Saso & Saso
[2023] FedCFamC1A 65
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Saso & Saso [2023] FedCFamC1A 65
Appeal from: Saso & Saso [2022] FedCFamC2F 1535 Appeal number(s): NAA 234 of 2022 File number(s): BRC 881 of 2021 Judgment of: ALDRIDGE J Date of judgment: 11 May 2023 Catchwords: FAMILY LAW – APPEAL – Appeal from property settlement orders – Whether the primary judge afforded the appellant procedural fairness in coming to a determination that the matter proceed on an undefended basis – Where the appellant was legally represented at the final hearing but only as to an application for an adjournment and was otherwise self-represented – Where the adjournment application was refused – Where the refusal of the adjournment did not compel the matter to proceed on an undefended basis – Where submissions were not sought from the appellant as to proceeding undefended – Denial of procedural fairness – Error established – Appeal allowed – Orders set aside – Matter remitted for rehearing – Cost certificates granted. Legislation: Family Law Act 1975 (Cth) s 102NA
Federal Proceedings (Costs) Act 1981 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.33, 10.27
Cases cited: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Morgan & Valverde (2022) FLC 94-100; [2022] FedCFamC1A 133
Re F: Litigants in person guidelines (2001) FLC 93-072; [2001] FamCA 348
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Number of paragraphs: 32 Date of hearing: 13 April 2023 Place: Sydney (via video link) Counsel for the Appellant: Mr Looney KC Solicitor for the Appellant: Damien Greer Lawyers Counsel for the Respondent: Mr Wilson KC Solicitor for the Respondent: C & C Law ORDERS
NAA 234 of 2022
BRC 881 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SASO
Appellant
AND: MR SASO
Respondent
order made by:
ALDRIDGE J
DATE OF ORDER:
11 may 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 8 February 2023 is dismissed.
2.The appeal is allowed.
3.The orders made by the primary judge on 26 September 2022 are set aside.
4.The matter is remitted for rehearing by a judge other than the primary judge.
5.The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
6.The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
7.The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the new trial ordered.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Saso & Saso has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
This is an appeal from property settlement orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 26 September 2022 in proceedings between Ms Saso (“the appellant”) and Mr Saso (“the respondent”).
The appeal raises just two issues. The first is whether the primary judge afforded the appellant procedural fairness in coming to a determination that the matter proceed on an undefended basis – the effect of which was to deprive the appellant the opportunity to cross-examine witnesses other than the respondent (orders were made on 19 May 2021 under s 102NA of the Family Law Act 1975 (Cth) which prohibited each party from cross-examining each other themselves) or to make submissions.
The second is whether his Honour erred in treating three debts owed by companies as debts owed by the respondent.
The appellant also filed an Application in an Appeal to adduce further evidence on 8 February 2023. At the appeal, senior counsel for the appellant indicated that it was no longer pressed and accordingly it was dismissed.
THE APPEAL
It is necessary to deal with the procedural fairness question first because it goes to the integrity of the trial process itself (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128).
The final hearing of the matter was fixed for 26 September 2022. The appellant had filed a Response on 27 April 2021 but had otherwise failed to comply with procedural directions. Senior counsel who appeared for the appellant accepted that, on the circumstances, r 1.33(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) applied. It states:
1.33 Failure to comply with a legislative provision or order
…
(2)If a party to a proceeding does not comply with these Rules, the Family Law Regulations or a procedural order, the court may do any of the following:
(a) dismiss all or part of the proceeding;
(b) set aside a step taken or an order made;
(c) determine the proceeding as if it were undefended;
(d) order costs;
(e)prohibit the party from taking a further step in the proceeding until the occurrence of a specified event;
(f) make any other order the court considers necessary, having regard to the overarching purpose of these Rules (see rule 1.04).
Thus, senior counsel accepted that it was open to the primary judge to make an order that the hearing proceed on an undefended basis. The complaint is as to the process that led to that determination. It is therefore necessary to set out in some detail how that came about.
Pursuant to the making of the order under s 102NA, the appellant was provided with legal aid funds to find lawyers to act for her. That did not go well and ultimately four firms of lawyers and the appellant parted company.
