Ruby and Ruby

[2007] FamCA 1211

FAMILY COURT OF AUSTRALIA

RUBY & RUBY [2007] FamCA 1211

FAMILY LAW – APPEAL FROM FEDERAL MAGISTRATE’S COURT – PROPERTY – SECTION 79A APPLICATION – Established that, if accepted, further evidence in the appeal could render Federal Magistrate’s conclusions erroneous. Matter remitted for rehearing on the merits.

Family Law Act 1975 (Cth) s 79A

Chamberlain v DTC (1988) 164 CLR 502; 78 ALR 271
Blair v Curran (1939) 62 CLR 464; [1941] ALR 365
Parkin v James (1905) 2 CLR 315; 11 ALR 142
Hoysted v Cmr of Taxation (Cth) (1925) 37 CLR 290; [1926] AC 155
Tamsett v Conditionaire Engineering Pty Ltd [1978] 2 NSWLR 511
James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347
Westpac Banking Corporation v Aldred and Another (1986) FLC 91-753
CDJ v VAJ (No 2) (1998) 197 CLR 172

APPELLANT: Mr Ruby

RESPONDENT: Ms Ruby

FILE NUMBER: NCM 2924 of 2006

APPEAL NUMBER: EA 68 of 2007

DATE DELIVERED: 10 October 2007

PLACE DELIVERED: Parramatta

JUDGMENT OF: Coleman J

HEARING DATE: 26 September 2007

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 7 May 2007

LOWER COURT MNC: [2006] FMCAfam 384

REPRESENTATION

ADVOCATE FOR THE APPELLANT: Self represented

ADVOCATE FOR THE RESPONDENT: Self represented

Orders

1. That the application for leave to adduce further evidence be allowed.

1. That the appeal be allowed.

1. That orders 1, 2 and 3 made by the Federal Magistrates Court on 7 May 2007 be discharged.

1. That the appellant’s s 79A application be remitted for rehearing by the Federal Magistrates Court.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as          Ruby & Ruby.

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EA 68 of 2007
File Number: NCM 2924 of 2006

MR RUBY

Appellant

And

MS RUBY

Respondent

REASONS FOR JUDGMENT

1. By Amended Notice of Appeal filed 16 July 2007 Mr Ruby (“the appellant”) appealed against orders made by Federal Magistrate Roberts on 7 May 2007 dismissing his application pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) in relation to completed property settlement proceedings between himself and Ms Ruby (“the respondent”). The appeal has been resisted by the respondent.

2. The orders of 16 July 2007 provided that: -

   1. The further amended application for property orders of [the Husband] filed 12 February 2007 is dismissed.

   2. Order 5 (five) of orders made by Federal Magistrate Lapthorn dated 12 February is discharged.

   3. The Applicant Husband is to pay the Respondent wife’s costs in the sum of $240.00 payable within 14 days. [Appeal Book, page 5]

3. On 12 February 2007 Federal Magistrate Lapthorn made orders which relevantly provided that: -

   (5) The Trustee for Sale be restrained from doing any act or thing to cause the property described as Lot 3 in deposited plan […], to be sold or held out for sale. [Appeal Book, page 14]

4. It is pertinent to note that by further order of Federal Magistrate Roberts on 14 June 2007, Order 2 of his orders of 7 May 2007 has been stayed pending the hearing of this appeal. The effect of so ordering is that the injunction ordered by Federal Magistrate Lapthorn on 12 February 2007 remains in place. [Appeal Book, page 16]

5. In lieu of the orders earlier referred to, the appellant sought that his application be remitted to the Federal Magistrates Court, the continuation of the injunction in relation to the property described as Lot 3 in deposited plan … (“the property”) and costs. [Appeal Book, page 3]

The Federal Magistrate’s Reasons for Judgment

1. The proceedings before Federal Magistrate Roberts, heard on 7 May 2007, the husband from an application by the appellant, articulated in his Further Amended Application filed 12 February 2007, essentially seeking to vary final orders for settlement of property made by Bell J on 2 December 1998, and varied by Le Poer Trench J on 24 June 2002.

2. The learned Federal Magistrate outlined the previous orders made in relation to the property of the parties, and the contentions of each party as to whether or not these orders had been complied with. The husband’s position was recorded as being that: -

   [S]ubparagraphs (a) to (i) [of Order 3 of Le Poer Trench J of 24 June 2002] have all been satisfied from the sales of the two properties at [Dg], so that there is no need to sell the [F] property, which I [Le Poer Trench J] understand is a property that he [the appellant] inherited. [Reasons for Judgment of 7 May 2007, page 28, para 7]

3. Conversely, the wife was considered by his Honour to have alleged that “that is not so and she contends in particular that the […] Bank is still owed in excess of $106,000.” [Reasons for Judgment of 7 May 2007, page 28, para 8]

4. His Honour then summarised what he concluded to be the thrust of the appellant’s application, recording that: -

   It appears that what the husband is seeking to do is vary what are already final orders, and it is my view that the only way that this Court could have any jurisdiction in relation to that is under s. 79A of the Act. However,

   -    he has not alleged that there has been a “miscarriage of justice by reason of fraud, duress, oppression of evidence or giving of false evidence or any other circumstance” under paragraph (a) of subsection (1);

   -    he has not alleged that circumstances have arisen since the order was made that make it impractical for it to be carried out – see paragraph (b);

   -    he has not alleged that any person has defaulted in carrying out an obligation imposed by the order under paragraph (c). (He has certainly alleged that the sale of the property has taken a lot longer than was expected but he is now trying to stop that sale.); and

   - the other paragraphs of s 79A(1) relate to matters that are irrelevant in this case, being matters relating to children and to proceeds of crime. [Reasons for Judgment of 7 May 2007, Appeal Book, pages 28 – 29; para 9]

5. The conclusion reached by the learned Federal Magistrate was that “the husband has not persuaded me in any way that there is any jurisdiction in this Court to deal with what is already a final property order.” [Reasons for Judgment of 7 May 2007, Appeal Book, page 28, para 10] His Honour added: -

   As I have said, I do not believe that I have any jurisdiction to entertain a property application seeking the type of orders that the husband asks me to make, those being orders to vary earlier orders of the Family Court of Australia. As a consequence, I can see no other course but to dismiss the application. [Reasons for Judgment of 7 May 2007, Appeal Book, page 29, para 12]

6. Through no fault of the learned Federal Magistrate, neither his Reasons for Judgment nor any documentation relied upon by the parties before him, or the appellant before this Court, provides a clear or comprehensive understanding of what was, or may have been, the basis of the appellant’s s 79A application before his Honour.

