WU & LEONG
[2015] FCCA 2962
•12 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WU & LEONG | [2015] FCCA 2962 |
| Catchwords: FAMILY LAW – All applications dismissed effectively for want of prosecution – parenting and property claims never properly presented – no prospect of the disordered proceedings being fairly or properly presented – ICL submission to dismiss all applications – excessive use of court resources – Court cannot conduct cases that are so ill-prepared and hear and determine them as well. |
| Legislation: Federal Circuit Court of Australia Act 1999, s.17A Federal Circuit Court Rules 2001, Division 13, r.13.03, A & B |
| AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Limited (2013) 250 CLR 303 Friar & Friar [2011] FamCAFC 71 Lindon v Commonwealth of Australia (No.2) (1996) 136 ALR 251 Spencer v Commonwealth of Australia (2010) 241 CLR 118 Three Rivers District Council v Bank of England (No.3) (2003) 2 AC 1 |
| Applicant: | MS WU |
| Respondent: | MR LEONG |
| File Number: | CAC 1783 of 2013 |
| Judgment of: | Judge Neville |
| Hearing date: | 12 June 2015 |
| Date of Last Submission: | 19 June 2015 |
| Delivered at: | Canberra |
| Delivered on: | 12 November 2015 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | Self represented |
| Counsel for the Respondent: |
| Solicitors for the Respondent: | Self represented |
| Solicitors for the Independent Children's Lawyer: | Legal Aid ACT |
ORDERS
All outstanding applications be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Wu & Leong is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1783 of 2013
| MS WU |
Applicant
And
| MR LEONG |
Respondent
REASONS FOR JUDGMENT
Introduction
These are very long running parenting and property proceedings. At the outset, the sterling labours of the Independent Children’s Lawyer (“the ICL”) should be acknowledged. Not only has she been her usual assiduous self in the parenting matter, but she has also sought to assist the self-represented parties to resolve the property matters. Unfortunately, nothing has resolved.
Worse still, in my view, there is no prospect of the matter being in a fit state to be heard now or at any foreseeable time in the future. This is primarily because of the inability of the parties to communicate, which leads regularly to intransigent positions being adopted. As well, a very significant factor in the Court’s doleful assessment is the Father’s/Husband’s consistent refusal to do what is required of him, such as to provide relevant documents, and very significantly, his abject refusal to pay his portion of the cost of the preparation of an expert psychiatric report – both of which he agrees to do but then fails to do so. This report is now so far out of date as to be next to useless even if it did become available to the Court – which it has not and is unlikely ever to become available from the consulting psychiatrist due to the failure of the Father to pay his fees.
On at least two occasions, the ICL submitted that both parenting and property applications should be dismissed because the parties continue to contest numerous issues but consistently fail to provide the Court with relevant material with which to deal with either application. I agree. Indeed, in detailed notations to orders made on 12th June 2015, among other things, the following is set out:
Orders of 20th March 2015 formally put the parties on notice that both matters may be dismissed, failing the provision of relevant evidence to assist in the progression of both [parenting and property] matters.
In such circumstances, in my view, the only course left to the Court is simply to dismiss all current applications. If, and only “if” the matters in dispute are properly addressed, might the matter be able to be heard. Until that very unlikely event takes place, it is a complete waste of Court time and resources to continue to keep the matter running, even in the most rudimentary procedural way.
Procedural History
The following sets out the relevant history of the Court’s failed attempts, and the parties’ failed efforts, to bring the matter to a proper state whereby issues in dispute are able to be determined.
On 13th November 2013 an Initiating Application was filed by the Applicant Mother/Wife together with relevant supporting documentation. At this time, the Mother was legally represented. The Application sought final and interim parenting and property orders. Leave was sought to amend the property orders once there had been proper disclosure by the Husband. It is sufficient to note for current purposes that disclosure was an issue raised by the Wife from the outset. It has remained an issue ever since, and it remains so.
The orders sought by the Mother, in general terms, were as follows:
Sole Parental Responsibility
Child live with the Mother
Child spend time with/communicate with the Father as the child wishes.
Child be permitted to leave Australia
Father to sign documents for a passport for the child.
