Trevi and Trevi
[2016] FamCA 898
•26 October 2016
FAMILY COURT OF AUSTRALIA
| TREVI & TREVI | [2016] FamCA 898 |
| FAMILY LAW – PRACTICE AND PROCEDURE – where trial had concluded and judgment was reserved – where husband subsequently sought to rely upon a document in reply to the written closing submissions of the wife – where the document sought to be filed and relied upon augments the Reply of counsel for the husband in final submissions and does not constitute new evidence – leave granted because of the particular circumstances surrounding the procedure adopted for closing addresses. |
| Family Law Rules 2004 (Cth) Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, regs 22.5, 22.7 |
| Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 Baghti & Baghti and Ors (No 2) [2014] FamCAFC 204 Eastman v Director of Public Prosecutions (ACT) (2003) 198 ALR 1 Marsh & Marsh and Anor [2013] FamCA 445 |
| APPLICANT: | Mr Trevi |
| RESPONDENT: | Ms Trevi |
| FILE NUMBER: | MLC | 8475 | of | 2014 |
| DATE DELIVERED: | 26 October 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 26 August 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr T. North S.C. and Ms M. Smallwood |
| SOLICITOR FOR THE APPLICANT: | N Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr B. Geddes Q.C. and Mr Nehmy |
| SOLICITOR FOR THE RESPONDENT: | Kennedy Partners |
Orders
That the applicant husband is granted leave to rely upon the document which is Annexure MBS-01 to the Affidavit of Mr M filed 15 June 2016, by way of Reply to the wife’s written closing submissions dated 30 May 2016 in the trial.
That the respondent wife have leave to file and serve any submission in response, limited to matters of law which the wife asserts are contained in Annexure MBS-01, limited to 10 pages within 14 days.
That paragraph 1 of the respondent wife’s Response to an Application in a Case filed in court on 26 August 2016 be dismissed.
That no further documents be filed by the parties in these proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Trevi & Trevi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 8475 of 2014
| Mr Trevi |
Applicant
And
| Ms Trevi |
Respondent
REASONS FOR JUDGMENT
The applicant husband seeks leave by way of Application in a Case, after the conclusion of a lengthy trial and closing submissions, to rely upon a document entitled “Factual Anomalies in Applicant Wife’s Written Closing Submissions Dated 30 May 2016” being annexure MBS-01 to the affidavit of the solicitor for the husband filed 15 June 2016 (“Factual Anomalies document”). The respondent wife opposes the application.
Counsel for the wife had produced written closing submissions when he embarked upon his oral submissions. Counsel for the husband characterises this application as an opportunity to reply by filing and relying upon a document in response to the written closing submissions of the wife. He asserts that because of the lengthy written closing submissions produced for the wife, there had been insufficient time to reply on the last day of the final submissions.
Background
The wife was the applicant in the trial which concerned an application for property settlement, periodic spousal maintenance and departure order from an assessment of periodic child support.
Excluding preliminary rulings, the trial proceeded over six days in May 2016 and closing submissions concluded on 30 May 2016. Closing submissions for the husband were made on the last scheduled day of the trial which was Friday 27 May 2016 and accompanied by some written material. It was agreed in discussions with both counsel that on the following Monday at 10:30 am the closing submissions for the wife and any reply for the husband could be concluded by noon.[1] This was for the convenience of both counsel and the Court. This was after some discussion where I indicated that I would be assisted by the usual oral closing submissions in the event that I required any clarification of each party’s case rather than a proposal that each party file written closing submissions over a two week period.
[1] Transcript of proceedings, pages 313-318.
Counsel for the wife produced a lengthy written submission on the final day and spoke to it. Counsel for the husband sought a short adjournment to take instructions about the written submissions and then replied. Judgment was then reserved.
The husband’s application
The husband is a qualified legal practitioner and the partner in a law firm. The husband’s initial approach to this application was inappropriate and did not comply with the Family Law Rules 2004 (Cth) (“the Rules”). The solicitor for the husband is employed by the husband’s law firm. The husband’s solicitor unilaterally emailed my Associate at 6:16pm on 10 June 2016, being Friday of a long weekend, with a contemporaneous email forwarded to the solicitors for the wife. This occurred 11 days after the conclusion of the closing addresses. Five days later, on 15 June 2016, the solicitor for the husband filed an affidavit on the Court portal annexing the Factual Anomalies document. Subsequently, the husband made an application which complied with the Rules and filed an Application in a Case on 1 July 2016 together with a supporting affidavit from his solicitor.