7. The Reasons for Judgment of Bell J in 1998 and of Le Peor Trench J in 2002 were before his Honour and are reproduced in the Appeal Book in this Court. Reference to their Honours’ Reasons for Judgment enhances an understanding of the less than simple or straightforward case with which the learned Federal Magistrate was confronted.

The Reasons for Judgment of Bell J

1. On 2 December 1998 Bell J delivered his Reasons for Judgment in relation to proceedings regarding both property settlement and the residence of children of the marriage. This judgment provides some detail of the background facts relating to the matter between the appellant and the respondent.

2. The appellant was born on … May 1961 and the respondent on … September 1967. Although the date of commencement of cohabitation was somewhat controversial in the proceedings before Bell J, for present purposes it suffices to note that the parties were married on … February 1992. The parties separated in October 1996, by which time they had three children together and the respondent was pregnant with their fourth child.

3. His Honour determined that the value of the real property of the parties totalled $235 500, and that their liabilities totalled $82 810, producing $152 190 net for distribution. [Reasons for Judgment of 2 December 1998, Appeal Book, page 58] Bell J noted that “the husband brought into the marriage the whole of the [real] properties” and therefore “the contribution of the husband must be considered as extremely substantial.” [Reasons for Judgment of 2 December 1998, Appeal Book, page 58] His Honour referred then to the contributions of the respondent and to the circumstances of both parties. He concluded: -

   I would order that the husband pay to the wife the amount of $83,704 by way of the following:

   (a) That he transfer, free of encumbrance or that he indemnify the wife in relation to any encumbrance upon the aforesaid [D] properties, the [D] properties to the wife and that within a period of six months from today he do pay to the wife the balance, being some $7,500.

   (b) I order that the wife do transfer any interests she may have in any of the other properties with which the husband has an interest and further, that the ownership of personalty in each of the parties’ hands vest in the possession of the person who has possession of it. [Reasons for Judgment of 2 December 1998, Appeal Book, page 60]

4. The terms of the order referred to in paragraph (a) above was altered by his Honour in the following way: -

   Notwithstanding I have ordered that the husband pay to the wife the amount of $5,700, the wife, after discussion with Counsel for the husband and the Children’s Representative, is willing to forego the difference between the value of the [D] property. Consequently, I order that in full settlement of the property application the husband transfer to the wife the [D] property free of encumbrance. [Reasons for Judgment of 2 December 1998, AB, page 61]

5. The practical effect of these orders was that the respondent would receive the interest in the properties at [D] and the appellant would be responsible for discharging the mortgages over same. The appellant was to receive the interest in the two properties at [Dg] and one at [F], along with the responsibility for any financial encumbrances in relation to these properties.

The Reasons for Judgment of Le Poer Trench J

1. By an application by the respondent to the current proceedings pursuant to s 79A of the Act, the issue of property settlement was revisited in early June 2002 before Le Poer Trench J who handed down Reasons for Judgment on 24 June 2002. The appellant unsuccessfully appealed to the Full Court of the Family Court of Australia against the decision of Le Poer Trench J.

2. Having outlined some background facts and the Reasons for Judgment of Bell J, Le Poer Trench J noted: -

   It appears from the Judgement, that His Honour was unaware that although the two properties in [Dg] stood in the husband’s sole name and were encumbered by mortgage [sic], the wife was a joint signatory to those mortgages. [Reasons for Judgment of 24 June 2004, Appeal Book, page 34, para 9]

3. Further, his Honour said: -

   Although the Judgement of Justice Bell clearly indicates an intention that the husband would receive the equity in the properties to be retained by him under the order made on 2 December 1998 the orders did not carry an indemnity by the husband in favour of the wife in relation to any liability she might have in relation to those properties. [Reasons for Judgment of 24 June 2004, Appeal Book, page 35, para 17]

4. Le Poer Trench J was thus of the opinion that a miscarriage of justice had occurred. He recorded: -

   20. … The miscarriage of justice is that it was at all times intended by Justice Bell that the husband was to be responsible for all the financial encumbrances attached to the properties transferred to him by the orders may by Justice Bell on 2 December 1998. For a variety of possible reasons, the order for indemnity was not made primarily because it appears that at the time the orders were made Justice Bell was not cognisant of the fact that the wife was a joint signatory on the mortgages registered against the properties standing in the husband [sic] sole name. … It appears though, that on the balance of probabilities, the miscarriage of justice arose through the process of the Court. Clearly, for the mortgagee to be able to continue recovery proceedings against the wife, after the orders of Justice Bell were made, could not be said to give rise to a “just and equitable” result pursuant to S79.

   21. Put shortly the failure to embody the indemnity order into the orders of the Court made on 2 December 1998 arose either because it had not been made plain to His Honour that the wife was a party to the mortgage registered against the properties in the husbands [sic] sole name or alternatively this matter was overlooked by His Honour at the time he formulated his orders. In any event both those circumstances arise out of the judicial process and clearly gave rise to a miscarriage of justice in this case. [Reasons for Judgment of 24 June 2002, Appeal Book, page 36, paras 20 & 21]

5. Reference was then made to the submissions of the parties. It was the appellant’s position that, although he realised soon after the orders of Bell J that he would not be able to afford the mortgage repayments, he had not sold his Dg properties in order to repay the loan as the respondent had “interfered in the process and that she was the party to be blamed”. [Reasons for Judgment of 24 June 2002, Appeal Book, page 37, para 25]

6. The respondent was found to have been concerned that if the appellant was allowed to leave the sale of the properties at the discretion of the Bank, the amount recovered from such sale may not cover the required repayments, thereby exposing her to liability to the Bank. Thus, she submitted that she should be made trustee for sale, and outlined the manner in which she intended to use the proceeds of sale, primarily to repay certain debts of the appellant. [Reasons for Judgment of 24 June 2002, Appeal Book, page 37, para 28]

7. Having considered the evidence before him in relation to the dispute, his Honour preferred the position of the wife. He held: -

   I can not see any evidence to support the husband’s contention that the wife is to blame for the current circumstances. I am completely at a loss to understand why he did not take action himself to sell the properties and pay out the mortgage. [Reasons for Judgment of 24 June 2002, Appeal Book, page 37, para 26]

8. Le Poer Trench J thus made orders which essentially ensured that the appellant indemnify the respondent in relation to the mortgages over the Dg properties, and appointed the respondent as trustee for sale of both the Dg properties and also the F property. He also made orders, inter alia, regarding the disbursement of the proceeds of sale and ensuring that the appellant made the properties available for sale.

