Tate v Tate
[2000] FamCA 1040
•5 September 2000
[2000] FamCA 1040
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal No SA73 of 1999
AT ADELAIDE File No AD4316 of 1993
BETWEEN:
JOHN RICHARD DONALD TATE
Appellant Husband
- and -
MARIE THERESE TATE
Respondent Wife
REASONS FOR JUDGMENT OF THE FULL COURT
CORAM: NICHOLSON CJ, KAY & WADDY JJ
DATE OF HEARING: 28 March 2000
DATE OF JUDGMENT: 05 September 2000
APPEARANCES: Ms M Pyke of Counsel, instructed by Camatta Lempens Pty Ltd, Solicitors, 1st Floor, 345 King William Street, Adelaide, SA 5000, appeared on behalf of the Appellant Husband.
Mr A Jordan of Counsel, appeared on behalf of the Respondent Wife (21 Baudin Avenue, Fairview Park SA 5126/cc to Mr David Peacock, Solicitor, Level 2, 55 Gawler Place, Adelaide, SA 5000).
TATE and TATE
SA 73 of 1999
Coram: Nicholson CJ, Kay & Waddy JJ
Date of hearing: 28 March 2000
Date of judgment: 5 September 2000
PRACTICE AND PROCEDURE - HEARING - NATURAL JUSTICE- Discovery - Duty of full and frank disclosure - Compliance - Husband had a four year history of failing to properly comply with procedural orders - Trial Judge struck out the husband’s form 7A and made orders providing for undefended hearing - Husband appeared and sought to cross-examine the wife and reinstate his form 7A application- Trial Judge refused on basis that wife would suffer substantial prejudice- Husband asserts his right to cross-examine - Order 20 Family Law Rules - Order 32 High Court Rules - Order 16 Federal Court Rules - Order 24 English Supreme Court Rules.
Prior to their marriage in 1983, the parties purchased a house in joint names. There were two children born of the marriage who resided with the wife at all times. The parties finally separated in December 1994 and a decree nisi was granted in April 1996.
In November 1995, the wife filed a Form 7 seeking orders for property settlement and spousal maintenance. She also sought, by way of an interim order, that the husband disclose a number of documents in relation to his business. The husband filed a Form 7A response seeking orders in relation to property settlement.
Over the next 4 years there were constant attempts made to have the husband comply with orders for inspection and valuation. He either failed to fully comply with those orders or was chronically late in complying.
Although Dawe J determined to specially case manage the matter in February 1999, the history of non-compliance worsened. On 22 June 1999, the 25th time the matter had been before the Court, the husband admitted that he had prevented the wife from inspecting the documents at his solicitor’s offices by placing a condition upon such inspection. He indicated that he had incomplete information regarding his business dealings and could not identify when the material could be completed. Dawe J made orders striking out his Form 7A and providing for an undefended hearing, which orders were not appealed.
The husband subsequently filed Form 8 applications to reinstate his Form 7A application. The first was dismissed on 25 August 1999. There had been no further compliance.
The substantive matter came on for undefended hearing on 20 September 1999. and by coincidence, Dawe J was the trial Judge. A further Form 8 of the husband seeking reinstatement his Form 7A was also before her Honour and the husband was present in court.
Dawe J dismissed the Form 8 in circumstances where the husband's supporting affidavit claimed he had completed and made available all relevant documents for discovery, but when the wife had attended for inspection of the documents, they were not in fact available. The husband had offered the wife an adjournment. She refused, asserting that in light of the long history of his non-compliance, it would be unjust to herself and the children to prolong the matter further and sought that the matter proceed to trial forthwith.
The hearing then proceeded as undefended matter. The husband interrupted a number of times, asking if he had the right to cross-examine whereupon he was informed by the trial Judge that he did not. Her Honour gave judgment in the substantive matter on 18 November 1999.
The matters which proceeded before the Full Court were, in effect:
the husband's application for leave to appeal against the trial Judge’s orders of 20 September 1999 on the basis of her Honour's refusal to reinstate his Form 7A at the commencement of the hearing: State of Queensland v. J L. Holdings (1997) 189 CLR 146; Johnson v. Johnson (1997) FLC 92-764 referred to; and
the husband's application for leave to appeal out of time the orders of 18 November 1999 based on a challenge to her Honour’s refusal to allow cross-examination (on the limited basis that " refusal to permit the husband to participate in the trial and cross-examine witnesses was a denial of natural justice". The husband contended inter alia that as he was present at the hearing, he should have been permitted to test the wife’s evidence to at least ensure that her assertions did not go unchallenged: State of Queensland v. J L. Holdings (1997) 189 CLR 146; Johnson v. Johnson (1997) FLC 92-764; Lansleigh v. Lansleigh (1994) FLC 92-491 referred to.
Held (per curiam): refusing the application for leave to appeal against the trial Judge’s orders of 20 September 1999 and granting the application for leave to appeal out of time the orders of 18 November 1999 but dismissing the appeal with costs:
Reinstatement of the Form 7A
The trial Judge, having decided to entertain the husband’s Form 8 application for reinstatement of his Form 7A, brought her discretion to bear upon the issues she was asked to determine. Her discretion did not miscarry having regard to the unsatisfactory history of the proceedings and matters of prejudice that would follow from delay: Brambles Holdings Ltd v. Trade Practices Commission (1983) 47 ALR 69; Oriolo v. Oriolo (1985) FLC 91-653; referred to; Triolacan Ltd v. Medway Car Drives Ltd (1991) The Times October 21 CA distinguished.
The Right to Cross-Examine
It was open to the trial Judge to rule that the husband had no right to cross-examine and in the exercise of her discretion to refuse his application to do so: Australian Securities Commission v McLeod & Ors (1994) 130 ALR 717 distinguished.
The Family Court is all too frequently confronted with litigants who fail in their duties of full, frank and prompt disclosure of their financial affairs. Where such failure results in a Form 7A being struck out then that party ought have no further right to be heard without further order of the Court which is a matter for the judge in his or her discretion. The aphorism “Justice delayed is Justice denied” is all too frequently manifestly true in this jurisdiction. In doing justice to both parties, the exclusion of a defaulter, whose defaults threaten the achievement of Justice, is not only an option, but, in such circumstances, becomes a regrettable necessity.
This was indeed an “exceptional” case. The forfeiture of the right to cross-examine or indeed to make submissions, flowed from the earlier order. There was neither error of law nor miscarriage of her Honour’s discretion. Where non-compliance with the orders and directions of the Court will, in the opinion of the trial Judge, defeat the attainment of justice, then suitable remedies must be found. In this instance the remedy necessarily excluded the husband from any further participation in the proceedings.
Whilst such cases are “exceptional”, and indeed unusual, no litigant, whether legally represented or not, should harbour any doubt that manipulation of the Court's processes, through disregard of and deliberate non-compliance with its orders and directions will attract other than the strongest measures from the Court.
Case Management
In attempting to match the limited resources of the Court to the demands of increasing lists, the principles of case management are assuming greater prominence. Never an end in themselves, they are and must always remain subject to and never prevail over the attainment of justice as “the paramount consideration”: State of Queensland v J.L. Holdings referred to. But justice in matters such as this is due to each party to litigation: Allesch v Maunz [2000] HCA 40 referred to.
To eliminate or at least greatly reduce unacceptable delays, within the resources available, is a constant goal of the Court. In achieving such reduction as may be possible, the co-operation of all litigants, legally represented or appearing in person, is essential. Thus it is fundamental that case management directions and orders of the court in preparation for trial (or settlement) must be respected and obeyed.
