Wallis and Best

[2014] FCCA 796

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALLIS & BEST [2014] FCCA 796

Catchwords:
FAMILY LAW – Application to adjourn proceedings – application to transfer proceedings to the Family Court of Australia.

Applicant: MR WALLIS

Respondent: MS BEST

File Number: LNC 611 of 2009

Judgment of: Judge Roberts

Hearing date: 25 February 2014

Date of Last Submission: 25 February 2014

Delivered at: Burnie

Delivered on: 25 February 2014

REPRESENTATION

Counsel for the Applicant: Mr L Edwards

Solicitors for the Applicant: James Kitto

Counsel for the Respondent: Mr P McVeity

Solicitors for the Respondent: McVeity & Associates

Independent Children’s Lawyer: Mr D Lewis, Barrister at Law

ORDERS

1. That the Application in a Case filed 14 February 2014 is dismissed.

2. That the applications for costs by Ms Best and the Independent Children’s Lawyer are adjourned to a date to be fixed.

3. That Mr Wallis file and serve a Financial Statement within 28 days.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BURNIE

LNC 611 of 2009

MR WALLIS

Applicant

And

MS BEST

Respondent

REASONS FOR JUDGMENT

1. The application currently before the Court is an Application in a Case filed on 14 February 2014 on behalf of MR WALLIS.  He seeks a number of orders as follows: 

   1.  that the substantive proceedings is adjourned to the Family Court of Australia; and

   2.  that this matter is allocated a new Trial date sometime after the outcome of my Appeal is known; and

   3.  that the Applicant pay the costs of and incidental to this my Application; and

   4.  any other Order the Court sees fit.

2. The Application in a Case was supported by an affidavit by Mr Wallis, also filed on 14 February 2014.  However, a further affidavit has been filed by Mr Wallis which deals in part with the Application in a Case.  I have not read that affidavit completely.  It was only filed last Thursday in Launceston and I have been sitting here in Burnie last week and this week.  I did not realise that it was even on the file until I was in Court this morning.  I make the comment that it does comply with the directions given in relation to the filing of affidavits for the substantive hearing.  It was pointed out to me that it deals with the Application in a Case from paragraph 35 onwards, under the heading “Adjournment & Transfer to the Family Court of Australia”.

3. In my view, the Application in a Case is a somewhat strange animal.  To be perfectly frank, Mr Edwards did not use the words “strange animal”, but he used the words “misconceived in part”.  Mr Edwards has been instructed by Mr Wallis’ solicitor, Mr Kitto, to appear as counsel in relation to the Application in a Case.  As he points out, it is really not possible under this Court’s Rules to “adjourn” a matter to the Family Court.  I “transfer” matters to the Family Court, but under certain guidelines, and when it is considered appropriate.

4. The affidavit filed on behalf of Mr Wallis on 14 February 2014 refers in part to what I assume is why it should be transferred to the Family Court, and it refers to things that I am supposed to have said on 15 July 2013 here in Burnie.  It also refers to things that I am supposed to have said on 3 December 2013 here in Burnie.  The affidavit does not say that it was in Burnie, but I know that I was in Burnie at the time. 

5. Firstly, I will say that I do not accept what is stated to be an accurate record of what I said.  But even if the sentiment is correct – and, again, I do not necessarily accept that – then it seems that Mr Wallis got the impression on 15 July 2013 that there was reason to transfer the matter to another judicial officer and perhaps to another court.  He got that impression again on 3 December 2013.  What I find interesting is that he did not make an application after 15 July 2013.  He did not make an application on 3 December 2013 or even after that date, until 14 February 2014 - eleven days before the matter was listed for hearing. 

6. As I have said, I do not accept that I have been accurately portrayed there, but the way to accurately portray what I say in court, or what anybody says in court, is to obtain a transcript.

7. The first affidavit by Mr Wallis, that is the one filed on 14 February 2014, sought, in part, to rely upon the fact that he has appealed against costs orders that I made earlier last year, and that the appeal has been heard, but the decision has not been handed down.  I do not see that as any reason to transfer the matter to another judicial officer or another court.  If that appeal is successful, what it will tell me is that Strickland J (sitting as the Full Court) believes I got it wrong in relation to a costs order.  As I have said, I do not see that as a reason to transfer the matter to another judicial officer; if his appeal is successful then Mr Wallis will presumably be appreciative of that result and he will not have to pay those costs. 

