WAO & CHOU

[2018] FamCA 541

FAMILY COURT OF AUSTRALIA

WAO & CHOU [2018] FamCA 541

FAMILY LAW – PRACTICE AND PROCEDURE – EVIDENCE – Where the husband sought to rely on Affidavit of solicitor sworn and filed one day prior to hearing – Where that Affidavit was served on the wife after the luncheon adjournment on the first day of hearing – Where the Court considered the prejudice caused to the wife by the late filing and service of the Affidavit and its admission into evidence – Where leave to rely on Affidavit is refused.

Family Law Rules 2004 (Cth), Rules 1.04, 11.02, 11.03, 13.01

Akbar & Mali [2015] FamCAFC 244
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Expense Reduction Analysts Group v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46
Jameel (Yousef) v Dow Jones & Co Incorporated [2005] Q.B. 946

APPLICANT: Mr Wao

RESPONDENT: Ms Chou

FILE NUMBER: PAC 1883 of 2016

DATE DELIVERED: 28 June 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: McClelland J

HEARING DATE: 28 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Adams

SOLICITOR FOR THE APPLICANT: Just in Case Legal

COUNSEL FOR THE RESPONDENT: Mr Richardson SC

SOLICITOR FOR THE RESPONDENT: Atunes Lawyers

Orders

1. The husband’s application made under Rule 11.03 of the Family Law Rules 2004 to rely upon an Affidavit of his solicitor dated 27 June 2018 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 Wao & Chou 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).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1883 of 2016

Mr Wao

Applicant

And

Ms Chou

Respondent

EX-TEMPORE JUDGMENT

1. This decision concerns an application brought by the husband to rely upon an Affidavit of his current solicitor, Mr B (“Mr B”), sworn yesterday, 27 June 2018, to which documents from the file of the husband’s previous solicitor, Mr C (“Mr C”) are attached.  That Affidavit was served upon the wife at approximately 2:15 pm on the first day of the hearing, being yesterday.  The relevant documents have been in Mr B’s possession since approximately August 2015.  The documents were served after Senior Counsel for the wife advised the husband and the Court that Mr C was not required for cross-examination.

2. Senior Counsel for the wife opposes the husband’s application on the basis that the filing of the Affidavit is contrary to trial directions that have been made in this matter and would result in unfairness to the wife. As a result, it is contended that the proposed filing of the Affidavit is out of time and accordingly, the course of action proposed by the husband is, pursuant to Rule 11.02 of the Family Law Rules 2004 (“the Rules”), of no force and effect.

3. The husband’s application is made pursuant to Rule 11.03 and seeks relief from the effect of Rule 11.02. As noted, the application to rely on Mr B’s Affidavit attaching documents from Mr C’s file was made in circumstances where, during deliberations on the morning of the first hearing date, Senior Counsel for the wife advised the Court and the husband that the husband’s previous solicitor, Mr C, was not required for cross-examination in relation to an Affidavit that he had sworn on 15 June 2018. That Affidavit did not attach Mr C’s file.

4. By way of background to this application, on 2 May 2017, Registrar Murdoch directed that the husband file and serve Points of Claim particularising orders 1, 2(b) and 2(c) sought in his Amended Application filed on 13 December 2016 within 14 days, that is, by 16 May 2017.  Points of Claim were, in fact, filed on 7 July 2017.  Mr B, who was this morning cross-examined by Senior Counsel for the wife, indicated that the delay in complying with the order of Registrar Murdoch was due to the matter being complicated and also as a result of his client being overseas.  As a result, Mr B stated that there were often time gaps between him seeking and obtaining instructions. 

5. Also relevant to this application are the trial directions made by Foster J on 14 August 2017.  Order 1 made on that date included an order that both parties file and serve any Amended Application or Response and updated Financial Statement upon which they intend to rely by 22 September 2017.  Order 3 required that the parties file one consolidated Affidavit and one Affidavit from each of the witnesses upon which they intend to rely by 27 October 2017.  Order 5 stated that neither party may rely on any document filed, other than in compliance with the orders, without leave of the Court.

6. It is accepted that the proposed filing of the Affidavit of Mr B sworn yesterday, 27 June 2018 is not consistent with the trial directions made on 14 August 2017. Accordingly, an application is made pursuant to Rule 11.03 for relief from what would otherwise be the effect of Rule 11.02. I will shortly return to discussing Rule 11.03 and the guide that it provides to the Court in considering the exercise of its discretion in this matter.

