STRAHAN & STRAHAN
[2018] FamCAFC 156
•10 August 2018
FAMILY COURT OF AUSTRALIA
| STRAHAN & STRAHAN | [2018] FamCAFC 156 |
| FAMILY LAW – APPLICATION IN AN APPEAL – DISMISSAL – Where the husband sought that the wife’s appeals be dismissed for the failure to file summaries of argument in relation to her three appeals – r 22.45 of the Family Law Rules 2004 (Cth) considered – Application dismissed. |
| Family Law Act 1975 (Cth) s 97(3) Court Procedure Rules 2006 (ACT) r 21(2)(b) |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27; [2013] VSCA 158 Strahan & Strahan (No 4) [2017] FamCA 949 |
| APPLICANT: | Mr Strahan |
| RESPONDENT: | Ms Strahan |
| FILE NUMBER: | ADF | 228 | of | 2005 |
| FIRST APPEAL NUMBER: | SOA | 90 | of | 2017 |
| SECOND APPEAL NUMBER: | SOA | 100 | of | 2017 |
| THIRD APPEAL NUMBER: | SOA | 19 | of | 2018 |
| DATE DELIVERED: | 10 August 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Murphy, Kent & O’Brien JJ |
| HEARING DATE: | 18 June 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 November 2017; 23 November 2017; 22 February 2018 |
| LOWER COURT MNC: | [2017] FamCA 948; [2017] FamCA 949; [2018] FamCA 84 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Geddes QC with Mr Wilson |
| SOLICITOR FOR THE APPLICANT: | Kennedy Partners |
| COUNSEL FOR THE RESPONDENT: | Mr Hooper SC |
| SOLICITOR FOR THE RESPONDENT: | McInnes Wilson |
Orders
The husband’s application filed 17 May 2018 in SOA 90 of 2017 be dismissed.
The husband’s application filed 30 May 2018 in SOA 100 of 2017 be dismissed.
The husband’s application filed 30 May 2018 in SOA 19 of 2018 be dismissed.
Leave to file and read amended grounds of appeal for the purposes of the application to dismiss the appeals is refused.
Leave is granted to the wife to file and rely upon her amended Summary of Argument restricted to arguments responding to the application to dismiss the appeals.
Leave is granted to the husband to rely upon his written Summary of Argument.
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 Strahan & Strahan 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 ADELAIDE |
Appeal Number: SOA 90 of 2017; SOA 100 of 2017; SOA 19 of 2018
File Number: ADF 228 of 2005
| Mr Strahan |
Applicant
And
| Ms Strahan |
Respondent
REASONS FOR JUDGMENT
On 13 November 2017, Cronin J refused the wife’s application to adjourn the trial of property proceedings due to start that day. Ex tempore reasons were delivered that day. The wife appeals that order (SOA 90 of 2017 – “the adjournment appeal”).
His Honour immediately thereafter heard the trial. Senior Counsel was briefed by the wife to argue the adjournment application but not the trial. In arguing the adjournment application, “[Senior Counsel] said, no doubt on instructions, that if the wife’s position was rejected by the court, the proceeding would go ahead as an undefended case”.[1] That is what occurred, and on 23 November 2017, his Honour made orders and delivered reasons.
[1] [2017] FamCA 949 at [15].
Those orders include an order that “the husband have leave to proceed in the absence of the wife” and thereafter provide for a settlement of property which, relevantly for present purposes, includes an order that the wife be paid $1.7 million and have transferred to her, five unencumbered real properties by 4.00 pm on 31 January 2018. The wife was to transfer or abandon interests or entitlements in three named companies and two trusts and withdraw caveats over real property in Australia and overseas.
The wife appeals those orders (SOA 100 of 2017 – “the substantive appeal”). On 22 February 2018, his Honour refused the wife’s application to stay the property orders. The wife also appeals that order (SOA 19 of 2018 – “the stay appeal”).
The husband applies to dismiss all three remaining appeals, relying on the power contained within r 22.45(2) of the Family Law Rules 2004 (Cth) (“the Rules”).
