Wagner & Wagner
[2009] FamCAFC 16
•6 February 2009
FAMILY COURT OF AUSTRALIA
| WAGNER & WAGNER | [2009] FamCAFC 16 |
| FAMILY LAW - APPEAL – Application in an appeal for extension of time for compliance with orders and for reinstatement of appeal – Consideration of the merit of the husband’s appeal against trial Judge’s dismissal of his s 79A(1) application – Not established that the trial Judge erred in dismissing the husband’s claim under s 79A(1) – Application to adduce further evidence refused (CDJ v VAJ (No. 1) (1998) 197 CLR 172) – Application refused, appeal remains dismissed. |
| Family Law Act (Cth) Section 79A Australian Coal & Shale Employee’s Federation v The Commonwealth (1953) 94 CLR 621 T & T [2003] FamCA 1066 |
| APPELLANT: | MR WAGNER |
| RESPONDENT: | MRS WAGNER |
| FILE NUMBER: | NCF | 2742 | of | 1999 |
| APPEAL NUMBER: | EA | 31 | of | 2004 |
| DATE DELIVERED: | 6 February 2009 |
| PLACE DELIVERED: | Parramatta |
| JUDGMENT OF: | COLEMAN, BOLAND & LE POER TRENCH JJ |
| HEARING DATE: | 16 December 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 March 2004 |
| LOWER COURT MNC: | [2004] FamCA 282 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Mr Rugendyke, Slater & Gordon |
| SOLICITOR FOR THE RESPONDENT: | Mr Hassett, Hassett Dickson |
Orders
That the husband’s Application in a Case filed 30 October 2008 be dismissed.
That submissions in support of any application for costs, including submissions in relation to the quantum of any costs order, be filed and served within 28 days.
That any submissions in reply to any application for costs be filed and served within 56 days.
IT IS NOTED that publication of this judgment under the pseudonym Wagner & Wagner is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
Appeal Number: EA 31 of 2004
File Number: NCF 2742 of 1999
| MR WAGNER |
Appellant
And
| MRS WAGNER |
Respondent
REASONS FOR JUDGMENT
On 30 October 2008 Mr Wagner (“the husband”) filed an application seeking:
1.That the Appellant’s time for compliance with Order 1 of the Full Court of the Family Court of Australia of 8 September 2008 be extended until 4.00pm on 20 October 2008.
2.That the Appellant’s Appeal pursuant to Notice of Appeal filed 26 March 2004 be reinstated and listed before this Court for the making of further orders in the Appeal. [Application in a Case, filed 30 October 2008].
Mrs Wagner (“the wife”), the respondent to the application, opposed the granting of relief in the terms sought by the husband.
The application was agitated before us on 16 December 2008.
Background
By Notice of Appeal filed 26 March 2004 the husband appealed against orders made by Mullane J on that date dismissing his application filed 18 December 2003 seeking relief pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”).
The husband’s s 79A application arose from orders made by consent before Mullane J on 25 September 2003. Those orders, which were made at a time when both parties were legally represented, relevantly provided:
3.That unless otherwise specified in these Orders the Wife be declared to have the sole right title and interest in:
3.1 Any real estate in her name or in the name of [C Ltd] including [R Property], [F Property] and [S Property]
…
4.An Order that the Husband has the right to occupy the property known as and situate at [R Property], for a period of 3 months from the date of these Orders subject to the Husband keeping the property in habital [sic] state, reasonable wear and tear excepted, and paying all municipal rates, as and when they fall due and insurances.
5.An Order that should the Wife desire to sell the property within a period of three years from the date of these Orders, the Husband has the first option to purchase the property at a value agreed between the parties, but failing agreement at a price as nominated by the President of the Real Estate [sic] of New South Wales, or his nominee. … [Terms of Settlement, 25 September 2003].
By his December 2003 s 79A application, the husband sought to vary Order 5 of the orders of 25 September 2003 to the following effect:
“An Order that the husband has the right to purchase the property at any time and should the Wife desire to sell the property within a period of three years from the date of these Orders, the Husband has the first option to purchase the property at a value agreed between the parties, but failing agreement at a price as nominated by the President of the Real Estate [sic] of New South Wales, or his nominee. … [Appeal Book Vol 1, page 86, B 5].
Although the matter is less than entirely clear, the effect of the amendments thus sought by the husband appears to have been to give him the option to purchase the property at W referred to in Order 4 of the orders of 25 September 2003 at any time, seemingly regardless of whether or not the wife wished to sell the property. The amendment also sought that the husband have the first option to purchase the property in the event of the wife desiring to sell the property at any time.
On 29 April 2004 the husband filed a draft Appeal Book Index.
On 7 May 2004, after a procedural hearing, Finn J ordered that the hearing of the appeal against Mullane J’s orders of 24 March 2004 be adjourned to a date to be fixed. As Finn J’s Reasons for Judgment of 7 May 2004 confirm, the husband then had pending a further s 79A application with respect to the consent orders of 25 September 2003.
On 28 June 2004, for reasons which she then gave, Laurie J dismissed the husband’s further s 79A application.
On 5 July 2004 the husband advised the Appeals Registrar by facsimile transmission of the dismissal on 28 June 2004 of his further s 79A application. Correspondence then followed with respect to the re-listing of the husband’s appeal against Mullane J’s orders of 26 March 2004.
On 18 April 2007 the Appeals Registrar wrote to the husband inquiring whether he intended to pursue his appeal against Mullane J’s orders of 26 March 2004, and advising that if the husband did not reply within 28 days the matter would be listed before the Full Court for dismissal.
On 17 May 2007 the Appeals Registrar wrote to both parties advising them that the husband’s appeal had been listed before the Full Court for dismissal on 28 June 2007. There followed further telephonic and written communications between the husband and the Appeals Registrar in relation to the listing of the matter on 28 June 2007.
