Walford & Bantock
[2020] FamCAFC 210
•21 August 2020
FAMILY COURT OF AUSTRALIA
| WALFORD & BANTOCK AND ANOR | [2020] FamCAFC 210 |
| FAMILY LAW – APPEAL – LEAVE TO APPEAL – DE-FACTO RELATIONSHIP – Appeal from the primary judge’s order dismissing an application for a grant of leave under s 90SM(16) of the Family Law Act 1975 (Cth) – Where the applicant requires leave to appeal – Where the decree is not appealable – Procedural fairness – Where the primary judge did not fail to take into account relevant matters – Where findings were open to the primary judge – Error of fact immaterial to the ultimate result – Where the decision made by the primary judge was not unreasonable or plainly unjust – Leave to appeal refused – No order as to costs. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Application filed out of time without reasonable explanation – Application is misconceived – Where further evidence sought to be filed has no bearing upon the correctness of the primary judge’s decision – Application fails the test imposed by CDJ v VAJ (1998) 197 CLR 172 – Application dismissed. |
| Bankruptcy Act 1966 (Cth) ss 58, 116 Family Law Regulations 1984 (Cth) reg 15A |
| Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 Bloch v Bloch (1981) 180 CLR 390; [1981] HCA 56 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28 Dougherty v Dougherty (1987) 163 CLR 278; [1987] HCA 33 House v The King (1936) 55 CLR 499; [1936] HCA 40 Meadows & Meadows (2019) FLC 93-883; [2019] FamCAFC 1 Praxoulis v Praxoulis (1995) FLC 92-621; [1994] FamCA 159 Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207 |
| APPLICANT: | Ms Walford |
| FIRST RESPONDENT: | Mr Bantock |
| SECOND RESPONDENT: | Mr Michel (trustee in bankruptcy) |
| FILE NUMBER: | MLC | 9336 | of | 2018 |
| APPEAL NUMBER: | SOA | 12 | of | 2020 |
| DATE DELIVERED: | 21 August 2020 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Melbourne (via video link) |
| JUDGMENT OF: | Ainslie-Wallace, Watts & Austin JJ |
| HEARING DATE: | 21 August 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 February 2020 |
| LOWER COURT MNC: | [2020] FamCA 78 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE FIRST RESPONDENT: | In person |
COUNSEL FOR THE SECOND RESPONDENT: | Ms Wangmann |
| SOLICITOR FOR THE SECOND RESPONDENT: | Aitken Partners |
Orders made 21 august 2020
The Application in an Appeal filed on 17 August 2020 is dismissed.
Leave to appeal is refused.
No order as to costs.
Further order made 21 august 2020
The first respondent’s oral Application in an Appeal seeking leave to make oral submissions in the appeal is dismissed
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Walford & Bantock and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 12 of 2020
File Number: MLC 9336 of 2018
| Ms Walford |
Applicant
And
| Mr Bantock |
First Respondent
And
| Mr Michel (trustee in bankruptcy) |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Austin J
The applicant was declared bankrupt on 17 November 2015, whilst in a de facto relationship with the first respondent (“the respondent”).
The de facto relationship later broke down and, in August 2018, while the applicant was still bankrupt, the respondent commenced proceedings before the Federal Circuit Court of Australia seeking property settlement relief under Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”).
The second respondent (“the trustee”) is the applicant’s trustee in bankruptcy, who sought and was granted leave to intervene in the proceedings in February 2019. The trustee was not initially joined as a party by the respondent, but his joinder was virtually inevitable pursuant to s 90SM(14) of the Act.
In November 2019, the proceedings were transferred to the Family Court of Australia and were listed before the primary judge for procedural directions in January 2020. By then, the applicant’s entitlement to participate in the property settlement dispute by making any submissions related to “vested bankruptcy property” was the subject of controversy. Under the Act, the applicant had no entitlement to do so without leave (s 90SM(15)), which could only be granted if she demonstrated exceptional circumstances (s 90SM(16)).