During the hearing of this application, counsel for the wife initially objected to the Factual Anomalies document being read by me for the purposes of the application. Both parties originally agreed to that document being quarantined in an envelope so that the affidavits of the instructing solicitor for the husband could be read together with his Application in a Case.
Counsel for the wife submitted that parts of the quarantined document contained legal argument and not factual anomalies. Counsel for the wife, in response to questions from me about how this matter might be determined without recourse to the document proposed to be relied upon by the husband, then conceded that he had no objection to me reading the document which was sought to be relied upon by the husband, for the purposes of the application.
Counsel for the husband referred to the fact that the written closing submissions for the wife at paragraph 80 adjusted her case from that of seeking 65 per cent of the property of the marriage to an adjustment increasing it to 70 per cent. He complained that this had not been flagged earlier.
Counsel for the wife submitted that the husband had ample opportunity to reply at the time the closing submissions were made.
Counsel for the husband appropriately conceded that on reflection he should have said that he did not have sufficient time to reply during the closing submissions made on 30 May 2016. He submitted however, that a prompt request was made by the husband to seek leave to file and rely upon the further material and that he “does not propose to introduce new matter” or seek to amend.
The transcript of the closing submissions from 30 May 2016 reveals that counsel for the husband referred to having received “the voluminous written outline” and sought 10 minutes to seek instructions from his client before he replied.[2] The hearing was adjourned at 12.13pm and resumed at 12.27pm whereupon counsel for the husband replied and the trial was concluded at 1:10pm.
[2] Transcript of proceedings, page 367, lines 25-35.
Anticipating counsel for the wife relying on McHugh J’s reasons in Eastman v Director of Public Prosecutions (ACT) (2003) 198 ALR 1, counsel for the husband referred to paragraph 29 of McHugh J’s reasons where he said:
… If a new point arises at the hearing, the Court will usually give leave to the parties to file further written submissions within a short period of the hearing – ordinarily seven to fourteen days.
The wife’s response
In opposing the husband’s application, counsel for the wife submitted that the husband effectively seeks leave to reopen the case, in order to make further submissions to the Court. He submitted that the onus of proof rests on the party seeking to reopen the case, to prove to the Court that it is in the interests of justice for the case to be reopened.
Counsel for the wife relied on the High Court case of Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302, quoted with approval by the Full Court of this Court in Baghti & Baghti and Ors (No 2) [2014] FamCAFC 204 (“Baghti & Baghti”) at [15], for the proposition that the public interest in maintaining the finality of litigation requires great caution in the exercise of this power. Counsel argued in his written submission that the boundaries of reopening a case are expressed in terms of:
·the importance of the public interest in the finality of litigation;
·exercise of the jurisdiction with great caution;
·there being no neglect or default on the applicant’s part that he or she has not been heard on the issue;
·not exercising the jurisdiction for the purpose of re-agitating arguments already considered by the Court, providing a backdoor method by which unsuccessful litigants can seek to re- argue their cases; or
·not exercising the jurisdiction simply because the party seeking a rehearing failed to present the argument in all its aspects or as well as it might have been put.
In particular, Counsel for the wife relied upon the decision in Eastman v Director of Public Prosecutions (ACT) (2003) 198 ALR 1 (“Eastman case”). Referring to the facts of that case, he stated that the appellant forwarded to the Court a seven page document that he described as “Appellant’s Supplementary Submissions”, after the case had been heard but before judgment was delivered. Counsel for the wife relied on the comments of McHugh J in that case where he said that he had no regard to the supplementary submissions and that if leave had been sought he would have refused it.[3]
[3] McHugh J, at paragraph [28].
He quoted McHugh J at [29]-[31] where he said:
[29] Parties to matters before the court need to understand that, once a hearing in the court has concluded, only in very exceptional circumstances, if at all, will the court later give leave to a party to supplement submissions. Parties have a legal right to present their arguments at the hearing. … a party has no legal right to continue to put submissions to the court after the hearing. In so far as the rules of natural justice require that a party be given an opportunity to put his or her case, that opportunity is given at the hearing.
[30] This is not the first time this court has had to emphasise that the hearing is the time and place to present arguments. In Carr v Finance Corp of Australia Ltd (No1)[4] Mason J said:
The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions.
