Vek & Vlahmon - [2009] FamCAFC 47

FAMILY COURT OF AUSTRALIA

VEK & VLAHMON

[2009] FamCAFC 47

FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Where final property orders had been made under s 79 – Where further proceedings instituted seeking property settlement under s 79 – Where proceedings incompetent – Where Applicant husband sought to amend application for final orders to include claim under s 79A(1) and/or s 79A(1A) – Where failure by Applicant husband to amend application in accordance with orders – Whether Federal Magistrate erred in exercising discretion in refusing further time to amend application to include grounds under s 79A(1) and/or s 79A(1A) – No error in exercise of discretion – Where conceded by Applicant husband that no application was ever filed under s 79A(1) or s 79A(1A) and Applicant husband not precluded from filing such application – No prejudice to Applicant husband – Application for Leave to Appeal refused

FAMILY LAW – COSTS – Where neither party in a strong financial position – Where Applicant husband’s delay and non compliance with orders ultimately necessitated the application – Applicant husband to pay wife’s costs of and incidental to the Application for Leave to Appeal

Family Law Act 1975 (Cth) ss 79, 79A, 79A(1), 79A(1A), 94AA
Federal Magistrates Court Rules 2001 (Cth) – r 3.05, r 4.01, r 4.02, r 7.01

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Bennett & Bennett (1985) FLC 91-617
Bigg & Suzi (1998) FLC 92-799
Carr v Finance Company of Australia (No. 1) (1981) 147 CLR 246
Gabel & Yardley (2008) FLC 93-286
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143
Licul v Corney (1976) 180 CLR 213
Re Luck (2003) 203 ALR 1
Rutherford & Rutherford (1991) FLC 92-255
The State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146
Tudor & Tudor (1992) FLC 92-273

APPLICANT:

Mr Vek

RESPONDENT:

Ms Vlahmon

FILE NUMBER:

MLC

1251

2007

APPEAL NUMBER:

2008

DATE DELIVERED:

27 March 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ, Finn & Boland JJ

HEARING DATE:

7 October 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE:

28 February and 3 March 2008

LOWER COURT MNC:

[2008] FMCAfam 296 and
[2008] FMCAfam 298

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Combes

SOLICITOR FOR THE APPLICANT:

Agricola, Wunderlich & Associates

COUNSEL FOR THE RESPONDENT:

Ms Smallwood

SOLICITOR FOR THE RESPONDENT:

Gillian Coote Family Law

Orders

That the application for leave to appeal is dismissed.
The applicant husband pay the respondent’s wife’s costs of the application as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.

IT IS NOTED that publication of this judgment under the pseudonym Vek & Vlahmon is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 11 of 2008
File Number: MLC 1251 of 2007

