WEST & WHITE - [2010] FamCAFC 88

FAMILY COURT OF AUSTRALIA

WEST & WHITE

[2010] FamCAFC 88

FAMILY LAW – APPEAL - CONTRAVENTION OF PROPERTY PROCEEDINGS – HUSBAND’S APPEAL FROM A DECISION OF FEDERAL MAGISTRATE – COSTS – Not established that the learned Federal Magistrate denied the husband natural justice by giving a decision without fair notice of his intention – Not established that Federal Magistrate, even if his Honour had not impermissibly denied him natural justice and procedural fairness, had erred in rejecting the evidence the husband relied upon as prima facie for a breach of an order – Evidence relied upon by husband capable of supporting application for breach of order not relied upon, but incapable of supporting application for breach of order actually relied upon – Appeal dismissed – Application for leave to adduce further evidence dismissed – The costs of all parties of and incidental to the appeal are reserved

Family Law Act 1975 (Cth)

Lindon & The Commonwealth (1996) 136 ALR 251
CDJ v VAJ (1998) 197 CLR 172

APPELLANT:

Mr West

RESPONDENT:

Ms White

FILE NUMBER:

NCC

2007

APPEAL NUMBER:

127

2008

DATE DELIVERED:

8 April 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Coleman J

HEARING DATE:

8 April 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

25 August 2009

LOWER COURT MNC:

[2009] FMCAfam 975

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Self Represented

SOLICITOR FOR THE APPELLANT:

COUNSEL FOR THE RESPONDENT:

Mr Fox

SOLICITOR FOR THE RESPONDENT:

Attwaters

Orders

That the appeal be dismissed.
That the application for leave to adduce further evidence be dismissed.
That the costs of all parties of and incidental to the appeal be reserved.
That any party to the appeal seeking an order for costs of and incidental to the appeal file and serve written submissions in support of such claim within 7 days and thereafter within a further period of 14 days any party against whom a costs order is sought file and serve submissions in opposition to any such order.

IT IS NOTED that publication of this judgment under the pseudonym West & White is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth). This judgment was previously published under the pseudonym Glanton & Holden.