7. Before I do so, I note that Senior Counsel for the wife has provided me with a decision of the Full Court in Akbar & Mali [2015] FamCAFC 244, which refers to those matters that the Court should have regard to in exercising its discretion, pursuant to Rule 11.03. An important consideration is the overall purpose of the Rules. I will shortly discuss that matter in greater detail.

8. It is also relevant, in my view, to have regard to the importance of appropriate case management, as informed by relevant authorities.  In Expense Reduction Analysts Group v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 (“Expense Reduction v Armstrong Strategic”), the High Court quoted the British Court of Appeal in Jameel (Yousef) v Dow Jones & Co Incorporated [2005] Q.B. 946 at [54], where it was said:

   It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice.

9. In Expense Reduction v Armstrong Strategic, the High Court at paragraph 51 referred with approval to Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, stating:

   In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants.

10. As against the background of those authorities, I return to address the main purpose of the Rules. Rule 1.04 relevantly provides:

    The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.

11. The trial directions made by Foster J, to which I have referred, were clearly intended to facilitate that outcome. 

12. Also of relevance to this application is the obligation of ongoing disclosure in family law proceedings.  In that respect, Rule 13.01 provides:

    (1)  Subject to subrule (3), each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner.

13. Rule 13.01(2) provides that the duty of disclosure is one that continues until the case is finalised. That duty of disclosure also impacts upon lawyers. For instance, paragraph 6 of Part 1 of Schedule 1 of the Rules specifies that lawyers must, as early as practicable, advise clients of their duty to make full and frank disclosure and of all possible consequences of breaching that duty.

14. Mr B has confirmed that, shortly after he sent a letter dated 7 August 2015 to Mr C, he received from Mr C the documents which are attached to his Affidavit sworn yesterday, 27 June 2018.  In other words, Mr B has been in possession of the relevant documents since approximately August 2015 or shortly thereafter.

15. While those documents may not have immediately been identified to be documents relevant to the proceedings, they most certainly became relevant after 3 October 2017. On that day the husband filed a Further Amended Initiating Application in which he sought the following order 2:

    2. A declaration that the agreement was not binding under section 90G as there was no substance to the supposed advice required by section 90G(1)(b).

16. The failure to provide the documents that were in Mr B’s possession from August 2015 must also be seen in the context of no endeavour having been made to provide particulars in relation to proposed order 2 of the husband’s Further Amended Application.  The obligation to do so was, in my opinion, a necessary inference from the orders of Registrar Murdoch made on 2 May 2017.  In other words, in the absence of those particulars, the first time that the documents which are said to support the application for proposed order 2 were provided to the wife was at approximately 2:15 pm on the first day of the hearing.

17. The wife was entitled to approach this hearing on the understanding that the evidence relied upon by the husband in support of proposed order 2 was that which was set out in the husband’s Affidavit and the Affidavit of Mr C sworn on 15 June 2018, but not served upon the wife until 22 June 2018.

18. Consequent to receipt of Mr C’s Affidavit on Friday 22 June 2018, on the next business day, being Monday 25 June 2018, Ms D, the solicitor for the wife, wrote to Mr B advising:

    We refer to the above matter.  We require [Mr C] to be available for cross-examination.  Please ensure that [Mr C] brings to Court his file including all notes in relation to this matter.

19. Paragraph 2 of that letter further stated:

    If [Mr C] has already provided his file including all notes to you please provide copies to us on an urgent basis preferably today.  As you are aware, the late service on Friday, 22 June 2018 of [Mr C’s] affidavit which was signed by him on 15 June precludes our ability to issue a subpoena to [Mr C].  We anticipate that, given the circumstances, you will cooperate with our request. 

20. That letter was stamped in the centre of the page as urgent.  To clarify, the hearing commenced on Wednesday, 27 June 2018.  The Affidavit of Mr C was served on the Friday before the hearing and the letter from Ms D was sent the following business day, being the Monday two days prior to the hearing commencing.  In those circumstances, the request was indeed urgent and should have been treated as such by Mr B.

21. In cross-examination, Mr B indicated that he initially read the first paragraph of Ms D’s letter, but perhaps did not read the second paragraph until Tuesday, 26 June 2018. 

22. It was submitted by Counsel for the husband that Mr B thought it convenient for the request to be complied with by way of attaching the documents to an Affidavit.  That may well be the case, but there was no justification for deferring the provision of the Affidavit attaching the relevant documents until 2:15 pm on the first day of the hearing.

23. Mr B explained his general delay in not complying with timelines set out in the orders of Registrar Murdoch and the trial directions made by Foster J as being relevant to those matters to which I have already referred, that is, the complications of the case, that his client lived overseas and that there was a delay between seeking instructions and obtaining instructions. 

