- Unreported Judgment
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
Court of Appeal
General Civil Appeal
23 November 2010
17 November 2010
Muir and White JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the order made
The appeal be dismissed with costs.
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – INJUSTICE – GENERALLY – appellant and respondent ended de facto relationship – appellant applied for a property adjustment order pursuant to s 283 Property Law Act 1974 (Qld) – appellant failed to comply with disclosure obligations – primary judge ordered appellant’s application be dismissed – appellant submitted failure to disclose was due to personal circumstances, ignorance of legal matters and inability to access documents – appellant submits application unfairly dismissed – whether primary judge erred in dismissing application
Property Law Act 1974 (Qld), s 283, s 289
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 225, r 374
Arrow Nominees Inc v Blackledge  2 BCLC 167;  EWCA Civ 200, cited
Australian National Airlines Commission v The Commonwealth (1975) 132 CLR 582;  HCA 33, applied
Mango Boulevard P/L v Spencer & Ors  QCA 207, applied
The appellant appeared on his own behalf
L Stephens, with N Hiscox, for the respondent
The appellant appeared on his own behalf
Alexander Law for the respondent
- MUIR JA: Introduction
The appellant appeals against an order of a judge of the trial division of this Court made on 16 July 2010 dismissing the appellant's originating application filed on 22 August 2007 for "A property adjustment order pursuant to section 283 Property Law Act1974 (Qld)". The grounds of appeal are "Unfair dismissal".
- In an affidavit filed on 2 January 2008 the respondent swore to the following. She and the appellant had a de facto relationship between January 2003 and April 2007. There were no children of the relationship. The appellant carried on business as a finance broker and financial consultant for a number of companies including Advanced Financial Consulting Pty Ltd, Advanced Home Loans Pty Ltd, Auswealth Financial Solutions Pty Ltd, Auswealth Enterprises Pty Ltd, Jamill Pty Ltd, KAE & Partners Pty Ltd and Majik Solutions Pty Ltd.
- During the relationship, the respondent purchased two residential properties without any financial contribution from the appellant, save for the provision to the respondent by the appellant of the amount of the deposit for a residential property at Marne Street, Alderley. The amount of the deposit was not stated but the purchase price was $270,000. At the time, the appellant owed the respondent $45,000.
- On 7 September 2009 the respondent filed an application for an order that the appellant disclose specified documents and classes of documents and that, in default of compliance with the order, the appellant's claims be dismissed. The application was heard on 17 September 2009 by the Chief Justice who made the disclosure order described later.
- On 7 December 2009 the respondent applied for orders that the appellant give disclosure as per the order of the Chief Justice made on 17 September 2009 and "as per directions of Justice Fryberg on 8/10/2008" failing which, a caveat be removed and the originating application be dismissed. The appellant did not comply with the 17 September order and the respondent brought another application. That application resulted in an order of Ann Lyons J on 17 December 2009 extending time for compliance with the 17 September order to 1 February 2010 and ordering that in default of compliance by the appellant the respondent have leave to list the matter for the hearing of the respondent's caveat removal and strike out applications.
- The subject application, filed on 20 April 2010, was for the removal of a caveat over the Marne Street property and an order that the appellant's originating application be dismissed. The respondent's application was made under Rule 255 of the Uniform Civil Procedure Rules 1999 (Qld). It relevantly provides:
"225Consequences of nondisclosure
(2)If a document is not disclosed to a party under this part, the party may apply on notice to the court for –
(a)an order staying or dismissing all or part of the proceeding …"
- The application could have been made under Rule 374 for an order that the proceeding be dismissed for the appellant's failure to comply with court orders. Under Rule 374(4), the application, which must allege the grounds on which it is based, "is evidence of the allegations specified in the application". However, no use was made of that rule and the fate of the application rested entirely on the respondent satisfying the primary judge that it was appropriate to make the order under Rule 225.