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT NEWCASTLE

Appeal Number: EA 127 of 2008
File Number: NCC 3 OF 2007

Mr West

Appellant

And

Ms White

Respondent

REASONS FOR JUDGMENT

By Notice of Appeal filed on 11 December 2009, Mr West, (“the husband”), appealed against orders made by Coakes FM in contravention proceedings instituted by the husband against Ms White, (“the wife”). The order of the learned Federal Magistrate which gave rise to the husband’s appeal was made on 25 August 2009 and provided that the contravention application filed by the husband on 14 August 2009 be dismissed.
The learned Federal Magistrate ordered that the husband pay the wife’s costs of the unsuccessful contravention application assessed in the sum of $650. That order was also appealed against. Such costs were, in effect, charged upon the husband’s entitlement to share in the proceeds of sale of the former matrimonial home of the parties at V (“the former matrimonial home”).
The husband sought that his appeal against the learned Federal Magistrate’s dismissal of his contravention application be upheld and that the application be remitted for rehearing inferentially by a Federal Magistrate other than Coakes FM. The wife resisted the husband’s appeal and sought to maintain the orders of the Federal Magistrate.
On 15 March 2010, the husband prepared an application for leave to adduce further evidence in the appeal. The filing date of that application is less than entirely clear but appears to have been in early April. Whether or not the formal application for leave to adduce further evidence in the appeal, and the affidavit in support of it sworn by the husband on 15 March 2010, has ever been served upon the wife or her attorneys is less than clear, but, whatever the position, the further evidence sought to be adduced, save in one respect which is not capable of assuming significance, had prior to that time been communicated to the wife’s attorneys. That occurred by virtue of the husband on 11 March 2010 filing, as Volume 2 in his Appeal Book, the material which subsequently came to be the further evidence which he sought to adduce in the appeal. The wife resisted the application for leave to adduce further evidence in the appeal.
By way of background to the proceedings before the Federal Magistrate, some reference to the orders which gave rise to the husband’s contravention application filed 14 August 2009 is appropriate. On 16 December 2008, the parties entered into consent orders with respect to the former matrimonial home. The effect of the orders was that the former matrimonial home was to be sold and, after a variety of disbursements from the proceeds of sale were effected, the wife was to receive 57 per cent of the proceeds of sale remaining and the husband 43 per cent of those monies. The orders provided that the parties otherwise retain the superannuation interests and/or personalty in the possession or ownership of each of them and mutually indemnify each other with respect to liabilities relating to such property.
The property settlement orders provided for an adjustment out of the wife’s share of the proceeds of sale of $5000 by way of payment to a Mr W White of Brisbane in satisfaction of any liability that the parties or either of them might have to Mr White. The orders also provided for the disbursement from the husband’s share of the proceeds of sale of a sum of approximately $90,000 to the wife’s mother or her nominee. The orders provided that until completion of the sale, albeit upon the terms stipulated in the orders, the wife was entitled to exclusive occupation of the former matrimonial home.
The orders then provided, importantly for present purposes (see Order 7), that for the purpose of interpreting the orders for sale of the former matrimonial home the parties would, in the event of any disagreement as to any aspect of the listing for sale or sale or auction of the home, appoint a nominee of the chief executive officer of the Real Institute of New South Wales to determine any such disagreement, and any costs thereby incurred were to be borne equally between the parties. The solicitors for the wife were authorised and directed by the orders to make any necessary adjustment from the parties’ respective share of the proceeds of sale pursuant to Order 1 to give effect to that order. The orders went on to provide (see Order 8) that the wife:
…shall keep the husband informed of the progress of the marketing and sale of the home.
On 14 August 2009, the husband filed a contravention application in which (see paragraph 6) he designated Order 7(a) of the Consent Orders of 16 December 2008, albeit erroneously referred to as 2009, as the order which he asserted the wife had breached. In support of his application, the husband filed an affidavit in which he referred to Order 7(a) and in the subsequent paragraphs of his affidavit sought to advance his claim that the wife had breached Order 7(a).
The course of the proceedings before the learned Federal Magistrate assumed significance in the submissions of the husband in this court and, before referring to the Reasons for Judgment of the learned Federal Magistrate, it is potentially instructive to refer briefly to the transcript of the proceedings.
The matter was initially called on before the learned Federal Magistrate, and at the outset it became apparent the learned Federal Magistrate, having been informed of a number of matters of background, just what the husband’s complaint was. At Appeal Book page 26, when asked whether there was any point in continuing with his application, the former matrimonial home having in fact been by that time the subject of an exchange contract for sale, the husband said to his Honour:
MR [WEST]: The wife is giving the place away. There’s been no interaction or no consultation as to price, terms, conditions in the contract which is leaving me way behind financially. There’s been a total resistance by the wife to converse with me over the issue, always putting the matter off when I approach her over it to the point where the home had been sold prior to me having any knowledge of it or having any contribution towards that sale which I felt would have been on better terms and conditions than what has eventuated.
His Honour then asked:
Well, sir, the issue then is, if there is an issue, and I’m not satisfied there is at this stage, whether the property has been sold for the best price reasonably obtainable in the current market. Is that the issue?
The husband replied:
No. The issue is point 7(a) – is that the wife is to consult with the husband on any aspects of the home being for sale.
His Honour pointed out, correctly, that was not the case and that:
It’s in event of any disagreement between the parties as to any aspect of the listing for sale or sale.
The husband replied:
Well, that opportunity didn’t arise, your Honour. The opportunity didn’t arise to be able to participate in that sale and have a better outcome.
Discussion then proceeded over the following page, during the course of which the husband reiterated that his contention was that the wife had failed to comply with Order 7(a). The learned Federal Magistrate pointed out, with respect to the husband, correctly, that the affidavit evidence-in-chief relied upon by him in support of his application did not contain any evidence of a “disagreement” within the terms of Order 7(a). The husband responded that he had a letter to that effect which he contended established that he wished to invoke the provisions of Order 7(a). That letter was at that time not received by the learned Federal Magistrate. It is reasonably clear that the letter was a copy of a letter dated 1 April 2009 which assumes relevance in the further evidence application of the husband.
The learned Federal Magistrate then inquired of counsel for the wife whether he was in a position to make submissions in relation to there being “no sufficient cause of action disclosed” by the husband’s material. Counsel for the wife confirmed that later in the day he would be. The learned Federal Magistrate then indicated his intention to consider whether or not there was “sufficient cause of action disclosed in your application to warrant the contravention application which you have brought” being heard later that day, 3 pm being indicated. The husband inquired about the meaning of “sufficient cause of action” and his Honour responded by saying:
I don’t think that you disclosed a sufficient cause of action to warrant your contravention application being listed for hearing on another day –
and further said –
I’m going to an application today as to why it should not be dismissed summarily.
The matter was thus, in effect, stood down from about 10 past 10 until about 3 in the afternoon. It was called on again at about four minutes past 3 in the afternoon. At that time the learned Federal Magistrate indicated that he would be unable to hear the matter because of other cases having taken longer than expected, and that he proposed to adjourn the matter to 14 December. At 3.06 the matter was stood down, another matter was dealt with and at 3.11 the proceedings continued. His Honour reiterated to counsel for the wife what he had indicated a few minutes earlier to the husband, namely that he had run out of time to hear the matter that day.
Counsel for the wife informed the learned Federal Magistrate that he had put his submissions in writing in support of summary dismissal application. His Honour reiterated that the matter would go to 14 December with priority and then reiterated that to the husband advising him that he needed to “consider very carefully your application because I’m not satisfied that the ground work is laid.” The husband then replied:
Yes, your Honour, I now realise that there was an implied – the order of 7(a) was basically – in its format it was implied but the intent and meaning of that order – it was actually authored by Mr Fox when he corrected my original consent orders so he was very well aware and would have advised the wife as to the intent.
The husband went on to say:
Well, I’m telling you that there was knowledge by the other party that the intent of that implied material was – otherwise I shouldn’t have received – if it’s non-binding – if that order was non-binding, maybe it was inappropriate that I received it and it had been approved.
There was further discussion about whether or not the husband wished to withdraw his application, during the course of which his Honour informed the husband that if he was unsuccessful, there would almost certainly be an application for costs by the wife, and that it would be likely to be successful. Reference was then made to the written submissions of counsel for the wife. His Honour then said to the husband, having read counsel for the wife’s submissions:
That written submission by Mr Fox encapsulates precisely what I indicated to you this morning as a preliminary observation. Is there anything else that you want to say in support of your application for contravention, because I propose if –
The husband, no doubt unintentionally, interrupted his Honour to say:
In the actual contravention I’m willing to accept that the contravention doesn’t exist only because the format – the way the matter was written, but it was well written there in that particular order that I be notified with the goings on. If not in agreement, then a third party should be called. How am I to imply that particular order if it’s not binding?
His Honour then asked the husband whether there was anything more he wished to say, to which the husband replied:
That just about rounds it off, but surely that was put in – that particular part, a third party being the CEO of the real estate agency, was to be notified if there hasn’t been any agreement. Well, I haven’t been informed of anything, not a thing about whether repairs to the home, etcetera, sale prices, whatever commissions and also persons that are to be utilised for the conveyancing. I’ve been advised nothing, totally nothing.
The husband then confirmed that he had said all that he wished to say in support of his application. The learned Federal Magistrate then gave his reasons for dismissing the husband’s application and it is to those reasons which the court now turns.
His Honour identified, correctly there is no doubt, the application by the husband and the breach upon which the husband relied. His Honour, having referred to Order 7(a), recorded that, “The husband adduces no evidence in his affidavit to support that contention.” With respect to his Honour, whilst if accepted, the evidence in the husband’s affidavit in support of his contravention application would have been capable of establishing, at least at a prima facie level, a contravention of Order 8, he was correct in this court’s view in concluding, as he did, with respect to the ability of the affidavit evidence to support the asserted contravention of Order 7(a).
The learned Federal Magistrate proceeded to refer to the husband’s evidence, that he understood the former matrimonial home to have been sold on 10 August without any consultation or agreement with him as to conditions, price or any terms of sale and a number of other grievances which the husband expressed in relation to circumstances surrounding the sale. His Honour then reiterated a number of matters with respect to the sale of the property. The learned Federal Magistrate in his judgment, encapsulated the difficulty which he perceived the husband’s application had to overcome in the following terms:
The application brought by the husband appears to proceed on the basis of an erroneous belief that either his agreement as to the sale price or some process of consultation, as distinct from being kept informed, is a necessary prerequisite to the sale and that is not contemplated by or the subject of the orders.
His Honour was there clearly alluding to the matter to which he had earlier referred, namely, that whatever the grievances the husband had, the evidence before him did not establish that the husband had sought to invoke the provisions of Order 7(a). Having identified the nature of the proceedings, the learned Federal Magistrate referred to the rules of court, relating to summary dismissal. It is not suggested that his Honour inaccurately quoted the rules, nor has it been submitted that the rules themselves are in any way at variance with the common law as it is understood in relation to summary dismissal applications. His Honour concluded:
On any interpretation of the husband’s application and the evidence he adduces in the form of his affidavit and his concession this afternoon that he does not have an application for contravention, then his application must fail. But more importantly, whether or not he makes that concession, he has had an opportunity to adduce more evidence and it is not adduced and his primary evidence is found in his affidavit as proceedings of this nature require.
The learned Federal Magistrate’s ultimate conclusion was expressed in the following terms:
I find on the evidence the husband has adduced that he has no reasonable prospect of successfully prosecuting the proceeding or claim under which he brings this application. Order 7(a) is a mechanism for referral to the nominated person for the resolution of a disagreement. That was the course which should have been followed if the husband had a grievance in that respect. His application cannot possibly succeed in the form in which it is presently brought and I dismiss it pursuant to the summary dismissal provisions of the rules of this court.
Turning then to the grounds of appeal, broadly speaking, although not necessarily so articulated, the husband’s contention was that the learned Federal Magistrate denied him natural justice in that he proceeded to give a decision without fair notice of his intention to do so, thus unfairly disadvantaging the husband. The husband’s contention before this Court was that even if his Honour had not impermissibly denied him natural justice and procedural fairness, he had erred in rejecting the evidence upon which the husband relied as establishing, at least to a prima facie level, a breach of order 7(a) of the orders.
As the Court endeavoured to explain to the husband during the course of the hearing of his appeal and application for leave to adduce further evidence, on the face of it, the husband was entitled to feel somewhat disadvantaged by the apparent and sudden change of mind by the learned Federal Magistrate as that emerges from the transcript of the hearing before him. The husband submitted to this Court that on at least five occasions the learned Federal Magistrate indicated that the application was going to be adjourned to be heard in December. The Court has not done the calculation, but certainly there were a significant number of times when his Honour explained that the matter would have to be adjourned.
The question was thus whether in the circumstances, in effect, the forcing on of the husband’s application or, perhaps more correctly, the entertaining of the wife’s application for summary dismissal in the circumstances in which it occurred, denied the husband natural justice or procedural fairness. It is reasonably apparent from the transcript of the proceedings that, whereas prior to receiving the written submissions of counsel for the wife, it appears at about 3.11 pm on the hearing, his Honour expected the matter to take some time. Having read the submissions of counsel for the wife, which were reproduced in the appeal book pages 36 to 38, his Honour had reason to consider, as in fact transpired, that the proceedings might be quite short.

