Singam & Moffrey
[2015] FamCAFC 42
•19 March 2015
FAMILY COURT OF AUSTRALIA
| SINGAM & MOFFREY | [2015] FamCAFC 42 |
| FAMILY LAW – APPEAL – Leave to appeal – Where the trial judge entered a judgment in default of the appellant’s appearance – Where the default judgment is an “interlocutory order” – Where leave to appeal was sought – Where leave to appeal was granted. FAMILY LAW – APPEAL – Setting aside default judgment entered at trial – Where the appellant failed to attend trial proceedings – Where the appellant was self-represented during the proceedings – Where the appellant filed sufficient material so as to represent her case before the trial court – Where the appellant failed to comply with the entirety of procedural orders made – Where the appellant misapprehended the nature of the final hearing direction – Where at the final direction hearing a judgment was entered in default of appellant’s appearance – Whether the trial judge’s discretion to hear the matter in default, pursuant to Div 13.1A of the Federal Circuit Court Rules 2001, had miscarried – Where the appeal court held that the trial judge’s discretion had miscarried – Where the appeal court held that the trial judge failed to consider the totality of the appellant’s compliance with previous procedural orders – Where the appeal court held that the appellant provided a sufficient excuse for her failure to attend the last mentioned procedural hearing. |
Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665
Bienstein v Bienstein (2003) 195 ALR 225
Broughton & Broughton [2014] FamCAFC 206
Carr v Finance Corporation of Australia (No. 1) (1980) 147 CLR 246
Hodges Hall & Jovanovic and Markov (1995) FLC 92-611
In the Marriage of Smith (1994) FLC 92-494
Jess & Ors & Jess and Ors [2014] FamCAFC 227
Lenijamar Pty Ltd & Ors v AGC (1990) 98 ALR 200
Leslighter & Fitzgerald-Stevens (2012) 47 FamLR 384
Lorde & Chu [2014] FamCAFC 228
Rutherford & Rutherford (1991) FLC 92-255
Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238
Stanford & Stanford (2012) 247 CLR 108
Wilkes & Wilkes (1981) FLC 91-060
Zane & Allan (2008) FLC 93-378
| Family Law Act 1975 (Cth) Federal Circuit Court of Australia Act 1999 (Cth) |
Federal Proceedings (Costs) Act 1981 (Cth)
| Family Law Regulation 1984 |
| APPELLANT: | Ms Singam |
| RESPONDENT: | Mr Moffrey |
| FILE NUMBER: | BRC | 10485 | of | 2013 |
| APPEAL NUMBER: | NA | 72 | of | 2014 |
| DATE DELIVERED: | 19 March 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 11 March 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 7 November 2014 |
| LOWER COURT MNC: | [2014] FCCA 2889 |
REPRESENTATION
| THE APPELLANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Taylor |
| SOLICITOR FOR THE RESPONDENT: | Quinn & Scattini Lawyers |
Orders
That the application for leave to appeal be granted.
That the appeal be allowed.
That the Orders of Judge Cassidy made on 7 November 2014 be set aside.
That upon transfer of the sum of $18,646.34 held in the Supreme Court of Queensland to the Federal Circuit Court pursuant to orders by consent made on 21 October 2014, the said sum be held by the Federal Circuit Court at Brisbane pending further order of that Court.
That there be no order as to costs.
That the Court grants to the appellant a costs certificate pursuant to the provision 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.
That 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Singam & Moffrey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 72 of 2014
File Number: BRC 10485 of 2013
| Ms Singam |
Appellant
And
| Mr Moffrey |
Respondent
REASONS FOR JUDGMENT
On 7 November 2014 Judge Cassidy made orders pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”). Those orders were said by her Honour to have been made in default of Ms Singam’s (the de facto wife’s) appearance.
Ms Singam, who represents herself and represented herself before her Honour, appeals[1] those orders.
[1] The Chief Justice has certified, pursuant to section 94AAA(3) of the Family Law Act 1975 (Cth) ("the Act"), that it is appropriate for the jurisdiction of the Family Court in relation to this appeal to be exercised by a single judge. This hearing proceeded then in that manner.