Mr Vek

Applicant

And

Ms Vlahmon

Respondent

REASONS FOR JUDGMENT

Introduction

On 28 February 2008 and on 3 March 2008 Federal Magistrate O’Dwyer dealt with applications by Mr Vek (“the husband”). The applications had their genesis in an application for final orders for property settlement which the husband had filed in the Federal Magistrates Court in March 2007. In substance, the applications were applications to extend time to amend the husband’s application for final orders to rely on claims under s 79A of Family Law Act 1975 (Cth) (“the Act”). The husband’s applications were opposed by Ms Vlahmon (“the wife”). Federal Magistrate O’Dwyer refused to extend time to allow the amendments sought on the basis they constituted an abuse of process. This is the husband’s application for leave to appeal the Federal Magistrate’s orders. It is resisted by the wife.
The orders made by his Honour were:
1.The husband’s application to amend his initiating application out of time to include an application under s.79A of the Family Law Act 1975 is dismissed.
2.The husband’s application for leave to issue a subpoena out of time requiring the attendance of [Mr G] at the final hearing is dismissed.
3.The wife’s costs of today are reserved.
(28 February 2008)
1.The Applicant’s oral application to file an amended application under s.79A of the Family Law Act 1975, in particular under s.79A(1A), is dismissed.
2.The Applicant pay the Respondent’s costs (including reserved costs) of the proceeding. There be a stay of 90 days.
3.Otherwise all extant applications are adjourned to a date and time to be fixed.
(3 March 2008)
Although the husband’s solicitors filed a Notice of Appeal on 19 March 2008 against his Honour’s orders on the basis those orders were final orders, subsequently on 26 March 2008, the solicitors filed an application seeking leave to appeal both orders. For reasons we will shortly discuss, we accept that the orders made by his Honour were interlocutory in nature, and leave to appeal is required.
The husband seeks, in the event we grant leave to appeal, and allow the appeal, that his Honour’s orders be set aside, and that he be granted leave “to file an amended application pursuant to s 79A and/or s 79A (1A) of [the Act]”. He also seeks that we make orders for the obtaining of a valuation of property in Croatia, and that the matter be remitted to the Federal Magistrates Court for hearing on a date to be fixed.
In the husband’s case before his Honour and in his Notice of Appeal, there are somewhat confusing references to applications pursuant to s 79A and to s 79A(1A). It is useful to set out the terms of s 79A(1) and s 79A(1A). They provide:
Section 79A
(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
(b)in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c)a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(d)in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
(e)a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage;
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
(1A)A court may, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
We assume all references to s 79A are in fact references to s 79A(1).
There were several important concessions made by the husband’s counsel at the hearing of the application for leave to appeal. The wife’s counsel agreed with the concessions. Because of their importance we now record those concessions:
· the husband’s extant application for final property settlement orders is incompetent because there are existing orders under s 79 of the Act made in 1998;
· the husband has not filed an application under s 79A and he is not precluded from doing so at any time in the future;
· that his Honour did not deal, on a summary dismissal basis or otherwise, with any claim under s 79A(1) or s 79A(1A).
The proposed grounds of appeal asserting error by the Federal Magistrate in summarily dismissing the amended application pursuant to s 79A(1) were abandoned at the hearing of the leave application (proposed grounds 1, 2 and 4).
The now proposed grounds (3 and 5) provide as follows:
3.The learned Federal Magistrate erred in law in not allowing the husband to amend his pleadings without making findings as to the reasonableness of the husband’s cause of action.
5.The learned Federal Magistrate erred in finding that the husband’s application to amend his pleadings was an abuse of process.

