SEIDLER & CERNY (No.3)
[2015] FCCA 2119
•18 September 2015
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 Cases sited: Odgers, S. “Uniform Evidence Law” (11th ed.) (Thomas Reuters, Australia, 2014) | ||
| 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 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.
IT IS NOTED that publication of this judgment under the pseudonym Seidler & Cerny (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 6696 of 2014
| MS SEIDLER |
Applicant
And
| MR CERNY |
Respondent
REASONS FOR JUDGMENT
Issues for Determination
This judgment deals with an application made by Mr and Mrs R (“the Rs”), who are the parents of Ms Seidler (“the Wife”), to strike out certain paragraphs of filed affidavit material, together with the Rs’ application for costs.
Background
On 15 April 2015, Mr Cerny (“the Husband”) filed several subpoenas in proceedings between him and the Wife relating to interim property, in particular the former matrimonial home that the husband sought to sell and the Wife sought to retain. The subpoenas seek information from several parties including Westpac Banking Corporation (“Westpac”).
The documents produced under subpoena from Westpac included information as to the financial affairs of the Rs. The Rs objected to certain information being made available for inspection on the grounds that the information was private and not relevant to the litigation.
Consent Orders, made 29 April 2015, a time when each party was represented by counsel, set aside the subpoena so far as the Westpac documents related to the Rs’ private affairs. These consent Orders included a costs Order against the Husband in favour of the Rs.
On 7 May 2015, I made Orders allowing the Wife to reopen the Interim Hearing of 31 March 2015 in relation to property. I did so on the basis that the material the Wife sought to introduce was central to the interim property determination, was previously unavailable, and that the solicitor for the Husband (at a time when he was represented) indicated that he did not oppose the Wife’s application to reopen the case.
The Orders, issued 7 May 2015, also allowed the Husband to respond to the Wife’s material and to attach documents produced under subpoena, filed 15 April 2015, (as amended by the consent Orders, dated 29 April 2015) as exhibits.
On 13 May 2015, the Rs again objected to certain financial details which were included in a document produced under subpoena addressed to Westpac being made available for inspection.
By consent, and still at a time when all parties were legally represented, Orders were made, dated 14 May 2015, allowing the Rs to copy the documents produced under subpoena and to “redact from those copies any personal information of theirs.” The originals were sealed and the redacted copies (“the Westpac document”) were made available for inspection.
In May and June 2015, then at a time where the Husband ceased to have legal representation, the Husband filed three Applications in a Case. Much of the Further Amended Application in a Case, filed 5 July 2015, was made up of various complaints by the Husband, many of which related to his access to material in the Westpac document.
At the Interlocutory Hearing of 15 July 2015, Husband’s application to access the redacted material within the Westpac document was refused on the grounds that the redacted information was not relevant to the proceedings.
My Reasons for Judgment 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.
In the Orders to which those Reasons relate, I transferred the matter to the Family Court of Australia in the following terms:
“(8) The substantive matter is transferred to the Family Court of Australia at Sydney, pursuant to s.39 of the Federal Circuit Court of Australia Act 1999 (Cth), save for the outstanding issue relating to the Rs.”
The ‘outstanding issue’ is the Rs’ application to strike out affidavit material filed by the Husband in the course of his litigation with the Wife that refers to them. This is a discrete issue that is conducted pursuant to r.15.29 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). The Rs also applied for costs in relation to their involvement in the property dispute between the Wife and the Husband. It is to these applications that these Reasons are addressed.
The Law
Rule 15.29 of the Rules is as follows:
“Division 15.4 – Affidavits
15.29- Objectionable material may be struck out
(1) The Court or a Registrar may order material to be struck out of an affidavit at any stage in a proceeding if the material:
(a) is inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative; or
(b) contains opinions of persons not qualified to give them.”
The Evidence Act 1995 (Cth), regarding relevant evidence, states:
“s.55(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”
s.56(2) Evidence that is not relevant in the proceeding is not admissible.”
The Evidence Act 1995 (Cth), regarding opinion evidence, states:
“s.76(1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.”
Submissions
On 15 July 2015, the Rs were given leave to file written submissions to support their application to strike out affidavit material by 22 July 2015. The Husband was given leave to Reply by 5 August 2015.
The Rs moved that certain portions of the affidavit material filed by the Husband during the course of the litigation be struck out as the relevant paragraphs were “inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative.”
