Tomamichel v McCann (No 2)
[2014] VCC 388
•7 April 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
FAMILY PROPERTY DIVISION
Case No. CI-13-03524
IN THE MATTER OF AN APPLICATION UNDER PART IV OF THE ADMINISTRATION AND PROBATE ACT 1958
AND
IN THE MATTER OF THE WILL AND ESTATE OF COLIN EDGAR TOMAMICHEL, DECEASED
BETWEEN
| PAUL DOUGLAS TOMAMICHEL LYNDAL MAREE TOMAMICHEL-ARGAET and MAREE ELIZABETH McLAY | Plaintiffs |
| v | |
| HEATHER JEAN McCANN (who is sued as the Executrix of the Will of the late COLIN EDGAR TOMAMICHEL) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 March 2014 | |
DATE OF JUDGMENT: | 7 April 2014 | |
CASE MAY BE CITED AS: | Tomamichel & Ors v McCann (No 2) | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 388 | |
REASONS FOR JUDGMENT
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Subject: TESTATOR’S FAMILY MAINTENANCE
Catchwords: Relevant evidence overlooked by the trial judge – application to re-open the first plaintiff's case – circumstances in which an application for reopening a case will be granted
Legislation Cited: Civil Procedure Act 1958, s(7)-(8); County Court Civil Procedure Rules 2008, r60A.02, r60A.07
Cases Cited:Bailey v Marinoff (1971) 125 CLR 529; Lollis v Loulatzis & Anor (No 3) [2008] VSC 231; Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22; Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232
Judgment: Application to re-open the first plaintiff’s case granted, and provision made for the first plaintiff reconsidered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr J Glover | Beaumont Lawyers |
| For the Defendant | Mr K Mihaly | Rose Lawyers |
HIS HONOUR:
Introduction
1 The plaintiff, Paul Douglas Tomamichel (“Paul”), has applied to re-open his case to a admit evidence which I overlooked in the course of composing my Reasons for Judgment[1] which I published on 13 March 2014 after a trial of the proceeding on 4 March 2014.
[1][2014] VCC 246
2 Dr J Glover of Counsel appeared for Paul, and Mr K Mihaly of Counsel appeared for the defendant, Heather Jean McCann.
The Reasons for Judgment
3 The application to re-open Paul’s case stems from a conclusion which I reached which I now appreciate is not open on the evidence that was before me, and that is, the evidence which I overlooked. At paragraph 69 of the reasons, I said:
“In the exercise of my discretion I have taken into account all the matters which I have referred to above. I think that what is adequate, properly measured according to accepted community standards, is to make provision for each of Lyndal and Paul in the sum of $150,000 each. I have not distinguished between them. I do not think it is possible to do so, because while Lyndal described her assets and liabilities, Paul did not. He did not say whether he has any net equity in the house that he and Karina have purchased, nor did he describe Karina’s income. I have determined that a global approach is appropriate. Lyndal has net equity in her house, but is not working and has the responsibility to raise two children. Paul undoubtedly has net equity in his house, but a double income and is not yet assuming the responsibility to raise children. These are the factors which I have brought into play in determining what provision to make for each of them.”
4 What I failed to consider were two lines in a supplementary affidavit sworn by Paul on 31 January 2004. He said:
“My house that I purchased with Karina in Lilydale for $430,000 is worth $375,000 according to the most recent rate notice. Our mortgage is $403,000.”
5 During the submissions made by Mr Mihaly, I was informed that Karina is in receipt of an income of $80,000 gross per annum. The parties invited me to introduce that into any re-assessment which I might consider I should make for Paul, if I concluded that the application to re-open his case should be granted.
14 March 2014
6 Mr Mihaly submitted that what I said in paragraph 71 amounts to the making of an order which prohibits me from granting the application to Paul to re-open his case. That paragraph reads:
“I order that in substitution for paragraph 4 of Colin’s Will there be the following:
‘I give and bequeath the sum of $30,000 to my daughter-in-law Maree Elisabeth McLay; $150,000 to my granddaughter Lyndal Maree Tomamichel-Argaet and $150,000 to my grandson Paul Douglas Tomamichel.’”
7 However, that paragraph does not amount to the making of an order because of the oral remarks I made immediately before actually publishing the reasons to the parties by giving copies to my Associate, who then in turn gave those copies to Dr Glover and Mr Mihaly. I specifically recall prefacing the physical publication of the reasons with the words: “… the orders I propose to make …”. I used the word “propose” on two occasions. I have viewed the video recording to confirm my recollection of what I said. The quote referred to above of what I said is taken directly from the video recording.
8 It was my clear intention not to pronounce the order, but to direct Counsels’ attention to the order that I proposed to make for the purpose of having them consider the order and address me on its form and its effectiveness to encapsulate the conclusions which I had reached on the evidence. However, neither Dr Glover nor Mr Mihaly addressed me on the proposed form of order. Mr Mihaly immediately took me to the effect of the provision which I considered the deceased should have made for Paul. He referred me to an offer of compromise. It was at that point that the exchange which occurred between myself, Dr Glover and Mr Mihaly turned to the issue of the costs implications of the offer of compromise. The upshot of that exchange resulted in the question of costs being adjourned to 20 March 2014 at 4.00pm.