REPORTABLE
INTRODUCTION
This is an application for leave to appeal against orders made by Dawe J on 20 September 1999 whereby her Honour
· dismissed the husband's application to reinstate his Form 7A Response in relation to property settlement proceedings; and,
· in the undefended hearing which directly followed, refused to allow the husband to cross-examine the wife upon her evidence.
The proposed appeal sought to be brought was on two grounds:
"1.That in all the circumstances it was just and equitable that the husband's Form 7A Reponse be reinstated.
2.The husband was denied natural justice and procedural fairness by Her Honour's refusal to allow him to test the wife's evidence by cross-examination."
Before ground 1 could be argued, leave was necessary. Miss Pike for the appellant husband relied upon the affidavit of the husband affirmed on 20 October 1999. Relevant paragraphs of the affidavit were:
“6.Her Honour Justice Dawe on the 20th September 1999 declined to allow the reinstatement of my Form 7A Response on the basis that I had been too late in making full discovery.
7.The trial of the wife’s application for property settlement was set for hearing on the 20th September 1999 and I acknowledge that there had been considerable delays on my part beforehand.
8.At the commencement of the hearing of the trial I sought to cross-examine the wife in relation to the evidence that she gave to the court.
9.Her Honour Justice Dawe refused me leave to cross-examine or to make any submissions in relation to the hearing of the matter…
13.I say that leave to appeal should be granted as I have been denied the right to test the wife’s evidence in court.
14.I say that in all the circumstances it is just and equitable that I be allowed to properly present my case to the court and that although I acknowledge there were delays on my part I say there was no prejudice to the wife given that she was living in the former matrimonial home and if there was any prejudice it could be remedied by an appropriate order for costs in the matter.
15.Further, I say that prior to trial I have complied with all outstanding orders for discovery to the best of my capacity.”
Ground 2 however, was essentially an attack on her Honour’s judgment and orders of 18 November 1999 which followed the undefended hearing of the principal matter. Miss Pike readily acknowledged at the outset that her client had not at that stage appealed against that judgment. On further consideration she sought leave to appeal out of time against the orders of 18 November 1999.
On the husband’s undertaking to pay the appropriate filing fee within seven days the Court granted the husband leave to appeal out of time against her Honour's orders made on 18 November 1999, “such appeal to be confined to the sole ground that Her Honour’s refusal to permit the husband to participate in the trial and cross-examine witnesses was a denial of natural justice”. The appeal was duly lodged during the course of the day.
Dawe J had case managed the matter, had refused to reinstate the husband’s Form 7A, had directed that the hearing proceed undefended and had heard the undefended matter, (and therein denied the right of the husband to cross-examine). She is hereinafter referred to as “the trial Judge” for convenience.
The two matters complained of in the grounds of appeal cannot be fully understood without the (rather lengthy) background of the trial Judge’s earlier orders.
In the short ex tempore reasons refusing re-instatement of the Form 7A given on 20 September 1999, her Honour referred to the matter as “unusual”. She expressly referred to her reasons for judgment both of 28 July 1999 (previously striking out the husband’s Form 7A) and of 28 August 1999 (when dismissing a subsequent application to reinstate that form). She characterised the matter as one where there had been “continual delay; most of it due to the non-compliance of the husband”, referred to the vacation of earlier dates for trial, due to its “state of unreadiness”, and to having specially managed the matter from February 1999.
BACKGROUND
The parties married on 23 April 1983 but had, prior to marriage, purchased a house in joint names. The two children of the marriage, born 4 June 1985 and 9 March 1988 respectively, have resided with the wife all their lives. After two periods of separation, one of eight months and the other of three or four, the parties finally separated in December 1994.
On 2 November 1995 the wife filed her Form 7. Thereby she sought orders including the property settlement (the subject of her Honour’s orders made 18 November 1999 – some four years later). Some of the reasons for the gross delay in disposing of what her Honour characterised as “a simple, straightforward property settlement matter involving a limited number of assets of modest value”, appear hereafter.
On the application of the husband, a Decree Nisi of Dissolution of Marriage was granted on 4 April 1996 which became absolute on 5 May 1996.
The trial Judge described the parties thus:
“Both the husband and wife are intelligent, articulate, capable of presenting their case and understanding the processes of the Court. The wife’s occupation is given as a Property Manager. The husband is an Accountant.”
As will be seen, through many of their court appearances they represented themselves. A central theme of the pre-trial appearances concerned many requests by the wife for discovery and consequential orders. There were repeated instances of non-compliance, partial compliance and late compliance by the husband.
HISTORY OF PRE-TRIAL EVENTS
By her application filed on 2 November 1995 (Form 7), the wife sought certain orders by way of property settlement and spouse maintenance. Sub-paragraph 5 of her application sought, by way of an interim order;
“That the husband do make discovery on oath including but not limited to all documents relating to Greetland Investments Pty Ltd to the extent that any of the documents of this company are or have been in the husband’s possession, custody or power even though he holds them as a servant, agent or in his capacity as an officer of that company”.
Over the next 4 years there were constant attempts made to have the husband comply with orders for inspection and valuation. He either failed to fully comply with those orders or was chronically late in so doing.
In this case there was an admission that there had not been compliance with the specific orders of the court and a fortiori with the underlying duty of full and frank disclosure. That this duty was a continuing one did not absolve the husband from prompt and early compliance.
The first request for discovery was made on 2 November 1995.
Specific orders were made concerning discovery on 13 March 1996 and further requests by the wife on 7 November 1996 and 2 October 1997.
Further orders for discovery were made on 3 September 1998 and inspection provided for on or before 25 September 1998.
On 9 December 1998 the time to file the husband’s documents was extended to 11 December 1998 and on 14 December the husband filed an affidavit of documents.
On 12 January 1999 the husband filed an Amended affidavit of documents.
On 14 January 1999 orders were made that the husband file and serve a number of listed documents. None were filed by 20 January.
On 29 January and on 2 February two further affidavits of documents were filed.
This was the history of non-compliance up until the time that the trial Judge decided to case manage the matter, removed it from the February 1999 trial list (its second aborted date for trial) and made the orders more fully set out earlier. Some 14 days were allowed for the filing of certain documents at a hearing on 3 February.
The history of non-compliance, if anything, worsened. On 26 February 1999 the trial Judge extended the time for compliance with her orders of 3 March to 10 March. On that day a further order was made that the husband file and serve a new affidavit of documents within 14 days. A further order concerning the valuation of the extensive model car collection was made on 26 March. Further orders were made and further non-compliance continued throughout April.
On 18 May 1999 the husband sought leave to file an affidavit explaining his non-compliance. The trial Judge ordered that the husband file and serve by 17 June 1999 all documents referred to in the affidavit of documents and that any other relevant documents be available for inspection by the wife at the husband’s solicitor’s offices. The husband advised the trial Judge that the documents would be available to him within the next 24 hours and that he had certain documents with him.
On 22 June, the 25th time the matter had been before the Court, the husband admitted that he had prevented the wife from inspecting the documents at his solicitor’s offices by placing a condition upon such inspection. He indicated that the Greetland Investments Pty Limited information had been completed only up to 1997. He did not know when his 1998 return would be completed.
In these circumstances the trial Judge made the orders striking out his form 7A and providing for an undefended hearing. Clearly she was entitled so to do as a matter of discretion. Nothing is shown that would vitiate her orders on that occasion. Nor has there been any appeal from them.
