SPENCER & SPENCER
[2020] FamCAFC 55
•13 March 2020
FAMILY COURT OF AUSTRALIA
| SPENCER & SPENCER | [2020] FamCAFC 55 |
| FAMILY LAW – APPEAL – COSTS – Appeal against order dismissing application for costs – Where the primary judge in the costs application was not the same judge who determined the property proceedings – Where the primary judge found there were no circumstances justifying a costs order being made – Assertion of apprehended bias on the part of the primary judge – Where the appellant asserts insufficient weight was placed on the findings of the property trial judge – Where all grounds of appeal are unmeritorious – Appeal dismissed. FAMILY LAW – APPEAL – SUMMARY DISMISSAL – Appeal against order summarily dismissing an application brought pursuant to s 79A of the Family Law Act 1975 (Cth) – Where the primary judge was not satisfied there was an undisclosed change in the respondent’s financial circumstances prior to trial warranting new property proceedings – Where the appellant sought to adduce further evidence – Evidence of no relevance to the proper determination of the appeal – Assertions of apprehended bias and procedural unfairness – Assertions of errors of law and fact and failure to take into account relevant matters – Where all grounds of appeal are unmeritorious – Applications dismissed – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent sought a costs order against the appellant – Where the appellant has been wholly unsuccessful in both appeals – Where the appellant’s conduct has caused the respondent to incur additional costs – Where impecuniosity is not of itself a barrier to an order for costs – Costs order granted in favour of the respondent against the appellant. |
| Family Law Act 1975 (Cth) ss 75, 79A, 94AAA and 117 Partnership Act 1895 (WA) s 44 and s 56 Family Law Rules 2004 (Cth) r 1.12 and r 10.12 |
| Browne v Green (2002) FLC 93-115; [2002] FamCA 791 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 De Winter and De Winter (1979) FLC 90-605 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Harris and Harris (1991) FLC 92-254; [1991] FamCA 124 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Lenova and Lenova (Costs) [2011] FamCAFC 141 Robinson and Higginbotham (1991) FLC 92-209; [1991] FamCA 4 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 |
| APPELLANT: | Ms Spencer |
| RESPONDENT: | Mr Spencer |
| FILE NUMBER: | PTW | 7180 | of | 2010 |
| APPEAL NUMBERS: | WEA WEA | 21 15 | of of | 2018 2019 |
| DATE DELIVERED: | 13 March 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Strickland, Ryan & O’Brien JJ |
| HEARING DATE: | 15 October 2019 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 25 May 2018; 29 March 2019 |
| LOWER COURT MNC: | [2018] FCWA 100; [2019] FCWA 71 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Turley |
| SOLICITOR FOR THE RESPONDENT: | Biddulph & Turley |
Orders
The Application in an Appeal filed on 16 August 2019 be dismissed.
Appeal nos. WEA 21 of 2018 and WEA 15 of 2019 be dismissed.
The appellant wife pay the costs of the respondent husband of and incidental to the said appeals fixed in the total sum of $17,825.79.
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 Spencer & Spencer 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Numbers: WEA 21 of 2018; WEA 15 of 2019
File Number: PTW 7180 of 2010
| Ms Spencer |
Appellant
And
| Mr Spencer |
Respondent
REASONS FOR JUDGMENT
Introduction
On 20 December 2017, after a 14 day trial, Walters J pronounced final orders for the alteration of property interests between Ms Spencer (“the wife”) and Mr Spencer (“the husband”).
On 17 January 2018, the wife applied for various orders as to costs. Walters J retired on 15 February 2018 and the application fell to be determined by Sutherland J (as her Honour then was). Justice Sutherland made an order on 25 May 2018 dismissing the application. The wife appeals against that order: WEA21 of 2018 (“the costs appeal”).
On 15 August 2018, the wife filed an application seeking that the final orders made by Walters J be set aside pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth) (“the Act”). Central to that application was her contention that the death of the husband’s mother on 15 December 2017, shortly prior to final orders being made, effected a relevant change in the financial circumstances of the husband that should have been, and was not, disclosed.
That application was summarily dismissed by Sutherland CJ on 29 March 2019. The wife appeals against that order: WEA15 of 2019 (“the summary dismissal appeal”).
On the application of the wife, the two appeals were heard together.
For the reasons that follow, both appeals must fail. Neither appeal raises any question of general principle. It is appropriate to set out our reasons for dismissing them in short form (s 94AAA(7) of the Act).
The Costs Appeal
Background
In the property proceedings, Walters J determined that the net property and superannuation available for division between the parties totalled $2,298,842, of which the wife should receive 18.75 per cent. The amount payable by the husband to achieve that outcome was reduced by his Honour to take into account various costs orders against the wife which she had not yet paid. The wife retained various chattels, savings and superannuation entitlements, and the husband was ordered to pay her the sum of $67,715.
Both parties incurred very significant legal costs over the course of extended litigation in relation to both parenting and financial matters. That litigation included the wife’s unsuccessful appeals and applications to the High Court for special leave to appeal in relation to the parenting case. The husband was represented throughout the litigation. The wife was represented for a significant period, primarily in the parenting proceedings, but largely represented herself from mid-2013 or early-2014 onwards. She was self-represented at the property trial, before the primary judge and before this Court.
In a Minute of Proposed Orders received by the Court below on 17 January 2018, the wife sought various orders in relation to costs. She sought a payment of $300,000 representing “her legal fees agreed during trial to be incurred on employing legal Counsel from 2010 until the financial judgment was delivered”, an additional payment in relation to representation briefly undertaken by a named solicitor, and “incidental costs of her court attendance as a self-litigant for long distance travel, subpoena room attendance… and disbursements”.