Background

It is essential to understand the issues raised in this application that we refer briefly to some background facts which appear in the appeal book, or which were provided to us orally by agreement, or recorded in documents before the Federal Magistrate handed up to us during the course of the hearing.
The parties commenced a de facto relationship in 1977. They married in 1983 and separated in 1998. In 1998 final property settlement orders were made by consent under s 79 of the Act. The husband asserted that in April 2001 the parties reconciled, and final separation occurred on 1 February 2006.
Notwithstanding that final orders had been made under s 79, on 27 March 2007 the solicitors acting on behalf of the husband filed an application seeking orders for adjustment of property. The final orders sought were:
1.That the net assets of the marriage including superannuation and the property [in North Western Melbourne] be divided between the parties, in a manner to be determined.
2.Such other orders as this Court deems fit.
On 24 August 2007 the parties attended a conciliation conference. At the time of the conference the Registrar conducting the conference noted the matter to involve a claim under s 79A.
On 23 October 2007 the matter was listed before Federal Magistrate O’Dwyer. A number of orders were made on that day including the following orders:
1.The Applicant Husband file and serve any Amended Application for final orders within 28 days. If such application includes an application pursuant to section 79A of the Family Law Act 1975 the Husband must file and serve an affidavit in support that sets out the grounds and material facts relied on by the Applicant in support of such an application.
2.If one of the bases in the Husband’s section 79A Application (if made) includes matters relating to his psychiatric functioning at the time of the Final Consent Orders made in 1998 (either as to his ability to consent to the orders, duress says he was suffering, or otherwise) then the Husband file and serve any medical evidence upon which he will seek to rely at the trial within 7 days of filing Amended Application.
3.The Husband make himself available for assessment by a medical practitioner nominated and paid for by the Wife if requested to do so by her legal practitioners.
…
12.The matter is otherwise listed for final hearing on 3 March 2008 at 10.00am with an estimated hearing time of 2 days.
13.General liberty to the [sic] apply to the parties.
The husband did not comply with Order 1 within the 28 day period.
On 24 January 2008 the wife’s solicitors wrote to the husband’s solicitors and said, inter alia:
…
Given your client has not complied with paragraphs 1 and 2 of the Orders of 23 October 2007 we can only conclude that he does not intend to amend his Application. We further conclude that the issue of his psychiatric functioning at the time he entered into final orders in 1998, is no longer an issue and certainly is not something that he intends to rely on in the final hearing. We can further conclude from this that your client is only seeking a final property hearing in respect of the current property owned by the parties and not seeking to make an Application pursuant to Section 79A. If in fact your client is seeking to make that Application then we will strongly oppose that and will seek a mention before Federal Magistrate O’Dwyer to address this issue. Our client as respondent is obviously entitled to an opportunity to prepare responding material which, were your client to raise that issue, would include having your client assessed by an independent medical practitioner amongst other issues.
…
Clearly we must be provided with an appropriate opportunity to prepare our client’s case as the Respondent, and to know what case we are meeting. Our client wishes to ensure this matter proceeds on 3 March 2008. Any attempt by your client to adjourn the matter on the basis it is not ready to proceed, or because he requires more time to complete steps he should already have taken, will be strongly resisted.
On 13 February 2008 the husband’s solicitors replied to the wife’s solicitor’s letter of 24 January 2008. The letter did not address the issue of filing an amended application, but referred to an asserted failure of the wife to fully disclose details of a property in Croatia and foreshadowed an application to adjourn the final hearing as follows:
In respect of the property in Croatia, our client does not believe that the details provided by your client are sufficient to identify the property. In the Deed of Gift dated the 5^th June 2007, it is indicated that your client is entitled to receive 34 separate lots of property in Croatia, and in your letter of the 18^th January 2008, your client is only able to indicate that these properties are located in [various towns]. Our client again seeks proper details in respect of the property in order that the valuer can properly identify the property [sic] and value them. Our client proposes that the hearing of the 3^rd March 2008 be adjourned to a date in July 2008 in order to allow time for a valuer in Croatia to be jointly instructed and provide avaluation [sic]. We are instructed that our client has not even been able to obtain an estimate of fees for valuation as the properties to be valued have not being [sic] properly identified.