Remedies At First Instance and the Proper Approach
Subsequent to filing her Notice of Appeal within time, Ms Singam filed an application seeking to set aside the judgment by default pursuant to r 16.05. That application was returned before her Honour on 5 February 2015.
At that time, counsel for Mr Moffrey (the de facto husband) indicated to her Honour that the application should be dealt with prior to this appeal. Her Honour disagreed. With respect to her Honour, the approach urged by counsel was entirely consistent with authority; this appeal should not, in the ordinary course of events, be heard before Ms Singam had exhausted her rights at first instance. (See for example, Wilkes and Wilkes (1981) FLC 91-060; In the Marriage of Smith (1994) FLC 92-494; Leslighter & Fitzgerald-Stevens (2012) 47 FamLR 384 at [108] and Broughton & Broughton [2014] FamCAFC 206 at [29] – [30]).
In Lorde & Chu [2014] FamCAFC 228, this Court said (at [36]):
Finally, it may be useful if we take this opportunity to draw attention to the fact that it has long been established in this jurisdiction that where a party seeks to set aside orders made in his or her absence, the proper course is for that party to apply at first instance for a rehearing rather than seek to have the matter dealt with by a way of an appeal (Wilkes and Wilkes(1981) FLC 91-060). Moreover, Rule 16.05 of the Federal Circuit Court Rules 2011 (Cth) provides for a rehearing at first instance in such circumstances. We also observe that it is not uncommon, and indeed desirable, that where a judge makes an order in the absence of a party who will be affected by the order, that the judge expressly provide in his or her orders that the party in whose absence the orders were made have liberty to apply, within a specified period of time, to have the orders varied or set aside.
Notwithstanding those considerations, the parties have prepared for this appeal and each is before the court (in Mr Moffrey’s case represented by a solicitor and counsel). The application for leave to appeal should be heard.
Leave to Appeal
Ms Singam’s Notice of Appeal seeks leave to appeal. However, the Summary of Argument prepared by counsel on behalf of Mr Moffrey does not address the question of leave.
Her Honour’s order is an “interlocutory decree” (s 94AA; Reg 15A Family Law Regulations 1984) as it does not finally determine the parties’ rights. (r 16.05 Federal Circuit Court Rules 2001 (“the rules”); Carr v Finance Corporation of Australia (No. 1) (1980) 147 CLR 246; Bienstein v Bienstein (2003) 195 ALR 225 at [25]). Sensibly, counsel for the respondent does not oppose the application for leave as such; his opposition to the granting of leave rests essentially on his arguments as to the lack of merit in the appeal if leave is granted.
The test traditionally applied to the granting of leave is whether an error of principle or a substantial injustice can be established. (Rutherford and Rutherford (1991) FLC 92-255; Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170). Recently, the Full Court of this Court said it was “attracted to the formulation of the test used in the Full Court of the Federal Court …” although considered that “… final determination of the issue is best left for another day when it can be fully considered by a court as an integral part of the matter before it”. (Jess and Ors & Jess and Ors [2014] FamCAFC 227 at [59] and [66] respectively referring to, for example, Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238). The latter test would see this Court considering whether the original decision was attended by sufficient doubt to warrant it being reconsidered on appeal and whether substantial injustice would occur if a wrong decision was not corrected via the grant of leave.
For the reasons which follow, I am of the view that a substantial injustice has occurred and that leave should be granted and the appeal allowed.
The Circumstances Leading to Orders by Default
On 10 February 2014, the return date of Mr Moffrey’s application seeking relief pursuant to s 90SM of the Act, both parties appeared before her Honour.
As she intended to contest Mr Moffrey’s application, Ms Singam was required to file, relevantly, a response within 14 days of the filing of the initiating application (r 4.03); an affidavit (r 4.05) and a Financial Statement or an “Affidavit of Financial Circumstances” with the Response (r 24.02(1)). The Affidavit must attach a superannuation information form (r 24.02(2)). The Financial Statement must contain a full and frank disclosure of Ms Singam’s financial circumstances (r 24.03) and specified documents must be served on the other side (r 24.04).