The Apparent Basis of the Appellant’s s 79A Application

1. Before the learned Federal Magistrate, as before this Court, the appellant was self-represented. With respect to him, the combination of a lack of legal qualifications and a substantial, and understandable, subjective interest in the proceedings has resulted in the appellant failing to present his case, both at first instance and on appeal, in a way that permits ready identification of the legal basis upon which he now seeks to further vary the current orders for settlement of property.

2. The appellant amended his application on a number of occasions. As is confirmed by the Appeal Book, the appellant first sought relief in the following terms: -

   1. That the orders made by Le Poer Trench J on 24 June 2002 and amended on 3 July 2002 be discharged

   2. That within 7 days of the making of this order the husband pay to the wife $15,000.00

   3. That the wife pay all agents fees and/or commission and legal fees incurred on the listing for sale of the property at [MC] being the whole of the land in folio identifier […]

   4. That the wife pay to [Dg] Shire Council the sum of $2320.60 for outstanding rates on the property in order 3 incurred whilst wife was trustee for sale [Application filed 20 December 2006, Appeal Book, page 63]

3. He subsequently amended his claim to read as follows: -

   11. That pursuant to section 79A (1) (a) and (c) of the Family Law Act 1975, Orders 6A, 6B and 6C inserted by Justice Le Poer Trench on 24 June 2002 into the orders made by Justice Bell on 2 December 1998 be set aside so that the orders for the property settlement by returned to their origingal form as made on 2 December 1998, being orders 5, 6, 7, 8, 9 and 10.

   12. That within 7 days of the making of this order the husband pay to the wife $15,000.00

   13. That the wife pay all agents fees and/or commissions and legal fees incurred on the listing for sale of the property at [MC], being the whole of the land in Folio Identifier […]

   14. That the wife pays to [Dg] Shire Council the sum of $2320.60 for outstanding council rates on the property at [MC], being the whole of the land in Folio Identifier […] incurred whilst the wife was trustee for sale.

   15. That the wife pay the husband’s costs of and incidental to this application. [Amended Application filed 5 January 2007, Appeal Book, page 106]

4. Finally the appellant amended his claim to seek relief in the following terms: -

   11. That orders 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 made by Justice Le Poer Trench on 24 June 2002, and amended 3 July 2002 be discharged.

   OR

   That pursuant to section 79A (1) (a) and (c) of the Family Law Act 1975, Orders 6B and 6C inserted by Justice Le Poer Trench on 24 June 2002 into the orders made by Justice Bell on 2 December 1998 be set aside.

   12. That the wife pays all agents fees and/or commissions and legal fees incurred on the listing for sale of the property situate at [MC], being the whole of the land in Folio Identifier […].

   13. That within 14 days of the making of this order the wife pay to the husband the sum of $4690.62 for outstanding rates and charges levied against the said property referred to in order 12 hereof, incurred whilst the wife was trustee for sale.

   14. That within 7 days of the making of this order the Wife provides to the Husband a withdrawal of caveat signed by her.

   15. That a Registrar of the Court signs the required documentation to withdraw the caveat in the event the wife fails to do so.

   16. That the wife pay the husband’s costs of and incidental to this application. [Further Amended Application filed 12 February 2007, Appeal Book, page 140]

5. In support of his claim, the appellant swore a number of affidavits. In an affidavit sworn and filed by the appellant on 20 December 2006 he deposed to not having been aware until November 2006, over four years after the making of the orders of Le Poer Trench J, that the F property had not been sold. He said: -

   18) Years passed and given the assurances by her solicitor and the expectations of the trial Judge, I naturally assumed that the wife had sold the [F] property. I was however totally astonished when during a recent review of my payment (in November 2006) I was informed by Centrelink that I was still the registered owner of the [F] property. …

   19) Upon hearing this, I was very concerned. I was of the belief 4 years worth of interest had accrued on the mortgages, which would have brought the total amount I was now solely liable to pay to almost $200,000.00. [Affidavit of the Husband, sworn & filed 20 December 2006, Appeal Book, page 68, paras 18 & 19]

6. The appellant further deposed in this affidavit to the respondent offering to have the F property transferred into her name for consideration of $80 000.

   25) In the letter, she offered to pay $80,000 for the property. However, once she received the proceeds of sale she would pay herself $15,000 in accordance with the orders of Le Poer Trench J. The deduction of this money effectively meant her offer was $65,000.

   26) Following this letter a [Ms L] of Real Estate [N] arrived at my residence with a Contract for Sale, and Transfer Notice for the property expecting me to sign it over to the wife. She stated that she was a friend of the wife’s and had come as a neutral third party to broker a deal between the parties. Despite her alleged neutrality, she is the listing agent for the [F] property and so would benefit from its sale.

