Verley and Verley

[2008] FamCA 258

FAMILY COURT OF AUSTRALIA

VERLEY & VERLEY [2008] FamCA 258

FAMILY LAW – PROCEDURAL – Application for an adjournment during trial as a result of the inability of senior counsel to proceed because of other obligations in circumstances where experienced solicitor is present – Case part-heard – Application for adjournment refused

Family Law Act 1975 (Cth)

Carryer v Kelly (1969) 90 WN(Pt1)(NSW) 566
Haset Sali v SPC Limited (1993) 116 ALR 625
Queensland v J L Holdings Pty Limited (1997) 189 CLR 146

APPLICANT: MRS VERLEY

RESPONDENT: MR VERLEY

FILE NUMBER: MLF 2366 of 2006

DATE DELIVERED: 16 APRIL 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 16 APRIL 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR DICKSON

SOLICITOR FOR THE APPLICANT: LANDER & ROGERS

SOLICITOR FOR THE RESPONDENT: J A MIDDLEMIS

Orders

1. That the application by the husband for an adjournment of the proceedings is refused.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2366  of 2006

MRS VERLEY

Applicant

And

MR VERLEY

Respondent

REASONS FOR JUDGMENT

1. On Wednesday 16 April 2008 I refused an application by the respondent husband for an adjournment of property proceedings.  I said to the parties at the time that I would give reasons to avoid delaying the case further.  These are those reasons.

2. The case itself is not unusual.  That is not to say that it does not have its complexities.  What has created something of a unique difficulty are the circumstances of another case being conducted in the Melbourne Registry at the same time.  That parallel case has nothing to do with the husband and wife in these proceedings save that counsel on both sides have had an integral role in that parallel proceeding.  It is important for me to set out what has happened in both cases to explain the dilemma faced by the parties as well as the Court and what has formed the basis of my refusal of the adjournment application.

3. Mr and Mrs Verley cohabited for 27 years on a farming property.  The wife applied for a property settlement by filing an application on 7 August 2006.  The husband filed a response to his wife’s application on 31 August 2006.  Both parties sought an adjustment of property interests.

4. From what I can glean, the case took its usual course through the litigation system.  In December 2007, the case was “docketed” to me.  At that time, the solicitors for both the husband and the wife appeared and discussion ensued about the case.  I then made procedural orders for the filing of material and set the case down for trial to commence on Monday 14 April 2008 with an estimated duration of two days anticipated.

5. Neither party complied with the directions for filing material but it could not be said that either was prejudiced by that course of action and certainly no-one raise such an issue.  The wife as the applicant, filed her affidavit of evidence in chief on 4 April 2008 and the husband filed his on the very morning of 14 April 2008.

6. On Monday morning 14 April 2008, Mr Dickson announced his appearance on behalf of the wife.  Ms Molyneux QC announced that she appeared on behalf of the husband.  I was informed that subject to some interim rulings, the matter was to proceed.

7. At this point, it is appropriate to digress to refer to the parallel case which involves two Melbourne lawyers.  The apparent issue in dispute related to a divorce of their marriage.  The case was heard during the week preceding Monday 14 April 2008.  Ms Molyneux appeared for one party and Mr Dickson led by Mr Brown SC for the other.  The Federal Magistrate on what I was told, determined the outcome.  Because of the urgency of the matter, upon an appeal being filed, a Full Court of this Court was convened.

8. On Monday 14 April 2008, counsel for Mr and Mrs Verley agreed for their case to be stood down for the exchange of documents and discussion, albeit as I understood it, it was not to be for very long.

9. It transpires that during that period, Ms Molyneux was distracted by events in the parallel proceeding in relation to the proposed hearing before the Full Court.  I was asked by Mr Dickson to reconvene the Court.  Mr Middlemis who was present and instructing Ms Molyneux advised me that he was not able to tell me what was happening with his counsel but would find out and he agreed to sort out the document issue with Mr Dickson and I understood that that occurred.

10. At 12.30pm on 14 April, both parties through their respective counsel indicated a readiness to proceed.  I then gave extempore rulings in relation to an application by the husband to rely upon the evidence of an adversarial witness and in respect of the issue of relevance of an affidavit filed by the husband in which his brother was the deponent.  Those rulings appear elsewhere.  I then had discussions with counsel about objections to evidence and it was agreed that paragraphs 7, 25 and 26 of the husband’s affidavit were objectionable and therefore not relied upon.