On 21 June 2007 the husband filed an application and affidavit seeking a date for the hearing of his appeal.
On 28 June 2007 the Full Court (Finn, May & Thackray JJ) ordered that by 31 August 2007 the husband file his Appeal Books in accordance with the appeal Rules, failing which “the appeal stands dismissed”. The orders contained further directions in relation to the hearing of the appeal in the event of the husband filing the Appeal Books by 31 August 2007 in accordance with the Full Court’s order. Albeit out of time, on 10 September 2007 the husband filed the Appeal Books required by the orders of 28 June 2007. On 12 September 2007 a consent order was made extending the time for filing such material.
On 12 September 2007 the wife’s solicitors wrote to the Appeals Registrar, inter alia, requesting a listing of the appeal for summary dismissal.
On 5 December 2007 the matter came before Finn J and was ultimately adjourned by consent.
On 4 June 2008 Finn J ordered that the appeal be heard by a Full Court on 8 September 2008.
On 8 September 2008 as the husband, who was then self represented, had not filed an outline of argument, the Full Court (Coleman, Boland and Le Poer Trench JJ) made orders in the following terms:
1.That the Notice of Appeal filed on 26 March 2004 be and is hereby dismissed UNLESS within 28 days of this date the appellant husband file and serve his Outline of Submissions in support of his Notice of Appeal and any application for leave to adduce further evidence in the appeal and affidavits containing the further evidence sought to be adduced in the appeal.
2.That in the event of the appellant husband complying with Order 1 of the orders made this day the Court make further orders in the appeal.
3.That the appellant husband pay by way of contribution to the wife’s costs of today the agreed sum of $1000, payment of such sum be made within 28 days of this date. [Orders, 8 September 2008].
On 7 October 2008 there was filed on behalf of the husband an application for leave to adduce further evidence being the affidavit of Mr Wagner sworn 7 October 2008 and an outline of argument prepared by the husband’s solicitor. However the documents were not served on the wife’s solicitors in accordance with the orders of 8 September 2008.
By 17 October 2008 the solicitors engaged by the husband served upon the solicitors for the wife copies of the husband’s application for leave to adduce further evidence, and the affidavit of the husband in support of that application.
The present application was filed on 30 October 2008. The wife’s solicitor opposed the granting of the relief sought by the husband in his application of 30 October 2008. Whilst the Court’s power to grant the relief there sought was conceded, the wife’s solicitor submitted that the Court should not exercise its discretion to do so. A number of submissions were made in support of such opposition.
In essence, the grounds upon which it was asserted on behalf of the wife that the Court would not grant the relief sought by the husband related to the asserted absence of possible merit in the appeal, the husband’s delays in prosecuting the appeal, the husband’s failure to comply with the directions of 8 September 2008, particularly in the circumstances in which those directions were made, and the husband’s failure to pay costs orders, including the orders for costs made on 8 September 2008.
The husband’s solicitor confirmed to the Court that the husband had filed all the material which he had been directed to file or intended to file and rely upon in the appeal. Included in that material was the husband’s “Summary of Argument”. The husband’s solicitor also confirmed that the affidavit of the husband filed 7 October 2008 contained all of the further evidence upon which the husband intended to rely.
Thus, whilst the husband filed the relevant documents in accordance with the Court’s orders of 8 September 2008, and, as the husband’s solicitor asserted before us on 16 December 2008, was in readiness to prosecute the appeal, the husband has nonetheless failed to comply with the orders of 8 September 2008, by way of failing to serve the documents to the wife’s solicitors within the period specified in Order 1, and in failing to pay the costs due to the wife under Order 3.
It was submitted that the wife would not be prejudiced if the husband’s application was granted given that the appeal would be heard in February 2009, as would have been the case had the husband complied with the directions of 8 September 2008.
It was acknowledged on behalf of the husband that there were only two grounds of appeal to be agitated. First, it was submitted that the trial Judge failed to deal with the husband’s complaint of duress (although his solicitor acknowledged the evidence of duress was “pretty thin”) and second, that the orders did not reflect the agreement reached. The husband’s solicitor acknowledged that the husband faced a significant hurdle to succeed on these grounds, but asserted that such challenges were not demonstrably hopeless.
The solicitor for the husband referred to the brevity of Mullane J’s Reasons for dismissing the husband’s September 2003 s 79A application. By reference to his Summary of Argument, the husband’s solicitor asserted that the grounds of the husband’s appeal to Mullane J’s decision involved complaints with respect to the substance of his Honour’s reasoning process and the adequacy of such reasoning process. It was submitted that, in those circumstances, it was unsurprising that the husband’s Summary of Argument was not extensive.
The solicitor for the husband having confirmed that the husband had not paid the costs ordered to be paid by him on 8 September 2008, the Court gave the husband’s solicitor the opportunity to obtain instructions from the husband, who was apparently in Western Australia where he lives, as to when the costs ordered on 8 September 2008 would be paid, and when the costs of the present application would be paid. It was made clear by the Court that, whether successful or unsuccessful, an order for costs would be made against the husband with respect to the present application. That proposition was, sensibly, not disputed by the husband’s solicitor.
Upon the resumption of proceedings, having obtained instructions from the husband, his solicitor was unable to give the Court any indication of whether, and if so when, the husband would comply with the costs order of 8 September 2008 and any order for costs of the current application.
The husband’s solicitor was thus in the invidious position of representing a litigant who sought indulgence from the Court whilst he was in breach of an order for costs made when the husband had been previously granted an indulgence.
