SCVG and KLD (No. 5) - [2018] FamCA 594

FAMILY COURT OF AUSTRALIA

SCVG & KLD (NO. 5)

[2018] FamCA 594

FAMILY LAW – PRACTICE AND PROCEDURE – Setting Aside – where applicant failed to attend previous proceedings – where no reasonable explanation for the failure to attend proffered – application to set aside refused.

Family Law Rules 2004 (Cth) r 17.02

Allesch v Maunz (2000) 203 CLR 172
Barbey & Tuttle [2013] FamCAFC 44
Tobin v Ezekiel (No 2) [2012] NSWCA 409

APPLICANT:

Mr SCVG

RESPONDENT:

Ms KLD

FILE NUMBER:

SYC

4380

2008

DATE DELIVERED:

8 August 2018

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

7 December 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self-representing

COUNSEL FOR THE RESPONDENT:

Mr Stenhouse

SOLICITOR FOR THE RESPONDENT:

Macphillamy’s

Orders

The Applicant’s application of 16 October 2017 to set aside orders made on 14 September 2017, is dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym SCVG & KLD (No. 5) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 4380 of 2008

Mr SCVG

Applicant

And

Ms KLD

Respondent

REASONS FOR JUDGMENT

This matter involves an application in a case by Mr SCVG, filed on 16 October 2017, to set aside orders made on 14 September 2017. On that day, the applicant did not attend court and the matter proceeded in his absence. Pursuant to r 17.02(1)(a) of the Family Law Rules 2004 (“the Rules”) he seeks that it be set aside on the basis that he was absent when it was made.
The orders that were made on 14 September 2017 were as follows:
IT IS ORDERED THAT
1.The Applications filed by M SCVG dated 31 May 2017, 14 August 2017 and 21 August 2017 are dismissed.
2.I order that the applicant is to pay to the respondent, within a period of 28 days, an amount in respect of her costs as follows:
a)Two times $1,984 being counsel’s fees in relation to attendances at Court.
b)Twenty-one hours at $395.86 per hour being counsel’s fees for chamber work.
c)Fifty-one hours at $156.72 and forty hours at $241.74 being fees for work undertaken by the solicitors for the respondent.
being a sum in total of $29,943.38.
The applications referred to of 31 May 2017, 14 August 2017 and 21 August 2017 are each concerned with the review of costs assessment orders.
The application of 31 May 2017 concerned the review of a costs assessment order made by Registrar McNamara on 15 May 2017 for $7,300.
The application of 14 August 2017 concerned the review of a costs assessment order made by Registrar McNamara on 25 July 2017 for $7,837.
The application of 21 August 2017 concerned the review of a costs assessment order made by Registrar Payget on 31 July 2017 for $68,747.63.
The reviews came to be set on 14 September 2017 by virtue of the review of Registrar Payget’s orders being set down on that day to meet the convenience of the applicant so that he would appear in person. The reviews of the other orders were listed for the same day by Senior Registrar Campbell on 11 September 2017.
The applicant did not appear on 14 September 2017, and made no communication with the court as to his non-appearance. The matter proceeded in his absence, resulting in the orders as set out above. Ex tempore reasons were given.
In support of his application to set aside, the applicant relied upon his affidavit filed 16 October 2017. In her response of 30 November, the respondent sought the dismissal of the application and her costs. She relied upon the affidavit of Christopher Macphillamy, her solicitor, of 30 November 2017.