   27) [Dg] Shire Council has informed me that the rateable value of the [F] property is $150,000. More than twice what the wife offered. However, with an investment of around $20,000 to build a couple of dams, install fencing, and finish the road, the property would have a market value of $300,000. [Affidavit of the Husband, sworn & filed 20 December 2006, Appeal Book, page 69, paras 25 – 27]

1. The appellant alleged that the mortgages with the Bank had been discharged.

   Yesterday (Tuesday 19^th December), having located the file, [CL] from the […] Bank informed me that the mortgages had in fact been discharged in 2003, some 3 years ago. Yet this was the first I knew of it. The payment of $48,154.52 made by the wife as trustee to the […] Bank was accepted as full and payment thus discharging the mortgages. [Affidavit of the Husband, sworn & filed 20 December 2006, Appeal Book, page 70, para 31]

2. As became apparent during the hearing of his application in the Federal Magistrates Court, the appellant relied significantly for the relief he sought upon his assertion that the Bank was not seeking any monies from either of the parties with respect to mortgages previously held by the bank. It is now clear that the appellant sought to support that claim by reference to a document from the bank, dated 19 December 2006, which was attached to his affidavit of 20 December 2006. Regrettably, that document appears not to have assumed similar prominence at the trial before the learned Federal Magistrate. It is helpful for present purposes to set out in full the text of that letter, the authenticity (but not the contents) of which does not seem to be controversial: -

   Dear Mr [Ruby],

   Please be advised that the […] Bank have the following details in relation to disbursement of funds for the above home loan, which was discharged in 2003 for property listed under [Dg] Council:

   Cheque payable to [JM] $897.50

   Cheques to […] Bank totalling $48,154.52 (home loan balance and interest costs) loss of $107,000.00

   Cheque payable to [Dg] Shire Council $22,814.50

   A letter of instruction was received and a response was sent to your Solicitor upon Discharge of your Mortgage, Should you require further information relating to the disbursement of funds, you are required to contact your solicitor directly. [Affidavit of the Husband, sworn & filed 20 December 2006, Annexure D, Appeal Book, page 81]

3. Whilst it cannot be said that the bank’s letter clearly and unequivocally stated that the bank was not pursuing either of the parties for further payments with respect to discharged mortgage(s), the absence of any statement that the bank had such intentions, and the wording of the letter generally justified, particularly in the mind of a lay person, the belief that the bank had accepted what it had received as referred to in its letter, and gave the appellant no reason to think that he had further cause for concern in relation to any demands by the bank for money.

4. As will be seen, equally justifiably in the circumstances, the respondent, in reliance upon a later letter from the bank, entertained a quite different view of the bank’s position. The learned Federal Magistrate’s conclusion was that “[i]t seems clear to me that the […] Bank still feels it is owed money.” [Reasons for Judgment of 7 May 2007, Appeal Book, page 28, para 8]

5. As is common ground, there was no clear evidence before the learned Federal Magistrate as to whether, on the balance of probabilities, the Bank was owed and/or seeking to be paid any sum of money, whether it be something in excess of $100 000 or some lesser sum. The learned Federal Magistrate did not purport to make a finding of fact in relation to the Bank, nor, with respect, could he have done so on the evidence.

6. Without referring to it in detail, it is apparent from the affidavit evidence that the appellant may have had other complaints with respect to the respondent’s discharge of her duties as Trustee for Sale pursuant to the orders made by Le Poer Trench J in 2002 (For example, see Affidavit of the Husband, sworn and filed 5 January 2007, Appeal Book, pages 119 – 121, paras 6, 11, 14, 15 and 16).

The Apparent Basis of the Respondent’s Resistance to the Appellant’s s 79A Application

1. By a Response filed by the respondent on 9 February 2007, the respondent resisted any variation of the orders made by Le Poer Trench J in 2002. [Response, Appeal Book, page 125]

2. In an affidavit affirmed and filed by the respondent on 9 February 2007 she deposed to having sold “the houses in [Dg]” and applying the “proceeds of this sale … to the […] Bank in part payment of the debt owed to the bank by Mr [Ruby]. From this time the bank charged no further interest on the loan and I attempted the [sic] sell the [F] property to pay remaining debts.” [Affidavit of the Wife, affirmed and filed 9 February 2007, Appeal Book, page 129, para 11]

3. The respondent further deposed to difficulties in valuing and selling the [F] property and to having paid monies in relation to rates owing for the property. [Affidavit of the Wife, affirmed and filed 9 February 2007, Appeal Book, page 129, para 11]

4. The respondent alleged that a debt remains owing to the Bank as a result of the actions or inactions of the appellant: -

   When Justice Bell made the final orders concerning the division of property Mr [Ruby] had a property worth $150,000 with a mortgage of $65,000. With interest and legal fees the bank debt rose to $150,000. Mr [Ruby] also incurred a debt of $22,000 in unpaid rates on the property. … When sold its value had fallen to $75,000. Mr [Ruby’s] debt for unpaid rates had to be paid from this amount reducing the amount that could be paid to the bank. [Affidavit of the Wife, affirmed and filed 9 February 2007, Appeal Book, page 130, para 14]

5. In reliance upon a letter received by her from the Bank and dated 6 February 2007 the respondent asserted that the bank claimed to be owed $106 225.55 (see Annexure A to Affidavit of the Wife, affirmed and filed 9 February 2007, Appeal Book, page 133). As with the belief of the appellant, that belief was not unreasonably held, having regard to the terms of the bank’s letter. It is helpful for present purposes to quote the entirety of the text of that letter, which read: -

   I refer to your recent enquiry in regards to the above account balance [Home Loan Account No: …].

   We advise that, following settlement of the [Dg] [sic] property and same net proceed applied to the above account, a residual shortfall of $106,222.55 remains unpaid.

   There has been no interest applied to the above amount following settlement of the security property at [Dg] [sic] NSW.

   Settlement statement is enclosed for your records.

   Please note that the Bank is willing to negotiate compromised settlement in this matter if repayment is made by way of lump sum settlement.

   Please let me know of your intention by no later than 16 February 2007. [Affidavit of the Wife, affirmed and filed 9 February 2007, Annexure A, Appeal Book, page 133]

   The authenticity, but not the accuracy of the contents, of that letter is not in issue.

6. The affidavit evidence of the respondent made clear that she disputed that her duties as Trustee for Sale had been derelict in any relevant fashion, particularly in relation to her endeavours to obtain a reasonable sale price for the F property.

7. It is apparent that, whatever the legal significance of such disagreement, the parties were factually in dispute in relation to at least three topics. These topics were: whether, and if so how much, the Bank was owed and/or pursuing; the current value of the F property; and the extent, if any, to which the wife had failed to appropriately discharge her duties as Trustee for Sale of the F property pursuant to Le Poer Trench J’s orders of 2002.