Relevant legal principles
The present application does not, and in our view could not, seek to re-instate an appeal which has been deemed “abandoned” having regard to the terms of the Court’s orders of 8 September 2008. The power to make the orders having been conceded, the basis upon which the Court might grant the present application has not been agitated before us. Whilst we have some misgivings in the light of decisions such as Bailey v Marinoff (1971) 125 CLR 529, per Barwick CJ at 530, Gamser v Nominal Defendant (1977) 136 CLR 145; (1977) 13 ALR 387 and Burrell v The Queen [2008] HCA 34 (31 July 2008); (2008) 248 ALR 428, out of an abundance of fairness to the husband, we proceed on the basis that the Court has power to grant the relief sought by the husband’s application of 30 October 2008.
Though not directly in point, the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 is instructive however in relation to some of the matters of potential relevance to the re-exercise of the Court’s discretion in this case. His Honour there said (at 480):
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd[1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194 - 5 ; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg[1967] VR 871 at 872; Hughes, at 263 - 4; Mitchelson v Mitchelson(1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12 ; [1964] 3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
The judgment of Kirby J in Lindon v The Commonwealth of Australia (No 2)(1996) 136 ALR 251, albeit in relation to applications for summary dismissal is also instructive for present purposes. His Honour there said (at 255-6):
The approach to be taken by the Court to the Commonwealth's application for summary relief is not in doubt:
1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided [General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128f; Dyson v Attorney-General [1911] 1 KB 410 at 418].
2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action [Munnings v Australian Government Solicitor (1994) 68 ALJR 196 at 171f, per Dawson J] or is advancing a claim that is clearly frivolous or vexatious [Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91].
3. An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination [Coe v The Commonwealth (1979) 53 ALJR 403; Wickstead v Browne (1992) 30 NSWLR at 5-7]. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
4. Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of a demurrer [Coe v The Commonwealth (1979) 53 ALJR 403 at 409]. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
5. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading [Church of Scientology v Woodward (1980) 154 CLR 25 at 79]. A question has arisen as to whether O 26, r 18 applies to part only of a pleading [ Northern Land Council v The Commonwealth (1986) 161 CLR 1 at 8]. However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim.
6. The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
Having regard to the foregoing judgments, and the common law principles of natural justice, we proceed on the basis that, unless we are persuaded that the husband’s appeal is so lacking in merit that to allow it to proceed would be an abuse of process or unjust to the wife, our inclination would be to allow it to be heard and determined on its merits.
Whilst the principles relevant to s 79A applications, and in particular, in the context of the assertions made in the husband’s Notice of Appeal, duress, are well known, it is convenient to briefly refer to them.
Section 79A is a remedial section intended to overcome miscarriages of justice and certain other specific difficulties or hardships and should be construed liberally to effect its intended purpose (Re Gilbert and the Estate of Gilbert (dec’d) (1990) FLC 92-125; (1989) 13 Fam LR 632). At the same time, it “cannot be used to circumvent the basic principle that there can only be one property settlement between parties to a marriage” (In the Marriage of Kowalski (1993) FLC 92-342 at 79, 627; (1992) 16 Fam LR 235).
As to the nature of the onus borne by the applicant in a s 79A application, the Full Court (Lindenmayer, Baker and Rowlands JJ) in Prowse & Prowse (1995) FLC 92-557 (at 81,566) said:
… we do not think it would be correct to say that there is even a prima facie entitlement to have the consent orders set aside once a miscarriage of justice has been established, because to do so would be to limit the discretion of the Court and to place an onus upon the respondent to show circumstances why the order should not be made. The better view, in our opinion, is that an applicant for an order under s. 79A(1) bears the onus of satisfying the Court that the original orders should be set aside or varied, and that includes the onus of satisfying the Court not just that there has been a ``miscarriage of justice'' but also that the appropriate exercise of the discretion is to so order.
Whilst traditionally at common law duress required “the compulsion of a person by physical or mental harm”, (Kokl & Kokl (1981) FLC 91-078; (1981) 7 Fam LR 591 at 598, per Gee J) it is well established by the authorities that the concept of duress has expanded to encompass “economic duress”.
In T&T [2003] FamCA 1066 Kay J, (with whom Holden and Mullane JJ agreed on the issue of duress) extensively reviewed the authorities on economic duress, confirming that “the concept of duress has now been extended by the common law to encompass the concepts of unlawful persuasion”. Kay J cited with approval the following passage from The Laws of Australia, Vol 79 at 265:
Duress as a ground for restitution is the application of illegitimate pressure by one party which contributes to causing another party to enrich the first. Illegitimate pressure takes various forms, including threats directed at the other party or a close relative, threats to a property or business interest and threats of industrial action.
In Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 (CA) (to which Kay J referred to in Tisdale (supra)) McHugh JA said (at 45 - 46) :
‘... The rationale of the doctrine of economic duress is that the law will not give effect to an apparent consent which was induced by pressure exercised upon one party by another party when the law regards that pressure as illegitimate: Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366 at 384 per Lord Diplock. As his Lordship pointed out, the consequence is that the “consent is treated in law as revocable unless approbated either expressly or by implication after the illegitimate pressure has ceased to operate in his mind” (at 384). In the same case Lord Scarman declared (at 400) that the authorities show that there are two elements in the realm of duress: (a) pressure amounting to compulsion of the will of the victim and (b) the illegitimacy of the pressure exerted. “There must be pressure”, said Lord Scarman “the practical effect of which is compulsion or the absence of choice”.
…
In my opinion the overbearing of the will theory of duress should be rejected. A person who is the subject of duress usually knows only too well what he is doing. But he chooses to submit to the demand or pressure rather than take an alternative course of action. The proper approach in my opinion is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress.’
Although the husband’s application is an application in an appeal, it is convenient at this stage to identify the principles that govern an appeal from a discretionary judgment. The presumption that a trial Judge’s decision is correct is outlined by Kitto J in Australian Coal & Shale Employee’s Federation v The Commonwealth (1953) 94 CLR 621 (at 627):
I shall not repeat the references I made in Lovell v Lovell (1950) 81 CLR 513, at pp 532–534 to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.