On 22 July 2015, the Rs made submissions, seeking to strike out certain paragraphs within the Husband’s affidavits. Counsel’s submissions are, relevantly, as follows:
“30 June 2015 Affidavit
Paragraph 37. Mr Cerny purports to give evidence that he does “not know on what authority the R’s have felt entitled to keep a copy of the unredacted credit memo document for themselves, when this is a subpoenaed document that is part of these proceedings and they have no court order to allow them to keep copies of documents”. The paragraph is inadmissible, scandalous and argumentative. It is on its face irrelevant: Mr Cerny’s lack of knowledge of the Rs’ authority is not probative of any issue in the proceedings. (In any event, it can be noted that the Rs were expressly given leave to copy the credit memo by order 1 of the consent orders made on 13 May 2015.)
Paragraph 38. Mr Cerny purports to give evidence that he is “concerned that [the Rs] have communicated the contents of the unredacted parts of this document to Ms Seidler and her counsel while still obstructing [his] access to the document.” The paragraph is inadmissible, scandalous and argumentative. Again it is, on its face, irrelevant: Mr Cerny’s “concern” is not probative of any issue.
Paragraph 39. Mr Cerny purports to give evidence that “the Rs have essentially admitted that they had redacted sections of text of this document in contravention of the court orders”. The paragraph is inadmissible and argumentative. Mr Cerny’s opinion that the Rs have admitted a contravention is, in any event, contrary to the express text of paragraph 5 of the letter to which Mr Cerny is referring and which appears at Annexure J of the affidavit.
10 June 2015 Affidavit
Paragraph 115. Mr Cerny purports to give evidence that the Rs “have also sought to disguise the extent of their redaction by whiting out whole sections of pages, rather than marking out specific phrases with a black texta or marker pen.” The paragraph is inadmissible, scandalous and argumentative.
25 May 2015 Affidavit
Paragraph 9. Mr Cerny purports to give evidence that the Rs “have obstructed access to and extensively redacted the only document which explains … arrangements with the Westpac Bank.” The paragraph is inadmissible, scandalous and argumentative.
Paragraph 14. Mr Cerny purports to given evidence that the Rs have “transferr[ed] their own liabilities to the matrimonial property”. That allegation is plainly false on any reading of the documents. The paragraph is inadmissible, scandalous and argumentative.”
On 2 August 2015, the Husband filed submissions in reply to the Rs’ submissions.
The Husband opposed each of the prayers sort by the Rs, with the exception of the prayer identified in paragraph 9 the Rs’ submissions, which was conceded.
The Husband’s submissions are, relevantly, as follows:
“5. In response to Paragraph 4 of the R’s Submissions:
a. I refer to the Court Orders made 14 May 2015 in these proceedings.
b. These orders state that the R’s have leave to copy certain documents in the registry, to remove those copies for the purpose of making redactions, “after which the redacted documents are to be returned to the Registry”.
c. No leave was given to the Rs to retain unredacted copies of the documents outside the registry.
6. In response to Paragraph 5 of the R’s submissions:
a. The Barrister for the Wife has stated in his submissions filed 19 June 2015 (page 10, paragraph 4) that: “There is nothing to suggest that the credit memo has anything to do with the former matrimonial home. It does not.”
b. In order for the Wife’s Barrister to make these submissions on behalf of the Wife, he would have had to have knowledge of the contents of the original document.
c. The Husband has expressed a legitimate concern that evidence denied to himself may be available to the Wife, prejudicing his ability to be able to respond in the proceedings.
7. In response to Paragraph 6 of the R’s submissions:
a. I refer to Annexure “J” of the Husband’s Affidavit field 30 June 2015.
b. In this letter, specifically paragraph 5, The Rs provided further pages from the “Credit Memo” that they had previously redacted, which in 5(a) was a redaction of the words “Ms Seidler”
c. The Rs maintain that rather than their original redaction being in contravention of the orders, they assert that the text “Ms Seidler”, “arguably may not fall within the phrase “personal information of [the Rs]”, and provide this “without any admission”
d. The Husband submits that the evidence is that this information was originally redacted in contravention of the orders.
8. In response to Paragraph 7 of the R’s submissions:
a. The Husband submits that redactions of relevant text with black texta allows a clear identification of whether text was redacted or not, and limits redactions only to the necessary text, and that masking sections of a document so that redactions cannot be identified disguise where redactions have occurred.
9. In response to Paragraph 8 of the R’s submissions:
a. The Husband refers to:
i. Husbands 10 June 2015 Affidavit, paragraphs 37 to 43, 108 to 116.
ii. Husbands 30 June 2015 Affidavit, paragraphs 36 to 42.
10. In response to Paragraph 9 of the R’s submissions:
a. The Husband accepts that this paragraph was phrased wrongly.
b. It should have been phrased as the involvement of the Rs in “a plan to transfer”.
c. This was an oversight of the Husband in proof reading his affidavit, and can be struck out.
