prejudice by the adjournment. Burt CJ dissented taking a strict approach. His Honour said that even a reasonable expectation of change to the law altering rights could not deny the litigant’s rights to seek justice on the basis of the court’s jurisdiction at that time.

    [7] [1987] WAR 190

19. An editorial note to the Wingate case notes that a special leave application was refused by the High Court of Australia but the majority (Wilson and Dawson JJ) observed that they were not to be taken as endorsing the course taken by the Full Court.

20. Of the Wingate decision, Em Heenan J in Jeans West Corp Pty Ltd v Archer said:

    In the present case I do not consider that such a stark choice between the application of the law as it stands at present, and as it may well stand in the near future if Parliament does enact the proposed amendments to the law, truly exists.

21. However his Honour said that the foreshadowed problem in the litigation which was said to be caused by the earlier Supreme Court decision had not prevented the proceedings commencing or continuing. His Honour said that there was always the possibility of a change in the law occurring before the point of the problem was reached. To an extent, and I refer to this below, that may very well be the problem in this case if the delay could be justified.

22. I do not find that decision particularly helpful.

23. Meggitt Overseas Limited (now known as Wallaby Grip Limited) and Ors v Grdovic[8] arose out of an action before the Dust Diseases Tribunal. The case has been set down for hearing. The time between set down and hearing was seven months. In the intervening period, the plaintiff asked for his hearing to be vacated because of proposed legislative changes that had been announced. His application was granted over objection. In the Court of Appeal, Mason P noted the adjournment power was discretionary and an appellate court should be reluctant to interfere. However, one reason for such interference was where the discretion was exercised on wrong principle.

    [8] [1998] NSWSC 233

24. Mason P examined the summary of the proposed legislation which appeared in a ministerial statement and noted that there was no indication when the legislation would be introduced nor was there any indication of retrospectivity.

25. The Court of Appeal held that the discretion of the trial judge miscarried because he took into account the prospect of legislative amendment as a basis for the decision. Mason P with whom the other members of the Court agreed said that the error was compounded by deliberately adjourning until the legislation was passed. His Honour made clear that it is not proper to take into account impending legislative change in support of a contested adjournment. His Honour agreed with the views of Burt CJ in Wingate.

26. In the Marriage of D J and S E Van Essen[9] was a case involving an adjournment under s 79(5) of the Act. The Full Court said (citations excluded):

    In our view, putting aside the provisions of s.79(5), the applicable principles in relation to the adjournment of the hearing of proceedings pending the passage of foreshadowed legislation or of legislation which has been introduced to the Parliament but not enacted, are as enunciated in Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd, Willow Wren Canal Carrying Co Ltd v British Transport Commission, by McHugh JA. in Sydney City Council v Ke-Su Investments Pty Ltd, Burt CJ. in Re Minister for Minerals and Energy; Ex parte Wingate Holdings Pty Ltd and by the NSW Court of Appeal in Meggitt Overseas Ltd & Ors v Grdovic. 

    [9] (2000) 26 Fam LR 456; (2000) FamCA 775

27. In Van Essen, the trial judge adjourned the proceedings under s 79(5) to enable the wife to take advantage of the then proposed superannuation splitting legislation which was introduced into the Australian Parliament after the trial judge had adjourned property proceedings. By the time the matter came on for the appeal, the bill had been debated but the legislation had not passed.

28. Ellis ACJ, Finn and O’Ryan JJ held that on the evidence presented to the trial judge, it could not be concluded that the proposed legislation would be passed, nor could any conclusion be reached as to the final form of the proposed legislation. As such, s 79(5) could not be used because the evidence did not show any change of financial circumstances was likely as a result of the legislation.

29. I am not dealing with s 79(5). I am asked by the wife not to deal with the husband’s application but rather allow it to wait until the whole matter and all of its attendant issues, could be heard because the law may (if not most likely will be) different.

30. In Van Essen (supra) the Full Court with approval also referred to the judgment of McHugh JA (as his Honour then was) as a member of the NSW Court of Appeal in Sydney City Council v KE-SU Investments Pty Ltd.  His Honour said:

    …as a general rule, it is not a proper exercise of the discretion to grant an adjournment on the ground that it is believed that the law may or will be changed in the near or remote future.

31. Those comments by the Full Court about an adjournment were obiter but they are powerfully persuasive.  Their Honours referred with approval to the dissenting judgment of Burt CJ to which I earlier referred.  Burt CJ said:

    ... As a matter of principle the submission made by Wingate in its opposition to the adjournment should be accepted.  The courts are charged with the high responsibility of administering justice according to the law as it is.  A party invoking the jurisdiction of the court must be permitted to seek his justice upon that basis and the court cannot deny him that right because of a reasonable expectation that at some future date the law will be changed and with that change that his rights according to law will be changed.  It may well be that his victory, should he enjoy one, will be Pyrrhic.  If it is, then so be it. That is a matter for him.

32. It must follow that although there should be a general principle, each case must be determined on its peculiar merits. 

33. The position before me is that the husband brought an application for final orders for financial relief which could not be heard until the validity of the financial agreement was determined. To move the case to a point where the financial relief could be heard, the husband applied for a final determination of the validity issue. The wife’s present application is to delay or adjourn that determination because there may be some relief for her in the proposed legislation. That was not the wife’s position when the substantive issue was originally argued. All that was put was that it was more appropriate to determine all of the matters in one final hearing.

34. In this case, it may also be that the husband’s case is moot but that is not a matter that I should take into account because it would mean that I was looking at matters outside of the law as it presently stands.

35. A difficulty with adopting the proposed course urged by the wife is that there is no indication of time frames for the proposed legislation. I conclude that even if I were to adopt the wife’s position of allowing the interim issue to run into a trial in the future, there is no guarantee that when the final hearing time arrives, the legislation will be passed. I must presume that the wife would then again have to seek an adjournment. To adopt that course would not be proper in the words of Mason P above.

36. There is a difference also between cases where proposed legislation is before a parliament being debated and various government proposals are floated by media release. There is also a difference between proposed legislation which creates new rights and that which cures technical problems that cause injustice. The various courts referred to above have grappled with each concept differently but the overarching premise in all cases must be that it is the function of the executive government to make the law and for the judiciary to implement it. It is not part of the judicial function to find ways to avoid its responsibilities to carry out the law. To do so would be improper. Thus, with respect, I adopt the views of Mason P in Meggitt that to take into account possible legislative changes in a contested adjournment application to enable a party to possibly benefit would be an error.

1. There is also a difference between an adjournment application at an early stage of the time leading up to a trial and one just before trial. In either case however, if the court is seized of an application to be determined, it should hear it. Any application for an adjournment should be determined without an eye on prospective changes which might alter rights. The responsibility for the creation of those rights lies with the executive government.

2. There is nothing out of the ordinary in this particular case that justifies not applying the general rule. Should Parliament consider it appropriate, the proposed law could reflect that its operation should apply not only retrospectively but also to agreements which have been subject to validity disputes and set aside. Whilst it might be argued that that could open the flood gates, it is equally open to the Parliament to pass legislation that requires a court then empowered to determine a matter under Part VIII of the Act to rely upon, adhere to or just take into account, an agreement otherwise binding but for the technical issues which may be overcome by the proposed law.

3. Accordingly, judgment will be delivered as foreshadowed.

I certify that the preceding Fifty Eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  20 November 2009