A Registrar made various orders necessary to ready the appeals for hearing. The wife complied with those orders save that she failed to file her Summary of Argument and List of Authorities in respect of each appeal. Those summaries were due on 10 May 2018 (SOA 90 of 2017); 24 May 2018 (SOA 100 of 2017) and 25 May 2018 (SOA 19 of 2018). The respective appeals not having been deemed abandoned, the failure by the wife to comply with the Registrar’s orders satisfies r 22.45(1)(b).[2] As a consequence, a discretion is enlivened by which this Court might dismiss the wife’s appeals or impose a ‘guillotine order’.[3]
[2] The husband contends in addition that the wife has not “shown reasonable diligence in proceeding with [the] appeal[s]” (r 22.45(1)(b)(iii)).
[3] Respectively, r 22.45(2)(a)(i) and (ii).
At the hearing of the husband’s application before this Court, the wife sought leave to file and read an Amended Notice of Appeal addressed solely to the substantive appeal. The purpose, within the context of the hearing of the dismissal application, was to demonstrate ostensible merit in the appeal. A copy had not been served (formally or informally) upon the husband or his legal advisors prior to the commencement of the hearing.
In a similar vein, leave was sought to file and rely upon an Amended Summary of Argument (and List of Authorities) in respect of all three appeals. The unamended document had purportedly been made available to the Court late on Friday afternoon ahead of the commencement of the appeal on Monday. The amended document added appeal book and transcript references and some minor amendments to the original. As with the Amended Notice of Appeal, neither document had been provided to the husband or his legal advisors ahead of the hearing.
The Court refused leave to file the Amended Notice of Appeal for the purposes of arguing the dismissal application. In short, we were entirely dissatisfied with the wife’s explanation for why she had not earlier instructed legal practitioners to undertake that task ahead of its attempted filing, or indeed, why she had not undertaken that task herself (even if its content might have suffered from an inelegance or lack of precision arising from her lack of legal training).
The wife’s Summary of Argument referred to the amended grounds. However, leave was given to rely upon it on the basis that its receipt was confined to arguments relevant to the husband’s dismissal application and not otherwise based on the amended grounds. Senior Counsel did not oppose leave in that truncated form.
The pre-emptory dismissal of the wife’s appeals must be seen as a significant step which denies the wife’s ostensible right to pursue appeals regularly filed, and her right to be heard in respect of them. A consequence is that significant caution should attend such a decision.[4]
[4] See, eg, Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27 at [35] (Warren CJ; Nettle JA).
The argument for dismissal gains its strength from an asserted lack of merit on the grounds as currently drafted and what is contended to be a pattern of recalcitrance on the part of the wife which, it is said, should be seen in the context of protracted proceedings over 13 years and the expenditure of more than $35 million dollars in legal fees by the parties between them.
Specifically, Senior Counsel for the husband relies upon what was said by Senior Counsel for the wife at the hearing of her application for a stay as follows:[5]
(a)“... I am instructed that my client undertakes to prosecute the appeal with diligence and expedition”; and
(b) “And so it is my submission that this is a proper case for the grant of a stay albeit it on terms that my client undertake to prosecute the appeal with diligence and expedition”; and
(c) “... your Honour, we will be doing all that we can, consistently with the undertaking I was instructed to provide, to prosecute this with expedition”.
(As per original) (Footnotes omitted)
[5] Husband’s Summary of Argument at [6]; footnotes citing transcript references omitted.
On 4 June 2018, nearly two weeks after the last of the dates upon which the summaries were due and nearly a month after the first of the summaries was due and, notably, after the husband had filed his application for dismissal, the solicitors for the husband received correspondence from the wife’s solicitors indicating that the wife had not prepared material “because she has difficulty managing her health issues and those of [the parties’ child]. Those health issues are well known to [the husband]”.[6]
[6] Husband’s Summary of Argument at [7] quoting a letter received by them.
