SABELL & MEDHURST

[2011] FamCA 446

FAMILY COURT OF AUSTRALIA

SABELL & MEDHURST [2011] FamCA 446

FAMILY LAW - PRACTICE & PROCEDURE – whether the husband may re-open his case after the conclusion of evidence and submissions – consideration of relevant principles and their application.

Family Law Act 1975 (Cth)

Summitt & Summitt & Ors (Re-opening) [2009] FamCA 365

APPLICANT: Mr Sabell

RESPONDENT: Ms Medhurst

FILE NUMBER: SYC 3944 of 2009

DATE DELIVERED: 10 June 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rose J

HEARING DATE: 9 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: G Johnston

SOLICITOR FOR THE APPLICANT: Hazan Hollander

COUNSEL FOR THE RESPONDENT: T Kirk SC

SOLICITOR FOR THE RESPONDENT: Barkus Doolan Kelly

Orders

1. That the Application in a Case filed 6 June 2011 on behalf of the husband is dismissed save and expect that his case is permitted to be re-opened to enable Justice Rose to receive the husband’s affidavit evidence of the likely expense of rent and associated expenses in Hong Kong, land-tax and property management fees in Sydney but not the quantum of all of such expenses.

1. That the costs of the parties are reserved.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3944 of 2009

Mr Sabell

Applicant

And

Ms Medhurst

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 27 May 2011 the trial of the substantive proceedings was concluded.  It was noted that the legal representatives of the wife would email my associate with a further minute of orders sought and an aide-mémoire.  That was attended to.

2. On 2 June 2011, upon the request of counsel for the husband for an urgent listing to hear an application by the husband to re-open his case, I made directions for the filing and service of an application, affidavit in support and response and affidavit.  The directions were complied with.

3. The Application of the husband is that filed 6 June 2011 (which I shall refer to as “the Application”).

4. The husband seeks leave to re-open his case to give evidence of the expected liability for land tax and quantum thereof in respect of his property in Sydney Suburb 1, the prospective agent’s management fees and other consequential expenses, as well as the cost of a short-term furnished apartment in Sydney; prospective rents in Hong Kong and associated expenses.

5. Submissions were also made by counsel for the husband in relation to the aide-mémoire furnished by senior counsel for the wife.

6. The application is opposed and the wife seeks that it be dismissed with costs.

Conclusion

1. I have determined that the application will be dismissed, save and except for evidence that the husband is likely to incur expense for land tax, rent and associated expenses in Hong Kong and property management expenses in Australia.

2. I will not permit re-opening of his case in relation to the quantum of each of such expenses.  My reasons are as follows.

3. The applicable principles are those stated by Murphy J in his judgment Summitt & Summitt & Ors (Re-opening) [2009] FamCA 365. That judgment reviewed relevant authorities which do not require reiteration by me.

4. Whilst the granting of leave is discretionary, I accept the submission of counsel for the husband that the following criteria apply:

   “(a)that further evidence is so material that the interests of justice require its admission;

   (b)the further evidence, if accepted, would most probably affect the result of the case;

   (c)the further evidence could not by reasonable diligence have been discovered earlier;

   (d)no prejudice would ensue to the other party by reason of the late admission of the further evidence.”

5. The application to be successful must be founded on evidence in relation to all of those criteria.  I accept that it is arguable that the first two criteria are met although, I am not persuaded that is necessarily so on the balance of probabilities.

6. The matter of land-tax, rent in Hong Kong and related expenses as well as property management expenses in Sydney can be inferred from the evidence given during the trial.  However, I am not persuaded that the applicant husband has met the criteria in paragraph (c) and (d).  In fact, no substantive evidence was given by him or on his behalf which demonstrated that the further evidence of the quantum of such likely expenses “could not by reasonable diligence have been discovered earlier”.

7. In addition I accept the submission of senior counsel for the wife that she would indeed suffer prejudice by reason of the admission of further evidence of rent payable in Hong Kong.  That prejudice arises due to the anticipated clash of further evidence, further court time to be set aside to test the evidence, further legal costs and consequential delay in delivery of judgment.

8. The wife in particular has significant health issues that are relevant to consideration of further stress which is likely to ensure by prolonging the litigation.

Oral Application for costs of the wife

1. An oral application for an order for costs is made on behalf of the wife.

2. I accept the submission made by counsel for the husband that each party’s costs be reserved to be determined after judgment has been given in the substantive proceedings.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 10 June 2011.

Associate: 

Date:  16 June 2011