The wife also sought an order that the Court “use it’s inherent powers to alter any injustice in previous costs orders made as a result of [the husband’s] exceptional conduct” or in the alternative “refer the previous costs orders (and substantive issues) back to the PTW and Appellate jurisdictions for re-visiting under the Rice V Asplund exception” (as per the original). Reference to PTW is to the trial division of the Family Court of Western Australia.
In total, the wife sought an estimated amount of $334,000, “excluding any return of funds paid for previous costs awards”. By that she referred not only to costs orders made in relation to her unsuccessful appeals and special leave applications, but also a very substantial costs order made against her on 21 January 2014 in the primary parenting proceedings. That costs order in turn was unsuccessfully appealed.
Orders had been made by Walters J permitting the filing of written submissions in support of any costs application, limited to no more than 10 pages in length. The wife’s written submissions comprising nearly 200 pages were nevertheless accepted for filing and considered by Sutherland J. Her Honour heard submissions on 22 May 2018, and delivered reasons on 25 May 2018. Her Honour considered each of the matters to which she was required to have regard pursuant to s 117(2A) of the Act, including relevant offers made by the parties during the course of the financial proceedings. Various other matters pressed by the wife pursuant to s 117(2A)(g) were also considered.
Her Honour concluded that there were no circumstances justifying an order for costs in favour of the wife.
It is well settled that the Full Court should be reluctant to interfere with decisions of a trial judge relating to costs, given that orders for costs are “peculiarly a matter which are within the discretion of the trial judge” (Harris and Harris (1991) FLC 92-254 at 78,711; Robinson and Higginbotham (1991) FLC 92-209 (“Robinson and Higginbotham”)). But this reluctance does not mean that this Court should never interfere with the exercise of a costs discretion “if the result is plainly unjust or if the discretion was exercised on wrong principles then this Court must interfere” (Robinson and Higginbotham at 78,417). That said, the circumstances of the present case are unusual, in that the question of costs was not determined by the judge who presided over the trial.
Absent an error in approach or principle, a failure to take into account relevant considerations, the taking into account of irrelevant considerations, or the making of factual findings unsupported by evidence, “the challenge must be that the orders fell outside a reasonable exercise of discretion” such that they were “unreasonable or plainly unjust” (Browne v Green (2002) FLC 93-115 at 89,161).
On 23 April 2019, the wife filed an Amended Application in this appeal seeking that the Full Court inspect a section of the original transcript of the hearing before Walters J on 11 May 2017. The wife submits that reference is made to costs submissions put before his Honour in the original transcript, which support her appeal.
At the hearing of the appeal there was no objection to this Court reviewing the transcript, although it was submitted by the husband that it was irrelevant.
The Grounds of Appeal
The Notice of Appeal filed on 19 June 2018 sets out what are asserted to be 37 separate grounds of appeal. Even allowing for the understandable difficulties faced by a self-represented appellant, a number of those grounds are incomprehensible. Others are in the form of submissions addressing a number of themes common to other grounds set out.
The grounds of appeal may fairly be distilled, albeit with some duplication, as asserting error by the primary judge, in that the judge:
a)Failed to take into account matters arising from the husband’s failure to give full and frank disclosure before Walters J (grounds 1, 2, 3, 5, 6, 9, 23, 27, 29, and 34);
b)Failed to take into account conduct which caused “wastage of [her] resources on legal fees and court preparation”, at least in part because of the husband giving false evidence (ground 4) and that by virtue of that conduct she was denied procedural fairness (ground 8);
c)Failed to consider other complaints about the conduct of the husband and those representing him (grounds 11, 13, 17, 22, 26, 30, 32, 36);
d)Demonstrated apprehended bias by reason of her Honour’s failure to pay adequate regard to the matters just raised above (ground 37), as well as the husband’s nondisclosure in the 2011 interim financial proceedings (ground 27);
e)Misapplied s 117AB (ground 28);
f)“[F]ailed to take into account that the asset pool as identified by [Walters J] with respect to the [husband’s] financial affairs was clearly substantially understated” (ground 7);
g)Failed to take into account the real effect on the partnership assets of the death of the husband’s mother (grounds 10, 12, 32 and 33);
h)Made errors as to the weight given to various considerations (ground 14);
i)Failed to take into account a miscellany of other matters (grounds 16, 17, 18, 19, 21, 31 and 35); and
j)Made various errors which are best addressed individually (grounds 15, 20, 24 and 25).
Several of the distilled groupings of grounds of appeal may themselves be conveniently dealt with together.
Helpfully, in the course of submissions the wife confirmed that the key points she would raise in challenge to the costs decision were:
a)Her assertion of a reasonable apprehension of bias on the part of the primary judge;
b)Her assertion that in determining the costs application the primary judge gave insufficient weight to findings made by Walters J as to the husband’s conduct of the property proceedings;
c)Her related assertion that the primary judge gave insufficient weight to what she would say was a pattern of deception by the husband and his lawyers, continuing up to and including the hearing of the costs application; and
d)Her contention that by virtue of the “splitting of the proceedings”, by which she meant the involvement of other judicial officers at various stages of the totality of the child related proceedings and financial litigation between the parties, and the corollary that the primary judge did not preside over earlier phases of that litigation, her Honour was unaware of the relevant conduct of those earlier phases by the husband and his lawyers, enabling the husband’s counsel to “[play] off” one judicial officer against another (Transcript 15 October 2019, p. 69 line 41 and p. 70 lines 6-13).