The appellant was represented at the final hearing by a barrister and a further set of solicitors, however, they were there for a limited purpose, as counsel explained to the primary judge:
[COUNSEL FOR THE APPELLANT]: … my solicitors and I are retained in relation to the application in a case seeking an adjournment … We are not retained in relation to the proceedings as a whole, should your Honour dismiss the application …
(Transcript 26 September 2022, p.2 lines 7–10)
After indicating that the application was opposed, counsel for the respondent added:
[COUNSEL FOR THE RESPONDENT]: If your Honour doesn’t wish to proceed undefended, then we say the wife could appear by Teams and – or continuing to instruct her legal representatives and she can perhaps rely upon earlier material, if that is your Honour’s preference, but otherwise it can proceed undefended.
(Transcript 26 September 2022, p.2 lines 39–42)
The courses so mentioned were all consistent with r 1.33(2), of which proceeding on an undefended basis was but one option. See the discussion in Morgan & Valverde (2022) FLC 94-100 (“Morgan & Valverde”) at [19]–[30] as to the various possibilities under r 10.27 of the Rules which covers similar grounds to r 1.33.
The appellant was then joined to the Microsoft Teams link.
Counsel for the appellant then proceeded to develop his argument as to why the hearing should be adjourned. Consistently with his limited retainer, counsel did not address how the proceedings might continue if the adjournment application was refused.
At the end of the appellant’s counsel’s submissions, his Honour said:
HIS HONOUR: …I’m in the position where I have to consider the powers this Court has, particularly under Rule 1.33, which is failure to comply with orders and that allows the Court to run the trial on an undefended basis. …
(Transcript 26 September 2022, p.16 lines 25–27)
Again, his Honour did not advert to the other possibilities provided by the Rules.
After hearing submissions on the adjournment application from counsel for the respondent and submissions in reply, the primary judge delivered reasons for refusing the adjournment. In the course of those reasons his Honour said:
76.There needs to be consequences and that is allowed for under the Federal Circuit and Family Court of Australia Rules 2021, r.1.33 allowing this court to take any action that is necessary in a case when there is no compliance with the directions and the wife has not complied with the directions here to file her material within the terms of the directions given.
77. The submissions made on her behalf were adequate.
78. The submissions made on her behalf in the time given were well prepared.
79.But I do not accept that the wife is in a position where delay is outside of her control.
80. On that basis, this matter will go ahead on an undefended basis.
Counsel for the appellant was then given leave to withdraw. The matter continued as follows:
HIS HONOUR: You will have to announce your appearance. Well, actually, I don’t know if you do, do you, because it’s an undefended hearing now?
[COUNSEL FOR THE RESPONDENT]: It is an - - -
[THE APPELLANT]: Look, I will just - - -
HIS HONOUR: I don’t - - -
[THE APPELLANT]: I’m sorry, what was that?
HIS HONOUR: Yes. I’m - - -
[THE APPELLANT]: I beg your pardon, your Honour.
HIS HONOUR: I’m sorry, [the appellant]. I’m now conducting an undefended hearing.
[THE APPELLANT]: Your Honour, that’s one thing I – can I speak at least?
HIS HONOUR: No, you can’t, actually. I’m going to conduct an undefended hearing. It needs to be done on the papers. There’s no point in doing anything else.
[COUNSEL FOR THE RESPONDENT]: No.
HIS HONOUR: I will step it down. [The appellant] is on the telephone. I will ask her – [addressing the appellant], I’m going to decide the matter after hearing from [counsel for the respondent]. Do you wish to take any advantage of negotiating now with the solicitors for [the respondent]?
[THE APPELLANT]: No, your Honour, there’s nothing to negotiate at the moment.
HIS HONOUR: Well, all right. Sorry, you’re excused. Thank you. All right. Yes, [counsel for the respondent]. Well, you can – you’re free to stay - - -
[THE APPELLANT]: .....
HIS HONOUR: You’re free to - - -
[THE APPELLANT]: .....
HIS HONOUR: You’re free to stay on the line or depart, because I’m hearing this undefended.