In CDJ v VAJ (No 1) (1998) 197 CLR 172 Kirby J said, of the nature of the appellate function (at 230-231):
1.Neither this court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2.Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction. [footnotes omitted]
Discussion
Obviously, the starting point for present purposes is a consideration of the possible merits of the husband’s appeal. Having regard to the husband’s solicitor’s confirmation that the material currently before the Court is all the material upon which the husband would rely at the hearing of the appeal, we are better informed to consider the merits of the husband’s appeal than is generally the case when applications for summary dismissal, an extension of time in which to appeal, or for the re-instatement of an abandoned appeal requires the Court’s determination.
It is convenient to commence our consideration of the possible merits of the husband’s appeal by referring to the complaints articulated in the husband’s Summary of Argument dated 7 October 2008. Reference was there made to the hearing of the proceedings before Mullane J on 23 and 24 September 2003 and to the making of consent orders on 25 September 2003 after the parties signed Terms of Settlement.
Having referred to the basis of the s 79A application of 18 December 2003, it was submitted on behalf of the husband that Mullane J “dealt with this ground of the husband’s Section 79A application in paragraph 9 of the Judgment… simply stating that there was no evidence capable of satisfying a Court that the orders involved a miscarriage of justice by reason of…duress.”[Appellant’s Summary of Argument, par 2, page 2].
It was further submitted that:
3.His Honour did not appear to deal at all with the husband’s evidence that he was experiencing duress at the time that he entered into the orders and it is not clear from His Honour’s reasons for Judgment that he had regard to the husband’s evidence as referred to that he was experiencing duress and took that evidence into account in deciding to dismiss the Section 79A application. [Appellant’s Summary of Argument, par 3, page 2].
By those submissions, the solicitor for the husband thus contended that Mullane J’s conclusions with respect to the issue of duress in relation to the signing of the terms of settlement in September 2003 had been erroneous.
The second complaint by the husband was identified by his solicitor in his Summary of Argument as being that he “signed settlement on terms that were not included, that were later revised Terms of Settlement signed on 25th September”. [Appellant’s Summary of Argument, par 4, page 2].
It was submitted in support of this assertion that:
5.The husband’s Section 79A application squarely raised that the orders of 25th September did not accurately represent the agreement that had been reached between the husband and the wife on 24th September. It is submitted that this is a ground that falls squarely within the words “or any other circumstance” in Section 79A(1)(a). The husband effectively asserted that there was an agreement reached between the parties which was not recorded in the orders. This was recognised as falling within Section 79A(1)(a) in “Lowe and Harrington” . The husband gave evidence that he understood the agreement to be that he had the option to purchase the R property within the first three years of the date of orders (page 95 Appeal Book). His Honour did not deal with this evidence in any way in his reasons for Judgment before finding that the husband’s application did not attract any of the other grounds in sub section 79A. [Appellant’s Summary of Argument, par 5, page 3].
We understand the husband’s challenges with respect to duress and the content of the terms of settlement to which we have referred to involve challenges to the conclusions reached by Mullane J, and to the adequacy of his reasons for such conclusions.
To consider the complaints thus advanced on behalf of the husband, it is necessary to refer to Mullane J’s ex tempore Reasons for Judgment of 26 March 2004.
Having identified, accurately there can be no doubt, the relief sought by the husband, and having identified the relevant provisions of the consent orders of 25 September 2003, and the relevant legal principles, Mullane J concluded that the husband’s material was “not capable of establishing any ground under s 79A (1)”. [Appeal Book Vol 1, par 13, page 10]. The husband’s application was accordingly dismissed.
To better understand the challenges to the trial Judge’s judgment, it is accordingly necessary to consider “the husband’s material”.
On 10 September 2007 the husband filed Appeal Books. Included in the Appeal Book was the evidence upon which he relied before Mullane J (Appeal Book page 93-115). The only evidence which the husband relied upon before Mullane J was, as his Appeal Book confirms, his affidavit filed 18 December 2003. It is that affidavit to which we now turn our attention.
The affidavit comprised two pages and attached some 17 documents. Rather than paraphrase or attempt to summarise the evidence the husband advanced in support of his s 79A application before Mullane J, we reproduce the substantive paragraphs of his affidavit hereunder:
Since the Family Court hearing on the 23rd of September 2003 I have worked very hard to complete the registration of the Company “[I Ltd] and it’s [sic] financing arrangements. A paid advertisement has been promoted in the “[Industry] News” for November 2003 and the editor has written an article advising the readers of the [company]’s intended progress. I require a mature address to meet the financing requirements and to meet the replies from the advertisement.
The financing for the company and its project is almost complete, and I expect to be able to provide a substancial [sic] deposit for the house. Crediflex has indicated it would provide the remainder of the financing by way of mortgage to complete the sale.
By 31st March 2004 the financing will be in place and those funds I have spent on company activities will have been refunded to me. By this time it is expected I will be receiving a salary and will then be in a position to meet all the requirement of Crediflex mortgages and complete the financing settlement for [R property]. [Appeal Book Vol 1, page 94].
The husband further asserted that his request to vary the orders of 25 September 2003 was “based upon” the following reasons:
As I am the applicant in these proceedings, the TERMS OF SETTLEMENT were reached after I had provided evidence all of that day, 24th Sept 2003. I was strongly advised by my Barrister and Solicitor to settle now. Because of the circumstances at that time and the duress I was then experiencing, I did not fully understand the agreement correctly. I was clearly always under the impression I always had the option to purchase the [R] property within the first three years, along with the first option to purchase (should Mrs. [Wagner] decide to sell before I exercise my option). The correct wording was not entered on the agreement and I am now asking the Court for an amendment to this order.
In paragraph 5 of the TERMS OF SETTLEMENT I am asking the Court to include the words “the husband has the right to purchase the property at any time and” to be inserted before “should the wife desire to sell the property”.