FIRST FORM 8 APPLICATION DISMISSED 25 AUGUST 1999
Rather than appeal the unappellable, the husband sought to induce her Honour to reverse her decision by successive Form 8 applications to let him in to defend. The first was dismissed with reasons on 25 August 1999. At that time the trial Judge had before her “no further compliance” than she had had on 22 June 1999. Of the accounts in relation to the Greetland shares which had not been produced it was only said that they would be “available shortly”. The application predictably failed.
The matter had been listed for hearing as an undefended matter on 20 September 1999. By coincidence it came on before her Honour as the trial Judge. The wife appeared in person. However, a further Form 8 had been filed on behalf of the husband. Mr Camatta announced an appearance “for the husband in the directions application only this morning.” From his later interruption of the proceedings it would appear that the husband was also present in person.
Her Honour dealt with the husband’s Form 8 application first. It sought yet again to reinstate his Form 7A in the property proceedings. Her Honour remarked :
“Notwithstanding the efforts that have been made in that regard, this is an application even if it were heard more properly (semble “promptly”) than Monday morning after it had been lodged on a Wednesday afternoon, can only be described as a last minute application on the eve of the hearing”.
In an ex tempore judgment, having recounted briefly the previous history of the matter and referred to her earlier judgments, her Honour gave detailed consideration to the affidavit of the husband in support of his application and to the assertions from the bar table offered by his solicitor.
The husband’s affidavit in support of his Form 8 Application was sparse in the extreme. In paragraph 2 it set out a purported history of the matter. Paragraphs 1, 5, 6 and 7 were formal. The two remaining paragraphs were as follows:
“3.I again make an Application for Order of Re-Instatement on the basis that I now have completed and have available all discoverable documents and they will be available for inspection at my solicitors office Messrs Camatta Lempens Pty Ltd, First Floor, 345 King William Street, Adelaide from this afternoon. In particular I have now completed and made available the following documents in particular:-
(a) Dividend Advice slips for Telstra and AMP shares.
(b) Receipts for sale of office plant and equipment.
(c) List of office plant and equipment currently held.
(d) 1998 and 1999 Income Tax Returns for myself.(e)1998 and 1999 Income Tax Returns for Greetland Investments Pty. Ltd.
(f)Financial Statements for 1998 and 1999 for Greetland Investments Pty Ltd.
(g)Financial Statements for myself for 1998 and 1999 Financial Years.
(h)Copies of Loan Account statements from Commonwealth Bank.
(i)1999 Tax Return for Partnership of J.R.D. and K.E. Tate.
(j)Copies of Bank Statements for Commonwealth Bank account in the name of John R D Tate and Associates for the 1996, 1997 and 1998 Financial Years.
(k)Copies of various Mastercard Statements.
4.I now say that I honestly believe that I have discovered and make available for inspection all documents relevant to this matter in my possession. Accordingly I seek the leave of this Court to proceed to defend the matter. I note that the matter is set for hearing on or about the 21st of September 1999. I do not necessarily seek an adjournment of the matter but should the wife require an adjournment, if she claims to be prejudiced I acknowledge that she would be entitled to one. Nevertheless, I say it is just and equitable in all the circumstances that if the wife is prejudiced that given that she is living in the former matrimonial home any prejudice can be remedied by an appropriate order for costs in the matter.”
In essence the case presented was that the husband asserted that he had now “completed and have available all discoverable documents” and that “they will be available for inspection” that afternoon, ie 15 September. He affirmed an honest belief that he had discovered and “make available for inspection all documents relevant to this matter in his possession”. (Such, of course, was a category of documents far short of the terms of the rule).
Mr Camatta, after reference to the husband’s affidavit, explained from the bar table that the documents had not in fact been made available on the afternoon of 15 September. The wife had attended the next morning (16 September) to inspect them and had not been able so to do:
“The reason for that being that Mr Tate had them in his vehicle and had an accident in the vehicle and in fact, the vehicle was not drivable for some time."
Mr Camatta admitted “an unfortunate event”:
“They did ultimately arrive in my office first thing on Friday morning” (but he) “was not advised the documents had been put in my office until about 5.30 on that day by my secretary.”
On such evidence Mr Camatta claimed that the “Matter is now ready to proceed to hearing” … “forthwith” … with “both parties acting in person” on the Order 30 affidavits which had been filed. He relied upon State of Queensland v. J L. Holdings (1997) 189 CLR 146, and distinguished the facts of the present matter as being:
“…a situation where documents which were to be prepared had not been prepared and have now been prepared and are available.”
In the circumstances he sought “fairness and natural justice” to allow Mr Tate “to defend himself at this hearing” and the opportunity to put:
“whatever evidence is available and has been made available through the Order 30 which has been filed at Court.” “Mr Tate should be allowed to have his say on the documents as they have been presented”.
He offered an adjournment should the wife require one.
Ms Tate then attacked the affidavit evidence and characterised the previous decisions to exclude the husband as:
“Primarily due to Mr Tate’s utter contempt and lack of compliance with orders issued by this honourable Court. His refusal, or excuses for his inability to provide evidence for discovery, continued relentlessly for the past 4 years and yet we again hear some more excuses this morning.”
Ms Tate questioned both the sincerity of the motives for the late application and the “validity of the rushed documentation” adding:
“But even if they are made available this morning what can we rely on to ensure that the documents that he has prepared, and he has prepared them himself- meaning his tax returns etcetera – have any resemblance to the truth”.
Ms Tate opposed any further adjournments as “totally ludicrous and unfounded” as it would have been “quite unjust and unfair” to her. She relied upon her prior provision of 75% of the capital to purchase the former matrimonial home; her provision of 100% care and maintenance for the two children of the marriage (apparently since separation); and her eagerness to finalise the matter once and for all. She claimed:
“It has had quite an effect on myself and my children.”
Ms Tate invited the court to reject the husband’s “lame attempt” to secure further adjournments and to proceed to trial forthwith.
The trial Judge rejected the husband’s application, giving reasons ex tempore. The hearing then proceeded undefended until the husband interrupted, (Mr Camatta no longer appearing) and asked several times if he had the right to cross-examine. As is more fully set out below he was informed by the trial Judge that he did not.
Relying solely on that refusal to allow cross-examination the husband, by leave, now appeals out of time seeking that the orders of 18 November 1999 (in the principal matter) be set aside and a new trial ordered. He also pursues his appeal, by leave, against the trial Judge’s refusal to reinstate his Form 7A at the commencement of the hearing.
There is no doubt that her Honour had power to make the order striking out the husband’s Form 7A and to order that the matter proceed as an undefended matter. That order was not and has not been appealed from expressly. Indeed the orders seem unassailable.
It is this second attempt to reinstate the husband’s Form 7A is that now appealed from directly. The wife through no fault of her own, and despite her several attempts, had not had the opportunity even to inspect the documents discovered the previous week. The trial Judge found, as she was entitled to, that she was not satisfied that “the late attempt at compliance by the husband was satisfactory.” Weighing up the argument put by the husband’s solicitor, that fairness and natural justice may require the Court to allow the husband to present his case, against the prejudice such a course might present to the wife, the trial Judge found that in her view the wife would suffer substantial prejudice by the further delay if the husband were permitted to present his case. An adjournment (and the remedy of costs), to which the husband had referred in his affidavit, to the trial Judge’s mind:
“Overlooks the fact that the wife has proceeded in this matter and has been successful in an application that the Form7A be struck out through non-compliance and that the matter is now listed to proceed as an undefended matter today”.
Her Honour was satisfied:
“That on the balance, the justice of the case requires the matter to proceed, as it has been set down, as an undefended matter this morning.”