[31] Once the hearing has concluded the workload of the court makes it impossible for the court to give leave to file further submissions – with all the attendant delay in the court’s business by a fresh round of submissions. Efficiency requires that the dispatch of the court’s business not be delayed by further submissions reflecting the afterthoughts of a party or – as perhaps is the case in this appeal – some dissatisfaction with the arguments of the party’s counsel.
[4] (1981) 147 CLR 246.
In quoting from the transcript of the last day of submissions, counsel for the wife argued that the husband had ample opportunity before the conclusion of the trial to make submissions in reply to the wife’s final submissions. He referred to the fact that counsel for the husband sought and was granted time to get instructions from the husband following the delivery of the submissions for the wife. He relied on the fact that counsel for the husband indicated to the Court that he only required 10 minutes to do so.
Counsel for the wife argued that in any event it was open to counsel for the husband to seek further time or make any application for leave to file further submissions before the trial concluded. No such application was made.
He argued that the husband had ample opportunity to put any argument and that he had done so in his Response, Outline of Case, and his closing submissions, as well as his Reply.
Counsel for the wife further argued that there is no misapprehension of fact or law before the Court that needs to be corrected by the filing of further material.
Counsel for the wife criticised the approach of the husband indirectly filing the Factual Anomalies document on the Court portal, as improper and not in accordance with the Court Rules. He asserted that it was “an open attempt to avoid the due processes of the Court.” He noted that the Factual Anomalies document was settled by senior counsel for the husband and junior counsel for the husband.
In conclusion, counsel for the wife argued that there is no requirement in the interests of justice that the case be reopened and that “insofar as it may be considered that the husband is attempting to put fresh evidence before the Court, he has already had the opportunity to do so and should not be allowed to use a “backdoor” method”.
Documents relied upon
The applicant husband relied upon the following documents:
·Application in a Case filed 1 July 2016;
·Affidavit of his solicitor Mr M filed 15 June 2016; and
·Affidavit of his solicitor Mr M filed 1 July 2016.
The respondent wife relied upon the following documents:
·Response to an Application in a Case filed in court on 26 August 2016; and
·Written submissions produced in court on 26 August 2016.
Conclusion
I have set out above the circumstances of the communication with Chambers by the solicitors for the husband.
I accept the validity of the criticisms advanced by the wife about the initial inappropriate approach by the solicitor for the husband in unilaterally emailing my Associate and filing on the Court portal. Regulation 22.5 and 22.7 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 regulate communication with opponents. Those regulations provide:
22.5A solicitor must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent's absence with the court concerning any matter of substance in connection with current proceedings unless:
22.5.1the court has first communicated with the solicitor in such a way as to require the solicitor to respond to the court; or
22.5.2the opponent has consented beforehand to the solicitor communicating with the court in a specific manner notified to the opponent by the solicitor.
…
22.7A solicitor must not raise any matter with a court in connection with current proceedings on any occasion to which an opponent has consented under Rule 22.5.2 other than the matters specifically notified by the solicitor to the opponent when seeking the opponent's consent.
I endorse the comments of Aldridge J in Marsh & Marsh and Anor [2013] FamCA 445 (“Marsh & Marsh”) where he indicated that it is not proper for litigation to be conducted by way of correspondence with the Court. It is improper for a party to communicate with the Court other than to provide documents as required by the Rules or directions of the Court.
The husband ultimately complied with the Rules in making this application.
Counsel for the wife relied heavily upon a postscript to the decision of McHugh J in the Eastman case at paragraph 29. However, the circumstances here are not quite the same. The circumstances of the appellant in that case were that having informed the registry that he had withdrawn his instructions to the senior counsel who had represented him on the hearing of the appeal, he also forwarded to the Court a seven page document that he described as “Appellant’s Supplementary Submissions.” This occurred after McHugh J had circulated his reasons in the appeal to other members of the Court.
In Baghti & Baghti at paragraphs 14 and 15, Strickland, Ainslie-Wallace and Ryan JJ stated:
[14] There is a clear public interest in the finality of litigation, and the applicant was given an opportunity to be heard, and was heard on the matters that he seeks to raise again.
