TRITTON & POYZER
[2012] FamCAFC 107
•18 July 2012
FAMILY COURT OF AUSTRALIA
| TRITTON & POYZER | [2012] FamCAFC 107 |
| FAMILY LAW – APPEAL – Application for an adjournment – Where notice of appeal filed nearly two years ago – Where the wife does not have representation for the appeal and wishes to seek further legal advice – Where the wife has suffered an emotional collapse - Where the adjournment would prejudice the husband – The wife has been previously represented, a summary of argument for the appeal has been prepared for an earlier settlement conference and the Court is well accustomed to self represented litigants – The matter has been given a special listing and the wife’s emotional condition may not improve for some months – Application for adjournment dismissed. |
| Family Law Act 1975 (Cth) |
| Aon Risk Services Australia Limited (2009) 239 CLR 175 |
| APPLICANT: | Ms Tritton |
| RESPONDENT: | Mr Poyzer |
| FILE NUMBER: | ADF | 1063 | of | 2001 |
| APPEAL NUMBER: | SA | 61 | of | 2010 |
| DATE DELIVERED: | 18 July 2012 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | 18 July 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 August 2010 |
| LOWER COURT MNC: | ADF 1063 of 2001 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Whitington QC |
| SOLICITOR FOR THE APPELLANT: | Ms Ferdinandy |
| COUNSEL FOR THE RESPONDENT: | Ms Pyke QC |
| SOLICITOR FOR THE RESPONDENT: | Mr Taylor |
Orders
The application in an appeal filed 6 July 2012 be dismissed.
The time within which the wife has to file and serve her summary of argument be extended to close of business on 31 July 2012.
The costs of this application be reserved to the Full Court.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tritton & Poyzer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: SA 61 of 2010
File Number: ADF 1063 of 2001
| Ms Tritton |
Appellant
And
| Mr Poyzer |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Before the Court this morning is the Application filed on 6 July 2012 by Ms Tritton, the respondent to an appeal by Mr Poyzer, in which she seeks the adjournment of the appeal listed for a three day hearing in Adelaide, commencing on 6 August 2012.
The evidence in support of the Application was identified at the commencement of the argument. The Application is strongly opposed by the husband, whose solicitor has filed a brief affidavit on his behalf.
Background
It is essential to outline in some detail the background to the matter because it provides important context to the decision I have reached.
The husband and wife were married in 1988. They separated in December 2000, which is more than 11 years ago.
The wife filed her application for property settlement and spousal maintenance in November 2001. The matter did not reach trial until November 2007, when it commenced before Dawe J and then struggled on until 23 September 2009, when it was thought to have been completed after 55 days of hearing.
There was then an application by the husband to reopen, which must have been successful because the matter then proceeded over a further four days, bringing the total time at trial to 59 days.
It is noted that for all but the last four days of trial, the wife was represented by Queen’s Counsel and by Mr Whittle. The husband was represented by Ms Pyke of Queen’s Counsel for the first part of the trial, but was then self-represented, although the husband appears to have had solicitors throughout.
Judgment was delivered by Dawe J on 3 August 2010. On 31 August 2010, the husband filed his Notice of Appeal. Although the maths perhaps went a little astray in some submissions made this morning, I make that nearly two years ago.
Significantly, the Notice of Appeal was amended on a number of occasions. Mr Whitington has advised that the Notice of Appeal now relied upon was the fifth iteration of the original Notice. It was filed on 2 December 2011, although various grounds have since been abandoned.
There have been many directions hearings along the way in this appeal, which is not surprising given the many amendments made by the husband, which ultimately led to him being restrained from further amending his Notice. Ultimately, Strickland J was appointed as judge manager, to marshal the parties and to ensure the appeal was brought on for hearing.
On 29 October 2010, an order had been made by Dawe J making $20,000 available to the wife specifically to assist her with this appeal. However, I accept Mr Whitington’s submission that this $20,000 would not have gone very far given the various delays and interlocutory hearings.
The evidence makes clear that the wife has been endeavouring to be “economical” by undertaking some, or perhaps a great deal, of the work associated with this appeal herself. However, for almost the entire time she has been assisted in one way or another, at least until earlier this year, by her long-standing solicitor, Mr Andrew Jordan, who, amongst other things helped prepare a summary of argument for use at the judicial settlement conference that Strickland J conducted earlier this year.
There is also reference in an aide memoire handed up by Mr Jordan during an earlier hearing in August 2011 to “hours and hours” of work having been already undertaken by the wife and him in relation to the appeal, including identifying parts of the court record relevant to the grounds of appeal.