8. As the learned Federal Magistrate clearly perceived during the course of the hearing of the proceedings before him, and the parties confirmed on the hearing of the appeal, if the first question were resolved in favour of the appellant, any question of the sale of F, and thus what F might be worth, would become largely, if not entirely, academic. There may however remain in those circumstances some dispute in relation to comparatively minor aspects of the respondent’s discharge of her duties as Trustee.

The proceedings before the learned Federal Magistrate

1. Neither party placed the transcript of the proceedings before the learned Federal Magistrate before this Court. In his submissions to this Court the appellant made a number of claims in relation to the manner in which the matter proceeded before the learned Federal Magistrate. The Court becoming aware that the transcript of the trial was available, and with the consent of both parties, obtained the transcript and provided a copy to each of the parties with the invitation that any further submissions either party wished to make arising out of the receipt of the transcript be provided to the Court and the opposing party.

2. Both parties were unrepresented at the hearing before the learned Federal Magistrate. As is apparent from the documentation that the parties presented, although, on a close reading of the material, a number of factual issues emerged, the significance of any of those matters within the context of a s 79A application was not readily discernable. Without wishing to be unfairly critical of the present appellant, who was the applicant before the Federal Magistrate, the way in which his case was conducted not only failed to clarify the s 79A case which he sought to present but, on a number of occasions, obscured or potentially obscured the emergence of the basis of his claim. The not uncomplicated nature of s 79A applications in general, and the appellant’s s 79A application in this particular case also did not assist matters before the learned Federal Magistrate.

3. The learned Federal Magistrate suggested to the appellant that a court had “already determined” [Transcript, page 1, lines 14 – 15] the claim apparently raised by the appellant’s s 79A application and asked the appellant upon what basis his Honour could “start again” [Transcript, page 1, line 22]. Whilst, in the appellant’s response to that question a clear response might lurk, nothing then said by the appellant which this Court has gleaned provided any readily apparent clue as to the real basis upon which the appellant was asserting that a second s 79A application could be successful.

4. With the benefit of hindsight, and extensive reading and re-reading of the Appeal Book, it is apparent to this Court that the appellant’s s 79A application was essentially reliant upon events subsequent to Le Poer Trench J’s orders of 2002 which, if resolved on the basis of the appellant’s factual allegations, could have led the learned Federal Magistrate to revisit the orders for settlement of property pursuant to s 79A. As indicated earlier, those issues related to whether or not the husband was likely to be as much as $107 000 worse off than Bell J and Le Poer Trench J’s orders contemplated, and, if so, the extent to which that loss should continue to be visited upon the appellant. Albeit far less significantly, the impact of any failure on the part of the respondent to discharge her duties as Trustee pursuant to orders of Le Poer Trench J had the potential to impact upon a consideration of those issues.

5. On this Court’s perusal of the transcript before his Honour, at no stage throughout the hours during which the proceedings were before the learned Federal Magistrate did the appellant begin to outline his case in the way in which it has now transpired that he was seeking to do. That is no criticism of his Honour, who patiently and persistently sought to identify and determine the issues before him according to law.

6. In fairness to the appellant however, there is some indication that the basis of his application was relayed to his Honour, albeit obliquely. The appellant confirmed his claim that the respondent had not tried to sell the farm property and had failed to make “any real effort in trying to sell it”. [Transcript, page 1, line 47] Later the appellant endeavoured to explain that the respondent had “power to sell my properties to pay the bank until such time as the bank weren’t acting any more and the mortgage was discharged” [Transcript, page 3, lines 5 – 7] and that the orders had been complied with in that all monies had been paid as were required to discharge the bank mortgage. His Honour’s request to the appellant to “not go off on a tangent” [Transcript, page 3, line 46] gives some hint as to the difficulties, in a case which was itself quite complex, of the comparative inability of the appellant to articulate the basis of his claim.

7. The learned Federal Magistrate gleaned, comparatively early in the proceedings, what was asserted by the appellant to be the practical situation. His question to the appellant, “is the gist of what you want, what you’re saying is: everything’s been paid, there’s no need to sell up the other block. Because the money’s got to come to you anyway” [Transcript, page 5, lines 35 – 37], to which the appellant eventually replied, “Yes” [Transcript, page 5, line 44] confirms that his Honour appreciated the practical effect of the relief which the appellant was seeking.

8. Having heard the respondent’s response, particularly in relation to the question of indebtedness to the Bank, the learned Federal Magistrate observed that “the crux appears to be, is the […] Bank owed any money”. [Transcript, page 10, line 8] Both parties agreed that such was the case. His Honour clearly appreciated the ambit of the factual dispute, the appellant asserting that no money was owed, the respondent asserting a figure as high as $107 000.

9. His Honour reiterated that “the crunch appears to be, is the bank owed any money or isn’t it owed any money?” [Transcript, page 10, lines 27 – 28]. He suggested to the appellant shortly thereafter that “[u]nless you can convince me that the bank won’t come after Mrs [Ruby] for some money you would be pushing it uphill to convince me that I ought to do anything other than dismiss your application and let Ms [Ruby] get on with trying to complete Le Poer Trench J’s orders”. [Transcript, page 10, lines 32 – 35] With respect to his Honour, that observation encapsulated the dispute as it is now known to have been at the time of the hearing before him. Although perhaps something of an oversimplification, his Honour’s proposition was by no means inaccurate, as both parties appeared to agree on the hearing of the appeal to this Court.

10. At his Honour’s invitation to “find some documents to convince me of that” [Transcript, page 11, lines 12 – 13] the matter was stood down and the appellant inspected documentation, ultimately it seems without locating or tendering any document which put the question of the Bank’s position beyond doubt. The matter had been before the Court on earlier occasions, it should be noted as the appellant has complained that the learned Federal Magistrate should have allowed him an adjournment to locate such documentation.

11. In the course of the discussion in relation to the position of the Bank, by reference to the letter relied upon by the respondent from that institution dated 6 February 2007, the learned Federal Magistrate said to the appellant, “Now, unless you can find me something that says that slate is wiped clean, it seems to me Mr [Ruby] doesn’t have a case that I can even deal with.” [Transcript, page 14, lines 16 – 17]. Correctly identifying that the position of the Bank was “the crux of it”, [Transcript, page 14, line 20] his Honour then again stood the matter down to enable the appellant to find and tender bank or other documentation which supported his contention.