Order No. 4 To extend the period till 31st March 2004 to allow time for the business financing to be in place to complete the house purchase settlement on or before the 31st March 2004. [Appeal Book Vol 1, page 95]
The husband’s affidavit attached a number of annexures. It is appropriate to consider those annexures.
Annexure 1 to the husband’s affidavit material included a copy of the Terms of Settlement, signed by the parties and witnessed by their legal representatives on 24 September 2003.
Annexure 2 to the husband’s affidavit was a document dated 15 December 2003 and styled “affidavit of Mr [P]” in which it was stated:
1I attended the Family Court hearing between Mr [Wagner] and Mrs [Wagner] at Newcastle NSW between 23rd –25th September 2003.
2At the conclusion of that hearing I spoke to Mrs [Wagner] regarding the sale of the [R] Property to Mr [Wagner].
3After I stated that Mr [Wagner] was pushing the funding process for his commercial venture as hard as he knew how Mrs [Wagner] told me she wished him success in the venture but in regard to the [R] property sale she said “Well he had better hurry up as he only has three months to do it”.
4When Mr [Wagner] was in a position to make his offer he asked if I could help mediate between the two, I agreed.
5I finally contacted Mrs [Wagner] from New Zealand on Sunday the 14th of December in regard to the property purchase, she stated she was now not going to sell the Property to Mr [Wagner]. [Appeal Book Vol 1, page 99].
As the transcript of the trial of the proceedings before Mullane J confirms, the husband made clear to him his reliance upon that document (see Appeal Book 129 – 132).
The document is not consistent with the statements the husband made to Mullane J, particularly those recorded at Appeal Book 129 as follows:
MR [WAGNER]: Your Honour, can I speak? The affidavits and the discussion that since followed from the orders, they’d already agreed that I could buy her out and she promised me she would allow me to do that.
HIS HONOUR: Well the orders say that if she wants to see the property within three years, she has to offer it to you, first offer.
MR [WAGNER]: Yes, well she did do that. On the morning on the 25th, she offered me to buy the property out.
HIS HONOUR: Sorry, the 25th of?
MR [WAGNER]: Of September.
HIS HONOUR: At what price?
MR [WAGNER]: A price 880,000.
HIS HONOUR: And when did you accept the offer? How did she make that?
MR [WAGNER]: She made it through Mr [P].
HIS HONOUR: Who is Mr [P]?
MR [WAGNER]: The gentleman sitting behind me.
HIS HONOUR: So it’s not her solicitor?
MR [WAGNER]: No.
HIS HONOUR: Did she offer to sell in writing?
MR [WAGNER]: Yes she did, there’s two emails there to state that.
MR HASSETT: There is no evidence of that.
As is apparent from the terms of the statement by Mr P, when the conversation alleged by Mr P occurred is unclear. The husband has deposed to the evidence before Mullane J commencing on 23 September and continuing the following day. What Mr P intended to convey by reference to the “hearing” is uncertain.
The husband conceded before Mullane J that he had nothing “in writing” in relation to the alleged offer of purchase of $880 000 (Appeal Book 130). Nowhere in the affidavit evidence or elsewhere during the course of proceedings on 26 March 2004 did the husband proffer any other evidence in support of his assertion, other than Annexure 13 to his affidavit, which was an unsigned, undated front page of a contract for the sale of land (referred to in para 64).
The contention before the trial Judge appears to have been that the wife made an offer to the husband to sell the property to him for $880 000 on 25 September 2004, the day the consent orders were made. Significantly, Mr P made no reference to such price notwithstanding that the husband asserted before Mullane J that the wife had made the offer “through Mr [P]”. Nothing emerging from the “affidavit” of Mr P advances the husband’s contentions in support of his challenges to the trial Judge’s decision.
As a reading of it makes clear, the third attachment to the husband’s affidavit, being an email from the wife addressed to the husband dated 6 October 2003, could not have advanced his case before the trial Judge or his challenge to the trial Judge’s conclusions. That email recorded the wife as saying “I promise I will sell it to you.” Significantly, that was in the context of being in the event that the husband’s “dream” came true.
Whilst the fourth attachment to the husband’s affidavit, being a further email from the wife addressed to the husband dated 11 November 2003, was capable of indicating her intention to sell the W property, as the husband submitted before the trial Judge on 26 March 2004, there had not to that time been any sale of the property, either to the “4 people coming from America” or anyone else.
Whilst the fifth attachment to the husband’s affidavit, an email from the wife to him dated 21 November 2003, recorded the wife’s intention to “never ever let you buy my House off me no matter what the cost”, that, as the trial Judge recognised and explained to the husband, did not advance the husband’s case under s 79A. As Mullane J pointed out to the husband [Appeal Book Vol 1, pages 129-130] the wife was bound by the terms of the consent orders of 25 September 2003, as was the husband. Whether or not the wife liked it, she was obliged by the terms of Order 5 to give the husband the “first option” to purchase the property “should the wife desire to sell the property within a period of three years from the date of these orders.”
The sixth attachment to the husband’s affidavit, a letter from “Crediflex” under the hand of “[Mrs H] – Accredited Lending Consultant”, suggested that the husband may have had prospects of obtaining finance to acquire the W property in December 2003. That evidence was corroborative of the husband’s belief. However, nothing there appearing advances the husband’s case before the trial Judge, or challenges to his decision with respect to such application.
The seventh attachment to the husband’s affidavit was a letter written by him to the wife on 9 December 2003. That self-serving document could not advance the husband’s s 79A application before the trial Judge, or his appeal against the trial Judge’s decision.
The eighth and ninth documents attached to the husband’s affidavit, were letters from politicians, which have no bearing upon the husband’s application before the trial Judge. Nor could the tenth, eleventh and twelfth documents attached to the husband’s affidavit which were Certificates of Incorporation of “[I Ltd]” issued by the “[Industry body]” on 17 November 2003 (10 and 11) and Certificate of Registration of Business Name of “[Husband’s Business]” issued on 26 August 2003 by the NSW Department of Fair Trading.