SUBMISSIONS ON BEHALF OF THE HUSBAND
The leave to appeal and the substantive appeal were argued together. Miss Pike rehearsed the history of the matter. She submitted that the husband was self-represented at various times. She claimed that there had been a substantial attempt by the husband to comply with the orders of the court but the compliance had been held inadequate. As to the order of 28 July 1999 that the matter proceed as an undefended matter, she readily conceded that that order had not been appealed from, nor had the subsequent refusal of the trial Judge to reinstate the Form 7A in August 1999; and an appeal was only brought in relation to the last order of her Honour of 20 September 1999 refusing reinstatement.
In dealing with the delay which had extended from 1995 when the wife first filed her Form 7, Miss Pike’s answer to the question “How many chances do you get?” was “That is the nub of the issue.” She referred to Johnson v. Johnson (1997) FLC 92-764 at 84,417.
Miss Pike attacked the exercise of the trial Judge’s discretion in summary, in several ways:-
1.It should only have been used not to reinstate the Form 7A in the most exceptional circumstances.
2.This was the more so because the trial Judge’s order whilst interlocutory affected the substantive rights of the husband and precluded him from being heard on his own application, whilst being still liable to be made subject of orders for property settlement on his wife’s application.
3.The discretion miscarried due to a failure to give sufficient weight to the fact that at the time of hearing there had in fact been compliance as to discovery.
4.It was not open to the trial Judge to draw any inference the husband may not have complied, as there had been no inspection.
5.The trial Judge erred in placing any weight on the wife’s assertion that the husband may not have complied.
6.The trial Judge should have held the matter in the list to enable the wife to inspect the documents.
7.The trial Judge failed to take into account adequately the option to adjourn or hold the matter in the list and if appropriate make an order for costs (Queensland v. J L Holdings Pty Limited (supra)).
8.The trial Judge placed too much emphasis on the assertion of the wife that she was disadvantaged and that she wanted the proceedings to end, in the absence of any evidence presented by the wife.
9.There was no evidence that inspection of the documents could not be attended to expeditiously, the matter being a simple one involving a small number of assets as previously found by the trial Judge. Where the applicant had filed a voluminous number of documents it was not a case of non-compliance but late-compliance and therefore failure to reinstate the Form 7A was plainly unreasonable and unjust. It was in the interest of justice that the court should be apprised properly and fairly of all issues to be resolved between the parties.
10.The trial Judge failed to correctly apply the principles in Queensland v. J L Holdings Pty Limited, etc.
Miss Pike’s final attack upon the orders was:
11. “The learned trial judge erred in attaching too much weight and emphasis on the case management principles and time lines to the extent that justice was denied to the husband.”
SUBMISSIONS ON BEHALF OF THE WIFE
On the application for leave to appeal, Mr Jordan stressed that the order was interlocutory and that leave should be refused as no error of principle and/or no substantive injustice to the appellant was shown. The appellant had been given the opportunity on a vast number of occasions to comply with his duty to the court and had consistently failed to comply with the interlocutory orders made. He had given no adequate explanation for his non-compliance and it was his conduct that had resulted in the order of 28 July 1999 striking out his Form 7A Response and ordering the matter proceed on an undefended basis. No application for leave to appeal had been or was made in respect of that order.
When the application was made on 20 September 1999 to reinstate his Form 7A, (which in the interim had been refused on a previous application on the 25 August 1999, again an order from which no leave to appeal had been sought), the basis for his application was an alleged compliance with the orders of the Court.
Mr Jordan submitted that the trial Judge was entitled to the view that there was no compliance, only an attempt at compliance. Alternatively, “late compliance on the morning of the trial was no compliance” as it afforded the wife no reasonable opportunity to inspect and consider discovered documents. Moreover, to have sought to inspect the documents at the commencement of the trial, may reasonably have necessitated aborting the hearing. The application had been made in the circumstances where the husband gave no explanation, and certainly no adequate explanation, for the late filing of his application. This was not a case of mistake, oversight or recently discovered facts. It was a case of long-standing non-compliance with no excuse.
Mr Jordan further submitted that if the application to reinstate the Form 7A had been granted, an adjournment of the trial may have been required, (independent of the issue of discovery and inspection), as the respondent, who was a litigant in person, had come to conduct the trial on an undefended basis. Had the application been granted, she might reasonably have had need to reconsider her position generally and/or felt the reasonable need to obtain legal representation. As it was, she was entitled to have her case heard when listed for trial as previously ordered on an undefended basis. This was the more so considering the particular and extensive delays that had occurred in this matter.
This case, Mr Jordan claimed, was one of those “exceptional” cases where the discretion, as exercised by the trial Judge, was justified. Counsel pointed to a list of reasons:-
(a)The need of the respondent to be freed as quickly as possible from the anxiety, stress, distraction and disruption which litigation causes;
(b)The need for “legal business” to be conducted efficiently given that accumulating delays occasion serious injustices;
(c)The relatively longstanding appointment of a judicial officer to manage the case;
(d)The insufficiency for a costs order to remedy the respondent’s prejudice;
(e)The public interest in achieving the most efficient use of the court’s resources;
(f)The interval (or lack of it) between the date of the application and the trial;
(g)The appellant’s “litigation abuse” by which he had sought to avoid firm hearing times as evidenced by his repeated defaults;
(h)The need for the public to see that the court reasonably enforced and stood behind case management;
(i)The prejudicial, or potentially prejudicial, effect upon the respondent of allowing the reinstatement of the appellant’s Form 7A on the morning of the trial.
DISCOVERY
Apart from specific orders to produce specific documents it matters not whether discovery is to be given by agreement between the parties or at the formal request of one party to another to give discovery on oath or by means of an order of the court or registrar. Once it is accepted there is a duty to give discovery unless there is a contrary agreement it ordinarily requires a party to disclose all documents that are or have been in the possession, custody or control of that party that relate to all or any of the matters in question in the proceedings (see generally CCH Australian Family Law Practice paragraph 53-566). There is no dispute here about the meaning of documents or any argument raised about whether the documents are or have been in the possession, custody or control of the husband or that they related to all or any other the matters in question of the proceedings. We are concerned here only with a failure to comply in accordance with her Honour’s findings.
DUTY OF MAKE FULL AND FRANK DISCLOSURE
It is useful to recall that discovery is a continuing process (see Brambles Holdings Ltd v. Trade Practices Commission (1983) 47 ALR 69). Indeed, had there even been a compliance with the rules of court or practice directions on one occasion it would not obviate the need for a party to a property proceedings in this court to make a full and frank disclosure of all relevant financial circumstances which may involve a duty of continuing discovery. Indeed it is difficult to see how it could not.
The law in Australia on this point is the same as in England. In Oriolo v. Oriolo (1985) FLC 91-653 (a decision of Emery, Fogarty and Murray JJ), the Full Court held at 80,256:
“We consider that there is a clear obligation on a party to proceedings in this court to make a full and frank disclosure of all relevant financial circumstances. As was said by Lord Brandon for the House of Lords is Livessey v. Jenkins (1985) 1 AllER 106 at page 114:
“I stated earlier that, unless a court is provided with correct, complete and up to date information on the matters to which, under Section 25(1), it is required to have regard, it cannot lawfully or properly exercise its discretion in the manner ordained by that sub-section. It follows necessarily from this that each party concerned in claims for financial provision and property adjustment (or other forms of ancillary relief not material in the present case) owes a duty to the court to make full and frank disclosure of all material facts to the other party and the court. This principle of full and frank disclosure in proceedings of this kind has long been recognised and enforced as a matter of practice. The legal basis of that principle, and the justification for it are to be found in the statutory provisions to which I have referred.”
