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SEIDLER & CERNY (No.3)

SEIDLER & CERNY (No.3)

Case [2015] FCCA 2119 18 September 2015

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SEIDLER & CERNY (No.3)

[2015] FCCA 2119

Catchwords:

FAMILY LAW – PRACTICE & PROCEDURE – Application to strike out affidavit material pursuant to rule 15.29 of the Federal Circuit Court Rules 2001 (Cth) – paragraphs are irrelevant to proceedings – self-represented litigant – case management – public interest – application allowed.

COSTS – Application for costs by a subpoenaed party – lump sum – unreasonable conduct – prolonged litigation – pursuit of irrelevant material – section 117 of the Family Law Act 1975 (Cth) considerations – rule 15.29 of the Federal Circuit Court Rules 2001 (Cth) considered – costs awarded.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), ss.10, 42, 43
Federal Circuit Court Rules 2001 (Cth), rr.1.03, 15.29; Pts.10, 13
Family Law Act 1975 (Cth), ss.69ZT, 117
Family Law Rules 2004 (Cth), rr.19.08, 19.18
Evidence Act 1995 (Cth), ss.55, 56, 76

Cases sited:
Seidler & Cerny (No.2) [2015] FCCA 1998
Cachia v Hanes (1994) 179 CLR 403
Abram v Bank of New Zealand & Anor [1996] FCA 1650
Neil v Nott [1994] HCA 23; (1994) 121 ALR 148
Aon Risk Services Australia Limited & Australian National University [2009] HCA 27; (2009) 239 CLR 175
Herold & Herold [2015] FamCAFC 5
Collins & Ricardo (No.2) [2015] FamCAFC 77
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46
Ivory v Telstra Corporation Ltd & Mead [2002] QCA 457
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Ranjit Rana v University of South Australia [2004] FCA 559
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Kohan & Kohan (1993) FLC 92-340; (1992) 16 Fam LR 245
Medlon & Medlon (No.5) [2015] FamCAFC 156
Janssen & Janssen [2015] FamCAFC 168

Odgers, S. “Uniform Evidence Law” (11^th ed.) (Thomas Reuters, Australia, 2014)
Macquarie Dictionary (3^rd ed.) (Macquarie Library, NSW, 1997)

Applicant:

MS SEIDLER

Respondent:

MR CERNY

File Number:

SYC 6696 of 2014

Judgment of:

Chief Judge Pascoe

Interim Hearing date:

15 July 2015

Date of Last Submission:

2 August 2015

Delivered at:

Sydney

Delivered on:

18 September 2015

REPRESENTATION

Counsel for the Applicant:

Mr Christopher Othen

Solicitors for the Applicant:

Rebekah Dorter Family Lawyer and Mediator

The Respondent appeared in person

Solicitor as the Independent Children’s Lawyer:

Ms Maureen Power (NSW Legal Aid)

Counsel for the Objectors:

Mr David Hume

ORDERS

THE COURT ORDERS THAT:

Pursuant to r.15.29 of the Federal Circuit Court Rules 2004 (Cth), the following paragraphs be struck out of the relevant affidavit materials filed by the Respondent, Mr Cerny:
(a)Paragraph 9 of the affidavit of Mr Cerny, filed 25 May 2015;
(b)Paragraph 14 of the affidavit of Mr Cerny, filed 25 May 2015;
(c)Paragraph 89 of the affidavit of Mr Cerny, filed 10 June 2015;
(d)Paragraph 115 of the affidavit of Mr Cerny, filed 10 June 2015;
(e)Paragraph 37 of the affidavit of Mr Cerny, filed 30 June 2015;
(f)Paragraph 38 of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: SEIDLER & CERNY (No.3) [2015] FCCA 2119
Case: [2015] FCCA 2119
Decision Date: 18 September 2015

CaseChat Overview and Summary

In the Federal Circuit Court, Chief Judge Pascoe considered an application by the applicant, Ms Seidler, to strike out specific paragraphs from affidavits filed by the respondent, Mr Cerny. The proceedings concerned family law matters, and the application was made pursuant to rule 15.29 of the Federal Circuit Court Rules 2001 (Cth), which allows for the striking out of irrelevant material. Additionally, the court addressed an application for costs by a subpoenaed party, identified as the Objector, the Rs.

