Tarelli & Langley (No 4)
[2024] FedCFamC1F 416
•14 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tarelli & Langley (No 4) [2024] FedCFamC1F 416
File number(s): PAC 4311 of 2014 Judgment of: BERMAN J Date of judgment: 14 June 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to reopen – Where judgment is reserved – Consideration of the proper administration of justice – Where the Application is bound to fail – Where the Application has no reasonable prospect of success – Application dismissed. Legislation: Family Law Act 1975 (Cth) s 45A Cases cited: Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471
Watson v Metropolitan(Perth) Passenger Transport Trust (1965) WAR 88
Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 14 June 2024 Place: Adelaide via MS Teams Counsel for the Applicant: Mr Shaw Solicitor for the Applicant: F W Ewart & Ewart Counsel for the Respondent: Litigant in person ORDERS
PAC 4311 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: Mr TARELLI
Applicant
AND: MS LANGLEY
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
14 JUNE 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding sealed 13 June 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Berman J
INTRODUCTION
Mr Tarelli (“the applicant”) and Ms Langley (“the respondent”) have been engaged in litigation for about ten years. A final hearing took place on 18 May 2023 and judgment was delivered and orders relevant to today's hearing, orders were made in respect of property settlement and division.
By Application in a Proceeding filed on 23 January 2024, the applicant sought amendments to the final orders via the “slip rule”. There is no proper explanation for the delay in respect of the period between 18 May 2023 and the filing of the Application in a Proceeding save and except that the respondent initially appealed the final orders to the Full Court by Notice of Appeal on 15 June 2023. Judgment was delivered by the Full Court on 27 November 2023. The respondent was unsuccessful in her appeal and then made an application for Special Leave to the High Court on 2 January 2024 which was also unsuccessful.
The extant proceedings were then listed for argument on 27 February 2024. Orders were made on 28 February 2024 in the absence of the respondent. Further interim proceedings were then considered and, ultimately, all applications were heard on 31 May 2023. Judgment was reserved. The parties were advised that judgment was to be delivered today being 14 June 2024.
An Application in a Proceeding was then filed by the respondent on 5 June but sealed by the Court on 13 June 2024. The orders sought in the Application are as follows:
2.The application in a proceeding filed by the applicant on 13 March 2024, application in a proceeding filed by the respondent on 3 May 2024 (as amended on 9 May 2024) and application in a proceeding filed by the applicant on 26 May 2024 be reopened.
3.Pursuant to section 117(2A)(f) and for the purpose of section 117B(2), the court consider the applicant's offer of settlement dated 21 January 2015, 16 July 2021 and 23 March 2023.
It is notable that those three offers of settlement were all made significantly prior to the orders being made on 18 May 2023. The Application in a Proceeding was supported by an affidavit of short compass. It annexes the offers of settlement but it does not provide any explanation as to the relevance of those offers, save and except that at [6], the respondent considers that if the offer made in 2021 had been accepted, it would have eliminated the necessity of the trial, the appeal and presumably, the application for Special Leave. At [7] the respondent asserts that had any of the three offers been accepted, the current applications would not have been necessitated and therefore, no question of costs nor interest would arise.
In respect of [8], it is asserted that if the applicant had availed himself of the offer or, indeed, proposed another counter-offer resulting in the Suburb C property being transferred to the respondent, then there would not have been council rates or other charges that have levied on the property whilst in his name.
The orders sought by the respondent are problematic. The Application seeks to reopen proceedings that have already been heard but, subject to delivery of judgment today, not yet determined. In the decision of Watson v Metropolitan(Perth) Passenger Transport Trust (1965) WAR 88 (“Watson v Metropolitan Passenger Transport Trust”), the Court considered an Application to reopen where the case was closed but judgment had not been delivered. It was held that fresh evidence should be admitted only:
(a)When it was so material that the interest of justice required it;
(b)The evidence, if believed, would most probably effect the result;
(c)The evidence could not, by reasonable diligence, have been discovered before; and
(d)No prejudice would ensue to the other litigant because of the lateness of the evidence.
There are numerous authorities in support of consideration raised in Watson v Metropolitan Passenger Transport Trust (supra), in particular the decision of Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471. The overarching principle is the proper administration of justice in determining whether it is appropriate to introduce or to allow the introduction of further evidence. I appreciate the respondent's concession that the matter could have been dealt with in chambers, however, given the matter was listed for delivery of judgment, it was an important precursor to deal with the Application in a Proceeding.
I consider that there is prejudice caused to the applicant by the lateness of the evidence sought to be produced. There is no doubt that the relevant offers were known to the respondent and could have been presented at any stage, in particular on the last court occasion when the question of costs was the subject of detailed consideration. The prejudice caused is that the proceedings have a never-ending quality. The applicant is entitled to the fruits of the litigation. The proceedings by the applicant have been in an attempt to resolve the matter and to seek orders that properly reflect the consequences of the respondent’s inability or reluctance to settle the matter.
The inevitable consequence is that the original settlement sum is now expanded by a further sum relating to the property rates and charges levied against the applicant and costs incurred. The respondent had the option, immediately following the presentation of the initial judgment to settle the matter and pay the settlement sum however, she did not. That is not to suggest that she has not got a right to appeal and to pursue all proper avenues but if the explanation for delay is as a result of those proceedings, any adverse consequences are a matter for her.
In any event, I consider the offers have no relevance or consequence to the current proceedings.
All of the offers were filed, presented or exchanged prior to 18 May 2023. It is incorrect to say that if any of those offers had been accepted, then there would have been no need for the proceedings to have run at all. The orders made in favour of a settlement sum to the applicant exceeded the terms of the offers. Moreover, the offers included parenting issues. That component of the offers was redacted by the respondent. I do not consider that the interests of justice are appropriately served by giving leave to the respondent to reopen the proceedings and adduce further evidence.
I also have regard to s 45A of the Family Law Act 1975 (Cth). Section 45A(3) does not require a consideration of whether the Application is hopeless or bound to fail. I consider that the Application is bound to fail but in any event has no reasonable prospect of success.
I make the order as it appears at the commencement of these reasons.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 24 June 2024
0