On 26 February 2008 the husband’s solicitors filed an amended application for final orders seeking orders in the following terms:
1.That pursuant to paragraph 79A of the Family Law Act, the orders made on the 16^th of April 1998 the [sic] varied or set aside
2.That the net value of the property [in North Western Melbourne] and the net value of the motor vehicles owned by the parties during the marriage be divided equally between the parties. [original emphasis]
On the same day the husband’s solicitors filed an application seeking an order “That leave be granted to the husband to file and serve a Subpoena to Give Evidence and Produce Documents, out of time, addressed to [Mr G], Psychologist”. That application was made returnable before the Court at the direction of his Honour on 28 February 2008.
On the application to issue the subpoena at short notice coming before the Court, counsel appearing for the husband explained to his Honour:
MR COMBES: The only other thing, your Honour, is that of course this application or the psychologist is fairly and squarely related to my client’s application pursuant to section 79A. I accept that there are some difficulties with that but nevertheless in the event that your Honour decided that the 79A was worthwhile then the psychologist would have to give evidence. (Transcript 28 February 2008, p 2)
Counsel appearing for the wife noted that “...the subpoena becomes relevant if the 79A[sic] application is properly on foot”, and went on to submit there had been non compliance with the orders made on 23 October 2007 within the requisite time period (Transcript, 28 February 2008, p 3).
Although no formal application was made either orally or in writing on 28 February 2008 to extend time in which to file the husband’s amended application, it is clear from the transcript that the husband’s counsel proceeded on the basis such application would be pursued if the adjournment the husband was seeking was granted. The following exchanges between his Honour and the husband’s counsel are illuminating:
MR COMBES: Till some time in July. The purpose for that was to enable the valuation of the Croatian material. Given what your Honour has indicated, what I would be asking is that you not in fact at this stage rule against the 79A because if the adjournment application is successful then those matters that need to be attended to in relation to the 79A, such as getting evidence, the wife would have sufficient time to do it.
HIS HONOUR: It’s a bit of a contradictory argument though, is it not? You’re here today to issue a subpoena to proceed on that basis at the hearing. I suppose it's covering all bases just in case the - - -
MR COMBES: That’s right. But clearly in the event that the adjournment application was successful then those matters could all be attended to in due course without any prejudice to the wife.
HIS HONOUR: But rules are rules and directions are directions and to ignore the clear import and the continual reminder of the time, and even by inference the suggestion that, you know, if you're within a reasonable time even though you’re time has expired after that expiration, it still could be revived. But then nothing in response to indicate that it’s going to be a continuing issue, to me amounts to an abuse of the process. To say, “You know, there’s a good chance of everything being adjourned off so we should be able to revive a process that has been abused today - - -”
MR COMBES: I’m not saying there is a good chance, but all I’m really saying, your Honour, is that if it is then the husband would let - - -
HIS HONOUR: But even if it is adjourned I’m presently of the view that you’ve run your course as far as the section 79 and I wouldn’t entertain it again.
MR DICKSON: 79A.
HIS HONOUR: Sorry, 79A. Is there anything further you can put to disabuse me of that?
MR COMBES: No, I would just repeat, sir, that given your indications I would ask that the way be left open in the event of a successful adjournment for the matter to be revisited. (Transcript, 28 February 2008, pp 7-8)
His Honour subsequently delivered ex tempore reasons on 28 February 2008 and made the first orders (which we have set out earlier in these reasons) and which essentially provided for the husband’s application to amend his initiating application to include an application under s 79A and to issue a subpoena out of time, be dismissed.
On 3 March 2008 counsel for the husband made an oral application seeking to amend the husband’s application for final orders to rely on s 79A(1A) asserting “if there was a defect in the pleading the applicant ought to be give [sic] a chance to rectify it” (Transcript, 3 March 2008, p 4).
His Honour delivered further ex tempore reasons, dismissed the husband’s oral application to amend, and ordered that he pay the wife’s costs.