The primary legal issues before the court were whether certain paragraphs within Mr Cerny's affidavits were irrelevant to the proceedings and should therefore be struck out, and whether the Objector was entitled to an award of costs due to the respondent's conduct. The court was required to consider the principles of case management, the public interest in efficient litigation, and the factors outlined in section 117 of the Family Law Act 1975 (Cth) when determining the costs application.

Chief Judge Pascoe reasoned that the identified paragraphs in Mr Cerny's affidavits were indeed irrelevant to the core issues of the family law proceedings and constituted an unreasonable pursuit of extraneous matters. The court emphasised the importance of efficient case management and the need to prevent prolonged litigation through the introduction of immaterial evidence. Consequently, the court allowed the application to strike out the specified paragraphs. Regarding costs, the court found that Mr Cerny's conduct, including the pursuit of irrelevant material, warranted an order for costs in favour of the Objector.

The court ordered that paragraphs 9 and 14 of Mr Cerny's affidavit filed on 25 May 2015, paragraphs 89, 115 of his affidavit filed on 10 June 2015, and paragraphs 37, 38, and 39 of his affidavit filed on 30 June 2015 be struck out. Furthermore, the respondent, Mr Cerny, was ordered to pay the Objector's costs, fixed at $3,000, within 90 days of the order.

Orders

Orders of the court

THE COURT ORDERS THAT:

Pursuant to r.15.29 of the Federal Circuit Court Rules 2004 (Cth), the following paragraphs be struck out of the relevant affidavit materials filed by the Respondent, Mr Cerny:

(a) Paragraph 9 of the affidavit of Mr Cerny, filed 25 May 2015;

(b) Paragraph 14 of the affidavit of Mr Cerny, filed 25 May 2015;

(d) Paragraph 115 of the affidavit of Mr Cerny, filed 10 June 2015;

(e) Paragraph 37 of the affidavit of Mr Cerny, filed 30 June 2015;

(f) Paragraph 38 of the affidavit of Mr Cerny, filed 30 June 2015;

(g) Paragraph 39 of the affidavit of Mr Cerny, filed 30 June 2015.

The Respondent pay the Objector’s, the Rs, costs fixed in the amount of $3,000 within 90 days of this Order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

SEIDLER & CERNY (No.3) [2015] FCCA 2119

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Cases cited in this decision · 16 of 16 shown

JANSSEN & JANSSEN
[2015] FamCAFC 168 Para 1

…First, I note the recent decision of the Full Court of the Family Court of Australia in Janssen & Janssen [2015] FamCAFC 168 (“ Janssen ”) which was delivered 4 September 2015 – subsequent to the Interlocutory Hearing of 15 July 2015 but prior to this judgment.…
Medlon and Medlon (No 5)
[2015] FamCAFC 156 Para 22

…is not a bar to a costs order being made where there are circumstances which otherwise justify an order being made ” (see: Medlon & Medlon (No.5) [2015] FamCAFC 156, per Strickland J at [82] referring to D & D (Costs) (No.2) [2010] FamCAFC 64; [2010] FLC 93-435).…
SEIDLER & CERNY (No.2)
[2015] FCCA 1998 Para 10

…gment in relation to the Interim Property Orders, which incorporate the interlocutory hearing of 15 July 2015 was published as Seidler & Cerny (No.2) [2015] FCCA 1998.…
Collins and Ricardo (No 2)
[2015] FamCAFC 77 Para 4

…which may cause some angst to litigants. This dilemma was considered by the Full Court of the Family Court in the matter of Collins & Ricardo (No.2) [2015] FamCAFC 77, per Strickland, Murphy & Tree JJ at [79]: “ To the extent that apprehended bias is asserted, the test is well established. For example, the High Cou…
Herold & Herold
[2015] FamCAFC 5 Para 8

…The need to appropriately use the Court’s case management powers was recognised by Bryant CJ, Strickland, and Crisford JJ in Herold & Herold [2015] FamCAFC 5, when their Honours quoted, at [31], the joint judgment of Gummow, Hayne, Crennan, Kiefel, and Bell JJ in Aon Risk : “ [112] A party has the right to bring pr…
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd
[2013] HCA 46 Para 10

