TP Engineering Pty Ltd v JM
[2015] WASCA 181
•4/09/15
T P ENGINEERING PTY LTD -v- JM [2015] WASCA 181
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 181 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:97/2014 | 10 AUGUST 2015 | |
| Coram: | BUSS JA BEECH J CORBOY J | 4/09/15 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Appeal and crossappeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | T P ENGINEERING PTY LTD JM PD FI PTY LTD D CORPORATE PTY LTD TDG PTY LTD |
Catchwords: | Practice and procedure Application to extend time for compliance with a springing order Whether primary judge erred in exercise of discretion Turns on own facts |
Legislation: | Family Court Act 1997(WA), s 211, s 222 |
Case References: | Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 CVW Group Holdings Pty Ltd v Addison [2011] WASC 267 Dodds v Kennedy [2011] WASCA 32 Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 House v The King [1936] HCA 40; (1936) 55 CLR 499 Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513 M and D [2014] FCWA 3 M and D [2014] FCWA 50 MTQ Holdings Pty Ltd v Lynch [2007] WASC 49 Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 P v J [2014] WASCA 95 Pearce v International Mining Technologies Ltd [2009] WASCA 239 Stone v Braun [2015] WASCA 103 Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd [2005] WASCA 106; (2005) 30 WAR 290 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : T P ENGINEERING PTY LTD -v- JM [2015] WASCA 181 CORAM : BUSS JA
- BEECH J
CORBOY J
- Appellant
AND
JM
First Respondent
PD
Second Respondent
FI PTY LTD
Third Respondent
D CORPORATE PTY LTD
Fourth Respondent
TDG PTY LTD
Fifth Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram : CRISFORD J
Citation : JM and PD [2014] FCWA 50
File No : PTW 1385 of 2009
Catchwords:
Practice and procedure - Application to extend time for compliance with a springing order - Whether primary judge erred in exercise of discretion - Turns on own facts
Legislation:
Family Court Act 1997(WA), s 211, s 222
Result:
Appeal and crossappeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr F Castiglione QC & Mr G M Cridland
First Respondent : Ms W F Gillan
Second Respondent : Mr H O Moser
Third Respondent : Ms K Krleska
Fourth Respondent : Ms K Krleska
Fifth Respondent : Ms K Krleska
Solicitors:
Appellant : Frichot & Frichot
First Respondent : Bannerman Solicitors
Second Respondent : GG Legal
Third Respondent : Morgan Alteruthemeyer
Fourth Respondent : Morgan Alteruthemeyer
Fifth Respondent : Morgan Alteruthemeyer
Case(s) referred to in judgment(s):
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170
CVW Group Holdings Pty Ltd v Addison [2011] WASC 267
Dodds v Kennedy [2011] WASCA 32
Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513
M and D [2014] FCWA 3
M and D [2014] FCWA 50
MTQ Holdings Pty Ltd v Lynch [2007] WASC 49
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
P v J [2014] WASCA 95
Pearce v International Mining Technologies Ltd [2009] WASCA 239
Stone v Braun [2015] WASCA 103
Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd [2005] WASCA 106; (2005) 30 WAR 290
1 BUSS JA: I agree with Beech J.
BEECH J:
Introduction
2 The appellant (T)1 appeals against an order by Crisford J in the Family Court extending the time within which the first respondent (JM) had to comply with a springing order made on 4 February 2014. The decision appealed against was a discretionary decision by a case manager on a matter of procedure. No ground has been shown for interfering with that exercise of discretion. Consequently, I would dismiss the appeal.
3 It is convenient to outline the background to this appeal by reference to the primary judge's decision in February 2014, in which her Honour made the springing order, before turning to the decision the subject of this appeal.
The February Reasons
4 On 4 February 2014, the primary judge published reasons2 dismissing T's application for the discharge of an injunction made on 22 May 2012 restraining T from attempting to sell a property in Yangebup.
5 In those reasons, the primary judge made an order (the Springing Order) in the following terms:
3. Within 14 days of the Supreme Court of Western Australia publishing its judgment in relation to CACV 128/2012 against the order of the Honourable Justice Crooks on 3 June 2012 granting leave to commence proceedings out of time, [JM] is to file and serve a document in the form of a Statement of Claim setting out:
3.1 The precise legal and factual basis for [JM's] claim against [T]; and
3.2 The specific relief sought by [JM] against [T]
and in default of so doing, [JM's] claim against [T] be dismissed.
7 On 22 May 2012, the primary judge made an order for an injunction in the following terms:
[T] be restrained and an injunction be granted restraining it from selling or attempting to sell the property situate at and known as [ ], Yangebup in the State of Western Australia, being the whole of the land Lot [ ] on Plan [ ] and contained in Certificate of Title Volume [ ] [Folio] [ ] ('the Yangebup property') or attempting to evict [JM], or in any other way interfering with her use and enjoyment of the Yangebup property.
8 Earlier, Crooks J had granted an injunction preventing the fourth respondent to the appeal, D Corporate, the registered proprietor of the Yangebup property, from disposing of, encumbering or otherwise dealing with that property.4
9 On 11 November 2011, T entered judgment by consent in default of an appearance by D Corporate in the Supreme Court of Western Australia for the sum of $593,340.39. The money owed to T by D Corporate was advanced pursuant to a loan agreement and secured by a mortgage over the Yangebup property.5
10 On 7 December 2011, T registered a Property (Seizure and Sale) Order (PSSO) issued by the Supreme Court on the title of the Yangebup property in order to satisfy the judgment debt.
11 The Yangebup property had been acquired by D Corporate for about $170,000 in July 2005. On 30 September 2005, pursuant to a loan agreement, D Corporate borrowed $300,000 from T in order to purchase a property at Westdale. Mr T, principal of T, and described by PD as 'his friend', registered a mortgage dated 21 September 2005 over the Yangebup property in order to secure the loan for the purchase of the Westdale property.6
12 In the period from 26 June 2004 to 26 February 2007, JM was the sole director, secretary and shareholder of D Corporate. She signed all of the company's documents, including those for the acquisition of the Yangebup property and the subsequent loan and mortgage agreement with T.7 In 2006, D Corporate acquired another property in Karragullen.8 In June 2009, after JM and PD separated, the loan agreement between D Corporate and T was increased by $69,000.