The matter was listed urgently in relation to a passport issue on 15th November 2013. On that occasion, again in general terms, the following orders were made:
The Father is to file Response material in 14 days;
The child is to live with Mother;
The Mother be permitted to take the child to China for a 2 week holiday;
The Mother must provide an itinerary to Father within 14 days;
The parties are to attend private mediation on a date and time to be agreed between them (and liberty to re-list on 14 days’ notice)
Adjourned until 18th March 2014.
On 3rd December 2013, the Father filed a Response (and supporting materials) seeking orders (summarily stated):
Equal shared parental responsibility for the child;
The child live with the parties on a week about basis;
The Mother be restrained from alienating the child away from the Father or creating or inducing hatred towards the Father;
The child be permitted to leave Australia with the Father, without the Mother’s consent;
The Mother cause a passport to issue for the child.
On 12th December 2013, the Respondent Husband filed an Application in a Case seeking the following orders:
The Wife do all things necessary to allow the transfer and refinancing of the Property G property into the Husband’s name – ultimately seeking a S106A Order
That the property be considered ‘settled’ once the Property G property has been refinanced and transferred to the Husband.
That the Applicant [sic – Wife] not be liable for any debt and encumbrances after transfer (although the property would be transferred into his name…)
Also on 12th December 2013, the Applicant Mother filed an Application in a Case regarding property matters, which included an order that the parties attend private mediation with a nominated mediator - a prominent member of the family law legal community in Canberra.
On 13th December 2013, with the then Wife legally represented and the Husband on his own behalf, the Court made the following orders:
For the parties to attend private mediation with Ms L;
The cost of mediation to be split equally;
The Respondent is to file outstanding tax returns within 14 days;
Matter adjourned for further Directions to 10 February 2014.
On 18th December 2013, the Respondent filed an Application in a Case seeking the following rather extensive (but still summarily stated) orders:
Ms Wu and Infinity Legal disclose documents to ensure mediation is not biased, specifically –
a) Any personal/work relationship with the mediator;
b) How long they have known the mediator & how many business encounters prior to this case;
c) How do they benefit each other and is there any deal between the two parties;
d) All communications with the appointed mediator in dealing with this family matter, whether it is private conversation or formal written correspondence;
Ms Wu pay arrears for Property G property;
Ms Wu pay costs of this application.
On 5th February 2014, the Wife filed a Response to the Husband’s December 18 Application in a Case seeking that it be dismissed together with an order for costs of $4000.00
Also on 5th February 2014, the Wife filed a Contravention Application because the Husband did not file his Tax Returns pursuant to Order 3 of the Orders dated 13th December 2013.
On 10th February 2014, with the Wife legally represented and the Husband on his own behalf, the following orders were made:
The Respondent is to provide to Infinity Legal a copy of his income tax returns as filed, within 24 hours, and failure to do so will result in an adverse costs Order against the Husband.
Adjourned to 28 February 2014.
Costs reserved.
On 28th February 2014, still with the Wife legally represented and the Husband on his own behalf, orders were made as follows:
Within 7 days the Applicant is to file an affidavit regarding the Husband’s non-compliance in relation to the provision of tax records;
7 days thereafter, a Reply is to be filed by the Wife;
Costs regarding non-compliance will be dealt with on the papers;
Disclosure MUST occur on or before 12 March 2014;
S69ZW Order to Office of Children Youth and Family Services;
An independent children’s lawyer be appointed;
Adjourned to 27 March 2014.
In these orders there was a notation which put the Husband on notice regarding his non-compliance with orders, and that an order for costs may follow, pending the determination of the matters there set out in those orders based on the papers filed.
On 5th March 2014, Mr Griffiths, from Hill & Rummery solicitors, filed a Notice of Address on behalf of the Father/Husband.
On 7th March 2014, the Wife filed an affidavit in which she outlined the Husband’s history of non-compliance with the Orders of the Court regarding disclosure and the provision of records, particularly in relation to the Husband’s tax records. It was only in this affidavit that the Court was advised that the Husband had provided only his Notice of Assessment.
