FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Zan & Wen (No 2) [2023] FedCFamC1A 130
Appeal from: Wen & Zan [2023] FedCFamC1F 233 Appeal number: NAA 109 of 2023 File number: MLC 11085 of 2016 Judgment of: AUSTIN, TREE & CHRISTIE JJ Date of judgment: 11 August 2023 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the appellant appeals from final property settlement orders – Procedural fairness – Where the appellant asserts he was denied procedural fairness – Where the appellant was self-represented at times throughout the trial – Length of trial – Where the matter was heard over four years – Where reasons for delay cannot be imputed to the primary judge – Time constraints on submissions not unreasonable – Where appellant was incarcerated for entire period of trial – Where the appellant’s physical location during the trial does not amount to procedural unfairness – Where the primary judge made accommodations for the appellant to understand and answer the case – Where various asserted issues neither individually nor cumulatively constitute procedural unfairness – Whether exercise of discretion was unjust, inequitable and/or plainly wrong – Where no error in the exercise of discretion is found – Adequacy of reasons – Where complaint about the primary judge’s reasons relate to treatment of parties’ assets overseas – Where the primary judge took into account existence of assets overseas – Where no ground of appeal has merit – Appeal dismissed – Slip rule – Where the primary judge’s orders do not reflect her intention – Where the primary judge intended for the first respondent to assume responsibility for mortgage liability and to transfer her interest in companies to the appellant – Where appellant did not approach the primary judge to amend the orders under the slip rule – Exercise of r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) by appellate court – Costs ordered. Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.01, 7.26, 10.13
Cases cited: Aitken v Aitken (2023) 66 Fam LR 314; [2023] FedCFamC1A 69
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Chang v Su (2002) FLC 93-117; [2002] FamCA 156
Johnson v Johnson (1997) FLC 92-764; [1997] FamCA 32
Kingsley & Secretary, Department of Communities and Justice [2021] FamCAFC 10
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348
Number of paragraphs: 79 Date of hearing: 2 August 2023 Place: Melbourne Counsel for the Appellant: Mr Gunson SC & Ms O’Connell Solicitor for the Appellant: Easton Legal Counsel for the First Respondent: Mr McCormick Solicitor for the First Respondent: Goldsmiths Lawyers The Second Respondent: Litigant in person (did not participate) The Third Respondent: Litigant in person (did not participate) ORDERS
NAA 109 of 2023
MLC 11085 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
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- AGLC
- Zan & Wen (No 2) [2023] FedCFamC1A 130
- Case
- [2023] FedCFamC1A 130
- Decision Date
CaseChat Overview and Summary
In the case of Zan & Wen (No 2), the appellant challenged the primary judge's decision, asserting procedural unfairness. The appellant argued that his right to a fair hearing was compromised due to language barriers, reliance on single expert evidence, and the primary judge's acceptance of certain valuations. The court examined whether the primary judge's actions constituted a denial of procedural fairness and whether the appellant's rights were upheld throughout the proceedings.
The primary legal issues revolved around whether the appellant's rights to procedural fairness were compromised by the primary judge's handling of language translation, expert evidence, and valuation evidence. Specifically, the court considered whether the primary judge adequately ensured the appellant's understanding of proceedings, whether the rejection of adversarial evidence was justified, and if the acceptance of single expert valuation evidence constituted a breach of procedural fairness.
The court found that the primary judge took several measures to ensure that the appellant understood the proceedings, including providing opportunities for translation and additional time for interpretation. Regarding the expert evidence, the court held that the appellant was entitled to seek updated valuations but failed to do so. The court rejected the notion that the reliance on single expert evidence constituted a denial of procedural fairness, as the appellant had the right to challenge the expert's conclusions and present alternative evidence. The court further determined that the primary judge's acceptance of single expert valuation evidence was justified as the appellant did not provide a basis for an alternative valuation and was not entitled to give his own non-expert opinion.