The interlocutory contest over the applicant’s constricted involvement in the proceedings was heard discretely by the primary judge and, on 18 February 2020, the applicant’s application for the grant of leave under s 90SM(16) of the Act was dismissed, meaning she is only now able to make submissions in the proceedings in relation to property which did not vest in the trustee under the provisions of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”).
The applicant sought leave to appeal from the dismissal order, which the trustee resisted. The respondent did not file any Summary of Argument, but did appear at the hearing and was refused leave to make oral submissions.
Leave to appeal should be refused because the proposed appeal faces three insuperable impediments. First, the order from which the applicant wants to appeal is not a decree, which is elemental to a competent appeal; secondly, the subject ruling relates only to a matter of practice and procedure, in respect of which leave to appeal is only cautiously given; and thirdly, the proposed grounds of appeal are without merit.
Background facts and law
The applicant and the respondent began their de facto relationship in April 2012, at which time the respondent had some accrued superannuation and was expecting the proceeds of an unresolved property settlement with his former partner, which later resulted in his payment of about $136,000. At the same point in time, aside from some personal chattels, the applicant only had debts in the aggregate sum of about $55,000.
In May 2013, the respondent bought and became the sole registered proprietor of some vacant land, though there is some controversy about how and why the applicant was excluded from that transaction. The respondent then contracted with a builder to construct a dwelling upon the land (“the home”), in which the applicant and the respondent cohabited once it was complete.
The de facto relationship ended in May 2018, after enduring for about six years.
The applicant, bankrupted on her own petition, was automatically discharged from the bankruptcy in November 2018, by which time the property settlement proceedings were already in train.
The applicant deposed that her original trustee showed no initial interest in her financial affairs, which was inevitably because she declared having no property of any realisable value when she was bankrupted in November 2015. She certainly had no legal proprietary interest in the home, as it was registered exclusively in the respondent’s name.
However, once the property settlement proceedings were commenced by the respondent, the applicant asserted she had an equitable proprietary interest in the home by reason of her financial contributions towards it. She submitted to the primary judge:
... I am entitled to claim an equitable interest in the [home] which is the main subject of the property proceedings. I claim an equitable interest based on my significant monetary contributions to the purchase of the [home] as well as contributions to the expenses of the [home] thereafter…
Once the litigation was underway, trusteeship of the applicant’s bankruptcy was assigned to the trustee and he became keenly interested in both the proceedings and proprietorship of the home, about which the applicant can have no complaint, having initially declared she had no property of any realisable value.
On the basis of his own investigation, the trustee concluded the applicant does indeed have an equitable interest in the home and he deposed the equitable interest enjoyed by the applicant is vested entirely in him. So much is obviously correct because any equitable interest the applicant is proven to have in the home must have crystallised prior to, or during the course of, her bankruptcy and is thereby caught by the provisions of ss 58(1), 58(2) and 116(1)(a) of the Bankruptcy Act.
However, proprietorship of the home remains controversial. The respondent seeks an order granting him exclusive title to the home so, inferentially at least, he denies that the applicant enjoys any equitable interest in the home at all, creating a factual dispute which can only be resolved at the trial of the underlying proceedings.
If the applicant is subsequently found not to have any equitable interest in the home then any share in its title which is settled upon her by an adjustment order made in the exercise of discretion under Part VIIIAB of the Act does not constitute “after-acquired property” under the Bankruptcy Act and did not vest in the trustee. The reason for the distinction is that the applicant’s proprietary interest in the home is only created by the Court’s ultimate exercise of statutory discretion; not recognised by the fulfilment of an equitable cause of action proving the asserted pre-existing interest (Dougherty v Dougherty (1987) 163 CLR 278 at 293; Praxoulis v Praxoulis (1995) FLC 92-621 at [20]).
The following written submission was therefore wrongly made by the trustee to the primary judge:
…the interest of the [applicant] in the [home] (whether by virtue of equity…or by virtue of the Court’s jurisdiction to make adjustments to marital property), vested in the Trustee… there is no dispute that the [applicant’s] interest in the [home] must be considered vested in the [t]rustee.
(Emphasis added)
This erroneous submission was not directly challenged before the primary judge so the distinction between the existence of an equitable interest in the home and the acquisition of an interest in the home, created by the discretionary exercise of statutory power, was not agitated.