On 14th March 2014, the Wife filed a further Application in a Case in which she sought orders that the Property G property be sold, plus an order for costs.
In her supporting affidavit, the Wife annexed, among other things, records from the Australian Federal Police regarding an assault charge against the Husband, the victim being the child who is the subject of these proceedings, a domestic violence order in the Wife’s favour (which included the child, X, who is aged 12 years) (Annexure B), correspondence between the parties, the Husband’s payslips and bank statements (Annexure I).
On 14th March 2014 the Husband filed a lengthy Affidavit in which he contended that the Applicant had not provided copies of her tax returns.
On 17th March 2014, the ICL filed a Notice of Address for Service.
On 21st March 2014, the Court released material from OCYFS that had been provided pursuant to S.69ZW.
On 27th March 2014, the Husband filed a Response to an Application in a Case in which he sought that the Wife’s Application dated 14th March 2014 be dismissed. He also sought other rather random orders in relation to property. There is no need to detail them here, other than to stress that they bordered on the nonsensical.
On 27th March 2014, with both parties legally represented, plus the attendance of the ICL, the Court made the following orders:
Parties to notify Chambers within 7 days regarding property arrangements;
The Husband must reply to correspondence from the Wife within 7 days;
The ICL is to make enquiries about a Part 15 expert;
Adjourned to a date to be advised;
Notation that the Court may reserve costs given ongoing non-disclosure.
On 2nd April 2014 the Husband sent a lengthy letter regarding Order 1 made on 27th March 2014. The following day brought a letter from the Wife on the same subject; on this date (3rd April) she became a self-represented litigant.
On 16th April 2014, an affidavit of Mr S was filed confirming that this person was a lodger at the Husband’s residence in Property G and that he was paying rent of $150.00 per week.
Also on 16th April 2014, further directions were made (in general terms) as follows:
Dr B be appointed as the expert – these Orders include the Terms of Reference.
By consent the Property C property be rented.
Matter adjourned to 21st August 2014 for directions.
I should note that Order 7 of the Orders of 16th April 2014 confirmed that the reasonable costs and expenses of the Court appointed expert be paid by the Mother and Father in equal amounts. The same orders also provided for the Applicant to notify Chambers in 7 days if the equity in the Property C property could be drawn down to pay (a) the Wife’s legal fees, (b) outstanding utility bills, and (c) Dr B’s fees for his expert report in the parenting matter.
On 17th April, the Court received an email from the Mother simply stating: “Dear Associate, Yes. Ms Wu.” It is not completely clear to what Ms Wu was agreeing. It could conceivably be that she was agreeing to pay the Father’s share of Dr B’s fees out of the equity in the Property C property. But such a view is at odds with a much longer email from the Mother to the Court, dated 3rd April in which she set out at length the contours, as she saw them, at least of the property dispute with some of the parenting matters which overlaid it. She pointed out the significant income of the Father, and his desire (she said) to have the larger house in the suburb of Property G, rather than the smaller town-house in Property C.
As from 16th September 2014, the Husband again became a self-represented litigant. Also on that date, with both parties present, the Court made the following orders:
The Father is to email the ICL to advise when Dr B will be paid and the ICL is then to notify the Court;
TRIAL DATES – set down for 2 day hearing on dates and times to be advised.
On 18th September 2014, the Father emailed the Court suggesting that, among other options for payment of the expert’s fees, the Mother simply (and immediately) pay them.
On 23rd October 2014, with both parties and the ICL present, the following orders were made (emphasis added):
Absent Dr B’s fees being paid within 14 days, the parenting aspect of the matter will be dismissed.
Both parties are to file updating financial statement and affidavit within 28 days.
Upon receipt of the updating material, the matter will be given hearing dates of 2 days.
On 18th November 2014, the Husband filed an updating Affidavit regarding contributions and property generally, as well as an updated Financial Statement.
On 20th November 2014, the Wife filed her updating affidavit and Financial Statement.
On 22nd December 2014, the Court received an email from X who confirmed that he would not be paying for Dr B’s report.