24. In respect to his failure to provide documents shortly after the filing of his Further Amended Application on 3 October 2017, Mr B stated that he did not do so at that time, because he had not appreciated the relevance of the documents. 

25. The substance of Mr B’s responses to questions asked by Senior Counsel for the wife was that, at the time the Further Amended Application was filed on 3 October 2017, he understood that proposed order 2 raised the question of whether the advice was “meaningless or no good”.  Further, while he now appreciates that the content of the advice provided by the husband’s previous solicitors is relevant, he did consider it to be so at the time of that filing.

26. There is a professional obligation for legal practitioners, as officers of the Court, to seek only those orders that are realistic and have substance. In that respect, I refer to Schedule 1 of the Rules, to which I have earlier referred, which states at Clause 6(1):

    (1) Lawyers must, as early as practicable:

    …

    (i)  actively discourage clients from making ambit claims or seeking orders that the evidence and established principle, including recent case law, indicates is not reasonably achievable.

27. If it was the case that Mr B was acting in accordance with his obligations, including his obligation as set out in that Clause, as a reasonable practitioner, he should have recognised that, having raised that issue in the Further Amended Initiating Application, the contents of Mr C’s file was relevant to the proceedings.  In other words, at that point, the documents from the file of Mr C, which Mr B had in his possession since approximately August 2015, should have been provided to the wife, pursuant to the obligations of disclosure to which I have referred.   

28. In any event, given that the documents were requested, by the wife’s solicitors, on an urgent basis on 25 June 2018, the Monday prior to the trial commencing, it was, in my view, inexcusable for the husband’s solicitors not to have provided those documents until 2:15 pm on the first day of the hearing, being yesterday.  Deferring production of the documents until that time constitutes a gross discourtesy to the wife and to the Court.

29. In that context, I refer again to the importance that the Court places on appropriate trial management and ensuring fairness to all parties.

30. Clearly, Foster J anticipated there would be some flexibility if issues evolved in the proceedings.  However, failing to disclose the documents in the period since October 2017 was unacceptable.  Failing to immediately provide the documents after the request was made on 25 June 2018 was inexcusable.

31. Having provided context to my consideration of Rule 11.03, I now return to consider the application of that rule.

32. In respect to Rule 11.03(2)(a), that is, the issue as to whether there were good reasons for non-compliance with the trial directions of Foster J, I note that Mr B contended that the delay in providing the documents attached to his Affidavit was due to:

    a)The issues being complex;

    b)The husband living overseas and there being a delay between requesting and receiving instructions;

    c)Having not appreciated the significance of the documents as at 3 October 2017 or shortly thereafter; and 

    d)In respect to the non-production of the documents when requested on 25 June 2018, having not read the second paragraph of the request, which requested the documents, until, perhaps, Tuesday; and

    e)After having read the totality of the letter on Tuesday, deciding that the convenient course of action was to prepare an Affidavit attaching those documents. 

33. In my view, none of those reasons justify the non-production of the documents at a point in time shortly after the filing of the Further Amended Initiating Application on 3 October 2017 and certainly did not justify the non-production of documents after the urgent request was made on 25 June 2018.

34. In terms of Rule 11.03(2)(b), being the extent to which the party has complied with orders, legislative provisions and pre-action procedures, I have referred to the delay in the provision of the documents earlier in these reasons and I have referred to the failure to provide the particulars of proposed order 2 in the Further Amended Initiating Application.

35. I also note that the wife filed Affidavits upon which she relies after the timetable set out in the trial directions of Foster J, to which I have referred. In considering the delay on the part of the parties in filing their trial Affidavits, I respectfully agree with the submissions of Senior Counsel for the wife that it is not appropriate for the Court to take a “pernickety” view of the Rules, but rather that there is an obligation to apply the Rules to ensure a fair trial.

36. In that context, while not, in itself, fatal to the husband’s application, it is a relevant consideration that the non-production of the documents attached to Mr B’s Affidavit occurred in the context where there was a clear inference to be drawn from the orders of Registrar Murdoch, to which I have earlier referred, that the husband should provide particulars of his claim, including any amendments.

37. In terms of Rule 11.03(2)(c), that is whether the non-compliance was caused by the party or the party’s lawyer, Mr B referred to his lack of appreciation of the relevance of the documents contained in Mr C’s file as at or shortly after the Further Amended Application was filed. Mr B also referred to his failure to read the second paragraph of the letter from the wife’s solicitor on the day he received it, being 25 June 2018. Those failures could be said to be failures on the part of Mr B, as opposed to the husband. However, that fact does not, as I will discuss, remove the prejudice that would be caused to the wife if the husband were allowed to rely on the relevant Affidavit.