In that decision the Full Court also approved the statement of Smithers J in Briese and Briese (then unreported 27 June 1985) (1986) FLC 91-713 at 75,180):
“I believe that a person in the position of the husband in this case has a positive obligation to set out at an early stage his financial position in a clear and comprehensive manner.”… “The need for each party to understand the financial position of the other party is at the very heart of cases concerning property and maintenance. Unless each party adopts a positive approach in this regard delays will ensue with the consequent escalation of legal, accounting and other expenses, always assuming that a party has the strength to continue the struggle for information and understanding.
In this case it is possible, but I believe largely with the benefit of hindsight, to suggest one or two other strategies which the wife could have employed in her search for the facts before the trial. On the whole however, I do not believe that her case was conducted other than appropriately and reasonably. It was in the power of the husband to curtail the costs by making adequate disclosure.
Although the case relates to quite different circumstances, I believe that the conclusion in the House of Lords in the case of Livesey v. Jenkins (1985) 1 All E.R. 106 is apposite, namely that in financial proceedings between spouses each party must make a full and frank disclosure of all material facts. In that case it was made clear that full and frank disclosure was required as a matter of principle in the light of the fact that it was the duty of the court, taking into account a number of designated criteria, to make a decision which basically involved the exercise of a discretion. This is quite different from common law litigation between strangers, in which such a general duty does not exist, and obligations would only exist in so far as statute or court rules required.
In my view it is fundamental to the whole operation of the Family Law Act in financial cases that there is an obligation of the nature to which I have referred. Livesey v. Jenkins make it clear that mere compliance with rules of court or practice directions does not alter the basic principle of the need for full and frank disclosure by the parties. The fact that in the present case it is not a question of ultimate non disclosure of a matter relevant to the orders made, but is of a different nature being relevant to delay and expense, does not in my view prevent the principle being applicable here as to the matter of costs. There is an obligation on each party to act so as to provide a basis upon which the two of them are in a position to resolve the case by agreement, or proceed to a hearing, as expeditiously as may reasonably be done.”
The position in this Court is indeed quite unlike that of the Common Law Courts. Full and frank disclosure is required as a matter of “principle in the light of the fact that that it is the duty of the Court, taking into account a number of designated criteria to make a decision which basically involves the exercise of a discretion”. (ibid)
ORDER 20 OF FAMILY LAW RULES
Order 20 of the Court’s rules deal with discovery and inspection. Rule 1 deals with mutual and informal discovery; Rule 2 with the request to make discovery; Rule 3 with the time for and form of discovery (within 21 days after service of that request or within such further time as the Court or the requesting party allows); Rule 4 with orders to make discovery; Rule 9 with orders for particular discovery; Rules 10, 10(a) and 11 with copies of documents for inspection, and Rule 12 with failure to make discovery or give inspection.
Order 20 Rule 12 is as follows:-
“12.Where a party to proceedings fails to comply with an order, requirement or agreement under this order, the court may make such order as to discovery, production, inspection, continuance of the proceedings or as to the right of the party in default to continue the proceedings as the court thinks fit.”
Rule 13 deals with the forensic consequences when documents are not discovered or produced:-
“13.A party to proceedings is not entitled, except by leave of the court, to put a document or a copy of a document in evidence or to furnish or cause to be furnished evidence of a contents of a document :
(a) where:
(i) the party has filed an affidavit of documents;
(ii)the document, being a document relating to a matter in question in the proceedings, was, at the time the party swore the affidavit, in the possession, custody or control of the party or the document was not at the time, but had been, in the possession, custody or control of the party; and
(iii)the document was not referred to in that affidavit of documents or in any other affidavit of documents filed by that party in pursuance of an order of the court; or
(b)where the party has been served with a notice to produce under rule 6 and fails to produce the document in accordance with the notice.
ORDER 32 HIGH COURT RULES
By way of comparison, Order 32 of the High Court Rules, Rule 20 provides a much stricter regimen for non-compliance:-
“20(1) If a party fails to comply with an order:-
(a) to answer interrogatories;
(b) to give discovery or inspection of documents; or
(c) to allow inspection of property,he is liable to attachment.
(2)If a party fails to answer interrogatories, to give discovery or inspection of documents or to allow inspection of property as required by these rules or by an order:
(a)where that party is a plaintiff, his action may be dismissed for want of prosecution;
(b)where that party is a defendant, his defence, if any, and counter claim if any, may be struck out;
(c)where that party is a third party, his appearance may be set aside;
(d)where that party is a defendant who has given a third party notice, the notice may be set aside and the party placed in the same position as if he had not defended or appeared, and the party interrogating, appeared,
and the party interrogating, seeking discovery or inspection of documents or inspection of property, as the case may be, may apply to the court or a justice for an order to that effect.
ORDER 16 OF THE FEDERAL COURT RULES
Similarly Order 15 of the Federal Court Rules deals with discovery and inspection of documents. Rule 16 of that Order provides a “Procedure on default” as follows:-
“16(1)Where a party does not file or serve a list of documents or affidavit or other document or does not produce any document as required by or under this order, any other party may move the court on notice:-
(a)If the party in default is an applicant – for an order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceedings;
(b)If the party in default is a respondent – a judgment or an order against him;
(c)For an order that such document, affidavit or list of documents be filed, served or produced within the time limited in the order.
(2)The court may make an order of the kind mentioned in sub-rule (1) or any other order or may give such directions, and specify such consequences for non-compliance with the order as the courts think just.
(3) This rule does not limit the powers of the court to punish for contempt.
The default procedure in the Federal Court is supplemented by Order 10 Rule 7. Order 10 deals with directions hearings. Rule 7 thereof provides a procedure on default as follows:-
“7.(1)Where a party fails to comply with an order of the court directing that party to take a step in the proceeding, any other party may move the court on notice:
(a)If the party in default is an applicant – for an order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceedings;
(b)If the party in default is a respondent – for judgment or an order against him;
(c)For an order that the step in the proceeding be taken within the time limit of that order.
(2)The court may make an order of the kind in sub-rule (1) or any other order or may give such directions, and specify such consequences for non-compliance with the order, as the court thinks just.
(3) This rule does not limit the powers of the court to punish for contempt.
The commentary on Order 10 Rule 7 in the Butterworths practice makes reference to “guillotine” orders to the effect that, in the event of default by an applicant in compliance with the direction, the proceeding is to stand dismissed.
There is presently no similar express provision in the Family Law Rules.
ORDER 24 ENGLISH SUPREME COURT RULES
By way of further illustration of the practice concerning discovery, reference can similarly be made to the English Supreme Court Practice. Order 24 relates to the discovery and inspection of documents in that jurisdiction. The commentary at paragraph 24/0/2 sets out a short background to the order and contains the following:
“The obtaining of discovery of documents in a proper case always was, according to the English law, a right as between subject and subject. It is a right that continues to exist unless taken away. The Evidence Act 1851 gave the Common Law Courts power to compel a party to allow inspection of documents in all cases in which “a discovery might have been obtained by filing a bill, or by any proceeding in a court of equity”. Thus, a party wishing to obtain discovery of documents was not forced temporarily to stay his action and proceed by bill in equity. Relief could be provided by proceedings integral to his action and the action for discovery between parties fell into desuetude (see further “action for discovery” Harris 24/011 and 24/2/2 below. Since 1875 the procedure for these proceedings has been contained in Rules of Court.