The primary judge's reasons
- In his reasons, the primary judge identified various orders made in the proceeding. He referred to an order of Fryberg J of 8 October 2008 in which it was ordered that there be pleadings, that the parties file and exchange a list of documents within 21 days of the close of pleadings, and that inspection take place within 14 days after that. The primary judge found that the order was not complied with. He referred to an order of 28 October 2009 by the Chief Justice requiring the appellant to give disclosure of particular categories of documents within 21 days of the date of the order and that the appellant file and serve on the respondent's solicitors within 21 days of the date of the order an affidavit stating which of certain documents were not in his possession. He found that that order was not complied with.
- Reference was made to the order of 17 December 2009 of Ann Lyons J.
- The primary judge noted that during the hearing before him the appellant produced "a set of documents" which he said had been provided to former solicitors as part of an attempt to comply with at least the order of Fryberg J. His Honour found that those documents and any list of documents associated with them had not been served on the respondent.
- After referring to explanations offered by the appellant on the hearing, the primary judge said:
"The [appellant], though, has had, since the 8th of October 2008, nearly two years, to put his house in order and to comply with the orders of this Court. He has not made disclosure in accordance with the order of Justice Fryberg. He did not within time or at all comply with the order of the Chief Justice, and he, although given an extension of time by Justice Ann Lyons, has not complied with that order.
Under Part 19 of the Property Law Act it is essential that there be disclosure between the parties before any order might be made. There has not been that appropriate level of disclosure from the [appellant]."
- After referring to the appellant's business activities and the likely extent of his knowledge of financial matters, the primary judge said:
"As I have already stated, three orders have been made. None of them have been complied with properly. There has been an attempt to comply, but those attempts have been less than satisfactory, and the affidavit sworn by the [appellant] today does not comply with the order of the Chief Justice made last year in any respect.
The circumstances are such that I am not inclined to allow this matter to proceed any further. Even though when a party is unrepresented the Court may extend some leniency, that leniency has been extended and has been exhausted."
The appellant's submissions
- In his outline of submissions the appellant referred to the way in which the hearing at first instance unfolded. He stated, accurately, that the primary judge explained that the appellant's previous affidavits were "unsatisfactory and inadequate"; that the appellant tried to explain his "personal stressful circumstances in relation to the defence and attendance at (sic) criminal allegation made by the respondent"; he explained that he could only supply documents to which he had access and that the primary judge had proposed getting from counsel for the respondent "a template" listing the documents the respondent required the appellant to disclose.
- The primary judge's approach to the application changed after the luncheon adjournment when counsel for the respondent made "exaggerated and false comments" in the course of submissions by reference to subpoenaed materials.
- The appellant has been attacked and threatened by the respondent's de facto partner. The criminal charges brought against the appellant on the complaint of the respondent had made it "nearly impossible" for him to "conduct a normal business or personal life". Those charges had been dropped and the appellant expressed confidence that he could supply within a reasonable time all documents "as requested by the court with proper direction as indicated by [the primary judge] and as agreed to by [counsel for the respondent]".
- In oral submissions the appellant said, in effect, that he had searched for all relevant documents and had them with him in court except for those locked in a house. He conceded that he had not complied with orders for disclosure but said that this arose from his ignorance of legal matters and the stresses to which he had been subjected. He said, in effect, that he found the order of 17 September 2009 difficult to understand.
- The application was supported, initially, by three affidavits of the respondent sworn respectively on 20 April 2010, 7 December 2009 and 2 January 2008. The latter affidavit dealt at considerable length with the relationship between the parties and their financial affairs. It addressed matters relevant to the substantive issues in the proceeding and was not directly relevant to the subject application. The 20 April 2010 affidavit contains a great deal of irrelevant and argumentative material. Paragraph 1(B) explains that any relevant documents to which the appellant may have wished to have access were disclosed by the respondent and made available to the appellant's former solicitors. The respondent swore that the appellant has made no approach to her to obtain any documents from her, despite having made several applications to vary a domestic violence order she obtained against him. Paragraph 1(C) has the heading "[The appellant] has failed to produce documentary evidence as to the attempts he has made to gather the necessary documents. [He] has also failed to produce documentary evidence as to why his attempts have failed".
- The respondent swore that she contacted the Bank of Queensland and had a conversation with an employee who told her how copies of particular documents could be obtained by the appellant. She swears to how she went about obtaining documents for the purposes of completing her disclosure. Much of what is deposed to under this heading is argumentative and objectionable.