The argument

The applicant relied upon two authorities, being Barbey & Tuttle [2013] FamCAFC 44, and Allesch v Maunz (2000) 203 CLR 172.
In Allesch, the majority stated that:
The consideration which informs the power conferred by s 79A of the Act is that the court be satisfied that there was "a miscarriage of justice". And whether exercising inherent power or a power of the kind conferred by s 79A of the Act, a court will, ordinarily, be satisfied that there has been a miscarriage of justice if a person has suffered an adverse order in circumstances where his or her failure to appear is adequately explained unless it also appears that no different result would be reached on a rehearing or that a rehearing would work an irremediable injustice to the other side. In this last regard, it should be noted that injustice will often be capable of remedy by the imposition of terms as to costs. However, where, as here, orders have been carried into effect, injustice may not be capable of remedy except on terms that those orders stand and that the matter be reopened only to a limited extent.
That is, ordinarily, the first condition is one of adequate explanation. If an adequate explanation is proffered then setting aside may still be refused if the result would not change, or the fact of the rehearing works an irremediable injustice. If no adequate explanation is proffered then it appears that the secondary matters may not require consideration, a miscarriage by virtue of not being heard not arising.
However, in Barbey the Full Court stated:
It was suggested that there is nothing in the wording of r 16.05, or the common law (with reference to Allesch v Maunz) that codifies the discretion and therefore no one element is of itself determinative of the application to set aside. This submission is doubtless correct.
That is, the approach set out in Allesch does not constitute a code for determining whether a miscarriage of justice has occurred.
However, whilst not a code, Allesch provides a strong framework for determining the question of miscarriage. Counsel for the respondent referred to Tobin v Ezekiel (No 2) [2012] NSWCA 409 where the New South Wales Court of Appeal noted, in relation to the power to reopen a final judgment, that the “power (to set aside) is exercised with great caution because of the public interest in maintaining the finality of litigation. It may be exercised if it can be shown by accident and without fault, probably by the applicant, that he or she has not been heard.” The Court then moved on to aspects of the power that do not arise here.
In Barbey the Court further observed that “the exercise of discretion in considering such an application is unfettered, though must be exercised judicially.” The Court then worked through the three considerations as set out in Allesch above.
In this case, in support of the notion that a miscarriage has occurred, the applicant asserted that he had made every attempt to appear at the review hearing, but that he had been thwarted. As noted above, the listing for 14 September 2017 was to meet the convenience of the applicant, in order for him to attend personally.
Paragraphs 8 through 11 of his affidavit set out the circumstances of his non-attendance. He sent a number of emails, purportedly to the Canberra registry of the Family Court of Australia seeking the adjournment of the listing on 14 September 2017, or in the event that the adjournment was not granted, for him to appear by telephone. This correspondence took place from 11 through to 13 September. None of that correspondence was received by the court as the applicant had sent the emails to the wrong email address, despite previously sending correspondence to the court via the correct email address. He received no confirmation from the court or response that his correspondence had been received or would be actioned. In the material in support of this application to redeem the hearing he indicated that he was now no longer able to have his partner drive him to Canberra as previously planned due to her illness. She provided an affidavit confirming her illness meaning that she would not be able to make the trip.
None of those matters form an adequate explanation for the applicant’s failure to appear. Inadequate evidence has been led by him as to why he could not travel to Canberra in any event despite his partner’s unavailability. In the event that he sought an adjournment or, in the face of arrangements having been made for him to attend court personally, to attend by telephone, it was incumbent upon him to file the relevant applications. Even assuming that, as it may reasonably be assumed, the applicant made a genuine mistake in the email address, he had received no indication that the adjournment application would be heard and had received no permission to attend otherwise than in person.
There is no adequate explanation for his failure to attend.
The applicant also asserted that there is a risk of miscarriage by virtue of the orders made continuing. He pointed to error on the part of Registrar Payget in her assessment pursuant to Cronin J’s orders. He said that error had arisen because Registrar Payget had allowed 50 per cent of solicitor’s costs and 100 per cent of counsel’s costs, whereas, he says, Cronin J’s orders provided for 50 per cent of each. That is, the orders governing the costs award were misconstrued. The respondent submitted that Registrar Payget was correct in her application of Cronin J’s orders. Justice Cronin’s orders were as follows:
That the father pay 50 per cent of the costs of the mother on an indemnity bases at the rate set out in the costs agreement under which the mother had contracted with her solicitors together with the expenses incurred including counsel’s fees for the period from 1 January 2015 until the conclusion of the preparation of the costs submissions on her behalf.
This would no doubt be a matter for argument in the event that the matter was set aside, and it may be that the applicant would succeed in that argument.
While the applicant also criticised a number of elements of the costs award, the material did not allow any firm view to be formed that the decision by Registrar Payget was wrong in any of these aspects.
Regarding the other costs awards, made by Registrar McNamara, the applicant asserted that the costs were outrageously high for what were simple matters. Again, this presents no strong case that there has been a miscarriage.
On the remaining issue of prejudice to the respondent, the applicant asserted such could be cured by a costs award. Countering this, the respondent pointed to a number of unpaid costs orders totalling well over $100,000, strongly suggestive that a costs award may be a futile remedy.

Conclusion

The applicant seeks the setting aside of the dismissal of his three applications for review, and of the costs order against him that flowed from that dismissal.
There is a strong public and personal interest on the part of the respondent in finality of litigation. Where that litigation was rendered unfair by failing to provide an opportunity to be heard, there is good reason to consider that such a determination should not be treated as final.
That is not the case here. Strongly against the setting aside is that the applicant had the opportunity to appear and be heard, and did not do so. That failure is without adequate explanation on his part.
Despite doubt attending a part of the determination by Registrar Payget in the interpretation of Cronin J’s orders, the above consideration is sufficient, in this case, to refuse the application to set aside.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 8 August 2018.

Associate:

Date: 8 August 2018