The federal magistrate’s reasons for judgment

On 28 February 2008 his Honour delivered brief ex tempore reasons for judgment (“the first judgment”). In his introductory remarks his Honour noted the application before him was an application by the wife (in fact the husband) to issue a subpoena to compel the attendance of the husband’s psychiatrist “to support an application by the husband to set aside…consent orders pursuant to s 79A of the Family Law Act”.

Significantly for the purpose of this appeal, his Honour then recorded (at paragraphs 2 to 4) a brief history of the proceedings as follows:
The background to this, however, is that on 23 October 2007, in very clear and precise language, the opportunity was given to the husband to amend an existing application to include an application pursuant to section 79A, and a timetable was set out for that to be done.
The history of the matter is that it was not done within the time specified, despite correspondence from the wife’s solicitors reminding the husband’s solicitors of the timetable and the expiration of that timetable. Indeed it was inferred that it could be entertained outside of that time without objection from the wife’s solicitors.
But eventually – and not unreasonably, in my view – the wife’s solicitors on 24 January 2008, some many months after the expiration of the time by which the amended application was to be filed, wrote to the husband's solicitors confirming, in effect, because of the husband’s inaction, it was taken as read that he does not intend to pursue an amended application seeking orders under section 79A.
His Honour went on to explain that an amended application was “as late as 26 February 2008” served on the wife (paragraph 6). His Honour then determined he should as “a threshold issue” deal with the application to issue the subpoena, noting the husband proposed to “entertain at the final hearing an amended application seeking orders under section 79A” and concluded such a course should not be allowed as it would be “an abuse of the process”.
His Honour further explained that the husband offered “no adequate explanation” (for the delay), nor was there any affidavit by the husband’s solicitors “to justify any other ruling than that the section 79A application is now precluded from consideration of [sic] this proceedings because of the failure of the husband to comply with directions made as far back as 23 October 2007” (paragraph 8).
The Federal Magistrate then considered arguments advanced by the husband’s counsel of asserted lack of co-operation and non disclosure by the wife of asserted property interests in Croatia to support an adjournment of the final hearing. But his Honour did not determine that application. His Honour explained even if an adjournment was granted he was not satisfied “that it would be appropriate … to then revive the issue of section 79A” (paragraph 10).
In concluding his reasons his Honour said:
I think the section 79A application has had its life. It is now a dead issue between the parties, through, as I have said, the inaction of the husband. To revive it is, in my view, an abuse of process and places the wife at significant disadvantage in preparing her case, should the matter proceed on the hearing date fixed for it. For that reason then, I intend to make orders to the extent that the application for the issue of the subpoena is refused. I will think of the drafting of the appropriate order in relation to the section 79A application. (paragraph 11)
His Honour proceeded to make the first set of orders the subject of this proposed appeal. Those orders on their face make it clear that his Honour, no doubt in response to the amended application filed without leave, which came to his attention because of the application by the husband to grant leave to issue a subpoena, refused to extend time to file an amended application for final orders. No challenge was raised by counsel for the husband on 28 February 2008 to the course adopted by his Honour, and further on the first day of the hearing, counsel for the husband did not cavil with his Honour’s refusal to extend time to file an amended application relying on s 79A(1), but rather sought to rely on an oral application that time be extended to file an amended application under s 79A(1A).
In his further ex tempore reasons delivered on 3 March 2008 (“the second judgment”) his Honour explained, with somewhat more detail than in the first judgment, the manner in which he caused the application for the issue of a subpoena received in his chambers to be listed in open court. His Honour expanded his explanation of his refusal to extend time to file an amended application by noting that he had formed the view the filing of the amended application on 26 February 2008 was “so out of time and significantly in breach of the procedural orders” that he considered it was an abuse of process.
Thereafter his Honour went on to explain that an application had been made to him that day for:
…leave to amend the application to include a claim under section 79A(1A) … that allows scope for the husband to argue - having regard to the fact that the parties reconciled for almost five years after the final consent orders were made - that, by implication, by consent, those orders should be set aside. I must say that on the material so far presented there seems to be an arguable case in that regard. (paragraph 8)
Having noted that “[w]hether or not that arguable case will ultimately prove to have merit is subject to a hearing” his Honour concluded “it would be ordinarily improper to summarily dismiss such an application” (paragraph 9). He then went on to explain the basis on which he dismissed “the original application” namely that it was “for an abuse of process”.
At paragraphs 11 and 12 of his reasons, his Honour amplified the basis of his orders made 28 February 2008 and his reasons for dismissing the oral application by the husband to amend his application for final orders to rely on s 79A(1A). He said:
There are competing issues here. One is whether finality and following court process is measured against what a party might arguably be able to argue as a good case at a full hearing. I think I have closed the door, so to speak, already, as far as my order made on Thursday last is concerned, where the application under section 79A, which is clearly identified in the Act as a part of the Act under which different provisions apply, not the least of which is the subject of today’s focus, section 79A(1A).
The broad terms upon which I expressed, the broad net that was cast by the original directions order of 23 October 2007 still stands to include the section 79A(1A) application, and my reasoning for dismissing the application that came before me out of time on Thursday last still applies to this application I am hearing today. I must say I am a bit nervous about it all, but I think that it is a matter of consistency, it still amounts to an abuse of process.
Thereafter his Honour summarised his reasons for finding the application was an abuse of process:
·it was made late “in the process”;
·there did not appear to have been any attempt at an earlier stage to comply with the orders (of 23 October); and
·there did not appear to have been any application to seek an extension of time to comply with the orders after the time for compliance had expired.
He concluded that, having earlier disposed of the application in respect of s 79A(1), he was functus officio in relation to an application for a further amendment relying on s 79A, albeit under s 79A(1).