On 20th March 2015, there was a lengthy directions hearing, with both parties present, and Mr Haddock from the ACT Legal Aid office appearing on behalf of the ICL. In the course of this directions hearing, the ICL submitted that all extant parenting applications should be dismissed. He commented further: “It would almost be appropriate for your Honour to make an order for costs.”[1] The necessary implication was that the costs order would be in the Mother’s favour given the Father’s continuing opposition to contributing to the cost of the expert report of Dr B.
[1] Transcript, p.18.
On 20th March 2015, the Court made the following notations and orders (again summarised):[2]
[2] Formally, for reasons similar to those given by Ms B at a later time, as I have already intimated, Mr Haddock submitted that at least the parenting matter should be struck out because of the multiple and on-going failures of the Father properly to engage and to adhere to orders of the Court, as well as the painfully if not pitifully poor state of the [lack] of proper documentation before the Court that would enable issues in dispute to be determined.
Notations:
Even if payment is made to Dr B, the Report is likely to be stale.
The child has not seen the Father for 2 years – the child’s wishes are that she doesn’t want to see her Father.
As the Father has not made the payment to Dr B, and given he has not filed any material regarding the parenting matter, the Father is to file and serve written submissions about the parenting matter within 7 days;
If the Father fails to file the Submissions, the Father’s Parenting Application will be struck out.
Orders:
The Mother is to file and serve an Amended Initiating Application and Affidavit within 14 days;
The Father is to file and serve an Amended Response and Affidavit 14 days thereafter;
The Father is to file and serve separate submissions no more than 2 pages within 7 days (as per Notation C outlined above)
The Mother is to file any reply submissions 7 days after the Father’s submissions are filed.
The parenting matter will be determined on the papers being the written submissions of the parties.
I should note in particular that Order 3 of the Orders dated 20th March 2015 provided as follows (emphasis added):
The Father is to file separate submissions, no longer than 2 pages, within 7 days from the date of these orders regarding parenting, to show cause why his parenting application should not be dismissed. Failure to file the submissions will result in the application being dismissed.
As it happened, the Father’s submissions were filed, but again they were late, this time by some four days. This was in circumstances where the Father sought an extension of time on 27th March, which was granted to him until 30th March – but the submissions were still late.
On 20th March 2015, Mr S (the border at the Husband’s residence) filed an affidavit of support for the Husband.
Also on 20th March 2015, the Father’s affidavit sought to address the reasons why he had not paid his contribution for the cost of Dr B’s report, and why the parenting application should not be struck out.
On 23rd March 2015 the Mother filed an affidavit in which she confirmed that she withdrew her offer to pay the Father’s share of the cost of Dr B’s report, in large part because of various bills, copies of which she annexed to her affidavit.
On 31st March 2015, the Father filed submissions, again out of time, as I have already noted.
On 7th April 2015, the Wife filed an Amended Initiating Application in which she detailed very specific orders in relation to property only. On the same date she also filed an updating affidavit, as well as submissions in reply.
On 16th April 2015, the Husband filed an Application in Case in which he sought to have the Wife’s Amended Initiating Application dismissed, as well as other orders that, respectfully bordered on the nonsensical (e.g. “that Ms Wu be restrained to prevent damages/abuses to the child without being detected.”) There was also a complaint by the Father against the ICL.
Also on 16th April 2015, the Husband filed a Contravention Application claiming that the Wife had filed her material out of time. He also filed an affidavit in which he sought, in effect, to have all Applications by the Wife dismissed and orders made in his favour (see par.19(a) – (k) of his affidavit).
On 17th April 2015, together with a further affidavit, the Husband filed an Amended Response, in which he sought orders (again in general terms) that:
Parenting:
All allegations of violence against the Father be dismissed
Parents have equal shared parental responsibility
Child live on a week about basis
Ms Wu be restrained “to prevent damages/abuses to the child without being detected”
Ms Wu be restrained from “alienating the child away from the Father, or creating or inducing hatred towards the Father”
Child not be permitted to leave Australia.
Mother do all things necessary to have a passport to issue.
Property:
Leave to amend orders when urgent matters arise.
The Applicant transfer the Property G property to Husband.
Property be considered settled once the transfer are completed.