13 Without objection from JM, steps have been taken by D Corporate to sell both the Westdale and Karragullen properties in order to satisfy its debt. The Westdale property was sold and the net proceeds used to reduce the debt.9
14 The injunctions made against T and D Corporate have had the effect of preventing any disposal of the Yangebup property. JM claims that the Yangebup property should form part of the pool of assets in her de facto property settlement with PD.10
15 T sought the discharge of the injunction granted against it, saying that it should be free to sell the Yangebup property to satisfy the judgment debt.11
16 In setting out some background in relation to the parties' relationship, the primary judge referred to, and evidently adopted, certain findings of Crooks J in a 2012 decision:12
This was not a case where the parties bought any property in joint names. Further, from the time they began living together in November 2002, [PD] avoided buying any real estate in his sole name. Because of his affiliation with the motorcycle club, [PD] made it clear he did not want any property held in his name to avoid any 'risk of them being seized under the Confiscation of Criminal Proceeds Act'. [JM] was well aware of [PD's] position.
With a view to minimising any exposure [PD] may have had under the asset seizure legislation, he instructed his accountant to establish a number of companies and trusts to hold assets many of which were acquired whilst the parties lived together.
17 The primary judge recorded that, despite JM being director, secretary and sole shareholder of D Corporate from 26 June 2004, JM said that PD had full control of the company and did all the buying, selling and arranging of shareholdings and investment properties, and that she signed documents as requested.13
18 T asserted before the primary judge that it was an independent third party with a genuine interest in the Yangebup property and a PSSO issued by the Supreme Court. It said that the loan and mortgage were legitimate business transactions.14
19 In the proceedings before the primary judge, JM asserted that the mortgage between T and D Corporate over the Yangebup property should be set aside pursuant to s 222 of the Family Court Act 1997 (WA) on the basis that it was a sham transaction specifically designed to protect the assets of PD.15 JM submitted that if the injunction was not maintained, the Yangebup property would be sold and that would defeat her claim.16
20 The primary judge acknowledged that there was a paucity of direct evidence before her to suggest that the dealings between T and D Corporate in registering the mortgage over the Yangebup property were a sham.17 Nevertheless, her Honour said that she did not propose to discharge the injunction.18 She found that the disposal of the Yangebup property, legitimate or not, would otherwise likely have the effect of defeating JM's claim.19
21 Taking into account the background to the relationship and the manner in which the parties arranged their affairs, her Honour concluded that the issue of setting aside a transaction designed to defeat, or having the effect of defeating, a claim was something that needed to be explored.20
22 Her Honour referred to Crooks J's comment that PD had made it clear that he wanted to quarantine assets or did not want them to be held in his name. The primary judge referred to the need to preserve assets to which JM may have an entitlement until her claim under s 222 of the Family Court Act was resolved.21
23 Her Honour said that she intended to make an order that JM provide a document akin to a statement of claim for the following reasons:
• [JM] has previously had solicitors file such a document on 13 November 2009 in relation to another s 222 claim;
• [T and D Corporate] are entitled to know the exact case they are to face; and
• Although the affidavit of [JM's solicitor] makes some submissions which clarify [JM's] claim, it is far from complete.22
24 The Springing Order made by the primary judge reflected, with some modification, the alternative orders sought by T in the event that its primary application for the discharge of the injunction failed.23
JM's failure to comply with the Springing Order
25 On 5 May 2014, this court dismissed PD's appeal against Crooks J's order allowing JM to commence proceedings out of time.24 Pursuant to the Springing Order, JM was then required to file a document in the form of a statement of claim by 19 May 2014. She failed to do so. Her statement of claim was filed on 16 July 2014. On 23 June 2014, JM filed an application to extend the time for her compliance with the Springing Order.
The primary judge's reasons
Background
26 On 15 August 2014, the primary judge delivered reasons25 for ordering an extension of time for compliance with the Springing Order. That order is the subject of this appeal.
27 In the Reasons, the primary judge set out the background to the matter to which I have already referred.
JM's position
28 The primary judge summarised JM's position before her as follows:
(a) JM's solicitor said she simply overlooked the time limit for filing the statement of claim.
(b) The February Reasons do not suggest that the Springing Order was made because of JM's contumelious disregard of previous orders. Rather, the order was made for the purpose of case management and to progress the matter to trial.
(c) The statement of claim demonstrates that there is a real case against T and if time is not extended JM would be deprived of the opportunity to advance that case.
(d) Counsel for JM referred to Crooks J's decision and his findings that PD controlled the couple's various entities, and that JM did as he requested.26
T's position
29 The primary judge summarised T's position on the application before her as follows:
(a) Counsel for T said it had been adversely affected by the granting of the 2012 injunction and continued to suffer loss due to the delay in the resolution of the matter, as was canvassed at length in earlier proceedings.
(b) Mr T wanted to sell his business and retire. He could not complete those arrangements while the injunction remained in place. Given the uncertainty, he had not pursued certain business opportunities.
(c) The fact that there might be merit in JM's case was not a good enough reason for her to be 'given another go'.
(d) Counsel for T said there had been long-standing requests for JM to particularise her case against T and produce a statement of claim but this had never been done.
(e) If there were any sham transactions involving T, then JM was also very much involved.27
Legal principles
30 The primary judge applied28 the principles stated by Master Newnes in MTQ Holdings Pty Ltd v Lynch.29 On appeal, T accepted that the principles are correctly stated in that decision.
31 Her Honour also referred30 to the statement by Le Miere J in CVW Group Holdings Pty Ltd v Addison31 that the relevant prejudice is prejudice resulting from the extension of the time for compliance with the order.
32 The primary judge observed that it was important to bear in mind that this was the relevant timeframe in assessing any prejudice to T, because otherwise there was a temptation to consider matters raised in previous hearings which had already been dealt with.32 As will appear, I agree with her Honour's observation.