Relevant legal principles

Section 94AA of the Act provides, in the form of a table, the circumstances in which leave to appeal is required. Leave is required to appeal from, inter alia, “a prescribed decree of the Federal Magistrates Court”. A prescribed decree for the purposes of s 94AA is defined in Reg 15A of the Family Law Regulations 1984 as follows:
(1) For items 1 to 5 of the table in subsection 94AA (1) of the Act, a prescribed decree is an interlocutory decree (other than a decree in relation to a child welfare matter).
Whether an order is interlocutory or final has been the subject of consideration in the authorities in this Court (see Rutherford & Rutherford (1991) FLC 92-255; (1991) 15 Fam LR 1, Tudor & Tudor (1992) FLC 92-273; (1991) 15 Fam LR 165, Bennett & Bennett (1985) FLC 91-617; (1985) 10 Fam LR 68 and Bigg & Suzi (1998) FLC 92-799; (1998) 22 Fam LR 700). The matter has been considered in a number of High Court authorities including Licul v Corney (1976) 180 CLR 213, Carr v Finance Company of Australia Ltd. (No 1) (1981) 147 CLR 246 and Re Luck (2003) 203 ALR 1. In summary the test of whether an order is final or interlocutory is whether or not the order finally determines the rights of the parties. As is clear from the concessions made before us, his Honour’s orders did not finally determine the rights of the parties.
The principles to be applied in dealing with an application for leave under s 94AA are well known. In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, Gibbs CJ, Aickin, Wilson and Brennan JJ said at 177:
An interlocutory order for an injunction is a matter of practice and procedure. See McHarg v. Universal Stock Exchange Ltd [[1895] 2 QB 81 at 82]; Minister for The Army v. Parbury Henty and Co. Pty. Ltd. [(1945) 70 CLR 459 at 489]; White v. White [[1947] VLR 434 at 438].
Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v. Electronic Industries Ltd [[1978] VR 431 at 440]; on the other hand, De Mestre v. A.D. Hunter Pty. Ltd. [(1952) 77 WN (NSW) 143 at 146]. For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. (footnotes omitted)

Proposed grounds of appeal

The husband relied on five proposed grounds in his Notice of Appeal. As we have already noted, at the hearing grounds 1, 2 and 4 were abandoned. The husband pursued grounds 3 and 5 essentially challenging his Honour’s orders on the basis that his Honour erred in the exercise of his discretion in finding that the application to amend the application for final orders on the first day of the hearing was an abuse of process.
Counsel for the husband submitted in his written submissions that absent an extension of time in which to file an amendment to the existing application, the application purported to be under s 79 was doomed to fail. Thus he said his Honour was in error in failing to allow an amended application to be filed.
The husband’s counsel however conceded before us that there were two remedies available to the husband. He could (as he had done) seek leave to appeal, and if leave was granted, appeal the orders made by his Honour, and further seek to have the Full Court re-exercise the discretion and extend time in which to file an amended application. The advantages of such a course of action were noted to be the avoidance of payment of a further filing fee, and maintaining priority in the list of cases awaiting determination in the Federal Magistrates Court.
The alternate course was for the husband, who has never filed a competent claim under s 79A(1) or s 79A (1A) of the Act, to file such an application. It was acknowledged by the husband’s counsel the only disadvantages to the husband in adopting this course would be payment of a further filing fee, and loss of priority in hearing dates. Counsel for the wife submitted this was the appropriate course open to the husband and should be adopted by him. She acknowledged that as no determination under s 79A(1) has been made by the Court, the husband’s potential claim under that provision is not subject to the doctrine of res judicata, and as there are no time limits to the filing of a claim under that section, or s 79A (1A), the husband could file such an application at any time.
It is submitted on behalf of the husband that no application was made to his Honour to extend time to amend the husband’s application for final orders to include a claim under s 79A(1) on 28 February 2008, but rather it was foreshadowed such an application would be made on 3 March 2008 (husband’s counsel submissions, para 3). Somewhat confusingly however (having regard to the transcript of 3 March 2008 when counsel specifically abandoned any claim under s 79A(1), but relied on proposed amendments under s 79A(1A)), it was submitted on behalf of the husband in written submissions:
It is respectfully submitted that the issue of leave to file an Amended Application was not properly before His Honour on 28^th March 2008. That matter was listed before His Honour on the 3^rd March 2008. By dismissing the application to amend the primary application, the Learned Federal Magistrate failed to afford the husband natural justice (Husband’s submissions para 4).