Ms Singam did not file a Response or a Financial Statement or produce the specific documents as required by the Rules. She had, before the return date, filed an Affidavit on 31 January 2014. The Affidavit deposes to what might be described as “property matters generally” and, generally, to some matters relevant to s 90SM. The Affidavit also makes some reference to orders proposed by Ms Singam: “Half of [Mr Moffrey’s] superannuation” and respective various chattels and “half the value” of a car. The Affidavit also referred to the prospective mortgagee sale of the parties’ former home and deposes to her doubts that any net proceeds would result from that sale.
The order made on 10 February 2014 by her Honour required Ms Singam to reply to a document required of Mr Moffrey by the same order, described as a schedule and which is in effect a listing of the property and superannuation interests of that party and their values and liabilities. Ms Singam was required to file this document within 14 days of receipt of the same document from Mr Moffrey. Ms Singam was also required to disclose documents specified within the order ahead of the ordered conciliation conference. That conference was ordered to take place on 1 May 2014 and the further mention of Mr Moffrey’s application was adjourned to 14 May 2014.
It is uncontroversial that Ms Singam did not attend the Conciliation Conference. Her contention that she was ill and that she produced a medical certificate to that effect is not challenged before me. In that respect, it is also not challenged before me that Ms Singam has suffered for some 14 years with anxiety and depression.
The return date specified in her Honour’s order was adjourned at Mr Moffrey’s request, to which Ms Singam consented. However, Ms Singam contends that she was not made aware of the further return date of 18 July 2014. Earlier, she had objected to a subpoena in respect of her bank account. Consistent with her submissions before this court, that document contends that she has “an AVO against Mr [Moffrey] which includes my daughter, … and my son … and we fear for our lives due to threats made in previous violent outbursts against us by [Mr Moffrey]”. The document goes on to record that the relevant Credit Union account is “utilised by mostly my daughter … my son … my mother … they are all in fear of Mr [Moffrey] getting access to their details and funds as he has in the past whilst in the de facto relationship”. Ms Singam said from the bar table before me that she had, in any event, produced bank accounts to the solicitors for Mr Moffrey but with portions of them redacted. She says that the redacted parts pertain to transactions by her family. She did not advise the solicitors of Mr Moffrey of the reason for their redaction.
On 18 July 2014, the court ordered, in Ms Singam’s absence, relevantly that Mr Moffrey have leave to inspect the Credit Union Australia documents and that “each party respectively serve upon each other a copy of the final orders sought” and adjourned the proceedings to 17 September 2014. A notation to the order provides relevantly: “in the event that the respondent fails to attend court on the next occasion, the court may make the final orders sought by the applicant in default of the respondent’s appearance.” Her Honour’s order of 18 July 2014 directed personal service of documents including the order of that day.
Ahead of appearing on 17 September 2014, Ms Singam had filed an affidavit on 9 September 2014. That affidavit deposes to what it describes as “financial details” which are, in essence, her contentions in respect of direct and indirect financial contributions. Further, it deposes to “current assets and liabilities as I am aware”. It is important to note that, in that affidavit, Ms Singam deposes that two industrial machines which Mr Moffrey alleged were in her possession had been sold. She deposes that she had “informed them [presumably his solicitors] many times that the said machines were severely water damaged and parts sold as scrap and the remainder dumped”. To that effect she attaches a document purporting to be from a “Computer Services” business which records that on 9 March 2012, two specified “[industrial] machines” were sold for $500 each. The document says the machines were “received in poor condition, [had] obvious serious water damage, [and were in a] non-salvageable condition, to be stripped and sold for parts where practicable”. Questions arise as to the admissibility of that evidence in the form in which it is given.
Contrary to this, in an affidavit filed by Mr Moffrey, he gives evidence as to the value of the industrial machines, which he continues to assert are in Ms Singam’s possession. There he also denies the damage to the machines or their non-existence, asserting that they continue to be used for what he asserts is a business. Mr Moffrey also purports to give evidence of the value of the machines. Questions also arise as to the admissibility of much of that evidence in the form in which it is given.