The disposition of the matter
33 The primary judge observed that the background to the making of the Springing Order was the long-standing request by T, since it had been joined in May 2012, for precise identification of JM's claim against it.33 Her Honour referred to a number of requests for clarification, made by T in writing and in open court. She stated that she had accepted on 4 February 2014 that JM had been 'somewhat dilatory' in providing any detailed information about her claim against T.34
34 At the hearing on 10 January 2014 which culminated in the primary judge making the Springing Order on 4 February 2014, JM's counsel had said that he had no difficulty with preparing a statement of claim, but did not wish to incur the expense of doing so pending the outcome of PD's appeal against Crooks J's order allowing JM to commence property settlement proceedings out of time. Her Honour accepted that argument.35 However, her Honour explained that the Springing Order was made to ensure that in the event of the appeal being dismissed, JM would be 'left in no doubt [that] this case would then need to move forward in a timely fashion according to the principles of positive case-flow management'.36 The primary judge was not persuaded that, without that order, JM would quickly take the step of filing and serving a document akin to a statement of claim. Overall, her Honour considered the order would facilitate the achievement of justice in that respect.37
35 Her Honour concluded that in that context JM's failure to comply with the Springing Order was a matter not to be taken lightly.38
The reasons for the failure to comply
36 The primary judge outlined the contents of two affidavits sworn by the solicitor for JM.39 The first affidavit, which was not filed, explained in detail how the solicitor had overlooked the requirement to file the statement of claim. The second affidavit included less detail. Her Honour observed that its tone was to obfuscate the solicitor's default.40 Her Honour also referred to counsel for JM's submissions, in which she said that JM's solicitor had 'fallen on her sword' and took full personal responsibility for the oversight.41
37 The upshot was her Honour found that the failure to comply with the order was due to the oversight of the solicitor for JM.42
38 Ground 3 attacks the primary judge's approach to this issue.
The prejudice to JM
39 The primary judge said as follows:43
If time is not extended to [JM] her application for property settlement is likely to be rendered nugatory. One of the main assets of the parties and the asset in which the applicant mostly lives will be disposed of. She will not be able to pursue a meaningful case if the foundation upon which it is based no longer exists.
Realistically, the family court litigation, of which [T] is a part, could not move forward until the first respondent's SCWA [(Supreme Court of Western Australia)] appeal had been dealt with. This was known to all parties. The time lost since the appeal and as a result of the failure to comply with the 4 February 2014 order has been just under three months.
Although the claim against [T] is based on inference I am satisfied there is a claim to be heard. Until the Court has tested the evidence at trial it would be ill advised to shut out [JM] and any success she may have in the proceedings for property settlement.
40 Ground 1 complains of the finding that JM mainly lives at the Yangebup property. Ground 5 attacks the primary judge's consideration of prejudice to JM.
The prejudice to T in the grant of an extension of time
41 In relation to prejudice to T, the primary judge said as follows:44
[T] is faced with the same position it was faced [with] on 22 May 2012 and then 4 February 2014. There has been an extension of the time over which any prejudice already identified endures but there is little evidence of any new prejudice.
The prejudice for [T] is not in any way underestimated but it needs to be weighed with the entire facts as they impact on all here.
42 Ground 4 complains of errors in these observations.
Conclusion
43 The primary judge came to the following conclusions:45
Generally speaking, a litigant must bear the consequences of her solicitor failing to comply with a self-executing order. However, I am not satisfied here that the consequences of non-compliance should be visited upon [JM]. The consequences are grave. I accept that the fault lies wholly with her solicitor. There was uncertainty in the timing of the publication of the SCWA judgment and, thus, the beginning of the time limit. This in itself does not excuse the conduct of the solicitor given the likely impact on her client's position within this litigation. The solicitor wrote seeking a directions hearing, but failed to review the orders and comply with substantive obligations.
Unless time is extended to [JM], her claim against [PD] will be lost.
The action has been at a virtual standstill since the institution of the SCWA appeal. This has caused prejudice to [JM] and the balance of the respondents. However, [PD] had every right to appeal. It is something that all the respondents and [JM] have had to bear. With that action now disposed of the substantive property proceeding should be the focus of the attention it requires.
A document akin to a Statement of Claim has been filed. As predicted, the basis of [JM's] claim again [T] is based on inference. I accept that [JM] signed documents relating to what is alleged to be a sham transaction. However, given her role as 'caretaker' it appears to be that the actual transaction itself was negotiated between [PD] and [T]. Crooks J was persuaded that [JM] did not hold a position of power in relation to the manner in which the parties to the de facto relationship ordered their finances. This is not unusual in matrimonial proceedings.
There is criticism of the form and content of the Statement of Claim which was inadvertently accepted for filing. I intend to formally accept that document as filed. Counsel for [T], given the tenor of his criticisms, invited amendment. The Rules of the Court cater for this if it is necessary or required.
Given this outcome the injunction against [T] will remain in place pending the disposal of the substantive hearing and as previously dealt with.
I intend to list this matter for directions for trial. At this directions hearing the parties will need to give an accurate estimate of the length of trial, the witnesses to be called and address any valuation or other related issues.
44 Ground 2 attacks the judge's acceptance for filing of the document relied on by JM as her statement of claim.
Costs
45 In relation to costs, the primary judge said as follows:46
On 4 February 2014 I made an order that the costs of those proceedings be reserved to trial. I consider, and as conceded, [JM] should bear the costs of her default in complying with the order of 4 February 2014 which is the subject of the present application. Each party has a different view about when such costs should commence and whether or not they should be on an indemnity basis. I consider the costs order made on 4 February 2014 and the present application should be dealt with together as the timeframe of the default here straddles the two applications. I also consider that the evidence at trial may inform some of the costs issues to be dealt with here.
To that end I intend to reserve the costs of all the respondents in relation to this application to trial.
46 Ground 8 complains of the primary judge's decision as to costs. PD has also cross-appealed the decision on costs, with the support of the third to fifth respondents.