His Honour, having read those submissions, raised with the husband some of the difficulties in the evidence that the husband had presented up to that time. The court has earlier quoted the course of that discussion. In the course of that discussion, his Honour repeatedly advised the husband that he had severe misgivings as to whether, on his own evidence, the husband’s application could be successful. With respect to his Honour, and as observed earlier, whatever might have been the case had the husband elected to proceed in reliance upon an alleged breach of Order 8 of the Consent Orders, his observation that the evidence before him could not, if accepted, establish a breach of Order 7(a), was accurate.
In a passage that the court has previously referred to, during the course of the discussion about the apparent difficulties confronting the husband’s application, a significant exchange occurred. Without wishing to take the statement unfairly out of context, and bearing in mind that although by no means inexperienced in litigation in this Court, the husband was appearing in person, it is not insignificant that the husband said to his Honour when the difficulties confronting his application were raised with him:
I’m willing to accept that the contravention doesn’t exist only because of the format – the way the matter was written, but it was well written there in that particular order that I be notified with the goings on.
The husband was then asked on two occasions whether he wanted to say any more. His Honour had adequately raised with the husband the difficulties confronting his application, his Honour’s belief that the evidence relied upon by the husband had not sufficiently laid the “ground work” and that there was a risk, if the matter went over and was ultimately unsuccessful, that further costs would be sought. In response, the husband reiterated the substance of his complaint. Nothing there raised changed the state of the evidence. His Honour then dismissed the application for the reasons which he gave and which this Court has previously referred to.
The Court is not satisfied that in the circumstances the husband was denied natural justice by the learned Federal Magistrate on 25 August 2009.
In Lindon & The Commonwealth reported in (1996) 136 ALR 251, and following Kirby J at paragraph 14, set out in six subparagraphs the principles governing applications for summary relief in the High Court:
14.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 (21);
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 (22) or is advancing a claim that is clearly frivolous or vexatious (23);
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 (24). 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 demurrer (25). 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 (26). A question has arisen as to whether O 26 r 18 applies to part only of a pleading (27). 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; and
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.
Although, as is clear from his Honour’s judgment, the principles enunciated were expressly stated to be referrable to the High Court rules, the Court understands that his Honour’s judgment accurately reflects the principles governing an application of this kind and sheds helpful light on the provisions of the rule applied by the learned Federal Magistrate.
Objectively, save to the extent that the husband’s further evidence may have some impact upon it, it is difficult to see on what basis, whether heard on 25 August 2009 or any later date, the husband’s application could have been successful. Although the husband may see it as nit picking and unfair, as the learned Federal Magistrate clearly acknowledged in his Reasons for Judgment, the husband having elected to proceed with a contravention application which, if successful, may have resulted in substantial sanctions being imposed upon the wife, including possibly, but improbably, incarceration, the wife was entitled to hold the husband to his application as pleaded.
To the extent that the husband would submit that his Honour erred in not treating his application as ranging over orders other than Order 7(a), that was never put to his Honour and at various points, as the transcript reveals, the husband, to use the colloquial, stuck to his guns in terms of the asserted breach of Order 7(a). Without suggesting that the principles governing indictments or charges in the criminal law had strict application to these proceedings, because clearly they do not necessarily strictly apply given that the standard of proof is different in these proceedings to the standard of proof in criminal proceedings, the consequences of successfully prosecuting a contravention application are such as to entitle the respondent to such an application to insist that, before being called upon to show cause why he or she should not be found in breach of the orders, the evidence, if accepted, should be capable of establishing the breach.
As a reading of the husband’s affidavit evidence-in-chief confirms, if accepted, the husband’s evidence would be capable of establishing, at least at the prima facie level, a breach of Order 8. It would not, however, on a balanced reading of the 11 paragraphs of the husband’s affidavit, be capable of establishing, at even prima facie level, a breach of Order 7(a). With great respect to the husband, facilitating proof, at least at the prima facie level, of a contravention of Order 7(a) could have been achieved by tendering in evidence, or annexing to an affidavit for that purpose, a letter addressed to the wife or her attorneys calling upon them to act pursuant to Order 7(a). That, there is no doubt, was never established either by the tender of a letter or by anything in the affidavit which had that effect.
Even if, contrary to the Court’s conclusion, the husband was not afforded natural justice and procedural fairness on 25 August, the evidence he presented at that time would, had the matter been heard in December 2009, have produced precisely the same result. In those circumstances, if, contrary to the Court’s conclusion in relation to the natural justice challenge, the husband was denied natural justice, that denial would not entitle the husband to succeed in this appeal. Had he not been denied natural justice, the result would have been no different. The law is not in doubt that in those circumstances a challenge to the Federal Magistrate’s orders could not succeed.