12. Upon resumption the appellant said to the learned Federal Magistrate, “it seems that the subpoenaed documents have not turned up”. [Transcript, page 15, lines 22 – 23] Discussion followed in relation to the absence of the documentation. Regrettably, it appears from the transcript that the focus of the appellant’s attempts to procure documentation was from sources other than the bank itself. Certainly the transcript suggests that the appellant had subpoenaed the respondent to produce documentation from the Bank. The transcript also suggests that the bank itself was not subpoenaed to produce the documentation. As his Honour clearly recognised, information from the Bank itself would have decisively clarified the “crux” of the case. The absence of source documentation was telling.

13. In the discussion which ensued, the learned Federal Magistrate repeatedly endeavoured to elicit from the appellant the identity and location, or probable location, of source documentation in relation to the position of the … Bank. Regrettably, no doubt at least in part as a result of his lack of legal training, the appellant did not assist matters with the answers that he gave to his Honour’s questions, helpful though his intentions might have been.

14. Having read the transcript, it is unsurprising that, after almost an hour and a half, his Honour was, as he conceded, “still floundering around trying to work out why we’re here”. [Transcript, page 22, line 35] At that time his Honour reiterated, correctly in this Court’s view, that “final property orders” could only be “revisited” by appeal (which was not suggested to have been an option available to the appellant) or pursuant to s 79A provided that the appellant could, as his Honour said, “convince me of something under section 79A to go back yet again and deal with the matter.” [Transcript, page 22, lines 39 – 40]

15. His Honour allowed another hour in which the appellant could pursue the relevant documentation. For reasons which are hard to understand, at no time did the appellant ever, so far as this Court can ascertain from the transcript, direct his Honour to the document attached to the affidavit upon which it is now clear that he relied which, at the time the matter was before the learned Federal Magistrate, was the only independent documentation upon which the appellant could have relied.

16. Upon resumption further exchanges occurred, none which are of particular relevance for present purposes.

17. Towards the end of the hearing the learned Federal Magistrate said of the appellant’s case: -

    [I]t seems to me that what hasn’t been established and what isn’t established on the papers alone, even without going any further, it seems to me that there should be at least a prima facie case on the papers. And there hasn’t – or, doesn’t seem to me to be a prima facie case under section 79A for altering the orders. And I really don’t think I’ve got jurisdiction. [Transcript, page 27, lines 18 – 23]

18. In the course of her submissions to the learned Federal Magistrate, the respondent, although not in any way conceding that the appellant’s case had merit, confirmed that there was a live issue between the parties in relation to the “problem with the […] Bank.” [Transcript, page 28, line 13]

19. In her submissions the respondent made clear that the only way that the bank’s indebtedness, as she understood it to be, could be satisfied, was by sale of the appellant’s property, whether to her or to someone else.

The further submissions of the parties

1. Pursuant to the leave granted by the Court on the hearing of the appeal on 26 September 2007 each party made further written submissions to the Court. With respect to him, the detailed written submissions of the appellant do not significantly advance matters for reasons which will emerge, and largely restate the matters raised previously by the appellant.

2. It would be inappropriate however, and unfair to the learned Federal Magistrate, for this Court not to record that the repeated, and at times disrespectful complaints about the learned Federal Magistrate’s conduct of the proceedings before him have not been shown to have the slightest foundation. As will be seen, the appellant’s failure before the learned Federal Magistrate was not referrable to shortcomings on the part of his Honour and were significantly contributed to by the appellant’s failure to articulate the basis of his claim for relief, particularly with respect to the evidence by which his claim was sought to be established.

3. The submission of the respondent does not materially advance matters for present purposes, save potentially in one respect. In her submission the respondent asserted that the bank had informed her that “as I voluntarily signed the agreement the Bank can and will pursue me singlely” (sic). The respondent’s submission appears to suggest that the Bank confirmed to her its “decision to release Mr [Ruby] from the liability” for which the respondent now appears to remain solely liable. The respondent’s position was then clearly stated to be that “the only new information is that Mr [Ruby] has been released from all liability for the debt, and the […] Bank has decided to make me singerly (sic) responsible for the debt”.

1. Accepting that there is no evidence in support of the respondent’s submissions, the fact remains that there is clearly a significant controversy between the parties in relation to the fairness of the present orders for settlement of property in the light of events since 2002, and to the practicability of their implementation. Whilst that does not mean that this appeal should succeed if it ought not according to law, the further submissions of the respondent reinforce the  impression which the Court has earlier described that, one way or another, the parties will be back in Court litigating matters arising in relation to the existing orders for settlement of property on their merits at some future time.

The Grounds of Appeal

1. In his Amended Notice of Appeal the appellant raised five grounds. Those grounds provided: -

   1. The Federal Magistrate erred in deciding that he did not have jurisdiction to hear the application before the Court namely the ‘Further Amended Application’ of [Mr Ruby] filed 12 February 2007.

   2. The Federal Magistrate did not properly consider the evidence and entirely disregarded the affidavit of [Mr Ruby] sworn & filed on 5 January 2007.

   3. The Federal Magistrate did not rule on the application that was before the Court or at least he did not properly consider the application.

   4. The Federal Magistrate erred by not allowing the husband an adjournment to adduce documents necessary to make a prima face case.

   5. His Honour erred in ordering the husband to pay the wife’s costs occasioned to him as a result of the Federal Magistrate’s error of law. [Amended Notice of Appeal, Appeal Book, page 3]

2. Before considering any of the grounds of appeal, it is perhaps helpful to make some general observations of a practical nature. If the appellant fails in this appeal, this Court perceives there to be no impediment to the appellant bringing a further s 79A application in reliance upon what appear to be the facts and circumstances upon which his unsuccessful s 79A application filed 20 December 2006, and subsequently amended on 5 January 2007 and 12 February 2007, was based.

3. His Honour having determined that the claim as formulated by the appellant did not fall within his jurisdiction, and thus not proceeding to hear and determine the claim, it is difficult to see how the doctrines of res judicata (see Chamberlain v DTC (1988) 164 CLR 502; 78 ALR 271) or issue estoppel (see Blair v Curran (1939) 62 CLR 464; [1941] ALR 365; Parkin v James (1905) 2 CLR 315; 11 ALR 142; Hoysted v Cmr of Taxation (Cth) (1925) 37 CLR 290; [1926] AC 155) could be successfully raised against the appellant were he to bring a further application, albeit perhaps more clearly articulated as a s 79A application, supported by admissible evidence in the form of source documentation in relation to the position of the Bank.

