Yenger & Wilbert
[2023] FedCFamC1A 124
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Yenger & Wilbert [2023] FedCFamC1A 124
Appeal from: Yenger & Wilbert [2023] FedCFamC2F 331 Appeal number(s): NAA 65 of 2023 File number(s): PAC 4459 of 2020 Judgment of: ALDRIDGE J Date of judgment: 8 August 2023 Catchwords: FAMILY LAW – APPEAL – Where the primary judge summarily dismissed the proceedings for want of compliance with court orders pursuant to r 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the appellant contends that r 1.34 permits a party to seek relief from an order under r 1.33, but there is no equivalent rule that applies to r 10.27 – Where the appellant contends that the primary judge erred by taking into account the possibility of reinstatement – Where it was not put to the primary judge at the hearing – Challenges to weight – No error established – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) s 90SM
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.33, 1.34, 10.27
Central Practice Direction – Family Law Case Management
Cases cited: Clayton v Bant (2020) 272 CLR 1; [2020] HCA 44
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Number of paragraphs: 44 Date of hearing: 21 July 2023 Place: Sydney Counsel for the Appellant: Ms Spain Solicitor for the Appellant: Khalil Lawyers Counsel for the Respondent: Ms Bridger Solicitor for the Respondent: Bray Jackson & Co Solicitors ORDERS
NAA 65 of 2023
PAC 4459 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS YENGER
Appellant
AND: MR WILBERT
Respondent
order made by:
ALDRIDGE J
DATE OF ORDER:
8 august 2023
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Yenger & Wilbert has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
On 24 February 2023, a judge of the Federal Circuit and Family Court of Australia (Division 2) dismissed the appellant’s Amended Initiating Application and the respondent’s Response to the Application for Final Orders, which each sought property settlement orders. The orders for dismissal were pursuant to r 10.27(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) because both parties were in default of orders preparing their matter for hearing.
This case, the appeal and the outcome which sees the dismissal of the appeal should be a salutary lesson for all litigants and practitioners in family law matters.
BACKGROUND
The appellant filed her Initiating Application seeking parenting orders and a property settlement under s 90SM of the Family Law Act 1975 (Cth) on 27 August 2020. The property orders sought were vague in the extreme – she simply sought “a just and equitable division” and that she be excused from particularising final orders until after discovery and valuation of property.
A Response to the Application for Final Orders was filed on 14 September 2020. Whilst the respondent indicated that he was seeking orders for property settlement, he too did not say what they were.
On 29 March 2021, by consent, the respondent was ordered to file an Amended Response within 14 days. He did not and had not when the proceedings were terminated.
On that day, again by consent, leave was granted to the appellant to commence her
s 90SM proceedings out of time.
An order was made on 11 August 2021 that the parties attend family dispute resolution. They did not.
The Court was advised on 9 June 2022 that the parenting issues had been resolved, that property valuations were being prepared and that a private mediation would occur before the next court appearance. That was fixed for 11 August 2022.
The private mediation did not take place during the adjournment.
On 11 August 2022, the primary judge made a suite of detailed procedural orders designed to prepare the matter for a final hearing. The orders included the following, as summarised:
·The matter was stood over to 2 December 2022 for a compliance check and possible allocation of a hearing date;
·The parties were to file the following 14 days before the hearing date:
·Any Amended Application;
·Any Amended Response;
·Any Amended Financial Statement;
·A single consolidated affidavit and
·Any affidavits of supporting witnesses;
·A party was not entitled to rely on an affidavit not filed and served in accordance with the above, unless prior leave was obtained;
·Each solicitor was to file an affidavit seven days before the compliance hearing:
·Confirming the matter was ready to be given a final hearing date;
·That the above directions had been complied with;
·Identifying the reason for any non-compliance;
·Outlining why a costs order should not be made against the defaulting party; and
·Annexing a jointly completed call over sheet.
It was noted that all valuations had been completed, with the property pool in the order of
$7 million to $12 million and that the parties proposed to attend a private mediation.
Not one of these orders was complied with by either party. No affidavits at all were filed, not even the affidavits of the solicitors dealing with non-compliance.
The parties attended a mediation on 29 November 2022, but did not resolve the matter.
On 2 December 2022, the primary judge adjourned the matter to 24 February 2022 so that the parties could show cause why the proceedings should not be summarily dismissed for want of compliance with the court orders. The parties were given leave to file an affidavit of no more than five pages in length explaining the non-compliance and why the matter should not be dismissed for default.
One would have thought that the prospect of an immediate termination of the proceedings would galvanise the parties and the respective lawyers into some action. The preparation of final trial affidavits before 24 February 2023 would have no doubt gone a long way to assuage her Honour’s concerns as to the lack of compliance with orders to date.