No superannuation split – each party to keep their own super.
Offer be put to both parties to buy the other out for the Property G property.
Wife be solely responsibly to fix damages caused to Property G property
Quotes for the fixing of things are to be provided to the Court.
All payments and overdue bills etc. be split between the husband and Wife (Property G, Property C and Property D [Vic] properties)
All rental collection and mortgage payment arrangements remain the same.
And a general order pursuant to s.106A.
In the Notice of Risk filed by the Father on 17th April 2015 he alleged that the Mother has been violent towards the child. This is so notwithstanding that he had/has not seen the child for the better part of two years. The ICL submitted that the child’s views are that she does not wish to see the Father, and where the Father was convicted of assault on the child which led to a DVO in the Mother’s and child’s favour from January 2014 until January 2016. Having regard to the age of the child (12 years) it is difficult to see that a Court would not place reasonable weight on the views of the child in making any parenting orders.
On 11th June 2015, the Mother sent an email to the Court indicating that her elderly Mother, who resides in China, is very unwell. She foreshadowed that an Application would be made on 12th June 2015 (at the Contravention hearing) regarding overseas travel with the child.
There was a hearing on 12th June 2015 in relation to the Contravention Application filed by the Husband on 16th April, with both parties present, as well as the ICL. Among other things, the Husband sought payment from the Wife in the sum of $73,000 by way of “penalties.”[3]
[3] See Transcript (12th June 2015) p.11
In the course of this hearing, the ICL submitted as follows:[4]
No one comes to this Court with clean hands in this case… Mr Leong has not complied with the same direction he is complaining about … the parties want to fight about everything, but neither of them is doing anything to progress the actual matters they are interested in … If the parties want relief from this Court they have to do it properly. If they choose to be self-represented then it is their responsibility to work out how to do it properly, and stop over-complicating everything by filing masses of irrelevant material.
[4] Transcript (12th June 2015) p.15-16.
Respectfully, I agree with and accept the comments and submissions of the ICL.
The Court also accepted the evidence and plea of the Wife, namely that there was no breach of the orders of 20th March 2015. In the alternative, the Court accepted the plea of guilty with reasonable excuse. The Contravention Application was dismissed.
In the Orders that issued on that date (12th June 2015), there was a lengthy notation which again put the parties on notice of the risk of all matters before the Court being dismissed.
Further, the Orders of 12th June 2015 permitted the Mother to travel to China (with the child) to see her ill Mother, and for a passport to issue to the child (X) in the event that the Father refused to sign necessary documentation. Although the Father had consented to the Mother and child travelling to China to visit family in November – December 2013, on this occasion he did not consent, and sought that the Mother be required to post a bond of between $300,000 and $500,000.[5] In my view, such a stance again showed the complete and utterly unrealistic attitude of the Father, and a patent disregard of what were realistic orders in all of the circumstances.
[5] See Transcript, p.21.
Finally, on 12th June 2015, the Court noted that any and all outstanding applications would be the subject of reasons and orders.
Consideration and Disposition
The chronology detailed above is a most regrettable narrative of what amounts to a failure to prosecute appropriately the various and multiple applications that are before the Court. Plainly, the matter has been on foot for two years. In my view, it is no closer to being ready for trial than it was in November 2013. While every attempt has been taken to assist the parties, especially with the able assistance of the ICL, each and every step along the way has only led to greater obfuscation and difficulty. This is all immensely unfortunate for the parties as well as the Court. Very significant resources have been put in to this matter but to very little lasting benefit for anyone.
By way of summary, I note the following non-compliance with orders by both parties over the course of this protracted litigation (emphasis added):
13th December 2013: Husband ordered to provide his tax returns within 14 days
5th February 2014: Wife filed a contravention because Husband had not provided tax returns as ordered
28th February 2014: Husband filed affidavit stating why no compliance with previous orders regarding provision of tax returns
16th April 2014: Orders provided for the payment of Dr B’s fees to obtain an expert [psychiatric] report, with the fees to be paid equally
16th September 2014: Father ordered to advise the ICL when Dr B’s fees had been paid, with the ICL to then advise the Court
23rd October 2014: in the absence of Dr B’s fees being paid within 14 days, all parenting applications would be dismissed
20th March 2015: Absent the Father filing submissions to “show cause” why parenting applications should not be dismissed (submissions again filed late)
12th June 2015: both parties again put on notice of the risk of all applications being dismissed
A number of matters of principle need now to be noted. In order they are (a) proper use of Court resources, (b) Rules of Court regarding orders in default of compliance with orders, and (c) summary disposal.