The last argument may be immediately dealt with. It is clear that her Honour carefully reviewed all relevant materials, including those from proceedings not before her, in determining the wife’s costs application; the argument is accordingly without merit.
The assertion of apprehended bias
It is necessary for this aspect of the appeal to be considered first, as if the grounds are made out, the appeal must succeed and the costs application must be remitted for rehearing by a different judge (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577).
The test is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” (Johnson v Johnson (2000) 201 CLR 488 at 492). The enquiry requires two steps: (1) the identification of what it is said might lead the judge to decide a case other than on its legal and factual matters, and (2) there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at 345).
Relevantly for present purposes, where a party has not raised the issue of bias before the primary judge or sought recusal, that party will be restricted in the ability to raise that issue on appeal (Vakauta v Kelly (1989) 167 CLR 568). The wife made no application for the primary judge to disqualify herself from determining the costs application. Indeed, and as will be seen to stand in contrast to the summary dismissal appeal, during the primary hearing the wife made no complaint or adverse comment as to the conduct of that hearing. It may also fairly be noted that the primary judge took some trouble at the commencement of the hearing to ensure that the wife clearly understood the parameters of that hearing, and the relevant provisions of s 117 which governed the application.
The wife’s submissions on appeal directed towards what she described as a “perception of bias” on the part of the primary judge assert that her Honour failed to take into account matters which the wife considered to be relevant, or made errors as to weight. She raises no suggestion that the primary judge conducted the hearing inappropriately, had any relevant interest which might cause her to depart from impartial decision-making, or had pre-judged any relevant matter.
In effect, the wife does no more than assert that she perceives bias as a logical conclusion to be drawn from the primary judge making findings which ran counter to her submissions, in circumstances where she believes the merit of those submissions to be unarguable. This submission has more the flavour of an assertion of actual rather than apprehended bias. It needs to be understood that the mere fact of adverse findings at the end of a matter cannot, without more, establish that the judge embarked on the case with a mind closed to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
The assertion of apprehended (or indeed actual) bias reflected in grounds 27 and 37 is without merit.
The assertion that insufficient weight was given to the findings of the trial judge as to the husband’s conduct of the primary proceedings
It must first be noted that the primary judge clearly had regard to the conduct of each of the parties as litigants.
Her Honour expressly took into account adverse findings made by the trial judge about the husband’s conduct during the financial litigation (at [18]–[26]), including findings that the husband had failed to give full and frank disclosure of his financial position, was less than forthcoming about his true financial position, and was grudging in giving the wife credit where it was due. Her Honour also had regard to the trial judge’s criticism of the manner in which the husband conducted his case more generally, including the observation that the husband was “just as keen as the wife to chase every rabbit down its burrow”, and a concern that the husband could be “just as small minded, insensitive and inflexible as the wife” (at [25]).
To the extent that several of the grounds of appeal assert that the primary judge “failed to take into account” matters relating to the husband’s conduct during the financial litigation, those assertions are inaccurate.
Nothing in the material before us, or in the wife’s submissions, could lead to a conclusion that her Honour excluded relevant considerations, or had regard to irrelevant considerations. Her Honour clearly, as she was required to do, considered the matters raised before her in the context of the requirements of s 117(2A)(c) to take into account the conduct of the parties.
Similarly, nothing in the material before us, or in the wife’s oral submissions, could lead to a conclusion that there was any failure by her Honour to give adequate weight to relevant considerations, such as to amount to a failure to properly exercise her discretion.
Grounds 1, 2, 3, 5, 6, 9, 23, 27, 29, and 34 are without merit.
The assertion that the primary judge gave insufficient weight to a pattern of deception by the husband and his lawyers, continuing up to and including the hearing of the costs application.
Self-evidently, this assertion on the part of the wife largely overlaps with the arguments raised in relation to the husband’s conduct of the financial litigation. The observations already made need not be repeated, however, we note what her Honour said about the allegations against the legal representatives at [34]:
The wife made numerous assertions that the husband’s solicitor and/or counsel acted improperly, including by knowingly making false representations to the court, misleading and deceiving the court, and assisting the husband to prepare and sign court documents that they knew to be false. Whilst I accept that Walters J was critical of some aspects of the manner in which the husband’s case was conducted, his Honour did not make any findings of impropriety by the husband’s solicitor and/or counsel. I am not satisfied that there was any cogent evidence that the husband’s solicitor and/or counsel acted improperly as alleged by the wife or at all.
To the extent that the wife complains of conduct by the husband and his lawyers occurring after the completion of the financial litigation, those complaints are irrelevant to the consideration by the primary judge of the conduct of the parties in the litigation itself. Doing the best that we can, we infer that the wife’s argument is that what she would assert to be a continuing pattern of behaviour after the conclusion of that litigation should have persuaded the primary judge of the strength of her arguments as to the relevant behaviour during the litigation. In reality, such an argument again represents no more than a challenge to the exercise of her Honour’s discretion, and the weight given by her to various considerations. No error on the part of the primary judge is established.
Grounds 11, 13, 17, 22, 26, 30, 32, and 36 are without merit.
The remaining grounds of appeal
Each of the remaining grounds of appeal are without merit, for reasons which may be briefly expressed.
By ground 4, the wife asserts that the primary judge failed to take into account the “wastage of [her] resources on legal fees and court preparation”. How that is a relevant matter for her Honour to take into account is not explained. What we can say is that, as already noted, her Honour took into account relevant matters as to the conduct of the parties in the litigation. Her Honour also took into account the financial circumstances of the parties, concluding that those of the husband were superior.