The thirteenth attachment to the husband’s affidavit was the front page of a Contract for Sale of land of the W property from the wife to the husband with stated consideration of $880 000. The document was unsigned, undated and unstamped.
The fourteenth attachment to the husband’s affidavit was an email from the wife to the husband dated 15 December 2003 the subject of which was “[Mrs Wagner’s] House”. That email said:
I still would like you to leave my home by the end of this Month. Dec 31st 2003.
If you have $100,000.00 dollars in Cash then I will stick by the Elders agreement and sell the house but I must put interest for one year on the Elders agreement as you did not keep your word. I have a Court Order that you leave by the end of the month and I would like that to stand if you cannot come up with the money and interest.
I realise that you will have mail delivered to my home therefore I will gladley [sic] forward it on to you. [Appeal Book Vol 1, page 112].
There was no evidence before the trial Judge, and nothing raised by the husband in Court at the hearing on 26 March 2004 which shed light on “the Elders agreement”.
In her affidavit filed on 2 February 2004 and sworn in response to the husband’s affidavit on 26 January 2004 the wife referred to her email and acknowledged that she said in such email “I would sell in accordance with the agreement set out at Annexure ‘Z’ to my principal affidavit sworn in these proceedings on 18 June 2003.” [Appeal Book Vol 1, page 119, par 8].
The wife added “That agreement was made with the Elders of our church as witnesses and is the agreement I refer to in Document 14”. That affidavit was not included in the husband’s appeal books or placed before this Court. In order to properly understand the wife’s position, we have extracted from the Court file the affidavit to which the wife seems to refer and located in it Annexure Z. The annexure is dated 24 December 2001, signed by both parties and witnessed, and it provides, relevantly:
a)[Mr Wagner] as agreed, is to live in the house at [R] Rd. for a period of 12 months after which time it wll [sic] be put up for sale, with a further 6 months until earliest final settlement during which time [Mr Wagner] may continue to live there.
b)[Mr Wagner] has first option to buy the house at an agreed price of $1,000,000 ( one million dollars)
c)If that price is not forth coming [sic] the place will go to the highest Bidder, whether by auction or otherwise.
d)If [Mr Wagner] raises the $1,000,000 the total amount will go to Mrs [Wagner].
e)In the event of the place being sold to another party an agreed total of $200,000 will be paid to [Mr Wagner] but not exceeded, even if $1,000,000 is exceeded as the sale price. [Annexure Z to the Affidavit of Mrs Wagner sworn 18 June 2003].
The final clause of the agreement states that “[a]ny failure on the part of Mr. [Wagner] to adhere to this agreement may bring the full consequences of the law of Australia, with all the social and moral consequences attached.” [Annexure Z to the Affidavit of Mrs Wagner sworn 18 June 2003]. The agreement was unenforceable. The times referred to in the agreement had expired in any event. To the extent that the agreement may have had any legal significance, it was overtaken by the orders of September 2003.
The fifteenth attachment to the husband’s affidavit assumes no significance given, albeit later in time, the potential significance of the 14th annexure to the affidavit.
The sixteenth and seventeenth attachments to the husband’s affidavit, could have no bearing upon the fate of his application before the trial Judge.
Before Mullane J the following exchange occurred:
MR [WAGNER]: Your Honour, this agreement was made at the end of the day that I was cross-examined the whole day and I was under duress at the time. I clearly understood that I had the right to purchase the property.
HIS HONOUR: Well you do.
MR [WAGNER]: That I had the option to purchase the property.
HIS HONOUR: You do, but it’s subject to her wanting to sell it.
MR [WAGNER]: No.
HIS HONOUR: Well that’s what the order says.
MR [WAGNER]: Yes I know. At the time I didn’t understand it completely.
HIS HONOUR: Well there’s no ground. If you don’t understand the orders, that’s not a ground, they are in writing.
MR [WAGNER]: I just though there was extenuating circumstances.
HIS HONOUR: People representing themselves is not a ground to set aside the orders.
MR [WAGNER]: And this was confirmed with Mr [P] the following day that I did – she was prepared to sell me the property.
HIS HONOUR: And she still is if she sold it.
MR [WAGNER]: No, she said I can buy her out, that’s the term of the expression in the email. I can buy her out.
HIS HONOUR: Yes, but what she said is not having legal effect and the orders still stand, she still has that obligation.
MR [WAGNER]: Well I understood the agreement was reached between both parties. I understood clearly at the time that I had the option to purchase at any time, that I really understood that your Honour.
HIS HONOUR: Well Mr [Wagner], if you understand that, that’s contrary to the natural meaning of the words in the document and that’s not a problem that would lead to any change to the documents. If you misunderstand something that’s quite clear, then that’s not a ground for you to apply to set aside final orders. That would do injustice to the other - - -
MR [WAGNER]: I can only explain to the Court that this is how I felt at the time and that’s what I understood it to be.
HIS HONOUR: Well that sounds very stupid doesn’t it because it’s pretty serious stuff, signing final property orders and you are saying that you didn’t understand to have the clear meaning that they expressed.
MR [WAGNER]: I was under duress that day your Honour.
HIS HONOUR: It says an order that should the wife desire to sell the property within a period of three years, the husband has the first option to purchase, that’s what it says.
MR [WAGNER]: Yes, I understand.
HIS HONOUR: It can’t mean what you’re saying, it couldn’t mean that. What you are saying is you signed some orders that meant something different to what you wanted to achieve. Doesn’t make sense either - - -
MR [WAGNER]: Well I know [Mrs Wagner] promised to sell me the property and I was happy with that arrangement and I’ve since gone to a lot of trouble to arrange the financing, I’ve got sale contracts and I have the funding in place for it.