…
16. The husband rejects the characterisation of the Subpoena paragraph, “Copies of any credit assessments made by the bank concerning the customer and/or finance for the property at [address omitted] in the State of New South Wales since 1 July 2014” as “fishing”, and this subpoena is as specific as it can be.
…”
Self-Represented Litigants, Case Management, & Evidence
Apart from the particular issues to be decided, this case raises an overall question of how the Court should deal with self-represented litigants. In no small part this involves managing expectations together with decisions as to how to manage time constraints in a busy trial Court. Some self-represented litigants are more ‘difficult’ than others, for reasons which may include mental illness. Each case is unique.
Litigants may be self-represented for a variety of reasons, including limited financial resources and inability to access Legal Aid. In many cases, a party will have representation at the commencement of litigation and subsequently become self-represented, as in this case. I note that, the Husband seemed to have great confidence in his own capacity as an advocate.
The Federal Circuit Court of Australia is faced with a continually growing number of self-represented litigants across all its areas of jurisdiction. The Court also has an ever-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 disregarding the obvious to fail to recognize that the presence of litigants in person in increasing numbers is creating a problem for the courts…All too frequently, the burden of ensuring that the necessary work of a litigant in person is done falls on the court administration or the court itself. Even so, litigation involving a litigant in person is usually less efficiently conducted and tends to be prolonged”
It is axiomatic that a Court must give a party, represented or otherwise, a fair hearing. There is a special onus placed on the Court to ensure that a litigant is not disadvantaged simply by not being legally represented. Nonetheless, there are limits to the efforts the Court can make to ‘level the playing field’ of the parties to litigation.
The Court must ensure that a party has every opportunity to advocate his or her position and the Court may prompt responses from self-represented litigants who may not know when it is their turn to speak or require guidance on the processes of Court. However, the Court must ensure that in assisting a self-represented litigant it does not disadvantage another party to the case, whether or not that party is represented.
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 burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy” at [1994] HCA 23 [5]; “What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case” at [1996] FCA 1650 [31].
As stated, the Court’s burden will vary according to circumstances of the self-represented litigant and the issues to be determined. Assistance may take the form of stating what is or is not admissible or an allowance for the litigant to advocate in a clumsy manner, or in a way that would be unacceptable from counsel.
In the current case, the Husband is clearly intelligent and highly articulate. He was also inclined to take an inordinate amount of time and to repeat the same complaint.
Allowance given to a self-represented litigant is not an opportunity to unduly slow down the Court’s duty to provide “just, efficient, and economical resolution of proceedings”[1] for all parties. Just as there is a need to prompt a self-represented litigant to act, sometimes there is a need for a Court to prevent a self-represented litigant discussing irrelevant material, behaving inappropriately, or in a manner which is offensive or intimidating to others. Of course, such a decision must be carefully and individually decided.
[1] Federal Circuit Court Rules 2001 (Cth) r.1.03(1) Objects
There is thus tension between the following (inter alia) holistic duties: ensuring that a self-represented litigant is properly heard on the issues that require adjudication; the need for the Court not to be, or raise any apprehension of, bias; a responsibility to both parties to keep costs at a minimum; and, the obligation to the public that the Court’s limited resources are efficiently used.
This last factor concerns the administration of justice. The Court must be able to effectively manage its lists. This is a duty the Court owes to the community at large given the demand for access to the Court and the expense to the public purse.
In this regard, the Court should carefully consider any transfer to the Family Court of Australia to ensure that it is an appropriate case for the superior court. The Family Court also has limited resources to deal with cases which require the attention of the superior court.
The temptation to transfer cases involving self-represented litigants where the matter may not be complex but may be considerably lengthened because of difficulties in managing self-represented litigants needs to be resisted. In short, firm case management at trial court level is in the best interests of conserving scares resources at all levels.
The Court is clearly empowered to employ robust, proactive, and tight case management procedures in order to ensure that limited judicial time is not wasted balanced with the requirement of procedural fairness. This aspect of case management was emphasised by Parliament in the creation of this Court.
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 are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.”
His Honour continued at [24]:
“[The rules of a court] confer the discretion [to a judge] to give leave to amend and impose the duty to make amendments for the purpose of deciding the real issues in, and avoiding multiplicity of, proceedings. The discretion is exercised in the context of the common law adversarial system as qualified by changing practice. But that is not a system which today permits disregard of undue delay. Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials…[or]…because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation. These are matters which…are to be regarded as both relevant and mandatory considerations in the exercise of the discretion conferred by [the rules of a court].”
Trial judges must make very difficult decisions in balancing efficient case management and the right to be heard, 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 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 formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly, Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.’ ”
The “dialogue between Bench and Bar” is seriously diminished in a proceeding involving self-represented litigants. The dialogue exists in a much altered and simplified state, and, consequently, one that can be very much prolonged and in need of firm management.