Again those rules provide for draconian penalties for non-compliance. Order 24 Rule 16 provides:-
“16.(1)If any party who is required by any of the foregoing rules, or by any order made thereunder, to make discovery of documents or to produce any documents for the purpose of inspection or any other purpose or to supply copies thereof fails to comply with any provision of that rule or with that order, as the case may be, then, without prejudice, in the case of a failure to comply with any such provision, the Rules 3(2) and 11(1) the court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly.
(2)If any party against whom an order for discovery or production of documents is made fails to comply with it, then, without prejudice to paragraphs (1) he shall be liable to committal.
(3)Service on a party’s solicitor of an order for discovery or production of documents made against that party shall be sufficient service to found an application for committal of the party disobeying the order, that the party may show an answer to the application that he had no notice or knowledge of the order.
(4)A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his client shall be liable for committal.
(The commentary on this provision at 24/16/2 sets out the ordinary English procedure):-
“The usual application and order is that the action be dismissed or the defence struck out (as the case may be) unless the party complies with the rule or order for discovery by a stated hour of a stated day. If it is intended to attach the defaulting party, the copy of the order made on the application must be endorsed with a notice under Order 45 rule 7 (Hapden v. Wallis (1884) 26Ch D 746 CA). An order to dismiss or strike out need not be served if an order is made dismissing the action unless the discovery is given by a stated time then at the end of that time if the discovery has not been given the action stands dismissed. It is not so dead, however, that it cannot be revived by an extension of time for compliance with the order (Samuels v. Linzi Dresses Limited 1981 Q.B. 115; (1980) 1All E.R. 803,CA, parra 3/5/9) but the jurisdiction to extend time after the expiry of an “unless” order will be exercised cautiously and, where appropriate, only on stringent terms (see Samuels v. Linzi Dresses Limited, above).
The exclusion from any further part in the proceedings of a party who deliberately disobeys a peremptory order of the court as to discovery is appropriate where there is a real risk that the default will render the fair trial of the action impossible and any judgment in favour of the defaulter unsafe. Once the order for discovery has been complied with, even if compliance is after the time stipulated in the order, the defaulter will not be excluded from the proceedings unless the circumstances are exceptional and there remains a real risk that justice cannot be done (Logicrose Ltd v. Southend United Football Club Ltd (1988) The Times, March 5)…”
“Although the normal prerequisite for the striking out of an action under R.16 is the existence of a real or substantial or serious risk that a fair trial will no longer be possible, in cases of contumacious conduct, e.g. the deliberate suppression of a document, striking out may be justified even where a fair trial may still be possible (Landauer Ltd. v. Comins & Company (1991) The Times August 7 CA).”
Paragraph 24/16/3 records a commentary on failure to comply with an order for discovery. Whilst the Court should ensure that its order for discover is complied with it should not otherwise punish a defaulter (see Husband’s of Marchwood Ltd v. Drummond Walker Developments Ltd (1975) 1 WLR 603; (1975) 2 All ER 30 CA).
The English practice distinguishes between an order for discovery which is stated to be “final” as being different from an order which is an “unless” order:
“An “unless” order spells out the consequences of failure to comply with its terms and disobedience of such an order is likely to be held to be contumelious behaviour, resulting in the dismissal of the action or striking out of the defence and, in the case of the dismissal of the action, may prevent the plaintiff from issuing a second writ notwithstanding that the limitation period has not expired. Failure to comply with a “final” order is a serious matter, but the court is less likely to characterise such failure as contumelious behaviour, and, in consequence if the limitation period has not expired the action may be permitted to continue (Realistics v. Marsh Properties March 6 1986 (unreported) Court of Appeal.
In Star News Shops v. Stafford Refrigeration Limited (1997), The Times November 18 CA, it was held that it was wrong in principle to strike out a party’s defence for breach of the non-peremptory order although Order 24 rule 16(1) did give jurisdiction to make such an order.
In approaching an application to dismiss an action on the basis of non-compliance for an order for specific discovery, the court would give the benefit of any doubt in the construction of the order to the plaintiff whose action was facing the prospect of being dismissed (Triolacan Ltd v. Medway Car Drives Ltd (1991) The Times October 21 CA).”
The decision in the latter matter (Triolacan) by the Court of Appeal (Otten and Robert Walker LJJ) laid down clearly the English Practice. There, in an action for damages for breach of contract and negligence arising from a fire in a refrigeration unit supplied to the plaintiffs, the defence to a fourth party notice was dismissed under Order 24 rule 16(1) following a failure to comply with an order for specific discovery, (not expressed in final or “unless” form). Judgment was given for the third parties. In the main action judgment was given for the plaintiffs and for the defendant against the third party. Liability for damages therefore rested with the fourth party which appealed against the dismissal of its defence.
After stating the provisions of Order 24 rule 16 Otten LJ, (with whom Robert Walker LJ agreed), held that the effects of the Judge’s order was to debar the fourth party from advancing an arguable defence and left it vulnerable to the outcome of the main action and the third party proceedings. To do so was a misuse of the power within Order 24 Rule 16(1). That order did not secure compliance relating to discovery but punished the fourth party for not having complied with a “bare” order in time. The circumstances were not so exceptional as to justify such an order. At the hearing the third party should have asked for an order striking out the defence “unless” within a certain time the fourth party had produced a discovery. That would then have become a peremptory order of the Court which, if not ultimately complied with, would have justified the ultimate sanction. The fact that discovery was not yet complete and that there was no evidence justifying the default were not sufficient reason for imposing the sanction of strike out. The order for discovery made was not peremptory. In Hytec Information Systems Limited v. Coventry City Council (The Times December 31 1996) Lord Justice Auld described an “unless” order as “the end of the line for a party who has failed to comply with it.”
The fourth party had not reached the end of the line, merely because it failed to comply with one previous order which was not a final or “unless” order. Although Order 24 rule 16(1) gave the Judge jurisdiction to make the order, he, none-the-less, erred in principle in striking out a defence for breach of a non-peremptory order. He should have made a final or “unless” order and plainly exercised his discretion wrongly.
This decision of the English Court of Appeal is clearly distinguishable.
Firstly it was made of course, under a different set of rules and in a Common Law matter. Here the trial Judge was dealing with an exercise of discretion in a matter requiring full and frank disclosure of all relevant financial material as a continuing obligation.
Secondly, the practice of “unless” orders in the United Kingdom (or “guillotine” orders in the Federal Court), has not been expressly inter-woven with the Family Law Rules. In the absence of such rules, or established practice, each order of this Court stands to be interpreted according to its own terms and in its own context. Here, although the trial Judge had understandably not made an “unless” or “guillotine” order, she had already spelt out the ultimate sanction at which the husband was staring – i.e. the matter would proceed “undefended”. He specifically acknowledged such a possible outcome as her Honour’s “prerogative” on 22 June 1999 in the passage of transcript set out above.
Thirdly, the Court of Appeal noted that the failure there complained of there was non-compliance with “one” (bare) non-peremptory order. Before the trial Judge here, the husband’s failures to comply had been numerous and serial, extending over almost four years.
Fourthly, the Court of Appeal was not considering an instance of “contumelious” conduct persisted in despite numerous extensions, warnings and the vacation of previous trial dates, as was the situation confronting the trial Judge in this matter. It is true that the trial Judge made no specific finding that the husband’s conduct was contumelious. However the evidence available, that the husband remained both hell- bent on delaying the trial and prepared to afford the Court’s orders much lower priority in his life than the asserted higher demands of his practice, was sufficient for the trial Judge to make the order she did. The husband’s continual neglect of his duty to provide full and frank disclosure and, moreover, serial non-compliance with the court’s specific orders, was all the more culpable when it is remembered that he was and is by profession an accountant. He had the professional ability to purge his contempt at any time: the remedy lay within his own hands. No exculpatory evidence was offered, nor any acceptable explanation for his continued conduct.