Proper Use of Court Resources
It is important to record certain comments by the High Court regarding court resources. In AON Risk Services Australia Ltd v ANU, French CJ said, for example, at [5], [23] and [24] (internal citations omitted, emphasis added):[6]
[5] … the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account.
[23] The Judicature Act Rules and their Australian offspring did not in terms make reference to the public interest in the expeditious dispatch of the business of the courts. The way in which proceedings progress has been left to the parties. This may be seen as an aspect of the adversarial system which is a dominant part of the common law inheritance of Judicature Act procedure. In this respect, however, the adversarial system has been qualified by changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.
[24] … Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation…
[6] AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. In addition to the comments of French CJ cited, see also the general observations of Gummow, Hayne, Crennan, Kiefel and Bell JJ at [112] – [113].
More recently still, in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Limited, the High Court commented further, by reference to the earlier comments in AON Risk Services v ANU. At [51], [56] and [57], the Court (French CJ, Kiefel, Bell, Gageler & Keane JJ) said (emphasis added):[7]
[51] … 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...
[56] … Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose…
[57] That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance.
[7] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Limited (2013) 250 CLR 303.
Unfortunately, “speed and efficiency” are not the hallmarks of the current litigation. I have already remarked on the large amount of court resources that have been expended on this matter over the last two years, and very unfortunately, all to little or no effect.
Rules of Court: Orders on Default
Division 13.1A of this Court’s Rules concern “Order or judgment on default.” Relevantly, the Rules from that Division provide as follows (emphasis added):
13.03A When a party is in default
(1) For rule 13.03B, an applicant is in default if the applicant fails to:
(a) comply with an order of the Court in the proceeding; or
(b) file and serve a document required under these Rules; or
(c) produce a document as required by Part 14; or
(d) do any act required to be done by these Rules; or
(e) prosecute the proceeding with due diligence.
(2) For rule 13.03B, a respondent is in default if the respondent:
(a) has not satisfied the applicant’s claim; and
(b) fails to:
(i) give an address for service before the time for the respondent to give an address has expired; or
(ii) file a response before the time for the respondent to file a response has expired; or
(iii) comply with an order of the Court in the proceeding; or
(iv) file and serve a document required under these Rules; or
(v) produce a document as required by Part 14; or
(vi) do any act required to be done by these Rules; or
(vii) defend the proceeding with due diligence.
Rule 13.03B provides relevantly as follows (emphasis added):
(1) If an applicant is in default, the Court may order that:
(a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b) a step in the proceeding be taken within the time limited in the order; or
(c) if the applicant does not take a step in the time mentioned in paragraph (b)—the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.
(2) If a respondent is in default, the Court may:
(a) order that a step in the proceeding be taken within the time limited in the order; or
(b) if the claim against the respondent is for a debt or liquidated damages—grant leave to the applicant to enter judgment against the respondent for:
(i) the debt or liquidated damages; and
(ii) if appropriate—costs; or
(c) if the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings—give judgment against the respondent for the relief that:
(i) the applicant appears entitled to on the statement of claim; and
(ii) the Court is satisfied it has power to grant; or
(d) give judgment or make any other order against the respondent; or
(e) make an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time limited in the order.
…
(6) The Court may make an order of the kind mentioned in subrule (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the Court thinks just.
Those parts of the Rules highlighted should be taken to be those which have been consistently breached by the parties (by reference to the history set out earlier in these reasons), and/or the bases upon which the Court proposes to dispose of the matter as a result of the continuing defaults.