The Federal Circuit Court is one of the busiest Courts in Australia. Discretion is given to the Court to appropriately manage cases and to prevent undue delay (see, if somewhat loosely indicated: Federal Circuit Court of Australia Act 1999 (Cth), ss.10, 42, and 43; and the Rules, r.1.03, Pts.10 and 13).
The fact that a litigant is unrepresented is not, by itself, a reason not to carefully control the proceedings. Such control is not, of itself, bias or a denial of natural justice. In some instances, such as the current matter, additional time may be required to allow a self-represented litigant to present a case that may be clumsily prepared. Such time, however, is finite.
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 proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
[113] In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.”
Their Honours of the Family Court continued at [32];
“However, notwithstanding the extensive powers of case and trial management specified in the legislation and Rules of Court, there remains an obligation to ensure a fair trial and afford procedural fairness to all parties in such proceedings.”
Perhaps the issues are best summarised by the apposite comments of their Honours 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 facilitate the overriding purpose [found at s.56(1) of the CPA: “to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings.”]. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.
[57] That purpose may require a more robust and proactive approach on the part of the courts. …”
(emphasis added)
Courts must always be guided by the rules of procedural fairness in any particular case. The rules of evidence are in substance a requirement of procedural fairness. There appears to be a misconception that because the Court is able to relax certain rules of evidence in relation to children’s matters,[2] the rules of evidence are somehow irrelevant in Family Law proceedings.
[2] See: Family Law Act 1975 (Cth) s.69ZT
This is certainly not the case and the Court must be mindful of the quality of the evidence before it and the appropriate weight to be accorded to it, so as to achieve the overarching requirement of the interests of the administration of justice. This requirement cannot be abandoned simply to accommodate a self-represented litigant.
This is especially apposite when considering the purpose for which the Federal Circuit Court was established. The just, efficient, and economical 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 Court has been created to offer relatively inexpensive and expeditious justice. It is a court which should proceed without undue formality and should ensure that the proceedings are not protracted: s 42 [of the Federal Magistrates Court of Australia Act 1999 (Cth)]. It has abandoned the formal procedures of superior courts. That course is consistent with the Act and the FMC Rules.
[38] However, affidavits perform a quite different function to pleadings. Affidavits do not contain material facts, but evidence. In that sense, an affidavit is quite the reverse of a pleading. Indeed, so much is recognised in the FMC Rules themselves. Rule 4.05(1) requires the applicant, at the time of filing the application, to file an affidavit stating the facts relied on.
[39] An affidavit in the Federal Magistrates Court should not contain material which is inadmissible, unnecessary, irrelevant, prolix, scandalous, or argumentative; that material will be liable to be struck out: r.15.29. It follows, as I have said, that an affidavit should only contain relevant and admissible evidence.”
Finally, I draw attention to the fact that solicitors and counsel who oppose a self-represented litigant are Officers of the Court. As such, the Court looks to them for assistance in pre-hearing preparation to try to confine the issues of contention to relevant issues only and to aid the self-represented litigant, as much as reasonably possible, in preparation. The fact that one litigant is represented should assist the other in so much as issues are relevant and organised to allow the self-represented litigant time to prepare answers as best they may.
The Court also expects that solicitors and counsel will promote the use of alternative dispute resolution. In this matter, I note that counsel for the Husband (at the time when he was represented) opened her oral submissions with; “This is a couple that should not be here [in Court].”
In the current case, I emphasised to the Husband the importance of the rules of evidence and the need for evidence to be relevant to the case at hand. I also allowed him significant additional time to present his case even though it included much material that was not relevant to the matters being considered. In the end, however, his time had to be limited. The case was extended from an anticipated and generous 45 minutes to two hours.
It must be said that if the Husband had been legally represented, his case, if it were pursued at all, would likely to have been a very different one. Certainly, the words of Lander J, referred to at [48], may have carried some weight.
I now turn to discuss the issues raised by the Rs’ application.
Discussion
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.
Janssen deals with the circumstances in which any residual jurisdiction might remain in the jurisdiction of this Court once a matter has been transferred to the superior court.
In this regard, the proceedings brought by the Rs, and dealt with in this judgment, are discrete and separate from the substantive parenting and property proceedings between the Wife and the Husband, which has been transferred to the Family Court.
For this reason, I specifically excluded this discrete matter from the transfer of the substantive matter (relevantly reproduced at [12]).
It would be a waste of scarce judicial resources, and an unconscionable burden on the Rs, if a discrete matter such as this, purposely not transferred, and in circumstances where only the judgment was outstanding at the time of transfer, had to be reheard in the superior court.