I refer to these matters because they are indicative of the fact that along the way, by one means or another, and with the benefit of some legal representation, the wife has been considering the grounds of appeal and preparing for the appeal, albeit it must have been a difficult task, given the fact that the grounds were amended so often.
On 9 November 2011, Strickland J settled the appeal book index. This index identified the material to be included in the books, which I understand are due to be produced next week. Leave was also granted to the husband to amend the Notice of Appeal and, as I have already mentioned, that amended Notice was lodged on 2 December 2011. The amendment does not appear to have been significant.
Strickland J otherwise adjourned the proceedings to a judicial settlement conference to be held on 4 and 5 April 2012. A couple of days before that conference, the wife filed a Notice of Address for Service, indicating that she was representing herself. She then attended the conference without legal representation, whereas the husband was represented by Ms Pyke.
Regrettably, the matter did not settle at the conference. It should therefore have been known from that point that the appeal would be proceeding to the hearing which has since been listed for 6 August 2012. However, I accept Ms Pyke’s submissions that the wife’s evidence does not disclose she did anything in the period following the conference to prepare for the hearing of this appeal. If she did something, she has not told the Court about it. It was not until 23 May 2012, which I note was the very day before the next directions hearing before Strickland J, that she consulted a new solicitor, who advised he was not prepared to assume the conduct of the matter.
The wife says that since 23 May 2012 she has been endeavouring to obtain the services of another solicitor, however, her evidence in that regard was entirely lacking in detail as to what she did or did not do until she consulted her present solicitor on 26 June 2012. There is reference also in the wife’s affidavit to her having endeavoured to brief counsel, and having been informed that it was first necessary for her to retain a solicitor, but again there is no detail provided as to what efforts have been made and when they were made.
The wife seeks to explain part of this apparent absence of action in securing representation for the appeal by making reference to the illness of one of the parties’ adult children. Although there is some discrepancy in the information provided, it seems common ground that the young man involved was ill to the extent of being hospitalised for a few days in May, some time between the 21st and the 28th, but that is of little assistance in explaining why nothing seems to have happened since the settlement conference on 4 April 2012.
In any event, on 24 May 2012, Strickland J made the directions by which the appeal was listed for a three day hearing commencing 6 August 2012. At the same time, his Honour made various procedural directions, one of which identified the documents for inclusion in the appeal books as being those earlier referred to in his order made on 9 November 2011.
Apart from requiring the preparation of the necessary appeal books, Strickland J directed the husband to provide his summary of argument for the appeal by 29 June 2012 and directed that the wife provide her summary by 20 July 2012, which of course is Friday of this week.
As Ms Pyke has drawn to my attention, the wife was represented at that directions hearing on 24 May 2012 by her former solicitor Mr Jordan. I am assured by Ms Pyke that nothing was said at that hearing to indicate any difficulties the wife might have been experiencing in obtaining legal representation to assist in preparation of the appeal for hearing.
I am also advised by Ms Pyke that Strickland J drew attention at that hearing to the considerable logistical difficulties that have been encountered in setting this appeal up for such a lengthy hearing. In this regard I should note that the resources of the Full Court are extremely stretched at the best of times. Most of the many appeals listed before the Court are dealt with in a day, or often half a day. Arrangements to accommodate a sitting of three days proved particularly difficult, given the need to have three non-disqualified Full Court judges available to make a special trip to Adelaide for the purpose.
There is no evidence about precisely what the wife did to prepare for the appeal after the hearing on 24 May 2012, save that she consulted her present solicitor on 26 June 2012. I note the wife’s statement that by this stage she had incurred legal costs in excess of $1 million, although presumably most of that related to the original trial.
On 26 June 2012, after consulting her present solicitor, the wife suffered an emotional collapse, as a result of which she saw her general practitioner on two occasions, once on that same day and once a few days later.
The date on which she saw her GP for the second time, 3 July 2012, appears to be the day on which she received by email the husband’s Summary of Argument. This document runs to some 20-odd pages. It was accompanied, not insignificantly, by a schedule identifying the many grounds of appeal the husband had decided to abandon.
Within a few days of consulting her present solicitor, and suffering the emotional collapse, the wife made the application that I am now considering, seeking the adjournment of the appeal. This was accompanied by the affidavit of the wife to which I have already referred.
