SOGLIA & SOGLIA

[2018] FamCA 705

FAMILY COURT OF AUSTRALIA

SOGLIA & SOGLIA [2018] FamCA 705

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – where the Applicant seeks an adjournment of the trial on the first morning of trial – where the Respondent opposes the adjournment – application refused.

Family Law Act 1975 (Cth)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

APPLICANT: Ms Soglia

RESPONDENT: Mr Soglia

FILE NUMBER: SYC 8323 of 2015

DATE DELIVERED: 10 September 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Hogan J

HEARING DATE: 10 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Friedlander

SOLICITOR FOR THE APPLICANT: Moylan Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr O’Connor

SOLICITOR FOR THE RESPONDENT: Redmond Hale Simpson

Orders

IT IS ORDERED THAT

1. The Application in a Case filed 10 September 2018, seeking an adjournment of the trial listed to commence today, is dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Soglia & Soglia has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8323 of 2015

Ms Soglia

Applicant

And

Mr Soglia

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Counsel for the Applicant applies for the adjournment of the hearing, listed for two days to start today.  She does so on the basis that it is submitted that the Applicant would be prejudiced irreparably if the trial proceeds. 

2. The Application for an adjournment falls to be considered in circumstances where the matter was previously listed for trial in January of this year, but delisted, at the parties’ request, to facilitate their attendance at a mediation.  Obviously, that was unsuccessful.

3. Counsel for the Applicant submits that her client requires the opportunity to file an affidavit from her former solicitor, now, it seems, working in Melbourne: the person who provided the Applicant with advice prior to her signing a financial agreement on 20 September 2007; and to have him appear in Sydney to be cross-examined if required.

4. A second matter that it is submitted that the Applicant requires the opportunity to address is to obtain a file created or maintained by this former solicitor, so as to enable the finalisation of the preparation of an affidavit and otherwise in support of the Applicant’s case that the agreement dated 20 September 2007 should be set aside.

5. The Application for an adjournment is opposed by Counsel who appears on behalf of the Respondent.

6. Relevant background circumstances may be briefly summarised.  These include that the parties, it seems commenced cohabitation in December 2006; and married in 2007; and separated on 13 August 2013; and divorced on 28 December 2014.

7. Further relevant circumstances include that the proceedings commenced when the Applicant filed an Initiating Application on 18 December 2015, in which the relief sought included:

   An order pursuant to section 90K of the Family Law Act 1975 (Cth) setting aside the financial agreement dated 20 September 2007 between the Applicant and the Respondent.

8. The relief, therefore, that is currently sought was clearly identified as long ago as December 2015.

9. Reference to the documents before me, which include the emails handed up by Counsel (which I will collectively mark as Exhibit 1 in the proceeding) and/or the contents of annexures to affidavits relied upon, establishes, it seems to me, the following:

   a)on 20 July 2018, Registrar Cameron emailed the parties’ solicitors to inquire about the progress of the matter; and

   b)on 20 July 2018, the Applicant’s solicitor responded to advise the Registrar that the matter had not resolved at the mediation.  The Registrar was also told:

   We respectfully request a relisting, whether it be for hearing or mention.

   c)on 28 August 2018, Ms B, the team leader of Judicial Services in the Sydney Registry of the Court, emailed the parties’ solicitors as follows:

   Further to my telephone advice to your office this afternoon, please note that the matter of [Soglia], SYC 8323/2015, has been listed for a two day hearing before Justice Hogan, sitting in the Sydney Registry, at 10 am on 10 and 11 September 2018.

   d)Ms B was not advised by either party, at the time the matter was listed for hearing to start today, that there were any issues or reasons why it should not be listed for final hearing on these dates; and

   e)there is no evidence before me to suggest that, until, at the very earliest, late Friday afternoon, it was to be suggested on behalf of the Applicant that the matter, or her case, was not ready to proceed on the dates allocated to it this week.

10. Insofar as the issue of the file of the Applicant’s former solicitor is concerned, it appears, from the submissions made by Counsel for the Applicant from the Bar table, that the same is not in the possession of the Applicant, although I note that a previous legal representative appears to have had access to it at some stage. 

11. This can be ascertained from reference to an email, dated 5 October 2017, from Mr Camilleri of Counsel, to “Ms C” (care of the Sydney case co-ordinator’s email) in which Mr Camilleri advised, in support of a request that the matter be listed for directions rather than for the hearing of an interim Application, of a number of matters. 