CASE MANAGEMENT ORDERS
The interlocutory orders made by the trial Judge by way of case management, were no less orders of the Court. There were entitled to full and punctilious obedience. This Court has a duty to order its business with justice according to law. The Rules of Court are there to assist in the fair and timely preparation of matters for expeditious trial. Litigants in such matters also have the duty of full and frank – and we would add prompt – disclosure of relevant financial matters. Against that background the trial Judge’s specific orders achieved an even greater potency. They did not have to be expressed as “unless” or “guillotine” orders: they were interlocutory orders of a judge of a superior court of record and to be obeyed as such according to their terms, which included specific times for performance.
It is not for litigants, appearing in person or otherwise, to pick and choose which orders they will or will not obey, or when they may condescend to comply with them. Such an attitude, amply evidenced in this matter, if adopted, brings its own nemesis. That is not only because it is contemptuous of the Court’s orders. It is also because it works injustice to the parties who do comply, and unfairness to that myriad of litigants waiting to have their matters despatched as soon as the Court can hear them. The luxury of procrastination – let alone deliberate disobedience – is a luxury of the past if it ever existed.
THE JUDGMENT APPEALED FROM
The trial Judge, then, being correct in her order that the matter proceed undefended, having decided to entertain the husband’s Form 8 application for reinstatement of his Form 7A, brought her discretion to bear upon the issues she was asked to determine. She weighed up the consequences for each party. Her Honour referred to the history of the matter, set out in her earlier judgments, and more fully set out above. Clearly not only she, but each of the parties, had personal knowledge of a great deal of it. She referred specifically to her finding of 28 July 1999 that:
“The only order that would do justice to the wife was to strike out the husband’s Form 7A and list the property settlement application as an undefended matter.”
Her Honour then considered the husband’s application and his evidence, and even assertions from the bar table. She found the documents had not been inspected “through no fault of the wife”. Thus she found that the situation remained “as it did some time ago”. She found that “the wife still has not had an opportunity to inspect documents that may be relevant to the property settlement proceedings and are part of the husband’s case”. Clearly such findings were open to her Honour.
Her Honour then directed attention to the submissions made on the evidence by the husband’s solicitor. She characterised the matter as “unusual”, and noted “continual delay; most of it due to the non-compliance of the husband”. She noted previous listings for trial that had not proceeded due to “unreadiness”. She noted that despite her own case management of the matter since February the “last minute” notice of the application on the eve of the hearing and its disposal delaying the start of the actual hearing.
The trial Judge specifically considered the fairness and natural justice due to the husband. She correctly sought to weigh up such considerations against the prejudice likely to be occasioned to the wife.
The trial Judge was uniquely placed to assess the prejudice to the wife. Not only did she have the wife’s assertion of it from the bar table – assertions no stronger nor weaker than the matters offered on the husband’s behalf from the same place –she had an intimate knowledge of the tens of times the wife had been to court over almost four years endeavouring to bring her case to trial. In the circumstances the trial Judge was well placed to reject the notion that costs would be an adequate remedy for yet another adjournment of the trial. She was also well placed to make the finding that, in her view, “the wife would suffer substantial prejudice by the further delay” if the husband were to be allowed to present his case. She explained the delay as “being occasioned by the necessity of further inspection and viewing of documents”. We are of the view that such a finding was completely within her Honour’s discretion in the circumstances.
The trial Judge made one further finding, and that was that in the event she was not satisfied that the late “attempt at compliance” (a phrase she stressed) was satisfactory. In our opinion that finding, too, was completely within her Honour’s discretion, given her intimate knowledge of the context and relevance of the orders, the affidavit evidence of the husband and the nature of the contents of the documents listed by the husband as available (wrongly) on 15 September 1999.
Having reviewed the history of the matter in great detail, each of her Honour’s judgments leading to the orders complained of, and paid full attention to the submissions of the parties, we find no appellable error in the orders or reasons for them. That being so we would not grant leave to appeal.
DENIAL OF THE RIGHT TO CROSS-EXAMINE
(a) The Transcript
It will be convenient to set out here the very short passage of transcript which occurred in relation to this finding.
Following the delivery of her Honour’s judgment refusing to reinstate the husband’s Form 7A the hearing proceeded undefended until the following exchange occurred. This is the entirety of the transcript:-
Mr Tate:“Excuse me your honour. Do I have any rights to cross-examine?”
Her Honour: “You wish to appear, Mr Tate, on the wife’s undefended proceedings?”
Mr Tate: “Yes. Do I have the right to cross-examine your honour?”
Her Honour: “Well they are undefended Mr Tate, so you wouldn’t normally no.”
Mr Tate: “But I’m asking: Do I have a right?”
Her Honour: “No”.
Mr Tate: “Thank you your honour.”
(b) Submissions on behalf of the husband
Miss Pike’s submissions for the appellant on this ground can be shortly stated. They were that, even if the husband had been deprived of the opportunity to present his Form 7A application, as he was present at the hearing he should have been permitted to test the evidence of the wife to at least ensure that her assertions did not go unchallenged. Whilst the husband’s Form 7A had been dismissed, he still continued to be a party to the proceedings evincing an interest and a desire to at least test the case of the wife by cross-examination. Order 8 Rule 14 does not require a respondent to file a Form 7A or any documents in support or to lead evidence (see Lansleigh v. Lansleigh (1994) FLC 92-491). Thus the striking out of the Form 7A did not put the husband in any worse position than a litigant who had not even filed a Form 7A.
Finally it was submitted that the learned trial Judge had failed to provide any reasons for her refusal to permit the husband to cross-examine the wife. In those circumstances the appellant sought a rehearing of the matter.
(c) Submissions on behalf of the wife
The respondent’s contentions on the second ground were also shortly put. They were that once the orders striking out the husband’s Form 7A and directing the matter to proceed on an undefended basis had been made, the husband had no further right of appearance. Consequently he had no right to cross-examine:
“Undefended means undefended. He ought not to be heard.”
Reliance was also placed on the trial Judge having indicated to the husband, when he asked if he had a right to cross-examine (and thereby sought to cross-examine) that the wife’s proceedings were undefended.
The appeal against the principal judgment on the ground of denial of natural justice stems from her Honour’s answer to the husband’s question (thrice repeated) as to whether he had a right to cross-examine. In light of her Honour’s denial of that right, he naturally did not attempt to cross-examine.
(d) Discussion
The point is of small compass. It flowed directly from the order excluding the husband from the hearing due to his previous non-compliance. His Form 7A having been struck out there was no live issue between him and the applicant. However, as the remedy the wife sought was discretionary, it was incumbent on her to establish her case by admissible evidence and seek to persuade the Court to exercise its discretion in her favour on such evidence. From this process the husband had excluded himself by his prior conduct which had led to the order of the trial Judge that the matter proceed on an undefended basis.
We have already adverted above to the fact that similar consequences often ensue in common law actions, where, once a defence is struck out, in liquidated claims provision is made for the entry of judgments forthwith. Where common law claims are unliquidated the plaintiff or applicant has the obligation to establish his or her case upon admissible evidence before judgment can be entered.
No apposite authority was referred to by either counsel. However the matter was adverted to in a recent judgment of Drummond J of the Federal Court in Australian Securities commission v McLeod & Ors (1994) 130 ALR 717. There his Honour held that:
“Where final judgment is sought following default by the defendant in compliance with a direction or some procedural step, there being no specific rule that enables the applicant to enter up judgment without coming before the court, the applicant must prove his entitlement to the judgment claimed by evidence sufficient to prove, among other things, the facts upon which his cause of action is based.”