Appeals against discretionary decisions: general principles
47 The principles relevant to appellate interference with the exercise of a discretion are well-known. Where a discretion is to be exercised, minds may differ as to the appropriate result.47 It is not enough that the appeal court would, if in the position of the primary judge, have exercised the discretion differently. It must be shown that the judge acted on a wrong principle, permitted irrelevant matters to affect the decision, mistook the facts, failed to take into account a mandatory relevant consideration or reached a result that was on its face plainly unjust or unreasonable.48
48 An appellate court will not interfere with an exercise of discretion on the basis of a failure to give adequate weight to a relevant consideration unless it can be shown that the failure really amounts to a failure to exercise the discretion actually entrusted to the court.49
49 Special restraint must be exercised when the discretionary decision challenged is one concerned with practice and procedure.50 This restraint has particular force where the appeal is brought from a procedural decision of the judge who has management of the case, including in the CMC list of this court.51
Is leave to appeal required?
50 Written submissions for all parties proceeded on the basis that leave to appeal was required. At the hearing of the appeal, the court raised with the parties the question of whether that was so, given the provisions of the Family Court Act under which this court's relevant appellate jurisdiction is conferred.52
51 Ultimately, all parties accepted that leave to appeal was not required. In my view, that is correct. Section 211(3) of the Family Court Act states that, in respect of the non-Federal jurisdictions of the Family Court of Western Australia, an appeal lies from a decree of that court given in its original or appellate jurisdiction to the Court of Appeal. The term 'decree' is widely defined in s 209A to include a judgment or an order, an order dismissing an application and a decision to not make an order. By s 211(5), appeals under s 211(3) to the Court of Appeal are to be made in the manner and within the time prescribed by the Rules of the Supreme Court 1971 (WA). No rules in that respect have been promulgated by the Supreme Court.
52 Nothing in s 211 or elsewhere in pt 7 of the Family Court Act conditions this court's appellate jurisdiction upon the grant of leave to appeal in respect of any particular categories of decision. It might well be thought surprising, and undesirable, that an appeal lies as of right to this court from a procedural interlocutory decision of the Family Court. However, that is the effect of the relevant statutory provisions.
Applications to extend time for compliance with springing orders - legal principles
53 As the primary judge found, and as both T and JM accepted, the relevant principles are conveniently outlined by Master Newnes in MTQ Holdings Pty Ltd v Lynch53 as follows:
[G]iven the nature of a springing order, the starting point must be that it is for the defaulting party to establish why it should be permitted to continue with the litigation despite its non-compliance. In my view, it will generally not be sufficient simply to show that the non-compliance was not intentional and contumelious. The authority of the Court will equally be undermined, and the quality of justice for the innocent party eroded, if the ultimate sanction effected by the operation of a springing order can be avoided by showing that non-compliance with the springing order came about by the same sort of inattention or laxity that caused the order to be made in the first place.
Whether the consequences of non-compliance should be visited upon the litigant when the fault lies wholly with its solicitor will depend upon the particular circumstances. But I do not consider that the fact the litigant did not contribute to the default, or even that it was unaware of the springing order, is necessarily sufficient to enable it to avoid the consequences of non-compliance.
Much that occurs in the course of the interlocutory process in litigation is done, and necessarily done, by the solicitors alone, without the active, or any direct, involvement of the litigants. The litigant reasonably leaves such matters wholly in the hands of its solicitors. But that does not mean that the litigant is necessarily excused from the consequences of its solicitor's failure to comply with the requirements imposed by the rules and the orders of the Court in respect of such matters.
The failure to comply with a springing order is an egregious breach. A springing order is intended to be the last opportunity offered to the party to put its case in order. The proper administration of justice, and the quality of justice for the other party, generally requires that it be just that, its last opportunity. That will generally mean that the litigant must bear the consequences of a failure to comply with a springing order, whether the failure was due to the litigant or its solicitor.
The matters to which I have referred above provide the backdrop, in my view, against which the specific matters to which, in any particular case, the Court is to have regard in the exercise of its discretion are to be considered. And while no hard and fast rules can be laid down as to the matters to which the Court should have regard, in my view in the exercise of its discretion the Court will normally have regard to at least the following matters:
(1) the circumstances in which the springing order came to be made;
(2) the reason for non-compliance with the springing order;
(3) the prejudice to the defaulting party if the time were not extended; and
(4) the prejudice to the other party if the time were extended.
It will also normally be a relevant consideration whether or not the defaulting party has a reasonably arguable case on the merits - there being no point in resuscitating a case that is devoid of merit - but, on the other hand, the fact that a party has an apparently meritorious case cannot be permitted effectively to act to insulate it from the consequences of a failure to comply with a peremptory order of the Court.
But as I have said, in the end the matters that are to be weighed in the balance, and the weight to be given to each, cannot be stated definitively but must depend upon the circumstances of the particular case.
The grounds of appeal
54 There are eight grounds of appeal, occupying more than 15 pages of the relevant appeal book. With due respect, the grounds of appeal are prolix and repetitive. Moreover, the drafting of the grounds is not informed by an appreciation of the principles relating to appellate interference with an exercise of discretion.
55 Ground 1 complains that the primary judge erred in finding that JM mostly resides at the Yangebup property, and erred in finding that the place JM resided at was 'a matter of great significance' in the exercise of her Honour's discretion.
56 Ground 2 asserts that the document filed by JM on 16 July 2014 was so seriously deficient that it should not have been accepted as a statement of claim. The ground asserts that the statement of claim established no cause of action against T, and was deficient in various other respects.
57 Ground 3 asserts that the primary judge erred in her treatment of the explanation offered before her for JM's failure to comply with the Springing Order.
58 Ground 4 asserts that the primary judge erred in her consideration of the prejudice to T. It complains of her Honour's findings that T was faced with the same position that it had been faced with in May 2012 and February 2014 and that there was little evidence of any new prejudice before her.
59 Ground 5 asserts error in the primary judge's consideration of prejudice to JM.
60 Ground 6 complains that the primary judge should have found that there was no evidence before her that T was involved in any sham transaction, as claimed by JM.
61 Ground 7 complains that the primary judge did not consider, or did not give adequate reasons for rejecting, the view that the extension of time should have been refused on the ground that JM's case was hopeless and that there was no utility in extending time for compliance in a hopeless case.
62 Ground 8 asserts that the primary judge erred in her decision in relation to costs. The ground asserts, in effect, that it was not properly open to the primary judge to defer the question of costs for decision by the trial judge, or that her Honour failed to give adequate reasons for that deferral.