On 17 September 2014 - after, it seems, a morning spent attempting to resolve the matter – an application was made after lunch on behalf of Mr Moffrey by his then counsel that “… despite what your Honour said this morning, that this matter be proceeded today under Part XIII, that is to bring the matter to a close quickly and early as a result of default on the part of … the wife.”.
No Application in a Case to that effect had been filed, the application was made orally at the hearing. Such notice that Ms Singam had of any application of that type was contained in a letter from Mr Moffrey’s solicitors dated 4 August which informed her that the matter was listed for a default hearing in the event that she fails to appear. It will be recalled that her Honour’s order of 18 July contained a notation to the effect: “in the event that [Ms Singam] fails to attend court on the next occasion, the court may make the final orders sought by [Mr Moffrey] in default of [Ms Singam’s appearance]”.
The letter of 4 August, sent via email to Ms Singam, is also consequent upon the attempted personal service of documents upon Ms Singam pursuant to the 18 July order. An affidavit of a Mr G attests to attempted personal service at an address at D Suburb when he was told that Ms Singam had never lived there. That news should hardly have been surprising; Ms Singam had earlier filed an affidavit giving an address at B Suburb, which such address has remained constant throughout the proceedings, including in the Notice of Address for Service ultimately filed by her after the hearing on 17 September.
No notice was given to Ms Singam of any intended application for default judgment based on default other than a failure to appear. Ms Singam could not know she was meeting any application based on any other alleged default, in light of the fact that no application had been filed specifying any such default. “It is axiomatic to our legal system that a person is entitled to proper and adequate notice of claims made against his or her interest and a proper opportunity to be heard …”. (Hodges Hall & Jovanovic and Markov [1995] FLC 92-611 at 82, 093).
Importantly, Ms Singam was in Court on 17 September when then counsel for Mr Moffrey told her Honour that if she was “… against me on the default the matter simply gets listed for trial” to which her Honour responded “… I will set it down for a hearing”. Although, ultimately her Honour did reject the application for default orders, no order was made setting the matter for trial.
It is also important to note that, in respect of the proceedings on 17 September:
·Ms Singam filed an affidavit by herself on 15 September and, it seems, served it on the morning of the hearing. In it she made the contention in respect of the two industrial machines earlier referred to. The then counsel for Mr Moffrey conceded to her Honour (without accepting the veracity of what Ms Singam alleged) that, in respect of that issue, he “… must accept that’s a very triable event, most certainly”;
·Her Honour advised Ms Singam that she was in default by not having filed a Notice of Address for Service. However, Ms Singam told her Honour that she had been advised that, as she had filed an affidavit with her address for service on it, the former was not necessary. Her Honour said that was not so, but Ms Singam’s asserted advice was in accordance with r 6.01(2)(a);
·When her Honour raised with Ms Singam that she had not filed a Response (as was in fact the case), Ms Singam responded “I thought that was the Affidavit [which she had previously filed], I’m sorry”. Later, her Honour appears to accept what Ms Singam says about her misunderstanding when her Honour says, “[y]ou obviously got unwise advice”;
·Ms Singam advised the Court of the substance of the orders she sought, albeit in the context of, effectively, making an open offer in court. Her Honour responded that “I will get a transcript of this. It’s on the court file”. Yet, in circumstances where, ultimately, a default complained of is the failure to file a Response, nothing was done to adopt Ms Singam’s statement in open court as her response. Ultimately, when Ms Singam did file a response on 6 November, it was in substantive effect the same as what she had told the court on 17 September;
·Ms Singam made it plain to her Honour that she contended that she had been complying with orders despite her Honour’s contention to the contrary; and
·Her Honour indicated to then counsel for Mr Moffrey in Ms Singam’s presence that there was insufficient material before her to make a s 90SM order; there was contested evidence before her about a very significant item in the potential pool (i.e. the industrial machines); and, in the context of a de facto relationship subsisting for about twelve years with no children with a very small pool of assets and superannuation, that Mr Moffrey’s case appeared to be that “the wife takes nothing”.
