Ying and Lang

[2017] FamCA 1172

FAMILY COURT OF AUSTRALIA

YING & LANG [2017] FamCA 1172

FAMILY LAW – PRACTICE AND PROCEDURE – adjournment application – application for adjournment of trial refused.

Family Law Act 1975 (Cth)

Haset Sali v SPC Limited and Anor (1993) 116 ALR 625

APPLICANT: Mr Ying

RESPONDENT: Ms Lang

FILE NUMBER: DGC 2474 of 2015

DATE DELIVERED: 7 December 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 7 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hone

SOLICITOR FOR THE APPLICANT: Rose Chai Lawyers & Consultants

COUNSEL FOR THE RESPONDENT: Ms Swart

SOLICITOR FOR THE RESPONDENT: Tao Jiang Lawyers

Orders

1. The matter be adjourned for Defended Hearing to proceed before Justice Thornton on 8 December 2017 at 10.00 am.

2. The application for an adjournment of the Defended Hearing commencing 7 December 2017 for ten (10) days be refused.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ying & Lang has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC2474 of 2015

Mr Ying

Applicant

And

Ms Lang

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant seeks to adjourn a trial today that was listed for ten days for which directions for filing were made on 9 January 2017 and fixed for trial on 26 June 2017 originally.  The trial listed for June 2017 was adjourned because both parties wanted to file further affidavit material, which would add to the length of the trial.  This meant that the trial could not be accommodated within the time frame of five days fixed and the trial was adjourned until today as a ten-day trial with interpreters for the parties and all witnesses. 

2. The adjournment application is opposed by the respondent.

3. The issue in the trial for determination is a threshold issue. The applicant brings an application pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) seeking a declaration that the parties were in a de facto relationship as defined by s 4AA of the Act from approximately 1998 until approximately 2014.

4. The respondent denies that the parties were in a de facto relationship.  She does not deny that the parties were friends and business associates.  Both parties were married to third parties during the relevant period. 

5. If the applicant is successful he also seeks leave to bring an application for property settlement after the breakdown of a de facto relationship pursuant to s 90SM of the Act.

6. The parties were before the Court on 1 December 2017 by way of mention to confirm readiness for trial and compliance with pre-trial directions.  At the mention on 1 December 2017 the solicitor for the applicant indicated that Mr DE of counsel was briefed for the trial.  When the question of funding was raised by counsel for the respondent, the solicitor for the applicant said that Mr DE was not in funds, but was briefed for the trial and had set aside the time for the trial.  Mr DE could not be contacted on the mention date to confirm.

7. In the background were issues arising before the Registrar regarding an objection to subpoenae which had been issued in June 2017, but not resolved.  There were subpoenae also issued at a later time in November 2017.  There had been an objection brought as to the scope of the subpoenae, which was ultimately upheld by the Registrar. There was some delay in the subpoena hearing because the solicitor for the applicant was unavailable and the applicant, whose first language is not English, appeared in person.  The hearing of the objection before the Registrar was adjourned to 29 November 2017.  The matter was determined by the Registrar on 29 November 2017 and the respondent filed an application to review that decision.

8. The review application was withdrawn on 1 December 2017 at the mention hearing in an effort to ensure readiness for trial and orders were made by me for the subpoenaed material to be made available to the applicant before the trial.  The material relates to personal bank records of the respondent and the records of the Department of Immigration and Border Protection.  There was, unfortunately, some delay in the materials being provided to the applicant, for which neither party was responsible, and the applicant received the material late on 5 December 2017.  The applicant has effectively had over a day to review the material before trial. 

9. The applicant also seeks to adjourn the trial because the original counsel briefed is no longer available having taken another brief.  The solicitor advocate, Mr Hone, has now been briefed for the applicant since 4 December 2017. 

10. The applicant filed an affidavit from his solicitors today in support of the adjournment application.  This had been emailed previously to the respondent and the respondent filed an affidavit in response yesterday.  The applicant’s affidavit was not filed in Court until today. 

11. The respondent’s solicitor outlines in her affidavit the reasons why the respondent would be prejudiced by the trial being adjourned.  These include:

    ·The international movements of the respondent have already been disclosed and the material is available downstairs for inspection;

    ·The personal bank records were provided to the applicant on 5 December 2017 and there are very few entries relevant to the threshold issue in the trial;

    ·The respondent is the sole registered proprietor of the property at B Street, Suburb C which is a two-storey house previously tenanted, but which is now untenanted apart from the applicant, who has been living in the property rent free since an intervention order was made;

    ·On 6 May 2016 a final intervention order was made in the Magistrates’ Court which provided for the applicant to remain in the property for two weeks until 20 May 2016;

    ·The applicant has remained in the property and proceedings have now been initiated at VCAT for the applicant to vacate the property. These proceedings have been stayed on 18 September 2017 pending the outcome of the trial in this court; and

    ·An application to extend the intervention order in the Magistrates’ Court made by the applicant has been adjourned to 8 March 2018 pending the determination of the issues in the trial in this Court. 

12. An adjournment is an exercise of discretion and I have considered the individual circumstances of the parties, questions of natural justice and fairness.  I have considered the probative value of the evidence sought to be obtained in the subpoenaed material and the fact that it has been available to the applicant since 5 December 2017.

13. Having regard to the time set aside for this trial, that material can be examined further today and has been available since early this morning.  It could have been examined and has been available to be examined whilst this matter was stood down and the solicitor advocate for the applicant can be given further time to prepare the trial until tomorrow.  It would appear that much of the Department of Immigration and Border Protection material has already been supplied to the applicant.  The prejudice to the respondent having regard to the other proceedings pending may be that costs alone would not compensate her for the delay.  The applicant has had 12 months to prepare his case and it was emphasised on 1 December 2017 that the matter should be ready to proceed. 

14. In determining whether to grant an adjournment I am also entitled to consider the effect of an adjournment on Court resources and the competing claims by litigants in other cases awaiting hearing in the Court as well as the interests of the parties.  That was made clear by the High Court in the case of Haset Sali v SPC Limited and Anor (1993) 116 ALR 625. This is a significant consideration in a case such as this, where ten days have been set aside to devote to this case. There have been clear pre-trial directions and a mention on 1 December 2017 to ensure readiness.

15. I do not regard the matters outlined in the affidavit for the applicant as significant evidentiary matters which are highly probative of his case.  The evidence can be examined and considered by the applicant before the trial.  The prejudice to the respondent is too great, in my view, to delay the trial.  This is particularly so in a case where ten days is necessary to be allocated in a busy Court schedule.

16. Any delay would be significant because of the anticipated duration of the trial and the difficulty of having all of the witnesses available and coordinated.  I also accept the detailed reasons outlined in the affidavit material of the respondent, so for those reasons I propose to refuse the application to adjourn the trial.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 7 December 2017.

Associate: 

Date:  7 December 2017