38. In terms of Rule 11.03(2)(d), that is the impact of non-compliance on the management of this case, the impact of non-compliance has been significant. The Court takes seriously its obligations of case management to ensure that cases are dealt with in a just, timely and cost-effective manner. The conduct of the husband in not providing the documents to the wife until 2:15 pm on the first day of the hearing is inconsistent with those objectives.

39. In terms of the impact of non-compliance on the other party, it is contended by Counsel for the husband that any defect in the compliance with the orders of Foster J can be rectified by the calling of Mr C, the husband’s previous solicitor, for cross-examination.  There are several matters to note in respect to that contention.

40. As pointed out by Ms D, the solicitor for the wife, in her letter of 25 June 2018, it was too late for a subpoena to be issued to Mr C requiring him to attend Court to give evidence.

41. In that context, at paragraph 9 of his Affidavit sworn today, Mr B reports a phone conversation with Mr C, as follows:

    I said, “[Mr C], would you mind coming to Court on Thursday or Friday to give evidence?  If you can, please bring [Mr Wao’s] file with you.”

    [Mr C], “You are giving me such short notice.  I can't change my schedule to fit it in.”

    I said, “Would you consider giving evidence over the telephone?”

    [Mr C], “I prefer not to be called to give evidence at all, however, if I must, then I am okay with giving evidence over the telephone.”

42. It was submitted by Counsel for the husband that it may still be possible for Mr C to give evidence in person.  That submission is, at best, speculative in the face of evidence that Mr C would not be available for “face to face” cross-examination.

1. Moreover, in ensuring that both parties have a fair trial, the Court is obliged to provide each party with the opportunity to cross-examine the deponents of Affidavits and to have the opportunity to undertake that cross-examination in a full and meaningful way.  In that respect, I agree with and accept the submission of Senior Counsel for the wife that, where the evidence is controversial and/or complex, it is often necessary to take forensic steps to prepare cross-examination, including to inspect the totality of a set of documents, rather than only those that may have been selectively produced, and to compare those documents with other information that has been provided in the case.  The provision of the documents contained in Mr C’s file at 2:15 pm on the first day of the hearing did not permit that to take place.

2. In terms of Rule 11.03(2)(f), that is the issue of costs, I accept that one alternative is to permit an adjournment of the proceedings to give the wife more time to forensically examine the relevant documents and to provide the wife with the opportunity to issue a subpoena to Mr C to attend and give evidence in these proceedings. Such a course would inevitably involve considerable additional financial costs.

3. Further, in the exercise of my discretion, I consider that it is also appropriate to have regard to the emotional cost of litigation.  In that respect, I agree with and endorse the extra-judicial comments of Justice Kenneth Haynes AC, where he said, at the 13th Commonwealth Law Conference in Melbourne on 13 April 2003:

   Anyone who has had direct experience with litigation knows all too well the costs that it exacts from the participants.  Those costs are not limited to time and money.  The cost in time and money are real and obvious but the emotional cost of litigation for those who participate in it is often equally pressing. 

4. That observation certainly applies to litigation before this Court.  In those circumstances, that is an additional reason why, in my view, it would be inappropriate for these proceedings to be adjourned. 

5. Finally, in the exercise of my discretion, I note that in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at paragraph 111, the High Court said that, in applying principles of case management, the Court should be cognisant of “the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants”.

6. In other words, not only is the Court required to consider the impact of its decisions on the immediate litigants to a matter, but also the impact on the business of the Court and other litigants.  An adjournment of this case would have such an adverse impact.

7. The matters to which I have referred are all relevant to the exercise of my discretion. However, to be clear and by way of emphasis, while it is not appropriate for the Court to adopt what Senior Counsel for the wife described as “too pernickety” an approach to the Rules, the primary reason that I reject the husband’s application pursuant to Rule 11.03 is that, in my view, the wife would suffer real unfairness if the husband is allowed to rely on the relevant Affidavit. In particular, in circumstances where the wife has not previously been provided with particulars of the husband’s claim in respect to proposed order 2 of the Further Amended Application, it is unacceptable to require the wife to meet a case on the basis of documents produced, for the first time, at 2:15 pm on the first day of the hearing.

8. Accordingly, I dismiss the husband’s application, made under Rule 11.03.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 24 July 2018.

Associate: 

Date:              24 July 2018