Moving to the issues, the Husband’s submissions reply to each of the prayers of the Rs and attempt to state why the affidavit material should not be struck out. The Husband did this in the main by making new allegations of contravention, unfairness, and prejudice. In short, the Husband’s submissions fail to establish how the paragraphs objected to by the Rs are necessary or are relevant to any issue relating to the interim property proceeding.
Regarding Paragraph 37 of the affidavit of Mr Cerny, filed 30 June 2015. I accept the submission of the Rs that this paragraph of the affidavit is irrelevant to these proceedings. The Husband’s state of knowledge as to the authority by which the Rs have a copy of a document produced under subpoena, legally or illegally, does not rationally affect my assessment of the probability of the existence of a fact in issue in these interim property proceedings (see: ss.55 and 56 Evidence Act 1995 (Cth)).
As far as the paragraph can be construed as sarcasm on the part of the Husband, the Rs are correct in their observation that that consent orders (made at a time when the Husband was represented by Counsel) did allow them to copy the document.
The Husband is correct in his submission that the consent orders, dated 14 May 2015, state that the copies of the originals, once redacted, are to be returned to the Registry, as follows:
“[1] The Rs have leave to copy the documents contained in the envelope marked “Objected to by the Rs”, to remove those copies from the Federal Circuit Court Registry and to redact from those copies any personal information of theirs, after which the redacted documents (in an envelope marked “Redacted copies of the documents objected to by the Rs”) are to be returned to the Registry, within three days of the date of these Orders.”
However, the Husband has put on no evidence as to what the Rs did with the copies whilst in their possession, other than redact the material to which they object.
It seems baffling to think that the material the Rs objected to would be disseminated by the Rs to other parties. In any case, the Wife has not sought to tender the information, even if she has it. Purported knowledge of parties, not tendered into evidence, is of no concern to a Court in its deliberation of the matters before it.
The paragraph is not relevant and is to be struck out.
Paragraph 38 of the affidavit of Mr Cerny, filed 30 June 2015. I accept the submission of the Rs that this paragraph of the affidavit is irrelevant to these proceedings. The Husband’s concern as to what other parties have communicated or received from another party is irrelevant to these proceedings and inadmissible (see: s.56 Evidence Act 1995 (Cth)).
To the extent that the Husband states in his submissions that Counsel for the Wife was revealed to have knowledge of the un-redacted document is to misconceive the nature of the evidence; Counsel for the Wife was not attempting to tender any material into evidence.
The paragraph is irrelevant. It should be struck out.
Paragraph 39 of the affidavit of Mr Cerny, filed 30 June 2015. I accept the submission of the Rs that this paragraph of the affidavit is inadmissible to these proceedings. The sentence is the Husband’s opinion. The Husband’s statement of opinion is inadmissible to prove the existence of impropriety on behalf of the Rs (see: s.76(1) Evidence Act 1995 (Cth)).
To the extent that the Husband claims that the Rs’ actions of “un-redacting” certain material, after the redaction process referred to in the consent Orders reproduced at [62], is evidence of a contravention of those Orders, he has failed to state what prejudice he has suffered, or make a motion as to what he wants the Court to do, or articulate how such a contravention is relevant to his argument.
The paragraph is opinion evidence and is not relevant and should be struck out.
Paragraph 115 of the affidavit of Mr Cerny, filed 10 June 2015. I accept the submission of the Rs that this paragraph of the affidavit is irrelevant to these proceedings. The Husband accuses the Rs of impropriety by attempting to disguise their redactions. It appears the Husband seeks to distinguish, what I call in this circumstance ‘obvious’ redaction; where certain type exists but has been blacked-out (thereby allowing the reader to know that they are not permitted to read what has been blacked-out), and ‘masked’ redaction; where certain type exists but has been obliterated or concealed (thereby preventing the reader from knowing that there was any information available at all to be read). This distinction is irrelevant unless the act of redaction goes to proof of a fact in issue. No argument to this has been led by the Husband.
Moreover, at no point was the method of redaction stipulated. The Court notes that the Macquarie Dictionary’s definition of the verb ‘redact’ is unhelpful to the Husband’s apparent distinction: “redact: 1. To bring into presentable literary form; revise; edit. 2. To draw up or frame (a statement, etc).”
The Husband has not advanced any cogent argument to defend the Rs motion to strike out. Accordingly, it is to be struck out.
Paragraph 9 of the affidavit of Mr Cerny, filed 25 May 2015. I accept the submission of the Rs that this paragraph of the affidavit is irrelevant to these proceedings. The statement expresses the Husband’s negative opinion of the Rs’ redaction of the Westpac document. (see: s.76(1) Evidence Act 1995 (Cth)).