The application to re-open
9 Dr Glover submitted that there was no impediment to me granting the application to re-open Paul’s case because the reasons had not been “entered” so as to become a judgment of the Court. He referred me to Rule 60A.02 of the County Court Civil Procedure Rules 2008, which are as follows:
“(1)A judgment or order other than a judgment or order under Rule 59.06 is authenticated when a form of the judgment or order, drawn up and lodged with the Registrar in accordance with Rule 60A.07—
(a) is—
(i) signed by a Judge or an associate judge; or
(ii) sealed by the Registrar with the seal of the Court … .”
10 The relevant part of Rule 60A .07 is as follows:
“(1)The form of a judgment or order shall be drawn up by the party requiring it to be authenticated.
(2)In the case of a judgment given or an order, the party shall lodge three copies of the form of judgment or order with the Registrar.
(3)In the case of a judgment entered, the party shall lodge with the Registrar a form of the judgment to be sealed by the Registrar with the seal of the Court.”
11 Rule 60A.02 appears to me to demonstrate the point in time when a judgment or order is authenticated, that is, for example when it is signed by a judge. Rule 60A.07 appears to me to demonstrate that a judgment or order is obtained by being “given” or by being “entered”. The distinction between the two was not argued by Counsel. It may constitute a matter of some importance in my determination of this application.
12 I think that “given” denotes what a judge does at the conclusion of the trial or application, that is, at the conclusion of the trial, the judge gives judgment. The same expression qualifies the making of an “order”, that is, technically when an order is made, even on an interlocutory application, the order is “given”, although in common parlance, judges use the expression “make”, that is, a judge will say “I will make the following order” or by use of similar words.
13 “Entered” seems to contemplate Rule 21, which deals with, among other things, judgment in default of an appearance or a pleading. Sub-rule (2) provides that where a defendant does not file an appearance within the time limit, the plaintiff “may enter … judgment …” against the defendant.
14 Of course, the relevance of these Rules is to determine when a judge has delivered reasons, but has not “given” judgment. There is good authority for the proposition that that point is not reached until the order disposing of the proceeding has been perfected by being drawn up as the record of the court. So much was said in Bailey v Marinoff[2] by Barwick CJ:
“… Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed. … .”[3]
[2](1971) 125 CLR 529
[3]at 530
15 Mr Mihaly referred me to the judgment of Gibbs J in Bailey v Marinoff,[4] which he submitted was a qualification to be statement of principle by Barwick CJ, but it is no such thing. Interestingly, Gibbs J used different language to describe a judgment which is “given”. He said:
“It is a well-settled rule that once an order of a court has been passed and entered or otherwise perfected in a form which correctly expresses the intention with which it was made the court has no jurisdiction to alter it: … The rule rests on the obvious principle that it is desirable that there be an end to litigation and on the view that it would be mischievous if there were jurisdiction to rehear a matter decided after a full hearing. … .”[5]
[4]Supra
[5]at 539. It should be noted that Gibbs J delivered a dissenting judgment, but nonetheless enunciated the relevant principles consonant with the other members of the Court.
16 The use of these synonyms “passed” and “entered” and “perfected” found in Bailey are not expressions distinguishable from what Rule 60A.02 encompasses by what is meant by the word “authenticated”. It occurs to me that the point at which the Court potentially has no jurisdiction to rehear a matter is when the judgment given is authenticated.
17 An example of the foregoing is Lollis v Loulatzis & Anor (No 3).[6]Kaye J refused an application to vacate or set aside part of the orders he made after giving judgment in the principal proceeding, and to make different orders. His Honour reviewed a number of decisions, including Bailey, concluding that there was no jurisdiction to set aside the orders he made after he had given judgment.
[6][2008] VSC 231
18 However, in my view, I had not reached the point of “giving” judgment. Despite what paragraph 71 provides, it was qualified by my twice stated concern to propose what orders I considered were appropriate. So, I certainly had not reached the point contemplated by Bailey and Lollis where I was without jurisdiction to entertain the application to re-open Paul’s case and to grant that application.
Reopening – the governing considerations
19 In Inspector-General in Bankruptcy v Bradshaw,[7] Kenny J referred to the four recognised classes of case in which a court may grant leave to re-open:
“… The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence (Hughes v Hill [1937] SASR 285 at 287; Smith v New South Wales Bar Assn [No 2] (1992) 108 ALR 55 at 61–2); (2) inadvertent error (Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts (Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 (‘UTA’) at 478; and (4) mistaken apprehension of the law (UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Co Pty Ltd as Trustee for the Baker Family Trust v Lenard’s Pty Ltd (No 2) [2004] FCA 1310 (“Silver Fox”) at [22] and [25].”[8]
[7][2006] FCA 22
[8]at [24]
20 In Spotlight Pty Ltd v NCON Australia Ltd,[9] the Court of Appeal cited Bradshaw with approval and, interestingly, added the following:
“These classes are not closed; but the present case shares with Bradshaw the distinction that it falls into none of them, and no applicable new category is suggested. The overriding principle is that the court consider whether, taken as a whole, the justice of the case favours the grant of leave to reopen. … .”[10]
[9][2012] VSCA 232
[10]at [26]
21 The four categories are bases upon which parties may apply to the Court to grant leave to re-open a case. None of them refer to a category directly applicable to a mistake made by the trial judge.