However, the omission does not undermine the integrity of the primary judge’s decision to dismiss the applicant’s application – it just highlights the need at the future trial to carefully identify those proprietary rights of the applicant which vested in the trustee and those which did not. The embargo under s 90SM(15) of the Act only precludes the applicant from making submissions at trial “in connection with” any existing equitable proprietary interest she enjoys in the home, as that would be “vested bankruptcy property” and therefore the exclusive province of argument between the trustee and the respondent. The applicant is not precluded by the ruling from making final submissions about her entitlement to non-vested property under the provisions of Part VIIIAB of the Act.
The need for a decree
An appeal only lies from a “decree” made by the Family Court of Australia (s 94 of the Act), which is defined inclusively to mean a “judgment or order” (s 4(1)).
In this instance, his Honour ordered:
(1)The applicant’s application for leave under s 90SM(16) of the Family Law Act to make submissions in relation to vested property is refused.
…
(As per the original)
The order does not determine any right or obligation between the parties. It is no more than a ruling about how the trial between the parties will be conducted. It is therefore not an appealable decree (Commonwealth v Mullane (1961) 106 CLR 166 at 169; Tallant & Kelsey (2016) FLC 93-742 at [21]; Meadows & Meadows (2019) FLC 93-883 at [66]).
Leave to appeal
Even if the subject order was a decree from which an appeal could lie, it is an interlocutory order and could only be appealed with leave (s 94AA of the Act; reg 15A of the Family Law Regulations 1984 (Cth)).
Not only is the appealed order interlocutory in nature, it is one which pertains to practice and procedure as it merely regulates the way in which the future trial will proceed. Accordingly, particular caution should be exercised in granting leave to appeal from it (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; Bloch v Bloch (1981) 180 CLR 390 at 395). That must be especially so when the proposed grounds of appeal lack merit, as the proposed grounds do.
The proposed appeal
The applicant was without legal representation, both in the hearing before the primary judge and before this Court, which was a distinct disadvantage for her. Without intending any criticism, her grounds of appeal bear little similarity to any recognised ground of appeal which validly lies from a discretionary judgment (House v The King (1936) 55 CLR 499 at 504-505). In addition, her written Summary of Argument does not correlate with the pleaded grounds of appeal and, in the main, merely amounts to repetition of the argumentative contents of the affidavits she filed in the proceedings below. It will be more helpful and efficient to distil and address the general grievances which the applicant raises, rather than the pleaded grounds of appeal.
On 17 August 2020, only days before the appeal hearing, the applicant filed an Application in an Appeal seeking leave to file further evidence in the appeal pursuant to s 93A(2) of the Act. It was opposed by the trustee and should be dismissed for both procedural and substantive reasons.
Rule 22.39(1) of the Family Law Rules 2004 (Cth) required that the Application in an Appeal be filed by 31 July 2020, so it was filed over two weeks late and only three days before the appeal hearing, for which no satisfactory explanation was afforded. The Application and supporting affidavit made clear that the applicant wanted to adduce in evidence some documents filed in the proceedings below: an affidavit she filed in February 2020 and the financial statement filed by the respondent in December 2019. She had many months between February and July 2020 to file her Application in an Appeal, but did not do so.
More importantly, the Application was entirely misconceived. The further evidence was intended by the applicant to prove the extent of her medical ailments and several instances of financial trickery by the respondent. The evidence had no bearing at all upon the correctness of the primary judge’s decision under s 90SM(16) of the Act, in which event the application fails the test imposed by CDJ v VAJ (1998) 197 CLR 172 and so should be dismissed.
Procedural fairness
The applicant submitted in her Summary of Argument:
[The primary judge] did not read any of my material which was filed or handed up in [C]ourt in reference to my application…
The applicant did not reveal how she could possibly know.
In any event, her assumption collides with the facts.
At the commencement of the hearing before the primary judge, the trustee’s lawyer told his Honour:
…
[SOLICITOR FOR THE TRUSTEE]: On that occasion, your Honour made procedural orders to deal with the preliminary issue. Following those orders … [the applicant], has filed an affidavit in support of her contention that exceptional circumstances exist in this case.