The Husband fails to consider (or if he has not failed to consider, regards it as irrelevant) that the actions of the Rs is not ‘obstruction,’ rather actions wholly within their rights, following the rules of the Court, with permission of the Court, and in compliance with consent orders drafted with his own Counsel (at the time when he was represented).
To the extent that the Husband’s submissions list a series of paragraphs in two of his filed affidavits as apparent argument to meet the Rs’ submission, the listed paragraphs merely repeat the assertion that the Rs have acted with impropriety. Again, there is no admissible evidence before the Court for me to be persuaded that this is so.
How the Husband’s submissions support his opposition of the Rs’ motion to strike out the paragraph is not clear. In the circumstances, the paragraph is to be struck out.
Paragraph 14 of the affidavit of Mr Cerny, filed 25 May 2015. The Husband conceded this objection. Accordingly, the paragraph should be struck out.
Oral Application
In addition to the Rs’ application to strike out the paragraphs identified above, the Rs made a further oral application at the Interlocutory Hearing of 15 July 2015 to strike out the final sentence of paragraph 89 of the Husband’s affidavit filed 10 June 2015 on the grounds that the Husband’s opinion expressed in that paragraph is irrelevant.
In that paragraph, the Husband raised his “concern that the Rs are obstructing inspection of the original [Westpac] document”, and his “belief” that the Rs have redacted a number of sections of the Westpac document against Court orders.
I understood the Husband to refer to my Orders of 14 May 2015, the relevant portion of which is reproduced at [62].
Much of the Husband lengthy response to the Rs’ application constituted fresh complaints as to the behaviour of counsel for the Rs in communications with him prior to the hearing, however I understood the Husband to press his overall belief that the Westpac document is “the only document available that describes the refinancing arrangement.”
I found the Husband’s response unsatisfactory. First, the Husband’s response failed to establish why his ‘concern’ was relevant to the matter or how the R’s objection was obstruction in an illegal manner. No evidence was produced by the Husband to support his conclusion, nor was he able to explain how, in the circumstances, the bald assertions of impropriety he made against the Rs were not scandalous. I also accepted the submission of the Rs that the opinions expressed by the Husband, unsupported by evidence, should be struck out as scandalous.
Secondly, the Husband’s response failed to establish any basis for his ‘belief’ that the Rs’ redaction of sections of the Westpac document was against Court orders. To the extent that the Husband based his claim on the fact that the Rs had redacted some material from the Westpac document, later conceded that their redaction had redacted too much material, and then reinstated that material, is clearly misconceived. In fact, the reinstatement of the overly-redacted material demonstrates the effort made by the Rs to comply with the letter of the Orders. There was no prejudice to the Husband in what occurred, nor did the Husband demonstrate any prejudice to his case.
The Husband produced no cogent evidence to support his ‘belief’ in relation to the Court orders, nor any reason as to why his ‘belief’ was relevant to the proceedings.
The Husband’s bald assertions of impropriety against the Rs are clearly scandalous, and properly should be struck out.
Summary of conclusions
Overall, the Husband’s defence to the Rs’ motion to strike out certain passages from his filed affidavit material seems to be that, as the information concealed in the redacted portions of the Westpac document is relevant, then so are the several affidavit passages. The ‘fact’ that the Husband asserts to exist in the Westpac document is simply not there. As such, the relevance of the paragraphs objected to by the Rs also falls away.
The Husband, in his defence against the Rs’ motion to strike out certain materials, has not established “the extent to which the [purported] evidence [that is, the identified paragraphs] could rationally affect the assessment of the probability of the existence of a fact in issue.”[3]
[3] Odgers, S. “Uniform Evidence Law” (11th ed.) (Thomas Reuters, Australia, 2014) at 1.3.14550
The Husband’s penultimate submission; “The Husband rejects the characterisation of the Subpoena paragraph…as ‘fishing’, and this subpoena 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, not to obtain evidence to support his case, but to discover whether he has a case at all.”
I have seen the un-redacted material, with permission of the Rs, and I am satisfied it is not relevant to a fact in issue regarding the interim property adjustment and should remain redacted and not be disclosed.
I note that, despite giving the Husband ample opportunity to read his filed affidavit material onto the record at the Interlocutory Hearing, he failed to do so. None of the above mentioned paragraphs, nor the affidavits that they are contained within, have been read onto the Record of the Court.
As I discussed in my previous judgment, much of the evidence the Husband sought to adduce, especially what he thought was concealed within the redacted Westpac document, was not relevant. In my opinion, the attempts made by the Husband to inspect the Westpac documents was a ‘fishing expedition’ designed to prove a misguided conspiracy theory, or to use a subpoena as a substitute for discovery.