(Transcript 26 September 2022, p.30 line 25 to p.31 line 17)
The question of whether the matter should be adjourned and the course of the hearing thereafter were quite separate matters. The refusal of the adjournment did not compel the matter to proceed on an undefended basis, whatever that ultimately means which was not explored in submissions. Both counsel proceeded on the basis that the effect was that the appellant could not participate in the hearing in any manner. That may not be correct but is not a matter that presently arises for consideration.
As Austin J explained in Morgan & Valverde, there are a number of options available where the participation of a party is to be limited by reason of a default with procedural orders and normally that would involve allowing the defaulting party to cross-examine (albeit in the limited manner described in Morgan & Valverde), possibly to tender documents and to make submissions. It is apparent that the primary judge did not consider these options.
That however, is not the point of Grounds 4 and 5. Senior counsel for the appellant at the appeal accepted that it was open to the primary judge to have made an order that the hearing proceed undefended. Rather, the point was that before making the determination as to how the hearing would proceed the primary judge should have sought submissions from the appellant and that this failure was a denial of procedural fairness.
His Honour announced that the matter would proceed as if undefended in his reasons for refusing the adjournment and shortly thereafter informed the appellant that she could not participate further and could stay in the Microsoft Teams link or not, as she pleased. At no time was the appellant given the opportunity to make relevant submissions even though she attempted to do so, but was cut off by his Honour.
I do not accept that the casual references to an undefended hearing which took place early in the hearing, which I have quoted above, constituted an invitation for submissions on this point to be made, particularly in the light of the reference by counsel for the respondent to some of the other available options. The appellant’s counsel, consistently with his retainer, only made submissions on the adjournment application.
It is to be recalled that other than for having counsel bring an adjournment application on her behalf at the hearing, the appellant was acting for herself. The application of the principle set out in Re F: Litigants in Person Guidelines (2001) FLC 93-072, would have seen the various options available under r 1.33 explained to the appellant by the primary judge and her submissions on them sought.
It is well-established that procedural fairness requires a party to be given a reasonable opportunity to present his or her case and it matters not whether that opportunity is taken up (Kioa v West (1985) 159 CLR 550). The respondent submitted that the appellant was afforded the opportunity but did not take it up because she did not file a Case Outline or an affidavit in chief. That however, was the failure to take up the opportunity to prepare for the hearing, and that failure was the basis for the application of r 1.33(2) of the Rule. It was not the opportunity to be heard as to what the consequences of that failure should be.
The respondent then submitted that, for reasons disclosed in the evidence, the appellant’s credit had been “destroyed” so that any submissions she might make would be “afforded little if any weight” (Respondent’s Summary of Argument filed on 24 February 2023, paragraph 10). That does not follow – submissions are not evidence, and the weight to be given to them does not depend on the creditworthiness of their maker as a witness.
The respondent further submitted that evidence filed in the proceedings, including the appellant’s own affidavit filed on 24 September 2022, in which she said that “I physically and mentally cannot represent myself as I suffer from extreme anxiety, depression and chronic fatigue syndrome” (Appellant’s affidavit filed on 24 September 2022, paragraph 21). It cannot be known whether that would have prevented her from making submissions as to the course to be followed on the application of r 1.33(2), because she was not afforded the opportunity and, indeed, stopped from attempting to say something.
An appeal court can dismiss an appeal where there has been a denial of natural justice, but no miscarriage of justice, however, it must be satisfied that the denial has no bearing on the outcome (Stead v State Government Insurance Commission (1986) 161 CLR 141).
That is not the case here.
It is a drastic step to prevent a litigant from participating in a hearing at all, especially when other options were available. Both parties should have been given the opportunity to address the Court on that issue. The failure to give the appellant that opportunity was a material lack of procedural fairness.
CONCLUSION AND COSTS
It follows that the appeal will be allowed. Both counsel agreed that such a finding would require the orders to be set aside and the matter remitted for rehearing. That is the appropriate order.
It follows that it neither necessary nor desirable to consider the remaining grounds as the subject of them will now be re-litigated.
As requested by the parties, I am satisfied that it is just that each party receive cost certificates under the Federal Proceedings (Costs) Act1981 (Cth) for the appeal and the rehearing.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 11 May 2023
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