Significantly, comments made by her Honour to the then counsel for Mr Moffrey suggest that her Honour had rejected the oral application for orders by default:
HER HONOUR: What are you – I can’t see there’s anything in your written submissions that sort of really makes it appropriate to do it as a default hearing. What makes this different from almost every other case where costs orders can adequately cover the situation that you’re facing? She has been in default. I will make her pay the costs that have been thrown away today and any other costs that you’ve incurred as a consequence of her failure and then we will start and if she – she will be on notice that, if she doesn’t file within a certain time, then it’s a default. And if she doesn’t do anything else within certain timeframes, she is on a very tight timetable.
That comment by her Honour, and indeed subsequent comments by her Honour, might appear to indicate that her Honour had determined to not grant the application for default orders by reason of there being nothing in the submissions on behalf of Mr Moffrey that “really makes it appropriate to do it as a default hearing.”
However, the order made on 17 September listed the matter for delivery of her Honour’s reserved judgment on 26 September. No other procedural orders were made.
Importantly, in light of events that were to unfold, the order also permitted each of the parties to appear by telephone that day. On 21 October, an order was made with the consent of both parties to effect the transfer of money held by the Supreme Court as a result of action by the mortgagee in respect of the parties’ home. The 21 October order also records that “judgment remains reserved” to the following day. Again, both parties were given leave to appear by telephone that day.
Between the hearing on 17 September 2014 and the hearing on 22 October 2014, Ms Singam filed a Notice of Address for Service (on 17 September 2014) and a further affidavit by her on 25 September 2014. In the latter document, Ms Singam again asserted that she had provided “official receipts and sworn statements” in relation to what she asserted to be Mr Moffrey’s “fictitious list of assets”. She asserted that, principal among those, were the two industrial machines.
On 22 October her Honour delivered judgment rejecting the application for orders by default. The order made that day provided:
1.That the respondent file and serve a Response, Financial Statement and any Affidavit that supports her case by no later than 4.00pm on 5 November 2014.
2.That the respondent pay the costs of and incidental to the interim hearing fixed in accordance with Schedule 1 …
3.That this matter be adjourned for a mention (or a default hearing) only at 9.30am on 7 November 2014.
NOTATION
It is noted that should the respondent fail to comply with any orders herein that the matter may proceed to a default hearing on 7 November 2014.
The court file records that, pursuant to the 22 October order, Ms Singam filed an affidavit and a financial statement within the terms of the order and filed a response less than a day late on 6 November. The solicitors for Mr Moffrey contend that they have never been served (even up to the hearing of the appeal) with any of those documents. Ms Singam contests this.
When proceedings commenced on 7 November 2014, Ms Singam was not in attendance. Her name was called three times. Thereafter her Honour indicated to counsel for Mr Moffrey that she was “prepared to give you default orders today, given that she has been called and failed to attend”.
Her Honour made orders in the terms submitted on behalf of Mr Moffrey.
The Primary Judge’s Reasons
Her Honour’s reasons for judgment record:
1.This is an application where the de facto husband seeks orders in default of the de facto wife's appearance. She has, well after 9.30am this morning, sought leave to attend by telephone. This is in circumstances where there has already been one default hearing application in this matter and the matter was adjourned for a mention or a default hearing on 7 November 2014. It is also in circumstances where I did not make default orders on the last occasion but required the de facto wife to file and serve various documents.
2.The order to file the documents was made on 22 October 2014. It was an order that the respondent file and serve a response, a financial statement and an affidavit that supports her case, by 4.00pm on 5 November 2014. Those documents had not been filed on 5 November 2014.
3.Two affidavits were filed by the de facto wife on 5 November 2014 but no response or financial statement was filed. She has failed to attend at Court today. I am satisfied that it is appropriate to make orders in default of the de facto wife’s compliance with the order made on 22 October 2014 and on the basis that she has failed to attend at Court today.
[Emphasis added]
In making findings as to the “pool” of assets, her Honour accepted the evidence of Mr Moffrey and, in so doing, accepted that Ms Singam had possession of the two industrial machines with a combined value of $69,000. Those assets at that value represented about 46 per cent of the net pool of assets.