It was not to be. Final affidavits were not prepared. Amended applications and responses were not prepared.
Each party did file an affidavit but neither complied with her Honour’s direction – the appellant’s was too long and the respondent’s was too late. Neither contained an explanation for the non-compliance.
At the hearing on 24 February 2023, the parties suggested that a direction could be made for affidavits to be filed in a further 28 days. There seemed to be some force in the observation made by her Honour in the course of the hearing that the parties and their lawyers seemed to regard the show cause hearing as some kind formality only.
Her Honour dismissed the proceedings pursuant to r 10.27 which provides:
Orders on default
(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 referred to 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) give judgment or make any other order against the respondent; or
(c) make an order referred to in paragraph (b) 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.
On appeal it was accepted that the rule was enlivened by the defaults of the parties and the orders for dismissal were ones that could have been made.
THE APPEAL
This is an appeal from a discretionary decision so that the following principles set out in House v The King (1936) 55 CLR 499 at 504–505 apply to its determination.
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
Ground 1 – “That the Primary Judge’s discretionary judgment miscarried as a result of an error of principle in her Honour’s conclusion that there are provisions under the rules to have the proceedings reinstated when dismissing proceedings PAC 4459 of 2020”
This ground raises the distinction between r 1.33 and r 10.27, both of which empower the court to dismiss proceedings, one for failure to comply with a procedural order (r 1.33), and the other, for failure to comply with an order of the court (r 10.27). In the present case, there is no material difference between the two.
Rule 1.34 permits a party to seek relief from an order under r 1.33. There is no equivalent rule that applies to r 10.27.
The point is said to be that reinstatement of the proceedings is possible if proceedings are dismissed under r 1.33, but not if they are dismissed under r 10.27.
The submission continues that her Honour erred by taking into account the possibility of reinstatement of proceedings when making the order under r 10.27.
In support of that proposition, the appellant relies on the following exchange:
HER HONOUR: Right. It’s not a summary dismissal, or the court is not dealing with the substantive issues. It is a default. It is a provision that deals with default.
[COUNSEL FOR THE APPELLANT]: Yes, but it is, in essence, a summary dismissal - - -
HER HONOUR: No, it’s not.
[COUNSEL FOR THE APPELLANT]: - - - of the parties’ proceedings.
HER HONOUR: No, and there are provisions under the Rules to have proceedings reinstated - - -
[COUNSEL FOR THE APPELLANT]: Yes.
HER HONOUR: - - - where they’ve been struck out for default.
[COUNSEL FOR THE APPELLANT]: Well, that will lead to further litigation, your Honour, and further costs, and that - - -
HER HONOUR: Yes, and your - - -
[COUNSEL FOR THE APPELLANT]: - - - is not in the objects of the Rules.
(Transcript 24 February 2023, p.11 lines 22–43)
On a closer analysis of this passage, counsel for the appellant agreed with her Honour that there were provisions that enabled proceedings dismissed for default to be reinstated. He did not put the present argument which was that no such course is available if the dismissal is pursuant to r 10.27.
It is clear from the terms of the orders made on 2 December 2022 and from her Honour’s reasons (at [23]–[24]) that the rule under consideration was r 10.27. At no point in the reasons is any other rule mentioned. The prospect of reinstatement is not raised.
In order for the appellant to succeed on this point it must be inferred from the above exchange that, notwithstanding the terms of the reasons, her Honour took into account the prospect of reinstatement of the proceedings. It must follow that it is to be inferred that her Honour considered such a prospect could ameliorate any apparent harshness of the order for dismissal. If this was not the case, the consideration would carry no weight.
It must be said that it would be rather pointless to dismiss proceedings if they were likely to be reinstated shortly thereafter.
Given that, I cannot conclude that the primary judge erroneously took into account the possible reinstatement of the proceedings.
I would add that if proceedings are dismissed under r 1.33, as opposed to the other orders that can be made under that rule, it is not immediately apparent in what proceedings such a reinstatement application could be brought. It is not necessary to decide that question.
I doubt, however, that the orders of 24 February 2023 bar either party from commencing fresh proceedings. Whilst I have not heard argument on the point because it is not necessary to decide it, there has not been a determination of the s 90SM claim that could lead to a res judicata. See: Clayton v Bant (2020) 272 CLR 1. The answer to that question may turn upon whether a summary dismissal for want of compliance with procedural directions is an exercise of jurisdiction under that section. It is not immediately obvious that it is.
This ground does not succeed.