63 JM opposes the appeal.
64 The second to fifth respondents support T's appeal.
65 The second respondent, PD, also cross-appeals against the costs order made by the primary judge. The third to fifth respondents support the cross-appeal.
66 I turn to ground 1.
Ground 1 - error in finding of fact?
67 T asserts that the primary judge gave great weight to her finding that JM mostly lives at the Yangebup property, and that her Honour erred in doing so.54
68 In my view, there is no merit in those assertions. This complaint is, in essence, a complaint of a weighting error. The principles relevant to appeals from discretionary decisions show that a complaint of that character in this context is extremely hard to make good. Further and in any event, I do not accept that the primary judge gave great weight to her finding that JM mostly lives at the Yangebup property. It is true, as T's submissions emphasise, that the primary judge mentioned the point twice in her reasons. The first was in setting out the background to the application.55 The second was in the context of a statement that if time is not extended, one of the main assets of the parties, and the asset in which JM mostly lives, would be disposed of.56 I am not persuaded that the finding that JM mostly lives at the Yangebup property made any difference to the primary judge's exercise of discretion. On the face of things, whether JM lives or mostly lives at the Yangebup property will not be material to the merits of JM's substantive application in the Family Court.
69 T further submits that there was no reasonable basis in the admissible evidence before the court to support the primary judge's finding that JM lives or mostly lives at the Yangebup property. T says that the only direct evidence to that effect was JM's affidavit sworn in May 2012 and that JM gave no further evidence in the application to extend time for compliance with the Springing Order. T asserts that the absence of further evidence from JM is significant in the context of T's requests for disclosure, including as to when she has stayed at the Yangebup property.57
70 I am not persuaded that the primary judge erred in this respect. JM's solicitor stated in her affidavits that JM lived at the Yangebup property.58 These statements may not have been in an admissible form, in that they were hearsay without an identification of the source of the information and belief.59 Nevertheless, what was said in JM's solicitor's affidavit did not give rise to any reason to doubt that the position reflected in JM's affidavit of May 2012 continued to be the case. In my view, the material said by T to point to a contrary conclusion was far from convincing. I am not satisfied that the primary judge's finding of fact reveals any error. Further and in any event, as I have said, I am not satisfied that this finding of fact made any difference to the primary judge's exercise of discretion.
71 Ground 1 fails.
Ground 2 - did the statement of claim comply with the Springing Order?
72 Ground 2 asserts that the document filed by JM as a statement of claim did not comply with the Springing Order, and that the primary judge erred in not dismissing the application on that basis. In support of that contention, T submits:
(1) the effect of the Springing Order was to require JM to file a statement of claim that complies with the requirements relating to the content of a statement of claim under O 20 of the Rules of the Supreme Court;60
(2) the statement of claim filed by JM:
(a) does not disclose a cause of action;
(b) does not properly identify the material facts relied on by JM;
(c) does not seek any specific relief;
(d) is embarrassing, scandalous or an abuse of process in various respects;61 and
(3) in the primary judge's reasons, there is no apparent consideration of, or reasoning in relation to, the question whether the document filed by JM complied with the Springing Order.62
73 In my opinion, there is no merit in these submissions.
74 First, in my view, the requirements of O 20 of the Rules of the Supreme Court had no application to the document 'in the form of a statement of claim' ordered by the primary judge to be filed and served by JM. The required contents of that document were specified in the Springing Order; namely that it set out the precise legal and factual basis for JM's claim against T and the specific relief sought by JM against it. The Springing Order did not import the requirements of a pleading under the Rules of the Supreme Court. The Rules of the Supreme Court do not apply in the Family Court. The practice and procedure of the Family Court is governed by the Family Court Rules 1998 read with the Family Law Rules 2004 (Cth). There is no comparable provision to O 20 in those rules.
75 Secondly, in my view, it was well open to the primary judge to come to the view that JM's statement of claim filed on 16 July 2014, read with the minute of orders filed 21 February 2014, substantially complied with the requirements of the Springing Order.
76 JM's statement of claim pleads that the mortgage granted by D Corporate to T on 21 September 2005 securing an advance of $300,000 and the offer of finance of June 2009 for a further advance of $69,000, were a sham. JM pleads that these transactions were entered into, with the concurrence of T through Mr T, for two purposes. The first was to avoid the potential operation of the criminal confiscation of property legislation. The second was to create the appearance that there was significantly less equity in the Westdale land under the control of PD, so as to defeat any claim or potential claim by JM for alteration of property interests pursuant to s 205ZG of the Family Court Act.
77 The statement of claim sets out a number of facts from which it asserts that the intention of D Corporate and T is to be inferred. In my view, contrary to T's submissions in this appeal, JM's statement of claim sufficiently identifies the case that T must meet.
78 The minute of final orders sought filed on 21 February 2014 seeks, among other orders, orders that:
2. Within 28 days [D Corporate] sign all documents and do all things to discharge the mortgage registered over the [Yangebup property].
3. Within 42 days … [D Corporate] transfer all of its right, title and interest in the [Yangebup property] to [JM].
…
8. [T] be restrained … from attempting to enforce the [PSSO] dated 27 October 2011 insofar as it relates to the Yangebup property.
9. [T] do all such things as necessary to discharge the [PSSO] dated 27 October 2011 over the Yangebup property.
79 T complains that the minute of orders filed 21 February 2014 does not adequately identify the relief sought by JM against T. For example, T says that it is left to wonder why there is no claim for relief setting aside the loan entered into between D Corporate and T.63 On the face of it, it may be too late to set aside the loan itself. The parties' rights and obligations under the loan would appear to have merged in the Supreme Court judgment. The Family Court could not set aside the judgment of the Supreme Court. However, the Family Court has power under s 222 of the Family Court Act, together with s 205ZG read with s 205ZI, to make orders of the kind sought in pars 8 and 9 of the minute.
80 In my view, it was open to the primary judge to form the view, as she evidently did, that the substance of the relief sought by JM against T was sufficiently clear.
81 Thirdly, I do not accept T's contention that the primary judge simply assumed that the document filed by JM on 16 July 2014 complied with the Springing Order. To my mind, a fair reading of her Honour's reasons is that, notwithstanding T's complaints as to the form and content of the statement of claim, her Honour found that the statement of claim, read with the minute of 21 February 2014, substantially complied with the requirements of the Springing Order, and that any other complaints as to the form and level of detail of the document could, if necessary, be the subject of a further application.