The court concluded that the primary judge did not deny the appellant procedural fairness. The appellant's submissions regarding language barriers and expert evidence were not substantiated, and the primary judge's decisions were within the bounds of procedural fairness. The court upheld the primary judge's determination.
The primary legal issues revolved around whether the appellant's rights to procedural fairness were compromised by the primary judge's handling of language translation, expert evidence, and valuation evidence. Specifically, the court considered whether the primary judge adequately ensured the appellant's understanding of proceedings, whether the rejection of adversarial evidence was justified, and if the acceptance of single expert valuation evidence constituted a breach of procedural fairness.
The court found that the primary judge took several measures to ensure that the appellant understood the proceedings, including providing opportunities for translation and additional time for interpretation. Regarding the expert evidence, the court held that the appellant was entitled to seek updated valuations but failed to do so. The court rejected the notion that the reliance on single expert evidence constituted a denial of procedural fairness, as the appellant had the right to challenge the expert's conclusions and present alternative evidence. The court further determined that the primary judge's acceptance of single expert valuation evidence was justified as the appellant did not provide a basis for an alternative valuation and was not entitled to give his own non-expert opinion.
The court concluded that the primary judge did not deny the appellant procedural fairness. The appellant's submissions regarding language barriers and expert evidence were not substantiated, and the primary judge's decisions were within the bounds of procedural fairness. The court upheld the primary judge's determination.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
A proper reading of the transcript reveals many instances where the primary judge made sure that the appellant had an opportunity to have submissions translated for him or where the interpreter was given additional time to make sure that the appellant understood the question being asked (see for example Transcript 5 December 2022 p.109, 111, 114).Questions relating to valuation evidence One of the examples relied upon by the appellant as indicative of a denial of procedural fairness related to expert evidence concerning the companies in Country B. Her Honour sets out the history as it relates to orders for expert evidence in paragraphs [214]–[216] of her reasons. The submission that the primary judge’s rejection of the appellant’s evidence (about valuation) is a denial of procedural fairness is misguided. The primary judge plainly indicated to the appellant that he was entitled to seek an order that the single expert valuation evidence be updated:HER HONOUR: … Now, so there’s no problem about [HH Accountants] revaluing [Country B] [assets]. It’s just that if you don’t want to share in the cost, he will have to arrange it, pay the cost at first instance and then you can have an argument at trial about who should be liable for the ultimate payment.(Transcript 17 June 2022, p.8 lines 43–46)And further:HER HONOUR: … So, [the appellant], if you want to update the valuations of the [Country B] expert, you need to make those arrangements. You can pay, and then you can argue at trial that [the first respondent], who says she doesn’t want to revalue it, should be responsible. (Transcript 17 June 2022, p.9 lines 39–41) Her Honour’s role was to indicate the availability of the course. The appellant’s failure to follow the guidance is not a denial of procedural fairness. The appellant’s submissions further contend that in circumstances where he plainly disagreed with the single expert evidence about the value of assets in Country B, it was a denial of procedural fairness for the primary judge to place reliance upon it. This need only be stated to be rejected. The appellant was entitled to challenge the conclusions of the single expert. The appellant was entitled to make an application to rely upon adversarial evidence. He did not. He did attach to his affidavit filed 26 October 2022 a valuation report dated 8 October 2022 but that valuer had not been engaged by him on the same basis as the single expert and accordingly her Honour’s rejection of the conclusions of the report was sound. The appellant was entitled to cross-examine the single expert. He did not. He was not entitled to give his own non-expert opinion about matters of valuation nor was it reasonable for him to expect that the primary judge would permit him to rely on adversarial valuations attached to his affidavit which had been prepared on a premise which was not supported by the evidence. In a similar vein the appellant’s submissions assert that the determination by the primary judge to accept the evidence of the single expert valuer about the value of the Country B company constitutes a denial of procedural fairness.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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