12. Relevantly, the email from Mr Camilleri contains the following assertions:

    Late last month, the Applicant’s solicitors succeeded in locating the file of the solicitor (who now practices in Melbourne) who provided the independent legal advice in respect of the financial agreement – prior to it being entered into in 2007.  It had been assumed by the Applicant that the file had been destroyed. 

    Preliminary perusal of the file has indicated that the Applicant will be advised waive privilege, and file two additional affidavits in the proceedings:

    (a)by the Applicant as to her then legal advice;  and

    (b)a further affidavit by the solicitor who provided the advice.  It is expected this witness will be interviewed this week.  He will be required to give evidence even if he is not required for cross-examination.  Sufficient notice will have to be given to him to enable him to leave his practice in Melbourne and travel to Sydney.  This might involve a special fixture otherwise witness costs could be prohibitive – subject, of course, to the convenience of the Court.

13. Mr Camilleri’s email of 5 October 2017 also advises as follows:

    In the meantime, we are proceeding to secure the affidavits and will file them as soon as they are available.

14. No explanation has been provided in relation to the attempts to progress the matters canvassed in the email of 5 October 2017.  No explanation about this has been provided by the Applicant in support of the Application for an adjournment.  I consider that there is no relevant evidence has been provided which from which I could form a view.

15. It appears now, from information provided by Counsel for the Applicant from the Bar table, that the Applicant’s previous solicitors have answered a subpoena issued at the request of the Respondent in relation to the file.  It also appears, from information provided, following my Associate’s query, that such documents have, in fact, now been provided to the Court and are, therefore, (subject to practical arrangements being dealt with) available for inspection by the respective legal representatives. 

16. That appears to have occurred, as I have said, as a consequence, it seems, of the Respondent’s solicitors themselves having attempted to procure the file and as a result of the relatively recent issue of the subpoena, which, it seems, has been successful.  Until the information provided by Counsel for the Applicant upon my return to Court, having stood down to consider the Application for an adjournment, no file had been produced, but, as I have said, that appears to be something that has been cured.

17. I also should formally record that, despite the, it now seems, successful attempts made by his instructors, Counsel for the Respondent expressly disavowed that his client required access to this file before the hearing could proceed. 

18. I am not persuaded to accede to the Application for an adjournment. 

19. In arriving at this conclusion, I accord greater weight to the submissions made by Counsel for the Respondent than to those made by Counsel for the Applicant in her valiant attempt to persuade me to adopt the course she advocated for on behalf of her client.

20. I consider that there is nothing that has been only recently discovered to underpin the request for an adjournment of the hearing.  The asserted importance of the file and the presence of the former legal representative for the Applicant were identified as issues requiring attention as long ago as October 2017. 

21. I consider that, in the exercise of the broad discretion conferred on Judges at first instance in relation to issues of case management - and noting the necessity to afford to parties (within the consideration of case management issues) the opportunity to present their case and as appears from discussion by the High Court in Aon Risk Services Australia Ltd v Australian National University[1] (to which Counsel for the Respondent, in particular, referred) - the following matters persuade of a rejection of the Application:

    (1)that the proceedings were begun in 2015; and

    (2)that the Application for the determination of the issue listed before me today was previously listed for trial to January 2018 and adjourned; and

    (3)that, on 20 July 2018, the Applicant’s solicitors requested that the matter be listed for hearing or mention; and

    (4)the absence of information to the Court that the matter was not ready to proceed when it had been clearly identified as ready for listing and following its subsequent listing on 28 August 2018; and

    (5)that costs thrown away by the Respondent, if an adjournment application was to be successful in this matter, are not the only factor requiring assessment and weighing: regard should properly be had to the costs thrown away by the public in having a Judge of the Court travel from another Registry to hear the matter, the cost to other matters listed in this Registry in not having the opportunity to obtain the listing accorded to this matter and the cost to the parties in this matter in terms other than monetary ones which would accompany an adjournment of the hearing to a date to be fixed; and

    (6)the absence of an explanation about why the matters identified in October 2017 as necessary, and the existence of the file were not further pursued between that time and now, despite there being the delisting of the hearing dates in January 2018; and

    (7)the reality that the request for the listing for hearing of the matter or mention occurred at the behest of the Applicant’s solicitors. 

    [1] (2009) 239 CLR 175.

22. For those reasons delivered orally, I decline to accede to the Application for an adjournment. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 10 September 2018.

Associate:

Date:              12 September 2018