It is contended, correctly, that the relevant task is one that falls to her lawyers. Further, no evidence or contention suggests that either of those difficulties precluded, or even indeed made more difficult, the provision of instructions.
Binding authority posits an application of the instant kind being considered both within the broader factual circumstances in which the decision is made and also the statutory and regulatory context within which it is made.[7]
[7] See, eg, Jackamarra v Krakouer (1998) 195 CLR 516 at 528; Sali v SPC Ltd (1993) 116 ALR 625 at 629 (Brennan, Deane and McHugh JJ); Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [98].
Here, the factual context includes the uncontroversial facts that the parties have been litigating for 13 years and have spent between them more than $35 million in legal fees. In Aon Risk Services Australia Ltd v Australian National University (“Aon Risk”) the plurality in the High Court said:[8]
Rule 21(2)(b) indicates that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants. In Sali v SPC Ltd Toohey and Gaudron JJ explained that case management reflected: “[t]he view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court’s lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard…”
(Footnotes omitted)
[8] (2009) 239 CLR 175 at 211 [93] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
There are direct similarities between r 21(2)(b) of the Court Procedure Rules 2006 (ACT) there referred to and relevant provisions of the Rules. Rules 1.04 and 1.08 pertain. Further, s 97(3) of the Family Law Act 1975 (Cth) (“the Act”) mandates that the Court “shall endeavour to ensure that the proceedings are not protracted”.
Yet, authority also demands that the power to dismiss peremptorily should not be exercised slavishly. In Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd it was held:[9]
…at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.
[9] (2013) 42 VR 27 at [35(d)] (Warren CJ and Nettle JA).
The plurality in the High Court said in Aon Risk:
98.Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a “just resolution” is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
…
102.The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court’s discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.
In summary, what is required is the balancing of competing considerations, some specific to the parties and the potential prejudice which applies to each of them, and other broader considerations relating to the administration of justice and the public’s perception of the Court’s processes. In that respect, it is a mistake to assume that a consideration of the interests of justice focuses attention only on the respondent to any such application.
Here, the Court has been provided with the amended grounds and the Amended Summary of Argument and List of Authorities intended to be relied upon in the appeal. Thus, the wife’s conduct, as distinct from her promises as to future conduct, confine her arguments on the appeal.
To that end we made the following relevant orders at the conclusion of the proceedings on 18 June 2018:
2. In the event that the husband’s applications are dismissed:
a)Leave be given to the wife to file and rely upon the amended Notice of Appeal in appeal numbers SOA90 of 2017 and SOA100 of 2017 marked as Exhibit “B” in the hearing;
b)The amended Summary of Argument of the wife in respect of the amended grounds of appeal be confined to the document marked as Exhibit “A” in the hearing;
c)The husband file a response to the wife’s amended Summary of Argument within twenty-one (21) days of the order for dismissal being made…
The husband accordingly does not, upon dismissal of his application, face the risk of being called upon to respond to a still undefined case, nor does he face the risk of the wife seeking still further indulgences to come. The orders already made define the parameters of the appeals if they be permitted to proceed.
Similarly, to the extent it might be perceived that a dismissal of his application would expose the husband to still further prejudice in the form of delay, that prospect is readily overcome by expedition of the hearing of the substantive appeals.
Counsel for the wife conceded that he could not advance any arguments which would deny the husband receiving his costs of and incidental to this application and we ordered accordingly on 18 June 2018. The wife also clearly has the means to pay any costs that might be awarded consequent upon hearing the appeals.
It is clear that a significant component of the arguments by the husband on this application relating to the time and costs of proceedings and asserted recalcitrance on the part of the wife in readying herself for trial, overlap with arguments that will be sought to be advanced in defending the appeals. The Court can accommodate the hearing of the appeals within a very short time.
On balance we consider that the interests of justice fall on the side of dismissing the husband’s application to dismiss the appeal and we propose to so order.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Murphy, Kent & O’Brien JJ) delivered on 10 August 2018.
Associate:
Date: 10 August 2018
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