82 In my view, for the reasons I have already given, no error is revealed by that approach. To the contrary, the approach taken by the primary judge was conducive to the achievement of the main purpose of the Family Law Rules, being the just and timely resolution of the proceedings at a cost that is reasonable in all the circumstances.64
83 For these reasons, I would dismiss ground 2.
Ground 3 - reasons for non-compliance
84 T makes several criticisms of the primary judge's consideration of the reasons for JM's failure to comply with the Springing Order.
85 First, T submits that:
(a) the primary judge noted the stark contrast in two of the affidavits sworn by JM's solicitor in explanation of the delay;
(b) her Honour appears to have impermissibly acted on evidence from the bar table from counsel in resolving the conflict between the affidavits and in making adverse findings against JM's solicitor; and
(c) in circumstances where JM had not sworn an affidavit explaining the non-compliance, there was no reasonable basis in the evidence for a finding that JM's solicitor was wholly to blame.65
86 I do not accept these submissions. It was well open to the primary judge to find, on the evidence before her, that the failure to comply with the Springing Order was wholly the fault of JM's solicitor. The fact that JM's solicitor had sworn affidavits in different terms did not detract from that position. The solicitor's affidavit of 18 June 2014 specifically stated that the statement of claim had been drafted, but not filed, and that the 14 day period for the filing of the statement of claim after the Court of Appeal judgment was delivered went unnoticed.66 It was clear from that evidence that JM had provided all necessary instructions to her solicitor to enable the preparation of the statement of claim. JM's solicitor was responsible to ensure that it was filed in accordance with the court's order, and failed in that responsibility. In these circumstances, there was no need for an affidavit from JM herself.
87 Secondly, T asserts that the primary judge erred in failing to take into account other matters said to be relevant to the explanation for JM's non-compliance with the Springing Order. These other matters are said by T to include the history of other 'strikingly similar' breaches of court orders by JM.67 One of the orders said by T not to have been complied with by JM is order 2 of the court's orders of 4 February 2014. That order required JM to file and serve an amended application setting out with precision the nature of the relief sought in the proceedings. I do not accept that the document filed by JM on 21 February 2014 failed to comply with that order.
88 More generally, I am not satisfied that the primary court overlooked the other matters referred to in T's submissions.68 Contrary to T's submissions, none of the other breaches of court orders were 'strikingly similar'. They were not matters demanding specific consideration in the context of the application before her Honour.
89 Her Honour was entitled to take into account, as she did, that, unusually, in this case it was not a history of previous non-compliance with court orders that led to the making of the Springing Order.69 The order was made to ensure the timely progression of the litigation.
90 Thirdly, T complains that the primary judge failed to explain her reasons for departing from the general rule that a litigant must bear the consequences of his or her solicitor failing to comply with a springing order. I do not accept that submission. The primary judge weighed the various considerations relevant to her discretionary decision whether to extend time. Her reasons explain, more than adequately in my respectful opinion, the intellectual process by which she arrived at her conclusion that an extension of time should be granted.70
91 Ground 3 fails.
Ground 4 - prejudice to T
92 Ground 4 attacks the primary judge's findings that:
(1) T was faced with the same position it was faced with on 22 May 2012 and 4 February 2014; and
(2) there had been an extension of the time over which the prejudice already identified endured, but there was little evidence of any new prejudice.
93 It asserts that her Honour erred in considering the prejudice resulting from the extension of time 'in isolation' of the matter of ongoing prejudice to T.
94 In my view, for the reasons that follow, no error is revealed in either of the above findings by the primary judge.
95 Her Honour was saying, in effect, that:
(a) she was cognisant that the presence of these proceedings, including the injunction, caused prejudice to T;
(b) that had been so from the time the injunction was granted;
(c) that issue had been revisited at the time of the application to discharge the injunction in February 2014;
(d) the general prejudice caused by the proceedings continued to operate during the relevant period, namely from May to July 2014; and
(e) there had not been any evidence of any different or additional prejudice.
96 T submits that given the affidavits of Mr T sworn in 2013 and 2014, there was no evidence before the court that could sustain the findings of the primary judge. T submits that those affidavits demonstrate the impact that the joinder of T, and the injunction against it, have had since 22 May 2012, including legal costs, the decreasing value of the Yangebup property, and an increased likelihood of not recovering the judgment debt.71
97 I do not accept these submissions. The complaints by T on the question of prejudice to it are not informed by a proper identification of the relevant prejudice for the purposes of the application before the primary judge. As the primary judge correctly identified,72 the relevant prejudice to T was that arising from the delay between the date set for the filing of the statement of claim, 19 May 2014, and its filing on 16 July 2014.73
98 The prejudice to T arising from JM's delay in complying with the Springing Order had to be viewed in the context of the very substantial preceding delays in the action, for which JM was not responsible. On 3 July 2012, Crooks J made orders granting leave to JM to institute proceedings out of time, finding that a de facto relationship of more than two years had existed between JM and PD. PD appealed against those orders. That appeal was dismissed on 5 May 2014. The Family Court proceedings did not progress in the period from July 2012 to May 2014, pending the outcome of PD's appeal. The primary judge rightly found that the delay by JM in complying with the Springing Order had to be viewed against that background.74
99 The affidavits of Mr T were not addressed to the question of prejudice arising from delay between May 2014 and July 2014 in the provision of a statement of claim. Both Mr T's affidavits sworn in 2013 were sworn in support of his application for the discharge of the injunction. Among other things, those affidavits:
(a) made complaints about the lack of detail of JM's claim against T;75
(b) stated that many requests had been made for clarification in that respect;76
(c) stated that Mr T was winding down T's business with a view to selling it;77
(d) asserted that the delay caused by the injunction was leading to a decrease in the value of the Yangebup property;78
(e) expressed concern about JM's ability to satisfy her undertaking as to damages;79
(f) stated that Mr T did not believe that sale of the Karragullen property would be sufficient to satisfy the judgment debt and that, further, this property would be difficult to sell in that it appealed to a limited market and was in poor condition;80 and
(g) stated that ongoing delay may prejudice T's ability to satisfy the judgment debt through a sale of the Yangebup property.81
100 The primary judge specifically referred to Mr T's evidence that he wanted to sell his business and retire and that the unresolved s 222 claim was delaying this process.82
101 Nothing in Mr T's 2014 affidavit, sworn in relation to JM's application to extend time, dealt with any specific prejudice arising from delay in receiving the statement of claim in July 2014 rather than in May 2014. There was no evidence of the value of the Yangebup property as at mid-2014. Nor was there evidence of the value of the Karragullen property. There was also no evidence as to whether any steps had been taken in 2014 to sell the Karragullen property.