[15] In the context of applications to reopen an unperfected judgment or order, it has long been held that “the jurisdiction is not to be exercised for the purposes of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a re-hearing has failed to present the argument in all its aspects or as well as it might have been put” (Autodesk Inc v Dyason(No 2) (1993) 176 CLR 300, per Mason CJ at 303).
This is a clear statement of the principle which I must apply but the circumstances of the Baghti & Baghti case are distinguishable. In that case, the applicant sought that further evidence by way of submissions be heard on the hearing of an appeal where the applicant sought to pursue “refined” grounds of appeal which had not been pursued by his counsel during the hearing of the appeal.
In Marsh & Marsh at paragraph 11, Aldridge J applied the principles outlined by McHugh J in the Eastman case. The procedural circumstances in Marsh & Marsh were that the written submissions for the wife in reply were received by the Court and attached to them was a bundle of documents as well as an affidavit sworn by the wife’s solicitor after the conclusion of the hearing purporting to give further evidence. The Factual Anomalies document proposed by the husband here, is in reply to the written closing submissions of counsel for the wife and does not amount to new evidence to be adduced. It is a document which refers to the existing evidence in the trial.
The document includes a table identifying those statements in the wife’s written final submissions which the husband submits are unsupported by evidence or contrary to the evidence. It purports to provide the relevant references to the evidence admitted in the trial by way of affidavit and cross-examination but it is asserted by counsel for the wife it also contains some argument in response to the wife’s written final submissions.
The transcript of the last two days of the trial here reveals that there was discussion in open court about the procedure to be adopted for closing submissions given my preference for oral submissions to be made in the usual way rather than lengthy written submissions being filed over a number of weeks. This was to ensure that any discrepancies or points requiring clarification could be dealt with at the time to avoid the need for any further court appearances. For the convenience of both counsel and the Court, it was agreed that the final submissions would begin on the Friday and conclude by noon on the following Monday when another case was listed for hearing. Both counsel were cooperative in meeting that procedural arrangement.
I accept the characterisation of the application made in submissions on behalf of the husband that this is not an application to reopen the case. I accept that the timing and nature of the lengthy written closing submissions produced by counsel for the wife did not provide much time for counsel for the husband to digest the contents, take instructions and respond. This is in circumstances where the closing submissions for the husband had been completed on Friday afternoon and an agreement reached that the closing submissions for the wife and any reply would be completed by noon on the following Monday.
Counsel for the husband, to his credit, conceded that he failed to make application for further time to consider the written submissions in circumstances where he had approximately 10 minutes to take instructions about those written submissions from his client. With the benefit of further time to consider those written submissions, and no doubt further instructions, counsel has now sought to augment his reply. It is understandable based on the circumstances by which the procedure was adopted in discussions between both counsel and the Court, that counsel for the husband felt constrained to conclude the reply in accordance with the agreement reached between counsel and the bench on that Friday. I also accept that the agreement about the procedure to be adopted during the discussions in court had not necessarily contemplated that lengthy written submissions would be submitted nor the fact that the submissions appeared to alter the wife’s proposal in terms of the adjustment of property sought.
I have given due consideration to the question of any prejudice to the wife which might be occasioned by the delay caused by this application but in balancing this consideration it is important that a party does not feel aggrieved about any lack of opportunity to be heard in closing submissions.
Emphasising principles of natural justice, I propose to grant leave for the husband to rely upon the Factual Anomalies document, and to treat it as forming part of the husband’s Reply in the trial to the oral and written closing submissions for the wife made on 30 May 2016. I am satisfied that it is in the interests of justice to take this course having regard to the timing of the husband’s notification to the wife being 11 days after the final submissions and the particular circumstances of the discussion in court between counsel and the bench before the closing submissions were made about the approach to the closing submissions.
In arriving at this conclusion however, having regard to the detailed content of the 25 page Factual Anomalies document I regard it as only fair that the wife be afforded an opportunity to respond in writing to any matters of law which on her case might be contained in that document. If the wife proposes to respond to any matters of law which might be asserted, I grant leave for that response to be filed within 14 days and limit the number of pages to 10. No party is to file any further material in these proceedings.
I emphasise that in granting leave, I am not granting leave to reopen the evidence which was concluded on 26 May 2016. Annexure MBS-01, the Factual Anomalies document sought to be relied upon, augments the Reply of counsel for the husband in final submissions and does not constitute new evidence.
I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 26 October 2016.
Associate:
Date: 26 October 2016
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