4. Before his Honour there was clearly an issue of fact between the parties in relation to that topic. Quite correctly, the learned Federal Magistrate was unable to decide that issue. The most he could do, as he clearly stated, was to conclude that “[i]t seems to me to be clear that the […] Bank still feels (emphasis added) it is owed money.” [Reasons for Judgment of 7 May 2007, Appeal Book, page 28, para 8] It could not, in this Court’s view, be successfully asserted that his Honour found that the Bank was in fact owed money, generally or in any particular sum. That issue was, as his Honour identified early in the proceedings, “the crux” [Transcript, page 10, line 8] of the dispute between the parties, whatever the status of the appellant’s claim in reliance upon it might be thought to be. That “crux” issue remains to be determined on its merits.

5. As recorded earlier, during the course of the hearing his Honour suggested that the appellant had failed to prove a “prima facie case under section 79A for altering the orders.” [Transcript, page 27, lines 21 – 22]. It is tempting to conclude that, although not necessarily so stated in the course of his Honour’s formal Reasons for Judgment, that appears to have been at least influential in his conclusion that the Court lacked jurisdiction to entertain the appellant’s claim.

6. The failure of the appellant to prove a prima face case for relief, and thus enable his Honour to dismiss his claim under s 79A would have been in the nature of what was formerly known as a “nonsuit” (see Tamsett v Conditionaire Engineering Pty Ltd[1978] 2 NSWLR 511; James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347). In those circumstances the appellant would not have been precluded from recommencing his application, albeit, unless articulated and evidenced somewhat differently, any such application may have met with the same fate.

7. Significantly, the basis of his Honour’s dismissal of the appellant’s claim was not that it could not succeed, even if the appellant’s allegations of fact were correct. That situation was discussed by Nygh J in Westpac Banking Corporationv Aldred and Another (1986) FLC 91-753. It was recorded (at 75,491): -

   It is now well established that this Court [The Family Court of Australia], as a superior court of record, has an inherent jurisdiction: Taylor v. Taylor(1979) FLC ¶90-674; (1979) 25 A.L.R. 418, at FLC p. 78,590; A.L.R. p. 423, per Gibbs J., at FLC p. 78,594; A.L.R. p. 431 per Mason J. That inherent jurisdiction allows the Court to exercise control over proceedings instituted in it, and the extent of that jurisdiction is not limited by statutory provisions such as are found in sec. 118(1): see the remarks of Strauss J. in Wilmoth and Wilmoth (1981) FLC ¶91-030 at p. 76,287; (1981) 6 Fam. L.R. 807 at p. 810.

   The inherent jurisdiction of the court is not confined to the dismissal of frivolous and vexatious proceedings in the strictest sense, but extends to the dismissal of actions “which must fail or which the plaintiff cannot prove and which is without a solid basis”: Halsbury’s Laws of England 4^th ed, volume 36 “Practice and Procedure”, para 534, citing Lawrance v Lord Norreys [1880] 15 AC 210 at 219 per Lord Herschell.

8. Further Nygh J noted (at 75,492): -

   The power to strike out summarily is not confined to cases which are patently unmeritorious. As Barwick C.J. said in General Steel Industries Inc. v. Commr for Railways (N.S.W.) (1964) 112 C.L.R. 125 at p. 130:

   “... In my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”

   There is no reason for thinking that the Federal Magistrates Court lacked the jurisdiction to approach the matter in that fashion.

9. In this Court’s view, whether or not this appeal is successful is of potentially little consequence from a practical perspective having regard to the matters to which reference has been made. If the appeal were successful, the matter would be remitted for hearing and determination on the merits, the most significant of which would be the determination of the issue of fact in relation to the Bank. If his appeal is dismissed, the Court perceives no impediment to the appellant making a further application in upon the same essential basis as that which he sought unsuccessfully to establish before the learned Federal Magistrate.

10. It is convenient to first consider the third of the appellant’s grounds of appeal. The thrust of that complaint is that the learned Federal Magistrate failed to “rule on the application” or “at least” did not properly consider the application. It is clear from the transcript of proceedings that the parties had vastly different beliefs in relation to the position of the Bank. Relative to their comparatively modest assets, the ambit of that dispute was very substantial. The respondent had a clear and reasonable basis for her assertion, to which his Honour referred. Although, by no means conclusive, the appellant had a reasonable basis for his belief. As noted earlier, regrettably the appellant did not appear to ever have directed his Honour to that document.

11. In order to understand whether the learned Federal Magistrate may have been in error, it is necessary to refer to his Reasons for Judgment. His Honour correctly identified the practical issue which the appellant sought to raise by his s 79A application. That was that, the appellant alleging that no money was owing to the Bank, Le Poer Trench J’s orders, varying those of Bell J, requiring the sale of the F property should not stand. It is clear, as his Honour was aware, that F was to be sold only in order to address any shortfall in the repayment of the parties’ indebtedness to the bank on the completion of the sale of the Dg properties. His Honour was also aware that the appellant contented that whilst there was a shortfall, the Bank had indicated that it would not pursue the parties for that shortfall. The respondent’s case was, as his Honour also realised, that the Bank had evinced no such charitable intention.

12. His Honour concluded, having given the appellant ample opportunity to produce source documentation evidencing this intention, “that the […] Bank still feels it is owed money” [Reasons for Judgment of 7 May 2007, Appeal Book, page 28, para 8]. His Honour no doubt chose those words carefully and, as an observation, the appellant cannot persuade this Court that he was in error.

13. It is unsurprising in those circumstances that his Honour dismissed the appellant’s application. At this point, it is appropriate to digress and consider a matter raised on appeal which was not raised before the learned Federal Magistrate.