By ground 7, the wife asserts that the primary judge failed to take into account that the “asset pool as identified by [Walters J] with respect to [the husband’s] financial affairs was clearly substantially understated”. The wife did not appeal the decision of Walters J, and in any event there was nothing before the primary judge to support the wife’s contention that the findings of Walters J as to the property available for division between the parties were wrong.
Similarly, there was nothing before the primary judge to support the factual contention which underpins the complaint made in ground 8 that her Honour failed to take into account matters relating to the wife’s ability to access legal advice in the financial litigation.
Grounds 10, 12 and 33 assert error on the part of the primary judge in relation to what the wife would allege to be changes in the financial circumstances of the husband arising from the death of his mother. Her Honour concluded (at [33]) that she was unable to make any findings on the available evidence that the death of the husband’s mother was relevant to the financial proceedings, or that as a result of her death the husband’s financial circumstances materially changed. That conclusion was clearly open to her Honour, as was her determination that the matter raised had little, if any, relevance to the costs application in any event.
Ground 14, to the extent that it does not simply contain commentary or repetition of matters raised in other grounds and can be understood, establishes no error on the part of the primary judge.
The wife asserts that her Honour “took into account the legal fees used by the [husband] from the asset pool as a reason for [him] not paying costs to [her]” while at the same time asserting that her Honour “failed to take into account how much money the [husband] paid on legal representation”. Her Honour in fact referred to the costs incurred by both parties only in the context of setting out the relevant history of the proceedings, and in her required consideration of the financial circumstances of each party. Her Honour was satisfied that the husband was “in a superior financial position to the wife”, and that he had “the financial wherewithal to meet a costs order, if made” (at [17]).
Similarly, the wife’s assertion that the primary judge “raised the issue of whether the [husband] had an entitlement to a costs order or not”, and that her Honour accordingly took into account an irrelevant consideration, is misconceived. In fact, in setting out the relief sought by the parties, her Honour simply recorded that the husband opposed the wife’s application for costs, and that while “[he] considered that he may well have an entitlement to a costs order himself, he acknowledged that his financial position was stronger than that of the wife and he simply wished to bring the proceedings to a close” (at [1]).
Ground 15 asserts an error of law by the primary judge in “claiming she had no jurisdiction to address the outstanding issues and consequences and/or if there is a miscarriage of justice” (as per the original). The wife there refers to her Honour’s finding that a number of the orders sought were “flawed”, in that the wife sought not simply an order for costs in relation to the proceedings before Walters J, but “effectively all her costs, legal and otherwise” in relation to the parenting proceedings, unsuccessful appeals, and unsuccessful applications to the High Court for special leave to appeal (at [13]). Her Honour correctly observed that those matters had been “comprehensively dealt with by other courts” (at [13]) and that it was not open to her to revisit them. Ground 15 is without merit.
Grounds 16 and 18 complain that the primary judge failed to take into account that “the integrity of [the decision of Walters J]” was “undermined by negative remarks about his decisions”, and that the wife had been caused “harm and suffering” by the proceedings. Even had they been established, neither assertion raised matters relevant to the determination of the costs application.
Ground 19 asserts that the primary judge “failed to take into account the financial benefits [the husband] received as a result of proceedings”. In fact, her Honour clearly took into account what she found to be the superior financial position of the husband, and the outcome of the financial proceedings before Walters J (at [6]–[8] and [17]).
Ground 20 asserts an error of fact in the primary judge’s observation that the wife “largely represented herself from early 2014 onwards” (at [4]). The wife asserts that she “represented herself in the main since mid 2013” (as per the original). Even if the primary judge was in error, which was not established, the discrepancy asserted is immaterial and clearly had no influence on her Honour’s ultimate conclusion (De Winterv De Winter (1979) FLC 90-605).
Ground 21 asserts that the primary judge failed to take into account the fact that the wife “had to prepare her own financial documents”. How that is asserted to be a relevant consideration in the determination of the costs application is not clear. In any event, when undertaking the required consideration of the conduct of the parties in relation to the proceedings, the primary judge clearly took into account issues raised as to the wife’s self-representation (at [26]).
Ground 24 asserts that the primary judge erred by making a finding that the husband “didn’t lie to the court”. No such finding was made. Similarly, ground 25 asserts that her Honour made an error in finding that the wife “was responsible for the length of the proceedings”, when a proper reading of the judgment makes it clear that her Honour took the view that the conduct of the proceedings by each of the parties contributed to their length. That finding was clearly open, particularly as it did no more than reflect her Honour’s adoption of the relevant findings of the trial judge.
Ground 28 asserts that the primary judge was “palpably wrong” in not applying s 117AB of the Act. That section was repealed with effect from 7 June 2012, and thus her Honour did not need to deal with it.
Ground 31 asserts that the primary judge failed to take into account an agreed position between the parties at trial as to the expenses incurred by the wife. We have, as sought by the wife in her application in the appeal, had regard to relevant parts of the transcript of the trial before Walters J. That transcript reveals that counsel for the husband acknowledged that the wife had paid approximately $258,000 to various legal practitioners, disbursements generally of approximately $40,000, an amount of $1,500 to a named firm of lawyers, and fees or disbursements of approximately $15,000 in relation to an earlier appeal. While there was some confusion as to whether that latter sum was already included in the acknowledged disbursements of $40,000, nothing turns on that for present purposes. However, no relevant error on the part of the primary judge is established. Her Honour did no more than note that it was not open to her in determining an application for costs of the financial proceedings to award costs in relation to other proceedings, and to observe that in her lengthy submissions the wife had failed to specify just how the quantum of costs and disbursements sought by her had been calculated.