Discussion

Before commencing our discussion of the proposed grounds of appeal now agitated, it is necessary that we consider the relevant provisions of the rules, and the principles to be applied where there has been non compliance with time limits specified in an order, as well as principles relevant to the amendment, particularly a late amendment, of a pleading in a party’s case.
Although not set out in his Honour’s first or second judgment in any detail, at the hearing of the application for leave to appeal, after additional documents to those in the appeal book were provided to us without objection, it became clear that in his affidavit filed in support of his application for final orders the husband (and those advising him) were aware of the existence of final consent orders which had been made pursuant to s 79 on 16 April 1998.
The husband had filed two affidavits in the Federal Magistrates Court. His first affidavit filed in support of his application for final orders referred to the circumstances asserted by the husband to be relevant to his capacity at the time of the making of the consent orders, and the resumption of cohabitation.
In the husband’s second affidavit (filed 26 February 2008) after setting out a brief history of the parties’ relationship, the husband referred to consulting a psychologist, Mr G. The husband further referred to the parties resuming cohabitation. The husband further deposed that:
Whilst I was working, including the time when I received weekly workers [sic] compensation payments, and thereafter when I received Centrelink payments, my income was paid into a bank account in my sole name and when I was paid I would withdraw all of my pay and, after paying any household bills, I would put the whole of the remainder into the kitchen cabinet, where we kept our cash. The children and the wife knew where the money was kept and would use the money as required.
The husband also deposed to doing grocery shopping for the family, assisting the wife with hanging out clothes, vacuuming and dusting.
The transcript of the proceedings on 3 March 2008 makes it clear that the Federal Magistrate was referred to the husband’s affidavit material (Transcript, 3 March 2008, pp 4, 7-8).
It is not in doubt that the husband’s claim under s 79 is incompetent as the consent orders made in 1998 finalised all claims for property settlement under the Act, and jurisdiction could only be exercised by a court if the orders were set aside or varied under s 79A(1) and/or s 79A(1A) (see Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143 at paragraph 44; Gabel & Yardley (2008) FLC 93-286; [2008] FamCAFC 162)).

Relevant rules

Rule 3.05 of the Federal Magistrates Court Rules 2001 (“the rules”) enables the Court to shorten or extend time. It provides as follows:
(1)   The Court may extend or shorten a time fixed by these Rules or by a judgment, decree or order.
(2)   A Registrar may extend or shorten a time fixed by these Rules.
(3)   The time fixed may be extended even if the time fixed has passed.
(4)   A time fixed by these Rules or by a judgment, decree or order for service, filing or amendment of a document may be extended by consent without an order.
Rule 4.01 of the rules sets out the procedure for commencing proceedings in the Federal Magistrates Court by the filing of an application for final orders which may include an application for interim orders. Rule 4.02 provides the application “must precisely and briefly state the orders sought…” Rule 4.05 provides that a person filing an application must also file an affidavit stating the facts relied on.
Part 7 of the rules deals with amendment. Rule 7.01(1) and (2) provide as follows:
(1) At any stage in a proceeding, the Court or a Registrar may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit.
(2) Subject to rule 7.03, the Court or a Registrar may allow an amendment even if the effect would be to include a cause of action arising after the proceeding was started.