HIS HONOUR: Well it’s still subject to her wanting to sell the property and that’s a - - -
MR [WAGNER]: I can’t do any more than ask her and she agrees in writing that she’d sell me the property, she promised to sell me the property.
HIS HONOUR: Yes, but that promise is not enforceable because it doesn’t set out the proper identification, the price, the land and the conditions of the sale.
MR [WAGNER]: No, well I can’t say any more than that, except that I clearly understood that I had a right to purchase and I’ve gone to a lot of trouble to arrange the funding.
HIS HONOUR: Yes, thank you. Just take a seat Mr [Wagner]. I will deal first with the husband’s application filed on 18 December 2003 which is expressed to be an application under section 79A of the Family Law Act. [Appeal Book Vol 1, pages 131-132].
It is not in doubt that at the time the husband entered into the orders of 25 September 2003 he was represented by a solicitor and counsel instructed by that solicitor.
The husband adduced no medical evidence before Mullane J which was capable of advancing his claim of duress. Nor did any of the evidence establish that there was some other or different agreement in relation to the sale of the W property. Nothing done by the wife subsequent to the making of the consent orders was either consistent with there having been another agreement different to that reflected by the Terms of Settlement, or grounds for intervention pursuant to s 79A of the Act.
Nothing to which the husband has referred us, or we have found for ourselves, establishes that the trial Judge erred in dismissing the husband’s claim with respect to duress, or the husband’s claims with respect to a further agreement. Indeed, it is difficult to see how the two complaints could stand together. On the one hand, the husband asserted, that because of “duress” he did not “fully understand the agreement correctly”. On the other he asserted that there had been another agreement in different terms to the agreement recorded by the Terms of Settlement.
As the authorities (see Official Trustee in Bankruptcy v Donov an and Donovan and Stevens (1996) FLC 92-703; 20 Fam LR 802) and the terms of s 79A of the Act make clear, the husband bore the onus of establishing that there had been a miscarriage of justice, in this case either because of “duress”, or on the basis that the orders which had been made did not reflect the parties’ agreement.
In our view nothing emerging from the material before us establishes that the trial Judge erred in concluding as he did. It thus becomes necessary to consider whether the further evidence sought to be relied upon by the husband would, if accepted, render erroneous the trial Judge’s decision (see CDJ v VAJ (No. 1) (1998) 197 CLR 172, per Kirby J at 230 – 231).
In the husband’s affidavit sworn 7 October 2008 the husband referred to his cross-examination on 24 September 2003 during which he asserted that he was “asked questions about the occasion when my former wife and I had had sexual intercourse on an occasion when I had returned to the home after I had returned from the UK”. [Husband’s affidavit filed 7 October 2008, page 1, para 2].
The husband alleged that:
4.At the end of the Court day I had discussions with my solicitor Matthew Shannon and the Barrister who represented me, Mr Warwick Tregilgis. Mr Tregilgis was insistent that I settle the proceedings.
5.During the course of urging me to settle, Mr Tregilgis said to me words to the effect: “If you don’t settle and you go back into Court you will be charged with rape and you could end up going to jail”.
6.Mr [sic] Solicitor Mr Shannon did not contradict this advice. I was terrified at the prospect of being charged with rape. I have 4 adult daughters from a previous marriage and 5 granddaughters and am an active member of the Church. I had no reason to disbelieve Mr Tregilgis when he told me that I would be charged with rape if I did not settle the case.
7.In those circumstances, I believe that I had no alternative but to settle the case as I was convinced I would be charged with rape if I continued. I was so distressed by Mr Tregilgis advising me that I would be charged with rape if I continued with the Hearing that I was unable to think clearly when I read the Terms of Settlement that had been prepared. [Husband’s affidavit filed 7 October 2008, page 1, pars 4-7].
It is not without significance that, nowhere in the evidence upon which the husband relied before the trial Judge, more than 4½ years ago, was anything of that kind asserted. Why the husband did not then say anything at all about that topic has not been explained. Even if one accepted what the husband asserted in his affidavit, that would not in our view reveal more than a conscious decision to enter into a settlement. Indeed, though no doubt not so intended, the effect of the evidence, if accepted, would be that the husband knew what he was doing, and although not wishing to, did so out of a belief that so doing was preferable to the alternative of continuing with the trial.
That would not in our view be a basis (without far more than the husband has demonstrated) for concluding either that the claim of duress was established, or that a miscarriage of justice occurred by reason of such duress. Cases settle at trial for all sorts of reasons. Unless, which is not suggested, the wife was in some way implicated in the matters which caused the husband to enter into a settlement, the matters raised by the husband cannot impact adversely on the wife. Without suggesting that the husband was erroneously or inappropriately advised, such remedy as the husband has, if any, would in the circumstances asserted by him, be against persons other than the wife.
As with the other material relied upon by the husband, although undoubtedly not so intended, the effect of the further evidence in relation to duress is to remove any prospect of success with a claim based on a failure to understand the terms of settlement which the husband signed.
In our view the further evidence in support of the claim of duress does not satisfy the test suggested by the majority in CDJ v VAJ (supra). In the circumstances it is unnecessary to consider whether, as a matter of discretion, the further evidence should be received. Even if the evidence had some potential to render erroneous the trial Judge’s conclusion, the fact that the evidence was available before the trial Judge but was not relied upon, and its nature, would militate against the exercise of discretion to receive the evidence unless, contrary to our conclusion, it clearly had the effect required by the majority judgment in CDJ v VAJ.
In support of the husband’s contention that there was “an agreement reached between the parties which was not recorded in the orders”, [Summary of Argument, par 5 page 2] the husband further said in his affidavit of 7 October 2008:
8.During the course of discussing the settlement proposal that had been put on behalf of my former wife, I clearly understood that I would be given the first option to purchase the former matrimonial home, provided that I exercised that option within 3 years of the date of the orders.