Her Honour considered that Ms Singam’s retention of those machines meant that the 5 per cent adjustment sought by Mr Moffrey in respect of the matters referred to in s 90SF(2) was “not available”. Equally, Ms Singam’s retention of those industrial machines was central to her Honour’s ultimate decision and represented Ms Singam receiving 56 per cent of the net pool of assets and, as a result, that the result was just and equitable. If, as Ms Singam contends, the machines were sold and are no longer in her possession, her Honour’s orders represent Ms Singam receiving a property settlement expressed as about 17 per cent of the parties’ net property and superannuation interests.
Although her Honour lists Mr Moffrey’s material, she does not refer to any affidavit material filed by Ms Singam. The failure to do so appears to accord with statements that her Honour made during the course of the proceedings on 17 September that, as she was considering an application for orders by default, it was not necessary to consider the evidence of Ms Singam. However, at [8] of the reasons, her Honour says:
8.The pool consists of the amount of $18,464.34 (held by the Supreme Court of Queensland) and two industrial […l] machines that the de facto husband values at $45,000 and $24,000 respectively. The de facto wife, I note, denies that she has possession of those [industrial] machines. She asserts the machines have been destroyed and written off. …
Her Honour makes no specific finding in respect of that contention, but implicitly rejects it by reason of including the machines in the list of the parties’ property.
The Challenge to the Orders
Ms Singam’s grounds of appeal reflect the fact that she prepared them herself, but the challenges embraced by them are sufficiently clear as is their basis. Counsel for Mr Moffrey properly does not assert to the contrary.
It can be taken that Ms Singam challenges her Honour’s proceeding by way of a default hearing and asserts that doing so was erroneous. The grounds as drawn, prepared in any event before receipt of the reasons for judgment, provide relevantly:
1.Procedural Fairness
I was not present for the judgment due to the fact I was mislead to thinking it was to be a telephone conference.
2.Outcome not borne out of facts
Due to the fact that my evidence has not been taken into consideration.
…
Her Honour’s orders involve the exercise of discretions in respect of a powers conferred by r 13.03B(1)(d) and r 13.03C(1)(d) of the Rules. The exercise of the former discretion depends upon a finding that the relevant party “is in default”. (r 13.03B(1)). That depends, in turn, upon satisfaction as to default as prescribed in, relevantly, r 13.03A(2). The r 13.03 power depends upon a finding that a party is “absent from a hearing …”
The exercise of the relevant discretions occurs within an important statutory and regulatory framework. The Federal Circuit Court “… must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted” (s 42 Federal Circuit Court of Australia Act 1999 (Cth)). The Court may “… dispense with compliance, or full compliance …” with any of the Rules (r 1.06) consistent with specified objects of the Rules to “… operate as informally as possible” and to “use streamlined processes” (r 1.03(2)). The Court “will apply the Rules in accordance with their objects” (r 1.03(3)) and “must … avoid undue delay, expense and technicality” (r 1.03(4)).
That framework is rendered all the more important when litigants represent themselves. As is evident, the court has wide powers to frame proceedings and procedural requirements consistent with the interests of justice and the proper interests of both parties. Judgment by default is a remedy that results from a conclusion that the interests of justice require one party to be denied an important right; to have their case heard, even if considered weak or misguided. Frequently, other orders, including procedural orders shaped to fit the particular circumstances of the case, should be preferred.
It follows as axiomatic that the mandated lack of formality and the wide powers for orders to be moulded to the circumstances of the case with, if necessary, particular rules being dispensed with, has ramifications for the first and primary duty of practitioners to the Court. Consistent with the lawful best interests of the client they represent, practitioners should be alive to fashioning accordingly the orders sought and the procedures adopted. Of course, that is all the more so when applications are made and prosecuted within very busy lists with a large volume of cases.
Appealable Error?
As the helpful submissions by counsel for Mr Moffrey correctly point out, for the appeal to succeed it is necessary to show an error in the exercise of discretion; it is not sufficient in that respect that I, sitting as an appeal court, would have come to a conclusion different to her Honour.