It is necessary to consider the further evidence application. As will be seen, the further evidence falls into two categories. The first is evidence which was available prior to the filing of the husband’s application. The only evidence in that category is a letter written by the husband to the wife on or about 1 April 2009. In his submissions, in support of that part of his application for leave to adduce further evidence, the husband appeared to concede that the letter did not expressly seek to invoke the operation of Order 7(a). His submission, however, was that on a balanced reading of it a reasonable person would have regarded the letter as invoking the operation of Order 7(a).
Counsel for the wife submitted by reference to the judgment of the majority in CDJ v VAJ (1998) 197 CLR 172 that, if accepted, the letter of 1 April 2009 would not demonstrate that the order under appeal was erroneous. No point was taken as to the husband’s failure to tender that letter on 25 August and fairly was that so given, as the transcript makes clear, that the husband offered to tender that letter at that time. That invitation was declined by the learned Federal Magistrate. In oral submissions to this Court, the husband described the letter of 1 April 2009 as “a general indicator of the conduct of the respondent keeping me in the dark in having no consultation with me.”
When invited to indicate in what way or in what parts of the two-page letter of 1 April 2009 the wife was put on notice that the husband wished to invoke Order 7(a), the husband initially referred to the third last paragraph of the first page of the letter. That paragraph commences:
Your conduct in hiding and evading my efforts in sorting things to the best advantage for us is not reasonable and could be costly to the both of us. It fails common sense. Remember, I have the track record to make matters work beneficial to both of us.
The husband submitted that this paragraph “would have well and truly spelled it out to her” that he wished to rely upon the terms of Order 7(a). With respect to him, the Court does not accept that a reasonable person would have so construed that paragraph.
The husband also specifically relied upon the first paragraph of his letter indicating “in an overview sort of way” that he was seeking to invoke Order 7(a). The first paragraphed commenced:
I hope you are fine. I realise that as persons that are as good as business partners in our interests over the dealing with the family home for the best outcome to commence [unreadable] to via writing is not the best way to work out our interests for everyone concerned.
With respect to the husband, the Court does not perceive that a reasonable person would have interpreted that paragraph in the way the husband contends.
Finally, the husband expressly referred and relied upon the postscript to his letter which read:
The agents (R/E) are only interested to make a sale in a desperate market, not good for you or me.
For the record (4/2009) is a buyer’s market, you could have sold in 2004 - 2005 at the right figure. You are obligated under F/C agreement to cooperate with me re repairs and matters to do with the home. I’ve been extremely fair towards you regards accommodation to my own detriment.
With respect to the husband, the Court does not accept that this provision of the letter would have put a reasonable person on notice that Order 7(a) was being sought to be invoked. With respect to the husband, the Court does not accept that any part of the letter of 1 April 2009 or its totality was capable of putting a reasonable person on notice that the husband wished to invoke the provisions of Order 7(a). It may be that it could have had a different effect in terms of Order 8, but the husband did not assert a breach of Order 8 in his contravention application. With respect to the husband, had that letter been before the learned Federal Magistrate on 25 August 2009, nothing would have been any different.
As was the case with the husband’s affidavit evidence, the letter did not seek to enliven the operation of Order 7(a). To that extent, the husband’s application for leave to adduce further evidence must fail when regard is had to what McHugh, Gummow, Callinan JJ said, paragraph 109 in CDJ & VAJ, which is found in 197 CLR 172 at page 201. The evidence, if accepted, would not demonstrate that the order under appeal was erroneous. With respect to the husband, the letter could be relied upon as evidence that the order under appeal was to buttress the findings already made, as McHugh, Gummow and Callinan JJ discussed in CDJ.
The other further evidence sought to be relied upon by the husband clearly post-dated the filing of his application. As the written submissions of counsel for the wife make clear, issues arise in relation to the extent to which evidence of facts subsequent to the filing of an application can be relied upon as evidence of the matter complained of in the application itself. The Court has severe misgivings as to whether, in proceedings for contravention, the evidence could or should have that effect.
To refer to the evidence chronologically, on 16 August 2009, two days after the filing of his contravention application, the husband wrote to the wife’s attorney in the following terms, or at least relevantly for present purposes in the following terms:
I will be seeking the “advice” of the CEO Real Estate Institute regarding the sale of the Matrimonial Home. As I am now aware of the sale figure, the terms and conditions of the transaction are still a mistry [sic] to me.
It’s almost a joke is it, [sic] my home, yet I have had a problem in obtaining info as to how matters eventuate with it.
That letter could, at least at a prima facie level, be construed as evidence that the husband was seeking to invoke the provisions of Order 7(a). In his primary submissions in the appeal the husband said, paragraph 10:
I was initially aware that the home was sold on 13 August 2009 by sighting the home displayed in photographs from the Real Estate Agency at [V] at a reduced price of $529,000.00 to $539,000.00. This was a reduction on the original figure of $590,000.00. I contacted [J], the agent involved. During the conversation I learnt that the house was sold on the [sic] 10 August 2009.
The husband clarified that the agent in question had a different name to J. That does not assume any significance for present purposes. With respect to the husband, if that submission be true, and the Court is entitled to rely upon it, it having been put forward by the husband, then nothing written by him on 14 August 2009 could have enlivened the provisions of Order 7(a). During the course of the hearing before the learned Federal Magistrate on 25 August, it was made clear by counsel for the wife that contracts for sale had, in fact, been exchanged and that settlement was expected in October.
The Court is not persuaded that the letter of 16 August 2009 demonstrates that the order under appeal was erroneous, whether or not it could properly have had the effect of curing a contravention application which was defective in terms of the evidence supporting it as at the date upon which it was filed. Whilst the Court has reservations as to whether events subsequent to the filing of a contravention application could be relied upon to prove the application or not, the issue having not been agitated and not requiring determination, the Court does not express a concluded view about that.
The other further evidence sought to be relied upon finds expression in two letters, one written by the husband to the wife on 25 August 2009. The husband indicated to this Court that to the best of his recollection that letter was posted to the wife on the morning of the 25 August, that is to say, the morning of the day of the hearing before the learned Federal Magistrate. The husband fairly conceded that the wife would not have received that letter before the learned Federal Magistrate’s decision was given. That letter, (see paragraph 3), very clearly seeks to invoke Order 7(a). No other reasonable construction of the letter is reasonably open.
Largely for the reasons previously stated, the Court does not agree with the submission of the husband that, if accepted, this evidence would demonstrate that the order under appeal was erroneous. By that time, on his own statements in his submissions, the husband knew that the former matrimonial home had been sold some two weeks earlier. Similar observations apply to the husband’s letter of 20 September 2009 to the wife’s solicitors. At the time that letter was written the husband had been in court on 25 August 2009 and had heard counsel for the wife, whose firm apparently acted on the sale of the former matrimonial home, indicate that contracts for the sale had, in fact, been exchanged and that the sale was expected to be completed in October.
The Court is not persuaded that, if accepted, any of the further evidence would demonstrate that the order under appeal was erroneous. Regrettably for the husband, the evidence before the learned Federal Magistrate and before this Court reveals that, with respect to him, he picked the wrong order in the Consent Orders of December 2008 as the basis of his contravention application. As the Court suggested to the husband on a number of occasions during the course of oral submissions, had the application referred to Order 8 rather than or in addition to Order 7(a), its fate, at least in terms of summary dismissal, may have been quite different.
Although not the subject of any detailed submissions to this Court, the Court has directed its mind to whether the failure to expressly refer to Order 8 in his application should fairly have the adverse consequences for the husband which the learned Federal Magistrate and this court have both concluded that it should.
Relevant in that regard, albeit Kirby J was in Lindon dealing with what could be described as a purely civil action, is the part of his Honour’s judgment in which he said:
If notwithstanding the defects of pleading, 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.
The Court perceives there to be, in the circumstances of this case, a number of factors which suggest that the learned Federal Magistrate did not err in failing to invite the husband to reframe his pleading. There is a material distinction between civil proceedings of the kind which the applicant in Lindon sought to agitate against the Commonwealth, and the proceedings which the husband took in this Court for contravention of an order. With respect to the learned Federal Magistrate, had his Honour invited the husband to reframe his pleading, the wife could properly complain that his Honour had entered the arena and become, in effect, an adviser to the husband in a way that ought not be permitted. Such a complaint would gain strength from the reality that, if successful, the husband’s application could have resulted in significant sanctions being imposed upon the wife in reliance upon a course suggested by the Court imposing such sanctions.
With respect to the husband who, though unrepresented, is by no means a novice in litigation in this Court, the difficulties in his application being made plain to him by the learned Federal Magistrate on numerous occasions, never sought to amend his application. In the circumstances, the Court does not consider that the fact that the evidence relied upon by the husband may well have, at least at prima facie level, established the basis of a contravention application which he did not bring, erred in not either pointing that out to the husband or inviting him to reframe his pleading.

The husband elected to seek to utilise punitive provisions in the Act to enforce the orders for settlement of property. A number of other potentially less Draconian avenues would have been available to him. Having elected, as was his right, to pursue a contravention application, the husband cannot complain that he was obliged to prosecute and establish that contravention application in accordance with its terms.

I certify that the preceding fifty six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman

Associate:

Date: 27 April 2010