Ground 35, to the extent it can be understood, does not reveal any error on the part of the primary judge.
Conclusion
There is no merit to any of the grounds raised in the costs appeal.
The Summary Dismissal Appeal
Background
At the time of the property trial before Walters J, the husband was involved in various farming enterprises with his parents (“Mr and Mrs S”).
Mr and Mrs S were the joint registered proprietors of a farm (“W farm”). They ran that farm through their partnership (“P2”). Walters J found that the husband had no legal or equitable interest in W farm or P2.
The husband and his parents formed a separate partnership in 1986 (“P3”). There was no written partnership agreement.
Two other farms (“S Farm” and “A Farm”) were operated by the husband and his parents. The legal title to these farms was held by Mr S and Mrs S as joint tenants of two undivided third shares, and by the husband of one undivided third share, as tenants in common.
Walters J found that the husband had a one third interest in each of P3, S Farm and A Farm. Those interests formed part of the property available for division between the parties.
Mr and Mrs S were also the joint owners of a property in Suburb B. While various expenses associated with that property were paid by P2 and P3, Walters J found that those expenses were properly allocated in the financial statements and that the husband had no legal or equitable interest in the Suburb B property.
Mrs S died on 15 December 2017. That fact was not disclosed to the wife or to the Court before Walters J delivered his judgment and made final orders in the property proceedings on 20 December 2017.
On 15 August 2018, the wife filed her application seeking that those orders be set aside pursuant to s 79A of the Act. In her affidavit in support of the application, she asserted that the death of Mrs S represented a material change in the husband’s financial circumstances, and accordingly should have been disclosed prior to the making of the final orders.
The application came on for hearing before Sutherland J on 5 November 2018. It was apparent from documents filed by the wife that her application was based solely on s 79A(1)(a) of the Act. Her Honour made a number of procedural orders, including an order requiring the husband to provide disclosure to the wife of the last will of Mrs S, and an order requiring the wife to file and serve a document in the nature of a statement of claim.
The wife filed a document purporting to comply with that order on 12 December 2018, together with an affidavit and detailed written submissions. Those documents were accurately described by the primary judge as having “further confused, rather than clarified, the basis for the wife’s claim” (at [14]).
At a hearing on 29 January 2019, counsel for the husband made an oral application for summary dismissal of the wife’s application. That oral application was adjourned to be heard on 12 March 2019.
The hearing on 12 March 2019 proceeded and submissions were made both by the wife and by counsel for the husband. The primary judge reserved her decision, which was delivered on 29 March 2019.
Her Honour noted that the will of Mrs S, which was in evidence, bequeathed the whole of her real and personal estate to Mr S, provided that he survived her for more than 28 days.
It was common ground that he did so; accordingly, under the terms of the will, Mr S inherited all of his wife’s estate. Otherwise, he became the sole owner of various jointly owned property (including W farm and the Suburb B property) by survivorship.
The wife had argued that immediately upon the death of Mrs S, the husband became entitled to 50 per cent of the assets of P3 as distinguished from his one third interest previously held. The primary judge rejected that argument, regarding it as reflecting a misunderstanding on the part of the wife of the relevant provisions of the Partnership Act 1895 (WA) (“Partnership Act”).
Her Honour concluded that upon the death of Mrs S, P3 was dissolved, and that the one-third interest of Mrs S in P3 formed part of her estate and was accordingly inherited by Mr S. Notwithstanding the entitlement of the surviving partners to continue to bind the partnership, and the continuation of their rights and obligations so far as was necessary to wind up the affairs of the partnership, the estate of Mrs S retained her partnership entitlements.
Those findings having been made, her Honour concluded that the death of Mrs S effected no material change in the husband’s financial circumstances and that accordingly the husband’s failure to disclose her death prior to final orders being made could not give rise to a miscarriage of justice.
Accordingly, her Honour summarily dismissed the wife’s application, it having no reasonable prospect of success.
Applications in the appeal
On 16 August 2019, the wife filed an application in the appeal seeking to adduce further evidence in the form of two separate affidavits sworn by her on 13 July 2019 and 4 August 2019.
The first of those affidavits sets out a series of events and communications which were triggered by an inaccurate statement by counsel for the husband at a hearing before the primary judge on 29 January 2019, to the effect that a statement of the assets and liabilities of the estate of the husband’s mother was annexed to the affidavit filed by the wife on 15 August 2018.
That inaccurate statement had no material effect at the time it was made, as the primary judge did no more at that stage than adjourn the husband’s application for summary dismissal to be heard on 12 March 2019.
The inaccurate statement by the husband’s counsel was repeated at that hearing, but was corrected by the primary judge who made it clear that the statement of assets and liabilities was not before her in any form. Counsel for the husband acknowledged her error. In any event, her Honour, correctly in our view, observed that the document was not relevant to the determination of the issues raised in the application for summary dismissal.
Subsequent to that hearing, but before her Honour’s judgment was delivered, there was an email exchange between the wife and the husband’s lawyers in which the wife wrongly insisted that the husband had relied upon the asset and liability statement at the hearing.
The balance of the wife’s affidavit sworn on 13 July 2019 contains nothing more than submissions and broad complaints about the conduct of the matter by the husband’s lawyers, and a veiled comment at paragraph 24 that “[i]t is unknown if ex-parte communications are occurring”.