22 Dr Glover submitted that an additional factor in considering the application is the overarching purpose referred to in s7 of the Civil Procedure Act 2010. It refers to the overarching purpose in relation to a civil proceeding to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. Section 8 provides that the Court is to give effect to the overarching purpose in the exercise of any of its powers, or in the interpretation of those powers, whether those powers, in the case of the County Court, are part of the Court’s implied jurisdiction: s8(1)(b).
23 I think there is an analogy with a party applying for leave to re-open a case where there has been an inadvertent error on the part of a party in adducing evidence, and a judge who makes an inadvertent error by overlooking relevant evidence.
24 Furthermore, that analogy is given some force in Bradshaw, because the overriding principle, in addition to the four categories referred to, is to determine whether the interests of justice are better served by allowing or rejecting the application for leave to re-open. Section 7(1) certainly requires the Court to facilitate the just resolution of “the real” issues in dispute. Why is it not a permissible approach by the Court to grant an application for leave to re-open when it would be just to do so in the resolution of a real issue in the case, that is, a determination of the provision which should be made to Paul?
25 I am mindful of the fact that the title of the Civil Procedure Act 2010 demonstrates that the enactment concerns itself with practice and procedure rather than being an invitation to employ its provisions to modify the “black letter law”. Although, having said that, it is noteworthy that it does that, for example in Part 4.4, which deals with the law relevant to applications for summary judgment.
26 I am satisfied that the provisions of the Civil Procedure Act 2010 permits matters of practice and procedure to be modified to meet the overarching purpose. An application to re-open a case is an interlocutory application. It has a number of considerations which govern it, as do almost all interlocutory applications. At present I see no reason why, in such an interlocutory application, the clear demonstration of the overarching purpose should not be employed as a consideration in addition to those referred to in Bradshaw and Spotlight.
Disposition
27 Firstly, I am satisfied that I have not given judgment, and therefore, I am in a position to entertain the application to re-open Paul’s case and to reconsider it.
28 Secondly, on the basis of the authorities I have reviewed, I do not see a justification for the position submitted by Mr Mihaly that I should not grant the application. I consider that there is an analogy which is both logical and just that if a judge makes an inadvertent error in not considering very relevant evidence, that the judge should permit a party to re-open his case, and otherwise it would be inconsistent with the overriding principle referred to in Bradshaw and Spotlight, and also consistent with the provisions of the Civil Procedure Act 2010 which I have referred to.
29 Therefore, I grant the plaintiff the leave sought. I will now turn to the question whether the evidence which I will now take into account demonstrates that the observation I made that there was no distinction between Lyndal and Paul is justified.
Paul’s position
30 I refer to paragraphs 34 to 37 of the reasons in which I set out Paul’s position. What I overlooked is that he purchased a house in Lilydale for $430,000 which he says is now worth $375,000. He has a mortgage over the house of $403,000. In other words, the debt over the property exceeds its net value.
31 Mr Mihaly submitted that I should not accept that evidence. He submitted that I should take judicial notice of the fact that the valuation of Paul's house is based upon a rate notice which is stale, and that it is more likely than not that the value of his house has increased over time. The reference to judicial notice is bandied about without a clear understanding of what it amounts to. It does not mean that in some way I can reach a conclusion which is not based on evidence, because that would be speculation.
32 I accept that Paul and Karina have borrowed a significant amount in order to purchase the house in Lilydale. At the time of its purchase, the net equity was marginal. Even if the net equity has increased, I doubt very much it would have increased significantly.
33 The only other factor that is of importance is that Karina has an income of $80,000 per annum which is significant when added to Paul’s income.
34 Mr Mihaly submitted that if I gave leave for Paul to re-open his case, then that does not mean that I only look to determine whether provision for Paul should be increased. He submitted that it opens up the whole issue of what provision Paul should receive. I have considered that submission, and I agree that re-opening Paul’s case opens up the whole of the evidence relevant to whether any provision should be made for him and in what amount.
35 I have reconsidered the evidence which I referred to in the reasons. I see no reason to depart from my description of Paul’s position in the reasons, except to add the admission that Karina is earning $80,000 per annum.
36 I think the evidence discloses that there is a distinction between Lyndal and Paul. Lyndal has net equity in her house, and she and Darren have Darren’s income. Paul has little or no net equity in his house, but he and Karina have a significant combined income of $145,000 gross per annum. However, the combined income is about $41,000 more than Darren’s gross income. I think the distinction is clear and demonstrates that Paul is in an inferior position to Lyndal. In the circumstances, I consider that provision for Paul should be fixed at $250,000.
Conclusion
37 I propose to hear counsel on the form of order that I should make, and then what submissions they wish to make relevant to costs before I finally give judgment.
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