11. This took the proceedings until the luncheon break.

12. At 2.15pm on 14 April, Ms Molyneux responded to a question I asked about what orders her client was seeking.

13. At 2.25pm, the wife was called by Mr Dickson to give evidence.  She affirmed that the contents of her trial affidavit were correct and with my leave, gave some brief oral evidence.  At 2.30pm that day, Ms Molyneux commenced her cross-examination.  Before that cross-examination commenced, Ms Molyneux asked me whether I would conclude the day slightly earlier than usual on the basis that she had made an arrangement to attend upon the Appeals Registrar in relation to the Full Court appeal to which I have referred in relation to the parallel proceedings.  Mr Dickson had no objections and accordingly I agreed.  It is important to point out that Ms Molyneux made all of the comments about her involvement in the parallel proceeding in the courtroom in the presence of both the husband and the wife and her instructor Mr Middlemis.  I am not suggesting that she was doing anything untoward.

14. On the morning on 15 April 2008, Ms Molyneux applied for an adjournment because she had to determine issues associated with the appeal book in the parallel proceedings in anticipation that a Full Court would be convened either the same day or the following day.  Again in the presence of the husband, Ms Molyneux said that the parallel proceedings had run for some three days during the previous week and she had not had the benefit of junior counsel assisting her.  She mentioned that Mr Dickson who had also appeared had been led by Mr Brown.  It was put to me that this was the basis upon which I should not resume the case involving Mr and Mrs Verley because Ms Molyneux was needed in the parallel proceeding as there was no-one else who could handle the matter with her knowledge and experience of the case having regard to the speed with which the hearing before the Full Court was to occur.  Mr Dickson in a quite proper fashion, indicated that he understood the dilemma and he had instructions from the wife not to oppose the case being adjourned part-heard.  He said that having regard to the probability of the Full Court sitting that same day, I should only adjourn the proceedings to the following morning being Wednesday 16 April.  I repeated that if Mr and Mrs Verley were comfortable with what was happening, I would not stand in the way but I was very conscious of the fact that their case had been listed for two days and I was running out of time with obligations that I could not shift on Thursday and Friday of that same week.

15. The matter was then adjourned over until 16 April 2008. 

16. On the morning of 16 April 2008, both counsel again appeared.  It transpires that the Full Court did hear the parallel proceeding on the previous evening and made a decision.  Apparently as a consequence of that decision, a further application was then made in the parallel proceedings.  Ms Molyneux indicated that she was taken unawares by that movement and complained that Mr Dickson had not mentioned anything to her about it.  She asked for some time to get some instructions to determine what she should do about the parallel proceedings.  I should also interpolate here that in the Full Court hearing, Ms Molyneux led another member of the Victorian Bar.

17. Mr Dickson said that his client wanted her case to proceed and insofar as any further application was to be made in the parallel proceeding, he would not be involved but his former leader would be conducting it.  I indicated to Ms Molyneux at that stage that I would allow her a short period of time to work out what to do but otherwise, the matter of Mr and Mrs Verley had to proceed.

18. By 11.00am, it became clear that the parallel proceedings were again involving significant court resources and that Ms Molyneux was intricately involved.  When I resumed in the Verley case, Ms Burchall who is apparently an employee solicitor of Mr Middlemis told me that Ms Molyneux was not able to attend because of her involvement in the parallel proceeding. 

19. Mr Dickson indicated that his client wanted the matter to proceed and that he noted that there were a number of counsel around the court precincts who would have been available to take over the case.  I said that I did not want to see the husband prejudiced in any way but that it was important that the matter proceed particularly having regard to the fact that the wife was in the midst of cross-examination by Ms Molyneux.  It is also important to point out at this stage that at the conclusion of the first day, Ms Molyneux said that she only had a limited amount of cross-examination to finish.  There were no other witnesses of the wife to follow.

20. I informed Ms Burchall that she had a half an hour to sort out who was appearing for the husband and that insofar as new counsel was to be engaged, I wanted an answer by 12 noon but that I would give latitude to that person to get appropriate instructions and prepare so that the case could proceed at 2.15pm.

21. At 12 noon, Ms Burchall informed me that her employer Mr Middlemis who practises in regional Victoria had endeavoured unsuccessfully to obtain counsel and was travelling to Melbourne himself.  Accordingly, I indicated that I would resume at 2.15pm.

22. At 2.15pm, Ms Molyneux appeared again indicating that in the parallel proceedings, the application had been dealt with but that she had become involved further as I understand it, in another application to be made to the Full Court.  She said that her instructions had been terminated by the husband.  She apologised to the Court, her client and the wife and I gave her leave to withdraw.  Mr Middlemis who appeared robed, is well-known to me as an experienced family lawyer of many years standing.

23. Mr Middlemis said that he had instructions from the husband to seek an adjournment.  He said he was not prepared to proceed personally notwithstanding that he had been present throughout the first day and had even given audible instructions to Ms Molyneux that she had overlooked a cross-examination issue at the end of the day.  He said he wanted the matter adjourned to obtain alternate counsel.  His submission was that the matter was deemed to be complex and that his client had given him instruction to brief senior counsel and that obviously meant consideration of who was appropriate to handle the matter.  He mentioned names of two junior members of the Victorian Bar who have considerable seniority but who were not available.