The affidavit of the wife sworn on 4 August 2019 states that it is “made in support of the existing Appeal [WEA] 45 of 2018”. That appeal, against an order refusing the wife’s application for leave to commence fresh parenting proceedings, is not before us. The content of the affidavit relates almost exclusively to the historical complaints of the wife about the conduct of the lengthy parenting proceedings between the parties. She would contend that those complaints are consistent with complaints she has made about the conduct of the primary proceedings under consideration, establishing a pattern of unsatisfactory behaviour on the part of the husband and those advising him.
To the limited extent that the affidavits in question contain admissible evidence, that evidence is of no relevance to the proper determination of the present appeal. It is accordingly unnecessary to consider questions of admissibility, or the extent to which the evidence was in any event available to be adduced at the hearing of the primary application.
The wife’s application filed on 16 August 2019 will be dismissed.
On 23 September 2019, the husband filed an application in the appeal, seeking an extension of time to the close of registry on that day to file and serve his summary of argument and list of authorities. Pursuant to orders made by the Appeals Registrar on 18 June 2019, those documents were required to be filed by 4.00 pm on 2 September 2019. The application was supported by an affidavit sworn by the husband’s lawyer. The husband’s lawyer explained that she had given instructions for the preparation of the documents to counsel who had a long-standing involvement in the proceedings, but had only been informed on the morning of 2 September 2019 that due to counsel’s other commitments the documents would not be prepared in time. She explained further the efforts that were made to confer with the wife about the issue, and the steps taken to provide the wife with unfiled copies of the documents in advance of the appeal.
The wife filed a response on 27 September 2019, opposing the application and seeking an order that the appeal “effectively be heard undefended”. Her response was supported by an affidavit sworn on 24 September 2019. That affidavit largely repeated complaints made elsewhere about the conduct of the proceedings by the husband and his lawyers.
The explanation given on oath by the husband’s lawyer for the delay in filing the relevant documents made it clear that the responsibility for that delay lay with that lawyer and counsel, and not with the husband. Notwithstanding the wife’s complaints, the documents were received by her well in advance of the hearing of the appeal, and no relevant prejudice to her arising from the delay was identified.
For those reasons, at the hearing of the appeal we made an order in terms of the husband’s application filed on 23 September 2019.
The Grounds of Appeal
The wife’s Notice of Appeal filed on 23 April 2019 included a nine page document headed “[g]rounds of appeal” containing some 39 separate assertions. In common with the costs appeal, a number of those grounds are incomprehensible, and most are in the form of submissions.
The complaints agitated by the wife may fairly be summarised as asserting error made by the primary judge as follows:
a)Procedural errors that denied the wife procedural fairness and natural justice;
b)Apprehended bias on the part of the primary judge;
c)Various errors of law;
d)Various errors of fact; and
e)Failure to take into account a number of considerations she would say were relevant.
The assertion of apprehended bias
Again, this complaint needs to be addressed first.
The relevant principles are set out earlier in this judgment in the context of the costs appeal, and need not be repeated.
There were a number of elements to the wife’s argument.
First, the wife argued that as a result of what she would assert to be a failure by the husband to comply with his duty of disclosure, “[j]ustice was not done and/or seen to be done – supporting the perception of bias by [the primary judge] against a self-litigant”. That argument is without merit. Even were the wife’s assertion as to the husband’s actions to be accepted for present purposes, the mere fact of those actions cannot give rise to a reasonable apprehension of bias in the judge.
Secondly, she argued that what she described as the primary judge’s “strong words” in a judgment delivered on 13 December 2018 in relation to an application for leave to commence parenting proceedings “highlighted the perception of bias”. Again, that argument is without merit. While this judgment was not put before us, any reasonable apprehension of bias arising from it could readily have been addressed by the wife making the appropriate application in the proceedings under consideration; she did not. Indeed, the only suggestion of a relevant concern on the part of the wife was a comment which she made at the conclusion of her oral submissions on 12 March 2019 when she said:
It appears that from my angle I think it could be perceived and by a reasonable bystander as well that there is a bias here being demonstrated because, clearly, on an available juristic position, if you just look at the will, people can turn a blind eye to what the respondent has done.
(Transcript 12 March 2019, p.25 lines 13–18)
Not only did the wife fail to make any application for recusal, she concluded her submissions only a few minutes after making the comment quoted above by asking the primary judge to “make the correct decision and to make [the husband] accountable”, and expressing the hope that her Honour would “make a fair and just decision” (Transcript 12 March 2019, p.25 line 46–47 and p.26 line 6).
Thirdly, the wife argued that what she would assert to be a failure by the primary judge to take into account matters which she contended to be relevant, and what she would assert to be a failure by the primary judge to apply the correct legal principles, themselves led to a reasonable apprehension of bias. Commonly with the arguments raised as to an apprehension of bias in the context of the costs appeal, the wife claims that what she perceives to be errors on the part of the primary judge are indicative of bias, without addressing, let alone establishing, the two steps of the enquiry identified in Ebner. The submission must be rejected.
Fourthly, the wife asserts that a reasonable apprehension of bias is raised by her being “repeatedly told” that she “misunderstands everything she reads… highlight[ing] the unacceptable legal practices occurring in the Family Court of WA”. Her strongly held view in that regard is perhaps best encapsulated by the following statement in her grounds of appeal:
For example, in this case the Justice told a party with a graduate degree in financial planning, law/arts degree and completing a criminology course that she didn’t want to hear submissions on the law as she didn’t think the Appellant understood them.