Such, also, is the general position in this Court.
Drummond J further held that an order for “judgment”, rather than for “an order pursuant to Order 10 Rule 7(1)(b)” was an application for final rather than interlocutory relief, and thus constituted a “trial” within the meaning of that term in Order 1 Rule 4 of the rules of that Court.
In an (obiter) explanation of the consequences in that jurisdiction his Honour added:
“I recognise that in theory so to hold means that a recalcitrant respondent will be able to put an applicant for judgment to proof by appearing on the application and cross-examining, after notice has been given requiring the attendance of the applicant’s witnesses; such a proceeding could become very protracted indeed. But, as with all procedures enabling a party to bring an action to an end summarily, judgment can only properly be applied for in a clear case. In such a case, it will generally be fairly plain whether the respondent who wants to cross-examine all and sundry is engaging in delaying tactics: the court has /power to deal with that”.
By way of example, his Honour then referred to Order 14 Rule 9(3) and Order 33 Rule 3 of the Federal Court Rules. No authorities were cited. Such may well be the practice and consequences in the Federal Court.
The general practice is clearly different in other jurisdictions. For example, in the commentary to Order 24 Rule 16 (set out earlier) on the power under Rule 16(1) of the English Supreme Court (to “make such order as it thinks just including in particular an order that… the defence be struck out and judgment entered accordingly”) the learned authors state:
“The exclusion from any further part in the proceedings of a party who deliberately disobeys a peremptory order of the court as to discovery is appropriate where there is a real risk that the default will render the fair trial of the action impossible and any judgment in favour of the defaulter unsafe.”
In the exercise of its jurisdiction under the Family Law Act, this Court ought in the exceptional case where a matter is ordered to proceed “undefended”, not follow the approach adopted by Drummond J (above). The Family Court of Australia is all too frequently confronted with litigants who fail in their duties of full and frank (and prompt) disclosure of their financial affairs. Where such failure results in a Form 7A being struck out, as here, then that party ought have no further right to be heard without further order of the Court which is a matter for the judge in his or her discretion.
Accordingly it was open to the learned trial Judge to rule that the husband had no right to cross-examine and in the exercise of her discretion to refuse what may be loosely described as his application to do so
The attainment of justice is the over-riding objective in each individual case. In the pursuit of such an objective the trial Judge was in this matter exceptionally well placed to weigh the issues and the factors affecting each litigant and make orders appropriate to the case before her. We believe she did so.
This was indeed an “exceptional” case. The forfeiture of the right to cross-examine or indeed to make submissions, flowed from the earlier order. We discern no error of law in what transpired and no miscarriage of her Honour’s discretion. We would thus dismiss the appeal.
CASE MANAGEMENT AN AID TO JUSTICE
In attempting to match the limited resources of the Court to the demands of increasing lists, the principles of case management are assuming greater prominence. Never an end in themselves, they are and must always remain subject to and never prevail over the attainment of justice as “the paramount consideration” (State of Queensland v J.L. Holdings; supra). But justice in matters such as this is due to each party to litigation (see the comments of Kirby J in Allesch v Maunz [2000] HCA 40 at paras 38-40). Case Management guidelines, principles and orders are designed to facilitate the ends of justice by encouraging: full frank and prompt disclosure; settlement; identification of the matters genuinely in dispute needing the Court’s determination; and the expeditious marshalling and presentation of relevant evidence.
The aim is to produce a better focussed trial which, by concentrating on essentials, is shorter and thus less costly to all concerned. Not only are the resources of litigants thus conserved, so, too, are the far from limitless resources of the Court.
Problems of delay in the attainment of justice have long plagued the Courts. Well known remedies were even sought by way of Magna Carta in the thirteenth century. The aphorism “Justice delayed is Justice denied” is all too frequently manifestly true in this jurisdiction. Delays in cases such as this are often not fully compensable in purely money terms. Here the husband claimed his new partner had just had a second child by him. Over four years had elapsed since the commencement of proceedings and the wife had not received the money to which the trial Judge eventually found her to be entitled, nor had she been able to enjoy the peace and security of having put this failed relationship behind her.
The parties were not the only ones affected. The wife claimed the litigation had had “quite an effect” on her children, and on herself as their chief carer.
In many cases monetary compensation is not an adequate remedy for delay. In property disputes, especially where the needs of the parents which whom children are living need to be addressed, adjournments with or without costs orders may be totally inadequate in doing justice between the parties.
To eliminate or at least greatly reduce unacceptable delays, within the resources available, is a constant goal of the Court. In achieving such reduction as may be possible, the co-operation of all litigants, legally represented or appearing in person, is essential. Thus it is fundamental that case management directions and orders of the court in preparation for trial (or settlement) must be respected and obeyed.
Interlocutory processes must at all times necessarily balance the rights of all litigants to justice according to law. Such litigants comprise not only those party to such cases as are listed for hearing but also those litigants waiting for hearing dates due to the congestion of the lists. It is common sense, that, when time is allocated to a particular case, it should be ready to proceed and fully utilise the time afforded it. Such time should be no less and no more than that which is needed to do justice in the particular matter.
In this instance, the matter had been before the Court on no less than 27 occasions. On two previous occasions it had been necessary to vacate trial dates. It takes little imagination to perceive that the Court’s resources devoted to this one case (let alone other proceedings between the same parties that were adverted to as well), was utterly disproportionate to the issues involved. Such court resources, if not squandered on this matter, would have been available to other litigants who did obey the court’s orders and directions.
The Court, no less than those who litigate before it, is constrained by the interplay of competing principles. In the attainment of justice in individual matters, which will always remain the paramount consideration, appropriate sanctions are essential to see that its orders and directions are obeyed in the pursuit of that end. Such a goal overrides any notions of punishment for disobedience of such orders.
Where, as here, non-compliance with the orders and directions of the Court will, in the opinion of the trial Judge, defeat the attainment of justice, then suitable remedies must be found. In this instance the remedy necessarily excluded the husband from any further participation in the proceedings. Whilst such cases are “exceptional”, and indeed unusual, no litigant, whether legally represented or not, should harbour any doubt that manipulation of the court processes, (as was attempted and indeed partially achieved in this instance), through disregard of and deliberate non-compliance with its orders and directions will attract other than the strongest measures from the Court. In doing justice to both parties, the exclusion of a defaulter, whose defaults threaten the achievement of justice, is not only an option, but, in such circumstances, becomes a regrettable necessity.
COSTS
At the conclusion of the hearing, we heard from counsel on the subject of costs. If the appeals were dismissed, the wife sought her costs of the appeal. Having regard to the financial circumstances of the parties, we are of the view that costs should follow the event and would fix costs in the sum of $3,000.
The wife's submissions also raised the issue of the costs of 20 September 1999. No order for costs was made by the trial Judge that day. In circumstances where there is no cross appeal before us by the wife, we consider that the issue is a matter for the trial Judge.
ORDERS
The orders of the Court will be:
1. That the application for leave to appeal against the orders of the Honourable Justice Dawe made on 20 September 1999 be refused.
2. That leave is granted to appeal out of time against the orders of the Honourable Justice Dawe made on 18 November 1999 but that the appeal is dismissed.
3. That the husband pay the wife's costs of and incidental to the appeal fixed in the sum of three thousand dollars.
I certify that the previous 112 numbered paragraphs are a true copy of
the reasons for judgment delivered by this Honourable Full Court.
Danny Sandor
Senior Legal Associate to the Chief Justice
68
3
0