24. Mr Dickson opposed the adjournment on the basis that I had made very clear early in the morning that if other counsel was to be briefed, something was to be done about the matter quickly.  I accept what Mr Middlemis says however, that he made inquiries of counsel of his choice and was unsuccessful.

25. Mr Dickson complimented Mr Middlemis on his experience and ability saying that the matter was not a complex matter for Mr Middlemis to run himself and that it was important that the wife who was already being cross-examined should not have to have her case delayed any further.  That was particularly important having regard to my earlier comment that if the matter was not completed, I may not be able to resume it until July.  I did point out to both parties however that at the rate we were travelling, it was most unlikely that we would complete it within the day but that if there was only a little bit of time thereafter to complete it, I would try and find some spare time quickly.

26. I then ruled that the matter should proceed and I refused the application for the adjournment.  I did so on the basis that I did not believe that the husband was prejudiced by the absence of counsel in circumstances where all of evidence that his wife had given was in the presence of Mr Middlemis save for a short period of time when he was absent from the courtroom and that Mr Middlemis was well-acquainted with the matter which had been in the queue awaiting a hearing for almost two years. 

27. The principle that underlies the exercise of discretion to grant or refuse an application for an adjournment is one relating to the question of simple justice.  That principle is best explained in the New South Wales case of Carryer v Kelly (1969) 90 WN(Pt1)(NSW) 566 at 569 where Asprey JA said of a refusal to grant an adjournment in a civil proceeding until later in the same day because of the unavailability of counsel:

    An adjournment which, if refused, would result in a serious injustice to the party applying for it should only be refused if that is the only way that justice can be done to the other party.

28. The principle to which I have just referred has been adopted in Haset Sali v SPC Limited (1993) 116 ALR 625 and Queensland v J L Holdings Pty Limited (1997) 189 CLR 146 both decisions of the High Court of Australia. In Sali Brennan, Deane and McHugh JJ endorsed the concept that a judge of a busy court was entitled to consider the effect of an adjournment on court resources as well as the competing claims of litigants in other cases awaiting a hearing in addition to the interests of the litigants in the case the subject of the adjournment application.  Their Honours adopted the view of Atkin LJ in Maxwell v Keun (1998) 1 KD 645 at 650 wherein his Lordship said that an adjournment which if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action.  Their Honours reminded everyone however that in 1928 and again in 1969 in the Carryer case, court lists were not as congested as they are today and the concept of case management was not then the “sophisticated art” that it has now become. 

29. Accordingly, I was very conscious of the resources of the Court as well as the prospect of the injustice to the wife.  In her case, the problem of not being able to technically speak to her lawyers because of being under cross-examination is not really a matter of great weight.  However, a significant delay having regard to the period of time she has already waited in circumstances where her financial situation is such that she has interest running on significant borrowings is such a matter.  I acknowledge that in respect of the latter point, that difficulty can be overcome by an order to cover the economic loss in the ultimate adjustment of property interests as well as an order for costs.  However that does not overcome the fact that the wife had waited a significant period of time and the case had already started.

30. The important issue therefore is whether adjourning the proceeding would have created a serious injustice to the husband.  Having regard to the fact that all parties had filed their affidavit material (albeit late) and the majority of cross-examination of the wife was complete, the prejudice to the husband was minimal.  I indicated to Mr Middlemis that I would give him an opportunity to advise his client about the indication from Mr Dickson that there was to be cross-examination about the very nature of the case and having regard to the fact that Mr Middlemis had been the solicitor handling the matter for the husband all of the time, there could not be said to have been any prejudice to the husband by the matter proceeding at that time.  I have already mentioned that Mr Middlemis is a legal practitioner known to me as having considerable experience in the family law jurisdiction and to that extent, the husband was equally not prejudiced.

31. Importantly, it was clear that the case was not going to finish in the day and it was tempting to simply put the whole case off.  That meant a balancing of the prejudice to the husband against the waste of resources of the Court.  By proceeding to determine as much of case as I could on 16 April 2008, I would be in a position to relieve the resources of the Court of a number of hours that could be more usefully put to other cases on another occasion.  Having regard to the fact that the cross-examination of the wife was thereafter limited and the evidence in chief of the husband would be equally limited, there could not be said to be any prejudice to the husband whilst he was being advised by and assisted by Mr Middlemis.

32. Accordingly, I am satisfied in the exercise of my discretion that there is no prejudice to the husband in the matter proceeding in the absence of counsel and in particular senior counsel.

I certify that the preceding Thirty Two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  18 April 2008