On 13 July 2012, the wife filed an affidavit by her GP, Dr S, attaching a medical report. Although I hear the submissions made by Ms Pyke about the expertise of a GP to speak of the matters contained in that report, the fact is that a qualified medical practitioner has confirmed what the wife has said about her health. I might observe that it is entirely unsurprising that a litigant would experience the stress and anxiety revealed in the report, given that this complex and very expensive litigation has been on foot for over a decade. This is especially to be expected when the litigant has been trying, at times, to represent herself.
Dr S’s report reveals that the wife presented to him as suffering from a severe major depressive illness with anxiety features. He advises that he prescribed medication and discussed the possibility of prescribing antidepressants to improve the wife’s prospects of recovery.
However, Dr S’s report went on to say, and Ms Pyke drew much attention to this, that it was likely two to three months would be needed for the medication to assist the wife “biochemically” and that she would also require expert psychological counselling. Dr S also opined that the wife would suffer extreme psychological distress, which would significantly impact on her prognosis, should she have to represent herself, or prepare the material to represent herself in Court in the next three months. The doctor also recommended the wife not work for next three months because of the anticipated negative impact on her health.
Dr S also made reference to the wife’s limited ability to provide instructions to her legal advisers, leading to his opinion that the wife would be unable to give the instructions that may be required to “give her the best chance to successfully represent herself at any legal hearing.” There was reference later in his report to the wife potentially requiring hospitalisation, which he could not rule out at this stage.
The Application for an adjournment came before Strickland J on Monday of this week; however, on the wife’s application, his Honour disqualified himself, given he had conducted the settlement conference. The Application was adjourned for hearing before me, as one of the three members of the bench currently assigned to deal with the appeal.
Discussion
I turn now to the propositions so ably made by Mr Whitington QC for the wife in support of the Application for an adjournment. Those submissions support the assertion made in the wife’s affidavit that she is unable to deal with the proceedings properly from “a technical, legal and psychological perspective”.
The wife went on to say in her affidavit that her new solicitor has asked her for background history and instructions for what appear to be three or four purposes.
One purpose is to consider whether the wife herself may have any grounds to appeal against the original decision of Dawe J. The second purpose is to consider an application for further evidence. The third is to consider whether there are any grounds to apply under s 79A to set aside the orders based on nondisclosure. The fourth apparent purpose is to assist in completing the Summary of Argument due to be filed this Friday.
In her affidavit in support of the adjournment application, the wife said that Mr Whitington would be unable to look at the papers until last week. Mr Whitington has further advised today that his brief at present is very limited and that, in the event the adjournment were not granted, he would not be available to appear for the wife at the appeal hearing as presently listed.
The wife’s affidavit drew attention to the magnitude of the material that needs to be considered. Mr Whitington confirmed that the brief comprises in excess of 8,000 pages, not to mention correspondence and transcripts. The wife said in her affidavit she anticipated it would take some six weeks to properly consider the primary judgment and all of the papers. In further support of the adjournment application, reference was made to the delay said to have been occasioned by the husband in relation to the appeal process.
Ms Pyke QC, in response, placed great emphasis on the long delay in the final resolution of these proceedings. She points to what she says is the obvious prejudice to the husband in any further delay, and she points to the paucity of the wife’s evidence concerning efforts made to prepare for the appeal. She drew attention also to the impact of any adjournment on the capacity of the Full Court to deal with the other matters that come before it.
Mr Whitington, in reply, conceded that, apart from ensuring the wife has representation at the appeal hearing itself, the real substance of the wife’s request for further time arises from her need to provide an adequate Summary of Argument. This concession was entirely proper. First, it is far too late for the wife to be now contending that she ought to have an opportunity to appeal against an order that was made as long ago as August 2010. Secondly, whilst Mr Whitington added some observations in relation to what the proposed further evidence might be, this was not referred to in the affidavit material. In any event, this is a matter that ought to have been considered long before now, given that the wife had legal representation for a long time. As for the s 79A application, that is a matter the wife can pursue quite independently of this appeal.
It thus remains that the primary aim of the proposed adjournment is to secure time to prepare the Summary of Argument (not to overlook, of course, the desirability of the wife securing legal representation for the appeal).
In this context, it is important to reiterate that an order was made for the preparation of a Summary of Argument to be provided for the settlement conference in April 2012. It is reasonable to infer, no matter what might now be thought about the quality of the document then provided, that it would have addressed the grounds of appeal, many of which have since been abandoned. It is important also to recall that, prior to this Summary being required, the wife’s then solicitor had assisted her in undertaking much work designed to link the various grounds of appeal to documents in the court record.
Accordingly, it is not a case of the wife, or counsel who might now be brought in to assist her, starting from “scratch”. There is material available that ought to be of some assistance in preparing the Summary of Argument.
