Steadman and Randall

[2011] FamCAFC 52

FAMILY COURT OF AUSTRALIA

STEADMAN & RANDALL [2011] FamCAFC 52

FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – late service of the respondent’s summary of argument – adjournment granted – question of the appellant’s costs thrown away reserved.

APPELLANT: Mr Steadman

RESPONDENT: Ms Randall

FILE NUMBER: ADC 4138 of 2009

APPEAL NUMBER: SA 73 of 2010

DATE DELIVERED: 24 February 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 24 February 2011

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 30 August 2010

LOWER COURT MNC: N/A

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Pyke QC

SOLICITOR FOR THE APPELLANT: Martin Robinson Solicitors

COUNSEL FOR THE RESPONDENT: Mr Heywood-Smith QC with Mr McGinn

SOLICITOR FOR THE RESPONDENT: Diane Myers

Orders

1. The Amended Notice of Appeal filed on 14 December 2010 be adjourned for hearing to 2:15pm on Monday 7 March 2011.

2. The question of the appellant’s costs thrown away today be reserved to the adjourned hearing.

3. Leave be given to the respondent to file an amended summary of argument and list of authorities within 24 hours.

IT IS NOTED that publication of this judgment under the pseudonym Steadman & Randall is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 73 of 2010
File Number: ADC 4138 of 2009

Mr Steadman

Appellant

And

Ms Randall

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an appeal against orders made by Federal Magistrate Kelly on 30 August 2010.  The Notice of Appeal was lodged on 27 September 2010 and an Amended Notice of Appeal was filed on 14 December 2010.  The matter first came before me on 23 November 2010 when both parties were represented and I was informed by both counsel that an adjournment was sought because there was the prospect of resolution and the parties needed time to consider their respective positions, and also there was a need to amend the Notice of Appeal.  The matter was then adjourned to 16 December 2010, as I say, at the request of both parties.

2. On 16 December 2010, Ms Pyke QC appeared for the appellant.  There was no appearance on behalf of the respondent.  I was informed, as I recall, by Ms Pyke that the matter had not resolved and thus it should be listed for hearing, and I proceeded to address that issue.  I made orders both listing the matter for hearing and also setting up a regime for the filing of documents and, importantly, making an order that the appeal be heard at the same time as the application for leave to appeal in the event that leave is granted.

3. That was necessary because the appeal is against an interlocutory order and leave is required, but in the interests of saving time and hopefully expense to the parties, it is a practice of this Court to make that sort of order, namely, to hear both matters on the same day. 

4. In any event, the matter has been called on this morning and Ms Pyke, for the husband, has initially raised the question of whether I should receive the wife’s summary of argument, but in the event that I did, she foreshadowed an application to adjourn.  Without going into the detail, it was agreed by both counsel, to use my phrase, “to concertina” those issues, and I have heard submissions from both counsel in relation to both the acceptance of the wife’s submissions and the adjournment of the appeal.

5. What happened, and there is no dispute about this as I understand it, is that the wife’s summary of argument was due to be filed and served on 16 February 2011.  It appears that it was filed on 17 February 2011.  No issue was taken about that, but it was not served until yesterday, by facsimile, and it is that circumstance which Ms Pyke has raised in support of her application.  Ms Pyke has said a number of things but, in summary, Ms Pyke is saying that because of the late receipt of that summary of argument and list of authorities, her client is prejudiced because she, as counsel, has not had sufficient time to consider that outline and the list of authorities relied upon and fully prepare the matter for today.

6. Again, at the risk of leaving out anything that Mr Heywood-Smith has said in response, my summary of his position is that this matter needs to be heard.  The substantive property settlement dispute has been put on hold pending the finalisation of this issue of discovery and obviously the appeal in relation to it.  I note, and Ms Pyke has informed me of this, there was a joint request by the parties to the Federal Magistrate to not further list the substantive matter until the appeal had been disposed of. 

7. In any event, Mr Heywood-Smith also puts to me that it should not be a difficult task given the content of the outline of argument and the list of authorities, for the matter to be fully argued today.  If, though, there was a need for the appellant to put any further submissions, then that could be dealt with by, for example, having written submissions provided later.

8. Mr Heywood-Smith says that there is nothing in the outline of argument which should catch the appellant or his legal representatives by surprise.  He has also taken me to the list of authorities and pointed out the specific authorities relied upon.  He says that the majority of the authorities really stand for general principle which should again be no surprise to the other side.

9. It seems to me that the important issue is that the summary of argument was not received by the appellant’s counsel until yesterday.  I accept at face value what Ms Pyke puts to me in terms of her inability to digest those submissions and the authorities and then properly prepare the matter for today.  It seems that the parties have taken a step back with the substantive matter and, as I say, have requested the Federal Magistrate not to list that until the appeal is disposed of.  Obviously, an adjournment will cause a delay to that outcome, but I note, of course, the parties themselves also agreed to an initial delay in this appeal being heard, namely, from November to December.

10. Thus I do not accept that there is any necessary element of urgency which requires this matter to be heard and determined today, but the important issues for me are the interests of justice and to avoid causing prejudice to either party.  Ms Pyke makes the valid point that the purpose of setting up the regime as I did is to give to the appellant time to consider any response and although I might have some preliminary views about this matter, having read obviously all the documents and the arguments now filed, and although Mr Heywood-Smith might from his point of view suggest that the matter is relatively straightforward, that still does not overcome the need to ensure that the appellant is not prejudiced by the fact of the failure of the respondent to comply with the orders. 

11. Thus although I would be keen to resolve this matter today, and I accept that both counsel would as well, and obviously the parties would, I propose to adjourn the matter.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 24 February 2011.

Associate: 

Date:  10 March 2011