…
(Transcript 7 February 2020, p.2 lines 34–37)
When the primary judge then turned to discuss the matter with the applicant, her reliance upon the affidavit was clear, as this excerpt of the transcript reveals:
…
[THE APPLICANT]: Okay. So I actually do believe my affidavit is relevant. There’s quite an outline in depth [sic].
HIS HONOUR: Yes. So we’re looking at your affidavit of 23 January, are we?
[THE APPLICANT]: Yes, your Honour.
HIS HONOUR: Okay. Now, I would be very grateful if you could direct my attention to the points that you say point in the direction that you want this case to go.
…
(Transcript 7 February 2020, p.4 lines 5–14)
Then, in the published reasons for judgment, the primary judge said this:
3.On 16 January 2020 I gave leave to the [applicant] to file such other additional information on which she wished to rely in support of her contentions that exceptional circumstances existed in relation to her standing in the bankruptcy. She had until 23 January 2020 to do that. She prepared an affidavit made 23 January 2020. She did not file and serve it as ordered and instead handed it up to me in open court on 7 February 2020. [The solicitor], who appeared for the trustee-in-bankruptcy, did not complain about the late provision of that affidavit as he said its contents were elsewhere deposed to in the applicant’s material.
At a later point in the reasons for judgment (at [15]), the primary judge summarised the applicant’s affidavit evidence, together with the trustee’s submissions in response to such evidence.
The only inference available is that the primary judge did read and take into account the affidavit sworn by the applicant on 23 January 2020. The applicant was mistaken to suggest otherwise.
The applicant additionally submitted in the appeal:
… None of my material was acknowledged or referred to in [the] [j]udgment.
and:
[Parts of the judgment] just refers to exactly word for word what the [t]rustee put in [their] submissions [sic]…
The first part of that submission is untrue because the applicant’s evidence was referred to in the reasons for judgment (at [15] and [16(a)]).
The second part of the submission is correct but unremarkable, since much of the applicant’s evidence had little or nothing at all to do with the interlocutory application then under consideration and the submissions made by the trustee were directly on point. The applicant’s evidence and submissions were directed, principally if not exclusively, to the ultimate issue of whether she deserves some share of the respondent’s property, and in particular his home, and not to the interlocutory issue of whether she can trammel the trustee’s role to identify and maximise the recovery of vested bankruptcy property.
The procedural unfairness implied by the applicant, in the form of the primary judge’s failure to consider her evidence, is not established.
Factual findings
The applicant contended the primary judge made several mistaken findings of fact.
Relevantly, the primary judge found:
a)at the commencement of the de facto relationship, the respondent had “superannuation of $48,000” (at [4(c)]);
b)at the commencement of the de facto relationship, the applicant was indebted to creditors for the combined amount of “up to $55,000” (at [4(d)]);
c)the applicant contributed $1,000 towards the respondent’s purchase of the vacant land in May 2013 (at [4(f)]);
d)the respondent was and remains the sole registered proprietor of the home (at [5]); and
e)upon resolution of the property settlement proceedings, any proprietary interest the applicant is found to enjoy in the home is vested in the trustee and will be exhausted by its use to discharge the debts owed to the applicant’s creditors, so there will be no surplus available for the applicant (at [13] and [16(e)]).
In respect of the first finding, there was no evidence at all before the primary judge about the value of the respondent’s accrued superannuation interest in or about April 2012. His Honour appears to have relied upon the applicant’s unsworn submission that the superannuation was then worth $38,000, but the incorrect figure of $48,000 then transposed to the reasons for judgment was most likely only a typographical error. Regardless, the error is immaterial. No superannuation interest possessed by the applicant, even if acquired from the respondent under a superannuation splitting order, could be “property” which vested in the trustee consequent upon her bankruptcy, given the provisions of the Bankruptcy Act (ss 116(2)(d)(iii), 116(2)(d)(iva) and 116(2)(d)(vii)), and so she remains able to give evidence and make submissions about the superannuation interests in the underlying proceedings.