Her Honour is in error in asserting that no financial statement was filed by the date ordered; it was filed on 5 November as ordered. Ms Singam’s Response was filed a day late on 6 November. Those issues aside, a central error in this case is, in my view, an error similar to that identified by the Full Court in Zane v Allan (2008) FLC 93-378. There, Finn and Thackray JJ said:
44.The application for leave to appeal and the appeal against the order for an undefended hearing can, in our opinion, be determined in favour of the husband solely on the basis of the second ground of appeal, by which it is asserted that his Honour “erred in the exercise of his discretion” by making the order for an undefended hearing.
45.The submissions made on behalf of the husband in support of this ground were essentially that the matters relied on by his Honour in the exercise of his discretion to order an undefended hearing, did not justify such a course in the case of a party who had defended the proceedings and already filed a great deal of material.
While it could not here be said that Ms Singam had filed a “great deal of material” and while she had not filed a response, she had, by the time of the 7 November hearing:
·Filed at least two substantive affidavits that refer, albeit within the bounds of self-representation, to relevant s 90SM matters;
·Had provided reasons that do not appear to be the subject of challenge for her non-appearance at the conciliation conference and at the adjourned mention date on 18 July;
·Not filed a response as ordered but had made it clear in open court what orders were, as she contended, just and equitable – albeit in the form of an open offer. When, some seven weeks later, she did file a formal response it was to the same substantive effect as her indication to the court on 17 September;
·Filed, in addition, a Notice of Address for Service as her Honour required (noting that it was not necessary pursuant to the Rules to do so – r 6.01(2)(b));
·Given sworn evidence as to the sale at salvage value of two industrial machines and, as a result, deposed to them not being in her possession thereby joining issue with Mr Moffrey in respect of assets central to a determination of the justice and equity of the orders ultimately to be made.
It is true, as counsel for Mr Moffrey submits, that, during the course of the proceedings, documents had not been filed within the timeframes ordered and, as counsel put it, had been “short served”. It is also true that her affidavits bear the signs of a self-represented litigant and are not as fulsome or complete as they might be. However, I do not accept the submission, relying on, for example, Lenijamar Pty Ltd & Ors v AGC (1990) 98 ALR 200,[2] that the chronology evidences on the part of Ms Singam, “an inability or unwillingness to cooperate with the court and the other party …”. Similarly, the claims of a failure to disclose on Ms Singam’s part need to be seen in the context of a “pool of assets” that, leaving aside the contested industrial machines, consist of, on Ms Singam’s part, a car valued at, as her Honour found, $5000, personal effects and superannuation interests in a total amount of $38,172.
[2] I note that Lenijamar Pty Ltd & Ors v AGC (1990) 98 ALR 200 concerned the Federal Court rules, which have since been repealed. But I am satisfied that the rules were materially similar to the present Federal Circuit court rules. The same proviso applies to my later discussion of Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665.
Secondly, I consider that her Honour erred in the exercise of her discretion by failing to take account of what I regard as an adequate and indeed persuasive explanation for Ms Singam’s failure to attend court on 7 November. An explanation for failure to attend is a highly relevant consideration in cases of this type. (See, for example, Taylor v Taylor (1979) 143 CLR 1; Wilkes (above), Leslighter (above)).
Shortly after the proceedings commenced on 7 November, her Honour stood the proceedings down because she needed, she said, “… submissions on the just and equitable distribution of property … and the quantum of the property [and] … a list of the orders that [Mr Moffrey was] seeking”. (The transcript does not reveal what precisely her Honour was handed upon the resumption or whether, for example, the orders sought by Mr Moffrey were in the same terms as those of which Ms Singam had notice by reference to earlier documents filed by him).
When the proceedings resumed shortly after 3.00pm, the following occurred:
COURT OFFICER: Leave requested by [Ms Singam] to appear by telephone.
HER HONOUR: Denied. Yes. Good. Thank you.
The record does not reveal any inquiry being made otherwise as to the basis of the “request” for leave to appear by telephone nor any inquiry as to the reason for Ms Singam’s absence.