In fact, as the transcript reveals, the primary judge made no such comment. Her Honour had received lengthy written submissions of the wife filed on 12 December 2018 which contained submissions as to the law including the citation of 46 reported and unreported decisions. Her Honour also received further written submissions of the wife filed on 7 March 2019 which again included submissions as to the law. It was against that background that, at the commencement of the wife’s oral submissions at the hearing on 12 March 2019, her Honour said:
Thank you. Mrs Spencer, at this point, I don’t want you to specifically address me on what you think the law provides. What I want you to do is to focus on the factual evidence that you have provided and explain to me how you say that that is relevant to grounding an application under section 79A(1)(a) because that’s the basis that you’ve identified that you’re making the claim…
(Transcript 12 March 2019, p.8 lines 44–50)
As the wife’s oral submissions continued, the primary judge invited submissions as to the law, and in particular the basis upon which she argued that the death of Mrs S and the dissolution of P3 “triggered an increase in [the husband’s] share of the partnership” (Transcript 12 May 2019, p.17 lines 30-33). The wife proceeded to make her submissions without being inhibited in any way. The components of the wife’s grounds of appeal which assert a reasonable apprehension of bias on the part of the primary judge are without merit.
The assertions of procedural error and denial of procedural fairness and natural justice
The wife asserts error on the part of the primary judge by reference to a number of procedural matters.
First, she asserts that the husband should have been required to file a response to her initiating application, an affidavit and a financial statement prior to being permitted to apply for summary dismissal. While r 10.12 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that a party may apply for summary orders “after a response has been filed”, the wife’s argument is without substance. Even were it not for the provision of r 1.12 of the Rules enabling the Court to dispense with compliance with the rules at any time, including on its own initiative, no hint of unfairness to the wife arises in any event. It was clear at all times that her application was opposed. The oral application for summary dismissal was made at the hearing on 29 January 2019; the primary judge adjourned the application for hearing on 12 March 2019, expressly stating that she did so in order to give the wife time to prepare.
Second, the wife asserts that the husband “rel[ied] on undisclosed material” and that evidence was given from the bar table in relation to those documents. Again, the complaint attaches unsustainable importance to an error made by counsel for the husband in stating that a schedule of the assets and liabilities of the estate of Mrs S was annexed to the wife’s affidavit, when it was not. That error was corrected, and it was clearly understood by the parties that no such document was before the primary judge.
The wife further complains that the primary judge made orders “restricting [her] section 79 A application” to s 79A(1)(a). While her Honour made an order on 5 November 2018 requiring the wife to file and serve a document in the nature of the statement of claim setting out the grounds upon which she relied by specific reference to “the subparagraphs of s 79A(1)(a)” (as per the original), she did so in the context of having identified from the documents already filed by the wife the essence of the arguments she sought to raise. Nothing in the voluminous materials filed or submissions made indicates that subsections (b) to (e) inclusive of s 79A(1) have even any potential relevance. Her Honour was clearly correct in identifying that the wife sought to proceed in reliance on s 79A(1)(a) only. It is clear in any event from the documents filed that the wife did not consider herself constrained in the presentation of her case.
To the extent the grounds of appeal assert procedural error, denial of procedural fairness, or denial of natural justice, they are without merit.
Asserted errors of law
Central to the wife’s primary application, and to her appeal, is her contention that upon the death of Mrs S, the husband became entitled to 50 per cent of the assets of P3, where prior to the death of Mrs S his entitlement was one third.
The wife asserts that the primary judge was in error in finding to the contrary. That assertion is misconceived.
The primary judge correctly noted that P3 was, by operation of s 44 of the Partnership Act, dissolved on the death of Mrs S. Indeed, the wife did not argue otherwise.
Her Honour also correctly noted the operation of s 56 of the Partnership Act, which is in the following terms:
56. Retaining of deceased partner’s share to be a debt
Subject to any agreement between the partners, the amount due from surviving or continuing partners to an outgoing partner, or the representatives of a deceased partner, in respect of the outgoing or deceased partner’s share, is a debt accruing at the date of the dissolution or death.
Her Honour, again correctly, concluded that on the death of Mrs S her interest in P3 formed part of her estate. As already noted, by her will Mrs S bequeathed the whole of her estate to Mr S. The effect, as her Honour concluded, was that Mr S had a two-thirds interest in P3 following the death of his wife, and the interest of the husband in that entity was unchanged.
The wife’s arguments appeared to be based on the subsequent establishment by the husband and Mr S of a new business entity, and on the results of searches of corporate records and the like undertaken by her indicating (for example) that no formal steps had been taken to wind up P3. They were also based on her assertion that the husband and his father subsequently took advantage of rollover relief, which she would contend was only properly available to them in a continuing partnership.
Those arguments, and the other arguments raised by the wife in relation to this issue, are misconceived. Steps taken, or for that matter not taken, by the husband and Mr S after the death of Mrs S and after the making of orders by Walters J were not capable of affecting the correct interpretation of the will, or the operation of the Partnership Act. No error of law on the part of the primary judge is demonstrated.
The related contention by the wife that the primary judge was wrong in law in concluding that the husband had no obligation to disclose his mother’s death prior to the delivery of judgment by Walters J is also without merit. The husband had no obligation to disclose the death of his mother at the relevant time unless her death caused a material change in his financial circumstances. Her Honour’s conclusion that the death of Mrs S caused no such change was based on her correct conclusion that there was no change in the interest of the husband in P3, and on the unarguable interpretation of the will of Mrs S.