In respect of the second finding, the applicant submitted that the debt at the time she commenced her relationship with the respondent was “approximately half [of the] amount” found by the primary judge. That cannot be correct because the applicant annexed to the affidavit she filed in November 2019 an email she sent in June 2019 in these terms:
… I’m just after the amounts that the debts were at when [the respondent] and I commenced our relationship in April 2012. From my memory of dates and interest calculations I get a figure of approximately $55,000 accumulated together…
In written submissions made to the primary judge, the applicant contended her debt at the commencement of the de facto relationship was “approximately $36,000”, but her submission was not evidence. The primary judge’s finding that her debts then amounted to approximately $55,000 was entirely concordant with the only evidence she adduced. In any event, her historical debt is irrelevant to the quantum of the bankruptcy debt which the trustee is now trying to cover by use of vested bankruptcy property.
In respect of the third finding, the primary judge was addressing the three sources of funds used by the respondent to purchase the vacant land: the money he obtained from the property settlement with his former partner; the mortgage finance he raised; and the cash injection of $1,000 by the applicant. The finding about the applicant’s contribution was correct because it accorded with her evidence. She deposed:
[The respondent] and I chose a block of land to build on and the initial holding deposit of $1,000 was paid by me from my bank account…
The applicant deposed how she later gave the respondent more money to put towards deposit payments and mortgage repayments, but that evidence did not impugn the finding in question. Such additional evidence will eventually be pertinent to the evaluation of her contributions which influence the result of the substantive property settlement proceedings. It does not invalidate the findings pertinent to the interlocutory issue decided by the primary judge.
The fourth finding is undoubtedly correct. The respondent was and remains the sole registered proprietor of the home. Really, the applicant took no issue with the fact. Rather, her complaint is that the respondent should not be the sole registered proprietor of the home, since her intention to be registered as a joint proprietor was fraudulently defeated by the respondent. She deposed:
The land contract was signed by both [the respondent] and myself as it was to be our home. After signing the contract he became aware the house would be affected if we went bankrupt. He then had my name removed off the contract and insisted I go bankrupt…
Albeit without giving such specific evidence about it, the applicant submitted in the appeal:
… My name was crossed out without my authority and therefore the land title did not have my name on it. [The respondent] authorised this through an email. I was not legally aware that my name was removed and I was not on the land title…
The applicant said in her written submissions in the appeal that the circumstances of the transaction are “currently being investigated by the police”, so she has taken her grievance up with them. Her complaint about the way in which the respondent became the sole registered proprietor of the home does not affect the fact that he actually is the sole registered proprietor, which fact was correctly found by the primary judge.
The last finding is also correct, assuming the derivation of any share of title in the home results from a finding of the applicant’s pre-existing equitable interest in it. If a proportional share of the home vests in the trustee in that way then, according to the value of the debts proven in the applicant’s bankruptcy, she stands no chance of realising any residual share of that equitable interest.
The net equity in the home is worth $320,000 at most on the applicant’s estimate and the trustee is seeking orders for an entitlement to no more than one-half of the home, which equates to about $160,000 in value. Since the applicant’s bankruptcy debts amount to about $155,000 before the trustee’s additional costs incurred since November 2019 are taken into account, the debt will exceed the value of the best remedy sought and attainable by the trustee. Nothing would be left over for the applicant. At the hearing before the primary judge, the applicant submitted that, apart from the home, there is no other tangible property in relation to which any property settlement order can usefully be made. Neither the respondent nor the trustee demurred.
Unreasonable or plainly unjust decision
In effect, the applicant contended it was unreasonable or plainly unjust for the primary judge to find, in the exercise of discretion, that she failed to demonstrate the exceptional circumstances which would warrant her being granted leave to make submissions in the substantive proceedings about vested bankruptcy property.
The applicant submitted:
I believe that my circumstances are not something that are regularly, routinely or normally encountered. I say that some of my circumstances are out of the ordinary… the combination of all of the circumstances should be regarded as exceptional.
While the applicant honestly believes her circumstances are exceptional, no aspect of the primary judge’s conclusion to the contrary is shown to be in error.