It will have been observed that Ms Singam had appeared at all previous court events save for two. The first was the conciliation conference. Her assertion that she was ill and produced a medical certificate in respect of same is not challenged before me. The second is the 18 July mention date which occurred after she had consented to an adjournment at Mr Moffrey’s request. Ms Singam’s assertion that she was unaware of the 18 July date consequent upon that adjournment is not challenged before me.
Ms Singam asserts that, on 7 November, she was under the mistaken belief that, because the two previous appearances had been by telephone, the same could and would occur that day. (It is not in doubt that the 22 October order did not, as did two earlier orders, expressly permit that to occur).
Those earlier appearances, Ms Singam’s self-representation, and her anxiety and depression renders that explanation plausible enough. However, considerable force is added to that explanation by reference to email communications sent by Ms Singam to the court and her Honour’s associate on that day. They are consistent with her assertion and make it clear that she intended to appear and wanted to (albeit by telephone).
Thirdly, I consider that her Honour erred in failing to take account of a further relevant consideration, namely the fact that issue had been joined in what counsel for Mr Moffrey had conceded on 17 September was a triable issue, namely the existence of, and if they existed the value of, the two industrial machines.
The discretion to proceed by way of default where orders for settlement of property are sought involves a second and separate exercise of discretion. (See, analogously, Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665, at [52] per Kiefel J). Orders pursuant to s 90SM do not follow automatically from the exercise of the discretion to proceed by way of default. A separate judgment is required as to whether an order should be made to alter existing interests in property (s 90SM(3); Stanford and Stanford (2012) 247 CLR 108) and, if so, the terms of any such order which are considered appropriate (s 90SM(1)).
The point is again made that, on her Honour’s findings, the value of the two machines represented 46 per cent of the pool of assets and their existence (and, inferentially, continued possession by Ms Singam) was central to the justice and equity of the s 90SM orders made by her Honour. The necessity to determine that issue and the questions relating to the admissibility of the evidence relied upon by Mr Moffrey (as well as Ms Singam) should in my view have been a powerful factor in refusing to exercise the summary remedy provided for in r 13.03B or r 13.03C.
This is not a case where, through recalcitrance or otherwise, there was no evidence before the Court from the respondent in respect of the exercise of the discretion inherent in s 90SM. It is a case where each of the parties had put forward evidence (each with real issues, ultimately, as to its admissibility in the form in which it was before the court). Neither party’s contention was inherently implausible. The fact that this issue needed to be determined in the exercise of the s 90SM discretion rendered it as an important relevant consideration in the (separate) r 13 discretion.
Conclusion
The errors to which I have referred have resulted in substantial injustice to the applicant Ms Singam. The application for leave to appeal should be granted.
The appeal should be allowed.
The orders made by Judge Cassidy on 7 November 2014 should be set aside. An order should be made for the sum yet to be transferred from the Supreme Court of Queensland to the Federal Circuit Court pursuant to orders by consent to that effect made on 21 October to be held by the latter court pending further order.
Application to adduce further evidence
Ms Singam filed an Application in an Appeal on 16 February 2015 seeking leave to adduce further evidence. That application was accompanied by an affidavit and subsequently Ms Singam filed a further affidavit on 3 March 2015.
The application and both affidavits seek to put before the court only transcripts of proceedings occurring respectively on 22 October 2014, 10 December 2014 and 5 February 2015 (the latter two of which pertain to her application pursuant to r 16.05).
Sensibly, counsel for Mr Moffrey did not oppose the court receiving those transcripts. It is clear that the transcripts should be before the court hearing the appeal and in any event it is not necessary for them to be subject to a formal application.
Costs
There should be no order for costs. I am of the view that the appeal has succeeded on an error of law and that the circumstances warrant the issue of a costs certificate to Mr Moffrey pursuant to the Federal Proceedings (Costs) Act which such certificate is sought by him.
I am also of the view that, even though the appellant represents herself, she has incurred outlays with respect to this appeal. As such, the circumstances warrant the issue of a costs certificate for the appellant, which is sought by her.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 19 March 2015.
Associate:
Date: 19 March 2015
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