To the extent that the grounds of appeal assert errors of law by the primary judge, they are without merit.
Asserted errors of fact
The wife asserted that the primary judge “found in her Judgement that there was no dispute about [the husband’s] increase in financial position”, and that such finding amounted to an error of fact. Her Honour made no such finding.
The wife asserted further that the primary judge “failed to take into account the [husband’s] equitable interests” while characterising that asserted failure as an error of fact. Regardless of the proper characterisation of the complaint, there is no merit in it. It is again based on the wife’s erroneous understanding of the effect of the death of Mrs S.
Asserted failure to take into account relevant matters
The wife argued that the judgment of Walters J “highlights the increase in financials the [husband] was found to have upon the death of his parents”. While that argument was raised under a heading which would suggest that the wife asserted an error of law, no such error is identified. Nevertheless, it might be inferred that the wife sought to argue that the primary judge failed to appropriately take that matter into account.
In fact, the primary judge made express reference to the relevant findings by Walters J, noting also that his Honour had, in reaching his decision in the property proceedings, considered it appropriate to take into account under s 75(2)(o) of the Act the likelihood that the husband’s personal financial position would “improve dramatically after the death of his parents” (at [32]).
His Honour clearly there referred to the husband’s likely circumstances after both parents had died. Given the matters already set out in relation to P3 and the will of Mrs S, and that Mr S was still alive when Walters J delivered judgment, the primary judge was correct in concluding that the death of Mrs S prior to the delivery of that judgment was of no relevance to the decision his Honour made.
The wife argued further that the primary judge ignored “[r]elevant particulars of Justice Walter’s findings”. She referred by way of specific example to paragraph 114 of the judgment of Walters J delivered on 20 December 2017. In that paragraph, his Honour made credibility findings critical of the husband; in fact, the primary judge specifically noted in her reasons the findings of Walters J that the husband had failed to give full and frank disclosure of his financial position, and was less than forthcoming about his true financial position. Regardless of specific examples to which the wife might point, it cannot be said that the primary judge failed to take into account the critical observations of Walters J about the husband’s conduct of the financial proceedings, attitude to his duty of disclosure, and truthfulness. In any event, those matters are of peripheral relevance only to the proceedings presently under consideration, given the fundamental flaws at the heart of the wife’s appeal.
Similarly, the fact that the primary judge noted that Walters J regarded Mr S as an impressive witness does not (as the wife argues) mean that her Honour took into account an irrelevant consideration.
Her Honour did not, as the wife asserts, fail to take into account the “details of evidence [the wife had] uncovered”. Rather, her Honour correctly concluded that the factual matters raised by the wife did not support the legal conclusion that the wife drew as to the husband’s partnership interest following the death of Mrs S, or the inferences for which the wife contended as to the husband acquiring unspecified equitable interests upon that death.
The wife asserted that the primary judge “failed to take into account that the assets and liabilities schedule which was not disclosed should have valued the partnership prior to the Judgement [of Walters J]”. Again, that argument is based on the wife’s incorrect understanding of the legal effect of the death of Mrs S on the husband’s interest in P3.
Otherwise, the wife’s various assertions to the effect that the primary judge failed to take into account relevant matters involved nothing more than repetition or paraphrasing of other complaints already referred to in these reasons.
There is no merit to any of the grounds of appeal which assert a failure on the part of the primary judge to take into account relevant matters.
Other complaints
There are a number of other matters raised by the wife as grounds of appeal which do not readily lend themselves to characterisation, other than as generalised complaints about what she perceives to be a level of injustice in the various proceedings in which she has been involved. None of those generalised complaints raise any matter which could properly be construed to give rise to appealable error. We do not propose to set them out in detail nor deal with them individually.
Conclusion
There is no merit to any of the grounds raised by the wife in support of her appeal against the order summarily dismissing her primary application.
Costs
At the conclusion of the hearing before us, counsel for the husband confirmed that in the event that the appeals were dismissed, costs were sought. An amount of $9,579.31 was sought in respect of the summary dismissal appeal, and the sum of $8,246.48 was sought in respect of the costs appeal. Both amounts were calculated at scale on a party/party basis.
The wife has been wholly unsuccessful in both appeals. Her conduct of them has been such as to increase the costs incurred by the husband in responding.
Counsel for the husband properly acknowledged that the husband’s financial circumstances are superior to those of the wife, which the husband accepted were “fairly grim” (Transcript 15 October 2019, p.123 line 43).
The wife opposed any application for costs, primarily based on her financial circumstances. She said that she does not own a home, but lives with her husband in a home owned by him. She has nominal savings, and owns a modest motor vehicle and chattels. She has some superannuation; we are prepared to accept for present purposes that it is unlikely that her entitlements in that regard have increased much, if at all, from the $32,620 found by Walters J to be their value at the time of trial.
While we do not ignore either the modest nature of the wife’s financial circumstances, or the superiority of the husband’s financial circumstances, impecuniosity is not of itself a barrier to an order for costs where there are circumstances that justify an order being made: Lenova and Lenova (Costs) [2011] FamCAFC 141 at [12].
In the circumstances already described, we consider that an order for costs is justified in respect of each of the appeals. The amounts sought by the husband are reasonable, and the wife will be ordered to pay the husband’s costs in the amounts claimed.
I certify that the preceding one hundred and thirty one (131) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ryan & O’Brien JJ) delivered on 13 March 2020.
Associate:
Date: 13 March 2020
2
7
3