In my view, having regard to the lengthy history of the matter which I have outlined, and in particular (a) the consistent failure of the parties to comply with orders (especially the Respondent Father), and (b) the clear notice given to both parties over many months of the risk of all applications being dismissed in the light of the continuing defaults to which I have referred, there can only be one course left to the Court, which I confirm below.
Summary Disposal
In Lindon v Commonwealth (No.2), Kirby J set out principles that apply in the summary disposal of matters. His Honour said, at (136 ALR p.255-256) (internal citations omitted):[8]
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;
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 or is advancing a claim that is clearly frivolous or vexatious;
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. 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. 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. A question has arisen as to whether O 26 r 18 applies to part only of a pleading. 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.
[8] Lindon v Commonwealth of Australia (No.2) (1996) 136 ALR 251. His Honour’s discussion of principle was recently referred to by the Full Court in Friar & Friar [2011] FamCAFC 71. Curiously, perhaps, the Full Court made no mention of the more recent discussion of summary dismissal applications in Spencer v Commonwealth, noted later in these reasons.
To these comments should be added what the High Court has said more recently in Spencer v Commonwealth.[9] In that case, after noting (at [21]) with approval comments by Lord Hope in Three Rivers District Council v Bank of England (No.3),[10] said, at [24] (internal citations omitted; emphasis added):[11]
The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. …
More recently, in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following:
Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.
[9] Spencer v Commonwealth of Australia (2010) 241 CLR 118.
[10] Three Rivers District Council v Bank of England (No.3) (2003) 2 AC 1.
[11] The decision of the High Court in Spencer related to the operation of s.31A of the Federal Court of Australia Act 1976. Section 17A of the Federal Circuit Court of Australia Act 1999 is in similar terms.
Clearly here, the matter cannot proceed to trial “in the ordinary way” precisely because, over the course of two years, it has not been possible to bring it to a state of readiness for it to proceed to trial.
Conclusion
Although formally not an application for summary dismissal under s.17A, in my view, the caution expressed by the High Court in Lindon and again in Spencer remains salutary for any course proposed by a court to deal with the disposal of a matter without recourse to a trial.
Such is the case here, with Rules 13.03A and 13.03B the operative provisions for dealing with the parties’ consistent and abject failure (a) to adhere to Court orders, (b) to provide documents as ordered by the Court, (c) properly to prosecute and to defend the applications before the Court, and (d) to present the matters for determination in a coherent and appropriate manner despite repeated attempts to do so with the assistance of the Court and especially of the ICL. These persistent failures have repeatedly required the Court to deal with patently frivolous applications which often-times have also been an abuse of process. All such matters have consumed inordinate resources of the Court.
In my view, as already mentioned a number of times, the matter is in no fit state to proceed. I can see no prospect of it being in any state to proceed to trial any time soon. It has languished for nigh on two years without getting any closer to being ready for trial than it was when it commenced its litigious life.
Certainly in relation to parenting, that application is particularly forlorn. The Father has abjectly refused to pay his portion of the costs for an expert report. The report was done, the Mother paid her contribution but the Father has persistently refused to pay his contribution for the report. He is gainfully employed. There are three properties in the property pool. But he continues to refuse to pay what he has been ordered to pay. This is in circumstances where it cannot be disputed that he has not spent any time with the child of the relationship for more than two years, where the expert’s report is now so stale as to be of little if any use (the Court still has not seen it because of the Father’s refusal to pay the expert), the Father was convicted of assault on the child, and the ICL has confirmed the views of the 12 year old child as not wanting to see her Father.
The Court can only hear and determine matters that are properly put before it. Using every avenue and resource available, and giving every allowance to self-represented parties, the parties have not been able to get the matter into a state where the Court can reasonably determine the issues in dispute. There has to be a line drawn where (a) the Court’s resources are too disproportionately utilised by one matter, and (b) there is a greater risk of the Court, in effect, both conducting the matter on behalf of one or both parties, as well as trying to determine the issues. In this matter, that line was crossed quite some time ago.
In all of the circumstances, the most unfortunate course, as submitted by the ICL, must be and is to dismiss all outstanding applications. This is a most unsatisfactory course, but the Court has no other alternative. The Court so orders.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 12 November 2015
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