A Court can and may only have regard to evidence before it. Unsubstantiated claims or bare assertions cannot be entertained.
It seems that at the heart of the Husband’s complaint is a contention that a lack of evidence disproving his conspiracy theory and attempts by the Rs to prevent him from seeing the material relating to their private affairs is itself evidence of conspiracy. Such ideas misconceive the rules of evidence and the processes of the Court and the forensic evidentiary onus that the Husband must discharge.
Moreover, litigation must be confined to appropriate issues 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. [the] Court is mindful that it cannot allow its processes to be used as a vehicle to make scurrilous, scandalous and unsubstantiated allegations against persons, particularly where such are not relevant to the proceedings before it.”
On that basis, many of the Husband’s claims made in the Interlocutory Hearing of 15 July 2015 were dismissed.
In my opinion, the information contained within the redacted sections would not be of any forensic value to the Husband’s claims in relation to the interim property determination.
As I stated at the Interlocutory Hearing of 28 April 2015, it sometimes appears that subpoenas are ‘thrown around like confetti.’ Frivolous use of subpoenas, or using subpoenas in an attempt at discovery, cannot be allowed. It is inappropriate and an abuse of the Court’s processes. A subpoena must have probative value to issues in the case at hand and be capable of clear compliance. This basic requirement needs to be strictly enforced.
The time, effort, and money spent arguing about whether the evidence the Husband asserts is relevant was significant. It is not the purpose of the Court to expose the private business of the Rs where it is clearly not relevant to the substantive matter to be decided.
As I understand the Husband’s submissions, the probative value of the identified paragraphs is that they advance his opinion and theory that certain ‘improper’ actions of the Rs go to the fact that the redacted passages of the Westpac document contain information of misrepresentation and other serious impropriety. This is completely unfounded and is not of probative nor forensic value to the Court.
In the circumstances, I am not satisfied that there is any relevance to the issues before the Court. As such, the only course is to allow the Rs’ motion to strike out the identified passages. Those passages are either irrelevant, argumentative, scandalous, or opinion, and are inadmissible and should be struck out from the filed affidavits, pursuant to r.15.29 of the Rules.
Costs
The Rs applied to the Court for an amount to cover their costs. The Rs stated that, if the objection raised against the Husband’s subpoena was upheld and the motion to strike out certain affidavit material was upheld, then they had no continuing interest in the litigation between the Husband and the Wife.
The Rs stated that they have been “vexed by an attempt [by the Husband] to reopen an issue that was decided by consent. [I]n doing so, [they] have had to address an evolving set of applications supported by quite voluminous evidence, that also make quite serious allegations.” In such circumstances, the Rs seeks costs against the Husband.
Whilst I am aware of the usual order as to costs in this Court found at s.117(1) of the Family Law Act 1975 (Cth), I am mindful of my discretion at s.117(2) and (2A), relevantly as follows:
“Costs
(2) If, in proceedings under this Act, the Court is of opinion that there are circumstances that justify it in doing so, the Court may, subject to subsections (2A)… and the applicable Rules of Court, make such order as to costs … as the Court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the Court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
…
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
…
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
…
(g) such other matters as the Court considers relevant.”
Relevantly, r.19.18 of the Family Law Rules 2004 (Cth) provides:
“Method of calculation of costs
(1) The Court may order that a party is entitled to costs:
(a) of a specific amount;
…
(3) In making an order under subrule (1), the Court may consider:
…
(b) the reasonableness of each party's behaviour in the case;
…
(e) the time properly spent on the case, or in complying with pre-action procedures; …”
Importantly, r.15.29(2) of the Rules is as follows:
“Division 15.4 – Affidavits
15.29- Objectionable material may be struck out
…
(2) Unless the Court or a Registrar otherwise directs, any costs caused by the material struck out must be paid by the party who filed the affidavit.”
In making a decision as to costs, I give weight to the following matters: the extent to which the Rs have been inconvenienced by the Husband’s attempts to see material that was redacted by consent; the Husband’s serious allegations that were unsupported by evidence; and, the Husband’s filing of material that required the involvement of the Rs in the litigation between him and the Wife, but was otherwise irrelevant.
The Husband’s reply to the Rs’ costs application was, again, largely comprised of irrelevant material and, again, made unsupported allegations of impropriety.
The Rs, who were not party to the litigation, were clearly put to considerable inconvenience and expense as part of a fishing expedition which the Husband explained by saying; “It’s quite a reasonable effort that I’ve made to try to find out what’s going on.”
I find this defence wholly unpersuasive. It is not reasonable to burden a third party to reveal private information in the hope of finding a cause of action. The Husband’s response clearly indicates that the Husband does not know what he is looking for in the redacted material but that he suspects that there is something in there that can help his case. As Jordan CJ stated above at [90], such an endeavour is ‘fishing.’