102 In these circumstances, the primary judge's findings about prejudice to T were well open and do not reveal error.
103 I would dismiss ground 4.
Ground 5 - prejudice to JM
104 By ground 5, T makes several complaints about the primary judge's findings that:
(a) if time was not extended, JM's application for property settlement was likely to be rendered nugatory in that one of the main assets of the parties would be disposed of;
(b) although the claim against T was based on inference, the court was satisfied that there was a claim to be heard; and
(c) until the evidence had been tested at trial, it would be inappropriate to shut out JM from the claim she wished to bring.83
105 First, T asserts that the primary judge did not provide adequate reasons for the findings of significant prejudice, in that her Honour did not identify what JM's claim was and what the evidence was upon which primary facts could be found that would sustain the inference to be drawn.84
106 There is no merit in this complaint. In the February Reasons dismissing T's application to set aside the injunction, the primary judge had concluded that, taking into account the background to the relationship between the parties and the manner in which they had arranged their affairs, JM's claim to set aside the mortgage transaction under s 222 of the Family Court Act had sufficient merit to sustain the continuation of the injunction until the trial of the proceedings. In the context of the application to extend the time for compliance with the Springing Order, her Honour did not need to revisit and repeat in detail that conclusion.
107 Secondly, T asserts that the primary judge either failed to take into account, or failed to give any adequate reasons in relation to, the following matters:
(1) the statement of claim filed did not set out a cause of action, and should not have been accepted for filing;
(2) T's substantial and detailed affidavit evidence relating to the loan and mortgage the subject of JM's claim; and
(3) the failure of JM to file any affidavit in support of the substance of her claim against T.85
108 There is no merit in these complaints. As to the first, I refer to what I have said in relation to the statement of claim in dealing with ground 2.86
109 As to the second and third points, I refer to what is said later in these reasons in dealing with grounds 6 and 7. In short, the evidence relating to the merits of JM's claim against T had been considered by the primary judge in the context of the application by T to discharge the injunction. JM's application to extend the time for compliance with the Springing Order did not require JM to file further evidence pertaining to the merits of her claim, and did not require the court to revisit the assessment of the affidavit evidence with respect to this issue.
110 Thirdly, T complains that there is nothing in the primary judge's reasons to show that her Honour took into account the fact that JM did not seek substantive relief against T apart from the continuation of the injunction on the sale of the Yangebup property.87 In that respect, I refer to what I have said in dealing with ground 2 about the terms of the amended minute of orders filed 21 February 2014.88
Grounds 6 and 7 - the evidence in support of JM's claim
111 These grounds can conveniently be dealt with together. Both grounds focus upon the evidence before the primary judge bearing on the merits of JM's claim against T.
112 By ground 6, T points to the primary judge's observation, in the February Reasons, that there was a paucity of direct evidence to suggest that the dealings between T and D Corporate were a sham.89 In support of ground 7, T points to the absence of evidence from JM to support the allegations made in the statement of claim, and to the substantial affidavit evidence from Mr T as to the circumstances of the relevant transactions. It characterises Mr T's evidence as comprehensive and cogent. Consequently, T submits that the primary judge should have recognised that to extend time would have been futile and that it would have involved resuscitating a hopeless case.90
113 I do not accept these submissions. In the February Reasons the primary judge declined to discharge the injunction. In doing so, her Honour weighed the available evidence as to the merits of JM's claim against T. In deciding whether to grant an extension of time to comply with the Springing Order, the primary judge was not obliged to revisit the consideration she had given to those matters in the February Reasons, from which there was no appeal. The Springing Order required JM to file a statement of claim. It did not require the filing of any affidavit. Against the background of the February Reasons, in making an application to extend time for compliance with the Springing Order, JM was not required to adduce evidence to demonstrate that her claim against T had merit. That claim had already been found to have sufficient merit to sustain the continuation of an injunction until trial. The primary judge was not bound to attach any significance to the absence of an affidavit from JM as to the merits of her claim against T.
114 In my view, contrary to T's submission, the primary judge was not bound to revisit the merits of JM's claim 'afresh' and engage in an intensive analysis of the evidentiary material.91 It was open to the primary judge to act on the basis of the conclusions to which she had come in the February Reasons as to the merits of JM's claim against T.
Ground 8 and the cross-appeal - costs
115 T and the second to fifth respondents submit that the primary judge erred in her decision to reserve the question of costs to the trial judge.
116 First, they argue that the primary judge did not give adequate reasons for her decision to reserve costs, rather than to award costs against JM.92 I do not accept that submission. Before the primary judge, JM conceded that she should bear the costs of her default in complying with the Springing Order. However, there remained issues between the parties in relation to costs. One issue was whether those costs should be paid on an indemnity basis. Further, T claimed costs on an indemnity basis from 23 June 2014.93
117 In my view, the judge sufficiently explained the reason for the approach she took to costs. Her Honour observed that the evidence at trial may inform some of the costs issues to be dealt with.94 T and the second to fifth respondents complain that her Honour did not go on to identify what she meant by that observation.95 I am not persuaded that her Honour was obliged to do so. It may be inferred that evidence at trial as to whether there is and was any merit in JM's claim against T may bear upon the question of whether an indemnity costs order is appropriate.
118 Secondly, T complains that the primary judge's reasons do not show that her Honour considered:
(a) JM's history of breaches;
(b) that JM was on notice by a letter of 19 February 2014 of the need to comply with the Springing Order; and
(c) JM's unwillingness from May 2012 to provide adequate details of her claim.96
119 Her Honour was not obliged to refer to these matters in the context of determining that the appropriate costs order should be reserved to the trial judge.