14. During the course of the hearing of the appeal, the appellant asserted that he had obtained further documentation from the Bank which, he asserted, put beyond doubt the question of the existence of an ongoing obligation to that institution. It was agreed by the parties that the appellant would place that document before this Court. Necessarily, although not so stated by the appellant, that would have been pursuant to the provisions of s 93A of the Act. The Court subsequently received documentation from the appellant, including a photocopy of a document purporting to be written by an officer of the Bank, addressed to the appellant and dated 26 July 2007. Whilst the document would not necessarily be admissible as a business record in the form relied upon by the appellant, and whilst its authenticity may not be conceded, if accepted, there is little room for doubt that the document revealed that the Bank is no longer pursuing the parties in relation to the shortfall on the sale of the Dg properties.

15. It is necessary to consider the consequences of the acceptance, necessarily only for the purpose of this appeal, of the further evidence upon which the appellant thus seeks to rely. His Honour was clearly, and sensibly, influenced by the inability of the appellant to direct him to any reliable evidence in relation to the position of the Bank shortfall. With respect to the appellant, the failure to refer his Honour to the December 2006 letter from the bank in relation to the 2003 sale of the Dg properties, which was an annexure to his own affidavit, contributed significantly, and perhaps conclusively, to the appellant’s misfortunes before the learned Federal Magistrate.

16. It is unsurprising, and not a matter for which his Honour could be criticised on the evidence before him, that his Honour was not persuaded that the bank had abandoned its claim for the shortfall resulting from the sale of the Dg properties.

17. His Honour, correctly in this Court’s view, having identified, accurately there is no doubt, the basis of the appellant’s claim, dismissed the claim when the appellant was unable to point to any reliable evidence in support of his crucial allegations of fact.

18. If what purports to be a letter from the Bank to the appellant of 26 July 2007 is accepted, his Honour’s conclusion with respect to the position of the Bank could not stand. It is inconceivable that, if there had been reliable evidence to that effect before his Honour he would have concluded as he did. The findings reasonably open to his Honour after hearing all of the evidence, would have been that the bank was claiming money from the parties or that it was not claiming money from the parties. Whether or not, having heard and determined the matter on the merits, the learned Federal Magistrate would have altered anything in the orders previously made by Bell J or Le Poer Trench J is another question, the answer to which would necessarily be significantly dependent upon the findings of fact made with respect to disputed issues then before the Court.

19. In CDJ v VAJ (No 2) (1998) 197 CLR 172 the High Court said (at 201): -

    109. One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made. (footnotes omitted)

20. In this Court’s view, if accepted, the document purporting to be a letter from the Bank to the appellant of 26 July 2006 would render erroneous the decision of the learned Federal Magistrate, notwithstanding that it was open to him at the time it was made.

21. The parties being unrepresented, some further brief observations may be helpful in relation to this topic. Although it is stating the obvious, the parties should not believe that reference to acceptance of the document purporting to be from the Bank dated 26 July 2007 constitutes “acceptance” of the facts contained therein for any purpose other than this appeal. Significantly, in CDJ v VAJ (No 2) (1998) 197 CLR 172 the High Court’s use of the words “if accepted” (at 201) was in the context of an appeal to the Full Court of the Family Court. It does not by any means follow that this Court’s “acceptance” of the further evidence relied upon by the appellant means that a court rehearing the matter, having heard relevant and admissible evidence tested, and submissions made with respect to it, would reach the same conclusion. It simply means that if the contents of the document happen to be true, his Honour’s decision based upon a quite different factual scenario, would, through no fault of his Honour, be “erroneous”.

22. In the light of the Court’s conclusions with respect to the further evidence upon which the appellant seeks to rely, it is unnecessary to address the further grounds raised by the appellant.

23. The order for costs made by the learned Federal Magistrate was, undoubtedly, based upon the appellant’s absence of success in the proceedings before him. The appeal against the dismissal of the appellant’s s 79A application having succeeded, that costs order cannot stand.

Consequences of Allowing the Appeal

1. Having determined that the appeal should be allowed to enable critical disputed issues of fact to be tested in ways which they could not before the learned Federal Magistrate, a rehearing of the appellant’s s 79A application is appropriate.

2. To the extent that the appellant seeks to permanently restrain the respondent from proceeding with the sale of the F property, an entitlement to such relief has not been made out. As the Court has endeavoured to explain, there remains a live issue as to the position of the Bank with respect to the shortfall arising from the sale of the Dg properties. All that has changed is that the appellant has now produced evidence which, if accepted, would establish that the Bank is not pursuing the parties for any further monies.

3. That issue should be agitated before a Federal Magistrate and determined. Although it is ultimately a matter for the parties, and perhaps even for his Honour, nothing to which this Court has been referred provides any basis for suggesting that the Federal Magistrate who rehears the appellant’s s 79A application should not be Federal Magistrate Roberts. That however is a matter for his Honour and the parties.

4. Any issues in relation to interlocutory injunctive orders pending a final re-hearing are for the Federal Magistrates Court to determine.

Costs

1. Neither party has been represented on the appeal to this Court. Neither party has attended in person for the hearing of the appeal.

2. The appellant’s failure to establish a prima facie case before the learned Federal Magistrate was largely a result of shortcomings in his own case. No basis for an order for costs of the appeal against the respondent within the provisions of s 117 of the Act can be gleaned.

3. To the extent that either party has incurred expenses which may fall within the ambit of a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) the Court would not grant such a certificate. The Court has been referred to no expense that the respondent has incurred. To the extent that the appellant may have, his failure, despite several opportunities to do so, to demonstrate what he appears to have had little difficulty in endeavouring to demonstrate after the hearing in the Federal Magistrates Court, militates against granting a costs certificate.

4. So far as the rehearing is concerned, the Court is disinclined to award costs certificates to either party. Both parties were unrepresented before the learned Federal Magistrate and are likely to again be on the re-hearing. The critical issue, as identified by his Honour and this Court, should not involve judicial resources. Quite simply, the position of the Bank should be able to be ascertained beyond doubt by quite simple processes well within the knowledge and understanding of the parties.

5. Whilst the appeal has been successful, the success arises from the further evidence obtained by the appellant with apparent ease, rather than any error apparent on the face of the learned Federal Magistrate’s Reasons for Judgment. The Court does not consider that public monies would properly be devoted to “arming” the parties to re-litigate an issue which should not, but may well, require the use of publicly funded judicial resources.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman.

Associate:

Date:   10 October 2007