It is also fair to say that in this Full Court there are many litigants, even in matters of complexity, who conduct or oppose appeals without legal representation, and prepare their own summaries of argument. Whilst I accept that they usually do not do their cases a great deal of good, that is sadly a fact of life in this jurisdiction and the Full Court is used to dealing with it.
I do accept what Mr Whitington had to say about the apparent unfairness if the husband were to be represented by not only senior counsel, but by senior counsel who had the conduct of part of the trial, if at the same time the wife is either not represented, or represented by someone who is brought in at the last moment. But I must repeat that the Full Court is well accustomed to dealing with such scenarios. I should also emphasise that the onus will fall on the husband to persuade the Full Court that a very experienced trial Judge erred in arriving at the decision she did.
The Full Court, of course, would clearly be assisted in the event the wife was represented by counsel, but it is not a case of the matter proceeding by default simply because one party has superior representation to the other. It might also be observed that the matter will be conducted by reference to the record at trial, where the wife had senior counsel for almost the entire time, whereas for most of the time the husband was not represented.
Mr Whitington also submitted that the husband had provided no evidence of any prejudice likely to be caused by the proposed delay. That is true. The affidavit of the husband’s solicitor is brief, albeit it was prepared on short notice and indicates that the husband is overseas. However, I accept Ms Pyke’s submission that the prejudice ought to be apparent. This litigation has gone on for far too long. This appeal has been on foot too long. Whilst it is appropriate to submit that part of the problem must have been associated with the amendments of the grounds, the fact is that the last amendment was made some eight months ago.
With great respect to eminent Queen’s counsel, I also do not entirely accept the submission made on behalf of the wife about the barrenness of submissions founded only on prejudice to the respondent arising from delay. I think there may in the past have been substance in that proposition, but I consider the climate has changed in light of what was said in the High Court in Aon Risk Services Australia Limited (2009) 239 CLR 175 (“Aon Risk Services”) concerning the impact on the justice system and on other litigants arising from the adjournment of matters, especially when the adjournment occurs close to the time of hearing.
Mr Whitington properly conceded that the impact of the adjournment on the business of the Full Court is an important matter for me to consider. In this context, the comments of French CJ in Aon Risk Services bear repetition, but given I have a trial waiting to resume, I will do no more than to note that what the Chief Justice said about the impact of delay on the legal system, in particular in paragraph 5 of his reasons, is something which should now be in the forefront of the mind of every judicial officer when asked to take any step that would delay resolution of proceedings.
Whilst I agree with Mr Whitington that the facts in Aon Risk Services are very different to those here, the principle remains that, absent the strongest possible reasons, this Court should not waste the time that has been set aside, for some months now, by three of the members of the Appeal Division. In arriving at my decision I particularly take into account the considerable logistical difficulties that were encountered in setting up the proposed hearing in the first place.
I also take into account Ms Pyke’s submission that we are not necessarily going to be any further advanced later this year, even if the appeal were adjourned. That proposition is based not only on what has been said by the wife’s GP, but it is also based on the fact that there is no guarantee that a further hearing could be accommodated by the Full Court in the last months of this year.
I fully accept what Mr Whitington has said about the apparent improbability of the wife finding someone to conduct the appeal if none of her previous representatives are available to assist during the difficult final stage of these proceedings. But in my experience, necessity is often the mother of invention. I am not persuaded by what little the wife has said in her affidavit that there is not a suitable counsel or solicitor who, in the time available between 18 July 2012 and 6 August 2012, could take on this matter.
Whilst I sympathise with the wife in the position in which she now finds herself, I am in particular not persuaded she is unable to produce the Summary of Argument which is the one important remaining document she is obliged to provide. In arriving at this view, I take into account what I have already said about preparatory work having already been being done, including the provision of an earlier Summary of Argument.
Ms Pyke properly concedes there should be some extension of time given to the wife, or at least no great prejudice to the husband if such an extension was given. Mr Whitington, although not instructed to make an application for such an extension, acknowledges that that would be the logical next step in the event his primary application failed. Although I hear what he says that such an extension may ultimately not help, it would also not hurt.
Ms Pyke suggested an additional week in which to provide the summary, but, in my view, if the summary were to be provided by the close of business on 31 July 2012, that would give those representing the husband three working days, plus the usual working weekend before an appeal of this nature, to adequately complete preparation of the matter.
I certify that the preceding fifty four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 18 July 2012.
Associate:
Date: 24 July 2012
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