Ground 2 – “That the Primary Judge’s discretionary judgment miscarried as a result of an error in principle in proper application of Core Principle 6 of the Central Practice Direction in dismissing proceedings PAC 4459 of 2020”
The appellant submitted that her Honour focused narrowly on the importance of compliance with orders and efficient disposal of the Court’s case load “to the exclusion of any real consideration as to other objectives, as is obliged by Core Principle 6, as to the parties’ conduct, and that of their lawyers” (Appellant’s Summary of Argument filed on 30 May 2023, paragraphs 22–23).
Core Principle 6 of the Central Practice Direction – Family Law Case Management relevantly states:
Core Principle 6 – Non-Compliance
3.11Non-compliance with orders, Practice Directions, the Family Law Rules or the obligations imposed on parties and their lawyers to conduct proceedings in a manner consistent with the overarching purpose will be taken seriously by the Court. Non-compliance may lead to serious consequences for parties and for their lawyers including, if relevant, liberty being granted to the compliant party to proceed on an undefended basis, and/or costs orders being awarded against parties and/or their lawyers.
The over-arching purpose is described in Core Principle 2 as follows:
2. Application of this Practice Direction
2.1Subject to the following paragraph, this Central Practice Direction applies to all family law applications filed in or transferred to the Court. The obligations outlined in this Central Practice Direction apply to the parties to such proceedings and to their legal representatives.
2.2Other than Part 3: Core Principles, this Central Practice Direction does not apply to:
a. appeals (see Family Law Practice Direction – Appeals);
b.matters arising from arbitration (see Family Law Practice Direction – Arbitration);
c.Applications for Divorce (see Family Law Practice Direction – Divorce proceedings); and
d. applications for consent orders.
2.3This Practice Direction is to be read in conjunction with the Family Law Act, the FCFCOA Act and the Family Law Rules. In the event of a conflict between the contents of this Practice Direction and the provisions of the Family Law Act, the FCFCOA Act or the Family Law Rules, the legislation or Family Law Rules, as applicable, shall apply to the extent of the inconsistency.
2.4Unless otherwise expressly stated, and save for obligations as to costs disclosure, all obligations imposed on parties by this Central Practice Direction apply to Independent Children’s Lawyers.
Her Honour said:
18.The respondent did not even file an affidavit in time, that is, within the time that he was granted leave to do so; he did not file an affidavit explaining his noncompliance by 4 pm on 10 February 2023. Instead, he filed an affidavit on 22 February 2023. Once again, that affidavit not complying with the direction as to its length and, indeed, that affidavit not explaining in any meaningful way why it is that there has been noncompliance and why the matter should not be dismissed for default.
19.Both of the parties come today to Court with counsel in tow seeking the Court’s further indulgence and extension of time.
20.Neither party is in a position to file their trial material today or, indeed, within a reasonably short period of time. The respondent says that he needs 28 days to file his trial Affidavit and presumably his Amended Response, which in line with the orders of 29 March 2021, should have originally been filed by or about mid-April 2021. The applicant says that she needs about 14 days to file her Further Amended Initiating Application and Affidavits in support.
21.The Court has not been taken to any evidence why it will take the parties that length of time to file material which should have on the last occasion been filed by about mid-November 2021.
22.In all of the circumstances, the Court is not satisfied as to the explanation of the delay, as to the explanation for noncompliance with Court orders, and the Court is not satisfied that any further indulgence should be granted. The parties are reminded of what the High Court has said in Aon Risk Services v ANU, where the Court set out at length the basic principles regarding the proper conduct of proceedings and the risks of not complying with such principles, including of efficient trial management.
That consideration deals with the matters the subject of the Core Principles to the Central Practice Direction. It must be remembered that the court’s power derives from the various statutes that govern it, the relevant regulations and the rules. Whilst a practice direction is a guide to their application, it is not a substitute for them or for well-established principles of law. In this case, however, there is no clash between them. The Central Practice Direction emphasises the need for parties to prosecute their cases expeditiously and efficiently.
The complaint that the primary judge did not consider that the parties had to minimise costs and concentrate on settlement or the prejudice to the parties must fall away because there was no evidence at all to that effect. None at all. As the primary judge said:
17.…The least that they could have done is to explain, by way of an affidavit that should have been filed in accordance with the orders of 2 December 2022, why it is that there has been non-compliance and what the parties have been attempting to do to try and resolve this matter.
Ultimately, counsel for the appellant who appeared at the hearing (but who did not appear at the primary hearing or prepare the Summary of Argument), accepted that this ground is ultimately about the weight to be given to various considerations. Such a challenge faces a high bar (Gronow v Gronow (1979) 144 CLR 513; Norbis v Norbis (1986) 161 CLR 513) and, to be successful, must extend to showing that the outcome is unreasonable or plainly wrong.
No such submissions were made here, nor could they have been properly made.
It follows that this ground has not been made out.
CONCLUSION
The appeal will be dismissed. No costs orders were sought in this event.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 8 August 2023
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