Evidently, the applicant does not believe the trustee will conduct the substantive proceedings to her advantage. She submitted in the appeal:
… If I’m not part of the trial where I can make submissions I will be fully disadvantaged. If I am simply a witness for the trustee then only the relevant material to them will be relied upon.
The primary judge included this observation about the trustee’s concessions in the reasons for judgment:
19.The trustee’s legal representative has assured me that he will advance all propositions of fact and law that are properly maintainable on behalf of the applicant and that she will not be disadvantaged in any way in the ongoing conduct of this case. [The trustee’s solicitor] has also told me the pool of assets is small and that no distribution is likely in this case. Further, [the trustee’s solicitor] has told me all affidavit material, extensive as it is, has been filed by the applicant.
In relation thereto, the applicant submitted:
I strongly disagree with this point.
and:
I don’t believe the [t]rustee is best placed to articulate my propositions of fact and I don’t believe [the trustee] will given the history of this case…
It would appear that the applicant misunderstands her continuing role in the substantive proceedings, which are yet to be heard and determined. She will still participate in the substantive proceedings as a party and not merely as a witness of the trustee. She can give foundational evidence at the trial addressing the statutory factors the primary judge is obliged to consider under ss 90SM and 90SF of the Act. She will also be able to cross-examine the respondent on the issues between them which are relevant to the disposition of their dispute. The applicant will also be heard in final submissions about any property interests which did not vest in the trustee, which includes superannuation interests, personal chattels, and the whole of the respondent’s legal and corresponding equitable interest in the home (which, until a contrary finding is made, comprises the entirety of the home). The applicant will also be heard about her prospective entitlement to de facto spousal maintenance, if that is a claim for relief she eventually advances.
Given the narrow interlocutory decision of the primary judge, the applicant will only be deprived of the right to make final submissions at the upcoming trial “in connection with” any equitable proprietary interest which she may be found to already enjoy in the home, as that is property which vested in the trustee.
Although the applicant may doubt it, the trustee is duty-bound to preserve any equitable interest the applicant has in the home as vested bankruptcy property for the benefit of her creditors. That is especially so in this case because the trustee contends the applicant has an existing one-half equitable interest in the home, the value of which will likely not be sufficient to discharge all outstanding debt.
The most recent Response filed by the applicant in the substantive proceedings seeks relief by way of an order granting equal shares in the home to her and the respondent, so she does not presently envisage obtaining any greater relief in the proceedings than does the trustee. The difference is that the trustee expects to be the recipient of such relief through proof of an equitable cause of action, whereas the applicant could still possibly be the recipient of such relief by the exercise of discretion under Part VIIIAB of the Act.
The decision made by the primary judge was not unreasonable or plainly unjust.
Orders and costs
I propose orders be made dismissing the Application in an Appeal, refusing leave to appeal, and dismissing the trustee’s application for costs.
The trustee sought an order for the applicant to pay his costs of the appeal in the event of its dismissal or the refusal of leave for it to be brought. Procedural orders made by the Regional Appeals Registrar on 13 May 2020 required the trustee to file a schedule of his costs in advance of the appeal sittings, but he did not do so.
The applicant opposed any order for costs in the trustee’s favour and, in my view, no order should be made. Shortly stated, the applicant’s financial circumstances are modest, which explains why she is self-represented (s 117(2A)(a)), the trustee was in default of the procedural directions concerning proposed costs applications (s 117(2A)(c)), and the trustee’s conduct of these proceedings was marred by the same misconception of principle under which he laboured before the primary judge (s 117(2A)(c)). Those considerations weigh more heavily than the applicant’s complete lack of success with her application for leave to appeal (s 117(2A)(e)).
Watts J
I agree with the orders proposed by Austin J and the reasons his Honour has given.
Ainslie-Wallace J
I too agree and the orders of the Court will therefore be:
(1)The Application in an appeal filed on 17 August 2020 is dismissed.
(2)Leave to appeal is refused.
(3)No order as to costs.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Watts & Austin JJ) delivered on 21 August 2020.
Associate:
Date: 26 August 2020
2
8
4