The Husband’s defence ignores the rules and processes of the Court and he demonstrated a reckless indifference to the rights of privacy of those not party to the litigation.
In considering the Rs’ application for costs I also take into account my previous dismissal of the Husband’s application to reverse an earlier costs Order made by consent. The Husband claimed that he was denied procedural fairness when the costs order was made. Such a claim is entirely incongruous. The Order was made by consent, when the Husband was represented by counsel, at a contested hearing. The application was refused.
There is a clear public interest in the finality of Court decisions, and unless persuasive evidence is advanced to warrant the re-examination of an Order, especially one made by consent with all parties represented by counsel, parties in possession of a favourable Order should not be put to the inconvenience of re-litigating the issue.
I am of the opinion that the proceedings to which the R’s have been subjected have been unnecessary, unnecessarily prolonged, and that the conduct of the Husband has been unreasonable even allowing maximum indulgence for the fact that the Husband is self-represented.
Moreover, as a matter of public policy, all litigants, regardless of jurisdiction, need to be aware there can be adverse costs consequences if they seek to involve third parties where there is no justifiable reason to do so.
There is a tension between a costs order in civil disputes and in family law on matters of court process and procedures.
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. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.
[68] As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice.”
His Honour McHugh’s observations at [68] are especially apposite in the Federal Circuit Court which is a Court of high volume.
However, these comments are to be juxtaposed against the Family Law’s ‘usual order as to costs’ found at s.117 of the Family Law Act 1975, which is for each party to bear their own costs – regardless of ‘victory’ in their application. This ‘usual order’ contemplates an open availability of access to the Court for those whom may be impecunious. It also foresees that there are few ‘winners’ in Family Law.
In Kohan & Kohan (1993) FLC 92-340; (1992) 16 Fam LR 245, their Honours Strauss, Lindenmayer, and Bulley JJ of the Full Court of the Family Court stated:
“The intent of s 117(1) and 117(2) [of the Family Law Act 1975 (Cth)] is that in this jurisdiction costs should not follow the event as a matter of course. However, where the justice of the matter so requires, the court may make such order as the court considers just.”
As noted, s.117 of the Family Law Act 1975, bestows upon the Court discretion to award costs when applied for, tempered with appropriate considerations.
Relevantly, I have considered the Husband’s financial situation. I note that the Husband voluntarily reduced his working hours significantly. Counsel for the Husband stated at the Interim Hearing of 31 March 2015 that the Husband reduced his working hours in order to spend more time with his son. This issue has now been dealt with and there is no impediment to the Husband, at least in so far as his parenting is concerned, increasing his working hours and his earnings.
However, even if the Husband was unable “to meet an order for costs, there is clear authority that impecuniosity 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).
My Reasons have discussed at length the Husband’s conduct of the parties to the proceedings in relation to the proceedings. The Husband’s conduct unnecessarily prolonged proceedings and clearly was designed to involve the Rs without proper foundation to do so.
The Husband has been wholly unsuccessful in his many claims, save for a single procedural application. I have previously stated that I consider the Husband’s behaviour to verge on an abuse of process. Whilst in a different jurisdiction, I am again reminded of Jerrard JA’s comments, referred to at [96].
I note that an Order as to costs is not a punishment; as stated by Gaudron and Gummow JJ in Oshlack, at [25]:
“The proposition that the award of costs to a successful party in civil litigation is made not to punish the unsuccessful party but to compensate the successful party against the expense to which that party has been put by reason of the legal proceedings.”
In light of these considerations, I find that a costs order against the Husband as sought is appropriate and just. The Husband ought to be reasonably able to meet such an order, despite what he says about his financial situation if he is given reasonable time to pay. This is reflected in the Orders I have made.
I am also mindful of r.15.29(2) of the Rules. I have ruled that material be struck out and it is only proper that any costs caused by the material struck out must be paid by the party who filed the affidavits. I note that I pointed out to the Husband, at length, and at the commencement of these proceedings that Family Law was guided by the same overall principles as other areas of law and that the rules of evidence guided the Court in its conduct of proceedings.
The Rs seek costs fixed in the amount of $3,000. In finding that this amount is appropriate I am mindful of r.19.18(3)(b) and (e) of the Family Law Rules2004 (Cth).
Accordingly, the Husband should be ordered to pay the costs sought by the Rs fixed in the amount of $3,000. Such costs are to be paid within 90 days.
I certify that the preceding one-hundred-and-thirty-one (131) paragraphs are a true copy of the reasons for judgment of Chief Judge Pascoe
Associate:
Date: 18 September 2015
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