9.When I signed the Terms of Settlement that had been prepared I did not realise that those Terms of Settlement provided that I would be given the opportunity to purchase the former matrimonial home if my former wife chose to sell it. If I had recognised that the Terms of Settlement that had been prepared did not reflect the agreement that I understood had been reached, I would have raised that they be amended to properly reflect that agreement. [Husband’s affidavit filed 7 October 2008, page 2, pars 8-9].
As noted earlier, it is difficult to know what to make of those assertions of fact given the contents of paragraphs 2 – 7 of the affidavit which are inconsistent with such lack of understanding. As the testimonials and other documents attached to the husband’s affidavit of December 2003 make clear, the husband was not without commercial experience. There was no evidence before the trial Judge, or before this Court, to suggest that the husband lacked the capacity to read and understand the contents of a relatively straight forward document such as the Terms of Settlement constituted. As noted earlier, the husband was represented by Counsel and a solicitor.
Nothing to which this Court has been referred establishes that the further evidence, if accepted, would render erroneous the trial Judge’s decision.
The trial Judge’s reasons for rejecting the husband’s claims were indeed brief. The trial Judge concluded that the husband’s “material is not capable of establishing any ground under section 79A(1)”. When the ex tempore Reasons for Judgment are read in conjunction with the transcript of the proceedings, why the trial Judge concluded as he did becomes apparent. So does why his judgment was brief.
The trial Judge explained to the husband, who was then unrepresented, the grounds upon which s 79A could be enlivened. In the course of exchanges with him, his Honour traversed with the husband the bases of his application and the deficiencies and difficulties which confronted the application having regard to the evidence upon which he relied. In the circumstances, there was no need for the trial Judge to record more than he did.
Objectively, as the wife’s solicitor submitted before this Court, if the husband could have succeeded on s 79A of the Act on the material upon which he relied before the trial Judge, every property settlement ever entered into would be liable to be revisited under the guise of s 79A.
For the reasons we have advanced, whether in reliance upon the material before the trial Judge, or the further evidence on which the husband seeks to rely, no basis for appellate intervention has been demonstrated. In those circumstances, to grant the husband’s application would be to countenance an abuse of the Court’s processes.
Given our conclusions with respect to the merits of the husband’s challenges to the trial Judge’s decision, it is necessary to only briefly refer to the discretionary aspects of the application.
As is not in doubt, the husband failed to comply with the order for costs of 8 September 2008. The transcript of that date in relation to that topic is revealing. The nature of the self-executing order proposed to be made and the importance of complying with the orders made on that day was explained in very clear terms to the husband, who acknowledged his understanding of this:
COLEMAN J: … But I just want you to be clear because if we decide to do this, we won't be entering into discussion about the terms of the order, because if you get an adjournment at all, for my part and I am only one of three, I wouldn't contemplate leaving the door even slightly ajar for you to come back here, at expense to the other party, and try to get yourself yet another lifeline. For my part, if you get one, this is it. Game, set and match, if you don't comply strictly with the terms. So, is there any more you want to say having made it as clear as I can to you that - - -
MR [WAGNER]: No, I understand that. [Transcript of proceedings, 8 September 2008, page 6, lines 12-21].
and, following further explanation of the operation of the orders:
COLEMAN J: If I am labouring the point, I apologise, but it is important that the record leaves no-one in any doubt that we have spelled out, as I imagine their Honours did in June last year, we have spelled out to you that if you do not comply with these directions, that is it. Three strikes and you're out. It will have been your third life and you have used them all up, okay?
MR [WAGNER]: Yes. [Transcript of proceedings, 8 September 2008, page 7, lines 41-48].
The husband made brief mention of concerns held by him in relation to his ability to raise the funds necessary to pay for both his own legal representation, and any for costs orders made against him. In relation to the costs order made on that day, the transcript records the following exchange:
COLEMAN J: Payment to be made within - I would have thought 28 days, that is the spirit of the terms of the adjournment, but Mr [Wagner], what do you want to say, if anything, about time to pay the $1000.
MR [WAGNER]: I couldn't say at this stage, I would probably know later on this week.
COLEMAN J: Well, no, this is the stage. For my part, I cannot see any reason why you should not pay within 28 days, but this is your opportunity to be heard in opposition to that.
MR [WAGNER]: No, 28 days is fine. [Transcript of proceedings, 8 September 2008, page 6, lines 37-48].
Notwithstanding that the husband’s solicitor was given the opportunity to take instructions, and left in no doubt that the Court viewed dimly the husband’s unexplained failure to pay the costs ordered on 8 September 2008, the husband provided no explanation for his failure to pay, or any indication of whether, and if so when, he would pay the costs so ordered or the costs of the present application.
As was suggested to the husband’s solicitor, it does not sit well with a Court for a litigant to be seeking an indulgence in circumstances where the applicant has failed, without explanation, to comply with an order previously made against him without complaint. As the transcript of 8 September 2008 confirms, that is particularly so given the circumstances in which this costs order was made. Whilst not decisive, the issue of costs militates against the exercise of discretion in favour of the husband.
Ultimately, and decisively, we conclude that the husband should be denied the opportunity to have his appeal determined on its merits because, on his own material, the appeal lacks merit and is doomed to fail. The husband has not established that such outcome “would constitute an injustice”. On the material before us, to grant the husband’s application would visit an injustice upon the wife.
In the circumstances, and for the reasons which we have advanced, the husband’s application will be refused. It being common ground that the husband did not comply with the Court’s self-executing orders of 8 September 2008, the husband’s appeal remains dismissed.
Although it is difficult to see on what basis the husband could resist the wife’s application for costs of and incidental to his Notice of Appeal, we will invite submissions from both parties in relation to the question of costs and the quantum of costs.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 6 February 2009
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