Relevant legal principles – amendment

The principles to be applied when dealing with an application to amend a pleading or application are dealt with extensively in the judgment of the High Court in The State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146.

Did his Honour apply appropriate principles in refusing to extend time to permit the filing of an amended application or to permit an amendment to rely on s 79A(1A)?

In the course of argument before him on 28 February 2008, the wife’s counsel accurately drew his Honour’s attention to the fact of non-compliance with his Honour’s orders made on 23 October 2007 and, referring to the amended application filed on 26 February 2008, said “[t]here is absolutely no explanation as to why this application is now brought at this late stage and your Honour shouldn’t allow the amendment” (Transcript, 28 February 2008, p 4). The wife’s counsel then referred to the lack of explanation for non-compliance with the order, the fact that it was three months out of time, and also referred to the failure of the husband’s solicitors to respond to correspondence from the wife’s solicitors.
On 3 March 2008, when the husband’s oral application to amend his application to rely on s 79A(1A) was agitated, the wife’s counsel submitted that if the application had been properly made, he would not have sought summary dismissal of the application, nor was that the application he was currently pursuing (Transcript, 3 March 2008, p 8).
It is clear from the terms of his Honour’s orders that he did not consider the case before him as though the amendment had been permitted, and he was thereafter dealing with a summary dismissal application. Rather we are satisfied, although not articulated by his Honour in his first judgment, that his Honour’s refusal to extend time to allow the amended application filed on 26 February 2008 to be relied on as the application for final orders, and the subsequent dismissal of the husband’s oral application to amend under s 79A(1A) was open to him by reason of:
· the delay in filing the amended application notwithstanding correspondence from the wife’s solicitors;
· a lack of adequate explanation for the failure to comply with the orders of 23 October 2007; and
· the very late application to amend under s 79A(1A) on the first day of the trial.
Whilst his Honour’s reasons are brief, we are satisfied they conform with the principles expanded in such authorities as The State of Queensland & Anor v JL Holdings Pty Ltd. Thus we are satisfied no error of principle has been demonstrated, and accordingly leave to appeal should be refused.
We think it important to note because of the potential confusion which may arise in the future by reason of his Honour’s reference to Div 13.3 of the rules that, as acknowledged by both counsel before us, there has been no judicial consideration of the husband’s potential application under s 79A(1) or s 79A(1A) or summary dismissal of such an application. Thus it is clear, should the husband be so advised, he may file, at any time, a fresh application seeking relief under s 79A(1) or s 79A(1A). Thus the husband cannot be said to have suffered any substantial injustice as a result of his Honour’s decisions.

Costs

At the conclusion of the hearing before us we sought submissions from each party in respect of costs of the application. The husband’s counsel submitted that in considering whether an order should be made for costs the Court should have regard to the parties’ respective financial positions. He noted that the husband was in receipt of a pension, did not own property, and had no ability to meet a costs order.
The wife’s counsel submitted that the wife was not on legal aid and only in receipt of a modest salary of $400.00 per week net.
Notwithstanding the husband’s limited circumstances, we are satisfied that the husband should pay the wife’s costs of and incidental to this application. In so determining we note that the husband’s counsel conceded that the husband did not have to bring the application for leave to appeal, that no explanation was proffered for the husband’s delay which ultimately necessitated the application, and that neither party was in a strong financial position. We take these factors into account as well as the fact the husband has been wholly unsuccessful in this application. Accordingly we propose to order that the husband pay the wife’s costs of and incidental to the application for leave to appeal.

I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 27 March 2009