8. I note, for the record, that Mr Wallis says, at paragraph 10 of his 14 February affidavit:

   I say that clearly his Honour feels very uncomfortable remaining seized of this my matter and that in the interests of justice and the best interests of my child that the following orders ought be made …

9. I do not know how he can tell whether I feel uncomfortable or not.  I am the only person who can say whether I am uncomfortable, and I can say that I am quite comfortable dealing with this matter.  I have been dealing with this matter for quite some time.  I am seized of the matter, and, at this point, I cannot see a reason to transfer it to another judicial officer.  In part, that view is fortified by the fact that it is essentially part-heard and the directions made on 3 December 2013 limited this matter to issues of narrower compass than Mr Wallis would like to ventilate.  Further, I have already ruled on those, he has not appealed those decisions and those rulings of mine still stand.  So I do not see a reason to transfer this matter on the basis of any discomfort from my point of view. 

10. What this application is really all about is for an adjournment because Mr Kitto could not be available today.  And, in that regard, I refer to his email to Mr Lewis of 11 February 2014, in which he said: [2]

    [2] See Exhibit “ICL1”

    I refer to the above and confirm that the writer is unavailable to conduct the Trial in this matter, later this month.

    Accordingly, I am instructed to seek an adjournment.

    Would you please advise whether the adjournment can be arranged by consent or otherwise.

    It also seems sensible to await the outcome of the current Appeal prior to the Trial being conducted.

    I await your reply.

11. The reply from Mr Lewis as ICL that very day was that he did not consent to an adjournment, and he would oppose any such application.  I am summarising, those are not his exact words, but I quoted Mr Kitto’s exact words a moment ago.  What disturbs me is that on 11 February 2014 it was to be an adjournment because Mr Kitto was likely to be “unavailable” and that it might be “sensible” to await the outcome of the appeal.  I have already dealt with that issue and I do not need to address that any further. 

12. On 11 February 2014 Mr Kitto knew that an application to adjourn would be opposed, at least by the ICL. 

13. Mr Kitto wrote to my Associate in an email and, referring to his client’s Application in a Case, asked for an earlier listing.  My Associate’s reply referred to the facts that the matter had been set down on 3 December 2013, his Application was filed on 14 February2014 and it had been listed for today.  My Associate went on to say:

    If it is not possible for you to represent your client at that time it will be necessary for you to brief alternative counsel to represent him at Court in Burnie on 25 February 2014. 

    It is not possible to say whether your client’s Application in a Case will be granted, so counsel will need to be prepared to run the matter if it is not granted.

14. Interestingly, Mr Kitto only briefed Mr Edwards to appear on the Application in a Case, and not on the substantive matter.  To say the least, I find that somewhat strange, because even if he did not know it (and any competent lawyer should know it), Mr Kitto was made aware by my Associate that he should brief someone else to appear on the Application in a Case and on the substantive matter.  And yet he still chose to only partially instruct counsel to appear in the matter.  Frankly, I think that is insulting to the Court, to the counsel he instructed, and to the other two counsel sitting at the bar table.

15. It is compounded by the fact that Mr Kitto was quite clearly still in Launceston last Thursday.  So it seems to me that he cannot rely upon the fact that he did not have time to instruct someone else.  In fact, he has had since 3 December 2013 to instruct someone else if he knew he was going to be on leave.  He also had time to make applications for me to disqualify myself when I made remarks that Mr Wallis interpreted on 15 July and 3 December 2013.  He did not make those applications at that time, but left it until 14 February 2014, after he had been told he was not going to be given an adjournment because he was going to be away.

16. I note that Mr McVeity made a suggestion that Mr Kitto should possibly be reported to the appropriate professional body.  I will not determine that at this point but I will certainly give it consideration in Chambers. 

17. I propose to dismiss the Application in a Case, and I note that the mother’s Response seeks that the Application in a Case be dismissed and also that there be a costs order.  I do not know whether that is to be argued before or after the substantive matter proceeds. 

RECORDED:  NOT TRANSCRIBED

1. In the matter of Wallis and Best the orders are that:

   a)the Application in a Case filed 14 February 2014 is dismissed;

   b)the applications for costs by Ms Best and the Independent Child’s Lawyer are adjourned to a date to be fixed in Burnie; and

   c)there will be a further order that Mr Wallis file and serve a Financial Statement within 28 days.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Roberts

Associate:

Date:  28 April 2014

[1] The “Applicant” being the Respondent to the Application in a Case