120 Thirdly, T and the second to fifth respondents essentially submit that, in circumstances where the primary judge had heard full submissions from the parties as to the appropriate costs orders, her decision to reserve costs to the trial judge was plainly unjust or unreasonable.97
121 That submission is without merit. For the reasons already explained, in circumstances where one of the questions was whether the costs order to be made against JM should be awarded on an indemnity basis, it was open to the primary judge to take the view that the findings at trial may inform the proper exercise of the costs discretion. Moreover, the primary judge had not heard full submissions on costs. T and the second to fifth respondents all accepted before the primary judge that further submissions on costs would be required.98
122 I am not persuaded that the primary judge erred in her exercise of the costs discretion. Consequently, I would dismiss ground 8 and dismiss the cross-appeal.
Conclusion
123 For these reasons, I would dismiss the appeal and the cross-appeal.
124 I will hear from the parties as to the costs of the appeal and the cross-appeal.
125 CORBOY J: I agree with Beech J.
1 These reasons have been edited to avoid identifying the parties to the proceedings in the Family Court, consistent with the intent of s 243 of the Family Court Act 1997 (WA).
2M and D [2014] FCWA 3 (February Reasons).
3 February Reasons [1].
4 February Reasons [5].
5 February Reasons [6].
6 February Reasons [8].
7 February Reasons [9].
8 February Reasons [10].
9 February Reasons [13].
10 February Reasons [14].
11 February Reasons [17].
12 February Reasons [22].
13 February Reasons [23].
14 February Reasons [29].
15 February Reasons [32].
16 February Reasons [34].
17 February Reasons [36].
18 February Reasons [36].
19 February Reasons [39].
20 February Reasons [40].
21 February Reasons [41].
22 February Reasons [45].
23 See February Reasons [35].
24P v J [2014] WASCA 95.
25M and D [2014] FCWA 50 (the Reasons).
26 Reasons [12] - [15].
27 Reasons [20] - [23].
28 Reasons [24].
29MTQ Holdings Pty Ltd v Lynch [2007] WASC 49 [38] - [57].
30 Reasons [25].
31CVW Group Holdings Pty Ltd v Addison [2011] WASC 267 [42].
32 Reasons [26].
33 Reasons [28].
34 Reasons [29].
35 Reasons [31] - [32].
36 Reasons [31].
37 Reasons [31].
38 Reasons [32].
39 Reasons [33] - [34].
40 Reasons [35].
41 Reasons [36].
42 Reasons [45].
43 Reasons [40] - [42].
44 Reasons [43] - [44].
45 Reasons [45] - [51].
46 Reasons [52] - [53].
47Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 539 - 540 (Brennan J).
48House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ); Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513, 534 - 535 (Aickin J).
49Gronow (534 - 535); Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 519 (Latham CJ); P v J [2014] WASCA 95 [67].
50Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 176 - 177 (Gibbs CJ, Aickin, Wilson & Brennan JJ); Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd [2005] WASCA 106; (2005) 30 WAR 290 [27] (Steytler P, McLure JA agreeing); Dodds v Kennedy [2011] WASCA 32 [5] (Murphy JA & Mazza J).
51Pearce v International Mining Technologies Ltd [2009] WASCA 239 [25] - [26] (Pullin & Newnes JJA).
52 Appeal ts 3 - 4.
53MTQ Holdings Pty Ltd v Lynch [51] - [57].
54 Appellant's submissions dated 17 February 2015 [38], [51] - [55].
55 Reasons [5].
56 Reasons [40].
57 Appellant's submissions [39] - [50].
58 Affidavit of Megan Maree Wadsworth sworn 2 December 2013 [5], [28]; affidavit of Megan Maree Wadsworth sworn 18 June 2014 [6].
59Family Court Rules 1998 (WA), r 36.
60 Appellant's submissions [58] - [59]; appeal ts 21.
61 Appellant's submissions [82] - [88]; appeal ts 27.
62 Appellant's submissions [67] - [77]; appeal ts 22, 25 - 26.
63 Appeal ts 31.
64Family Law Rules(2004) (Cth) r 1.04, adopted by Family Court Rules r 12.
65 Appellant's submissions [100] - [104]; appeal ts 14 - 15.
66 Affidavit of Megan Maree Wadsworth sworn 18 June 2014 [15] - [16].
67 Appellant's submissions [105].
68 Appellant's submissions [105(c)(i) - (iii)].
69 Reasons [27] - [31].
70 For an outline of the principles relating to adequacy of reasons, see Stone v Braun [2015] WASCA 103 [90] - [91].
71 Appellant's submissions [114]; appeal ts 32.
72 Reasons [25] - [26].
73 See, for example, CVW Group Holdings [42].
74 Reasons [41].
75 Affidavit of Mr T sworn 29 July 2013 [8], [17]; affidavit of Mr T sworn 19 December 2013 [8] - [9], [37].
76 Affidavit of Mr T sworn 29 July 2013 [27] - [41].
77 Affidavit of Mr T sworn 19 December 2013 [91].
78 Affidavit of Mr T sworn 19 December 2013 [93], [196] - [200].
79 Affidavit of Mr T sworn 19 December 2013 [214] - [220].
80 Affidavit of Mr T sworn 19 December 2013 [246] - [256].
81 Affidavit of Mr T sworn 19 December 2013 [259].
82 Reasons [21].
83 Reasons [40] - [42].
84 Appellant's submissions [121] - [122]; appeal ts 35.
85 Appellant's submissions [123] - [127]; appeal ts 35 - 36.
86 See [72] - [77]above.
87 Appellant's submissions [128]; appeal ts 36.
88 See [78] - [80] above.
89 February Reasons [36].
90 Appellant's submissions [136] - [147]; appeal ts 28.
91 Appeal ts 10, 13.
92 Appellant's submissions [151] - [152]; appeal ts 41.
93 ts 4, 5 August 2014.
94 Reasons [52].
95 Appeal ts 41.
96 Appellant's submissions [150].
97 Appeal ts 39 - 40, 42.
98 ts 76, 79 - 80, 5 August 2014.
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