…French CJ, Kiefel, Bell, Gageler, and Keane JJ in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46: “ [56] The evident intention and the expectation of the [ Civil Procedures Act 2005 (NSW) (“the CPA”)] is that the court use these broad powers to f…
D & D (Costs) (No 2)
[2010] FamCAFC 64 Para 22

…herwise justify an order being made ” (see: Medlon & Medlon (No.5) [2015] FamCAFC 156, per Strickland J at [82] referring to D & D (Costs) (No.2) [2010] FamCAFC 64; [2010] FLC 93-435).…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27 Para 2

…As French CJ stated in Aon Risk Services Australia Limited & Australian National University [2009] HCA 27; (2009) 239 CLR 175, (“ Aon Risk ”) at [23]: “[T] he adversarial system has been qualified by changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts…
Rana v University of South Australia
[2004] FCA 559 Para 13

…nomical resolution of proceedings promotes the use of affidavits, not pleadings, as stated by Lander J in Ranjit Rana v University of South Australia [2004] FCA 559 ; “ [37] The Federal Magistrates Court [as it then was] has abandoned pleadings in favour of affidavits. In doing so, it has recognised that the Cour…
Ivory v Telstra Corporation Ltd
[2002] QCA 457 Para 9

…and not used as a vehicle for improper behaviour and sensationalism. I note the judgment of Jerrard JA’s in Ivory v Telstra Corporation Ltd & Mead [2002] QCA 457 in which His Honour stated, and with whom Davies JA agreed, at [80]; “[P] articipation in litigation is not a licence to insult and abuse other people.…
Johnson v Johnson
[2000] HCA 48 Para 4

…tent that apprehended bias is asserted, the test is well established. For example, the High Court said in a well-known passage in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 493 per Gleeson CJ; Gaudron, McHugh, Gummow and Hayne JJ): ‘Whilst the fictional observer, by reference to whom the test is form…
Oshlack v Richmond River Council
[1998] HCA 11 Para 16

…With regards to the former, I refer to Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 (“ Oshlack ”), per McHugh J at [67]: “ [67] The expression the ‘usual order as to costs’ embodies the important principle that…a successful party in litigation is entitled to an award of costs in its favour.…
Neil v Nott
[1994] HCA 23 Para 6

…nor [1996] FCA 1650, Hill, Tamberlin, and Sundberg JJ, forming the Full Court of the Federal Court, considered the High Court decision in Neil v Nott [1994] HCA 23; (1994) 121 ALR 148 to the effect that when dealing with a self-represented litigant “ the court must assume the burden of endeavouring to ascertain…
Cachia v Hanes
[1994] HCA 14 Para 3

…er-growing case load which must be managed efficiently in order to maximise the use of its scarce resources. As the High Court said in Cachia v Hanes (1994) 179 CLR 403, per Mason CJ, Brennan, Deane, Dawson, and McHugh JJ at [22]; “ Whilst the right of a litigant to appear in person is fundamental, it would be disreg…
Abram v Bank of New Zealand
[1996] FCA 1650 Para 6

…In Abram v Bank of New Zealand & Anor [1996] FCA 1650, Hill, Tamberlin, and Sundberg JJ, forming the Full Court of the Federal Court, considered the High Court decision in Neil v Nott [1994] HCA 23; (1994) 121 ALR 148 to the effect that when dealing with a self-represented litigant “ the court must assume the burd…
Commissioner for Railways v Small
(1938) 38 SR 564 Para 3

…is as specific as it can be ” misconceives the principles governing the legitimate forensic purpose of a subpoena, as Jordan CJ stated in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575: “ …a party is no more entitled to use a subpoena…than he is a summons for interrogatories, for the purpose of ‘fishing’, ie, endeavouring…

Legislation cited in this decision · 6

Evidence Act 1995 (Cth)
55, 56, 76 4 mentions (from Para 7)
Federal Circuit Court of Australia Act 1999 (Cth)
10, 42, 43 4 mentions (from Para 6)
Federal Circuit Court Rules 2001 (Cth)
1.03, 1.03(1), 15.29 4 mentions (from Para 9)
Family Law Act 1975 (Cth)
117, 69ZT 3 mentions (from Para 3)
Family Law Rules 2004 (Cth)
19.08, 19.18 3 mentions (from Para 4)
Civil Procedures Act 2005 (NSW)
1 mention (from Para 10)