- The next matter dealt with in the affidavit is the appellant's claims not to have documents in relation to income tax and BAS forms. Much of this material is also argumentative but there are some facts stated from which some relevant inferences may be drawn. The respondent swore that the appellant had been paying childcare payments to his former wife during the relevant period and that he has been renting a housing commission flat. She swore that there has been no disclosure concerning the rental agreement. She swore also to a number of legal disputes between the appellant and "different business partners". The matters dealt with under the heading "[The appellant] is attempting to obfuscate the proceedings by hiding information regarding his income and assets" is argumentative, contains hearsay and does not reveal any breach of the appellant's disclosure obligations. No part of this section of the affidavit is admissible. Paragraph 2A on page 8 under the heading "[The appellant] has made no attempt to fulfil his disclosure obligations" has one admissible sentence. It states that the appellant informed Peter Lyons J in court on 6 April 2010 that "… he does not open the mail he receives, and that the documents he needs may be in that mail".
- Under the heading "Refusal to follow Court procedure", the respondent swore that the appellant had filed "5 documents without having had these served on the Respondent in an appropriate and timely manner". That is an inadmissible expression of a non-expert opinion. She swore, admissibly, that items 22, 27 and 28 were never served. The point is made, relevantly, although perhaps somewhat marginally, that on his appearance on 6 April 2010 the appellant had "no documents to refer to" and required about 45 minutes to look through the file copies of documents. The balance of the content of this page is argumentative and objectionable. There are two headings on page 9. The content under the first heading is of marginal relevance to disclosure. The material under the second heading is relevant to the exercise of the Court's discretion as it deals with financial hardship being experienced by the respondent and the consequences of a failure to remove the caveat.
- In her remaining affidavit, sworn and filed on 7 December 2009, the respondent particularised ways in which she contended the appellant had failed to comply with his disclosure obligations under the Uniform Civil Procedure Rules 1999 (Qld). She swore that "… the drawn out nature of this matter … greatly affected and contributed to [her] chronic health disorders …". She asserted that she was suffering financial hardship as a result of the continuation of the proceeding and a caveat lodged by the appellant over one of her properties. The respondent complained that the appellant had been attempting to use the legal system to systematically harass and intimidate her. In this regard she swore that the appellant had sent "numerous irrelevant emails and faxes" to her legal representative with a view to increasing her legal costs.
- The 7 December 2009 affidavit consists of 12 pages. Page 2 contains secondary evidence of the contents of correspondence, some hearsay evidence and reference to court orders. On page 3 there is an assertion, of no probative value, that the appellant has failed to comply with an order made by Byrne SJA on 23 November 2009. The respondent alleged that the appellant had failed to make disclosure in respect of loans and mortgages. She swore that the appellant was using a car advertising one of his companies and since the originating application, had bought and sold an apartment at Mermaid Beach. She swore also that the appellant sold his share of Advanced Home Loans to "his then girlfriend" in 2007, repurchased it, and resold it again but had made no disclosure "regarding the assets owned by that company" or in relation to the proceeds of sale or the nature of his businesses being conducted from an address in Chermside. On page 4 it is asserted that the appellant has not disclosed: details of the nature of the agreement between himself and Mr B concerning the transfer of Advanced Home Loan clients to a branch of the Bank of Queensland; a rental agreement with the Department of Housing; childcare being paid by him to the Department of Child and Family Services and income received from specified companies.
- Allegations of non-disclosure continue through page 5 to the top of page 6. Matters allegedly undisclosed include: documents relating to commission from various sources; cash payments for work as a DJ; cash payments to persons for introducing home loan clients; cash payments to persons for introducing DJ clients; documents relating to a $45,000 loan from the respondent; documents relating to income received for managing rental accommodation; documents relating to the appellant's shares, interest in and contributions to his family trust; documents relating to furniture owned by the respondent; information on the value of his DJ equipment and tax records detailing its depreciation; details relating to the loan agreements between himself and KD and between himself and KP; and other loan agreements.
- In many of the above cases the respondent asserts, without proving, that certain activities or agreements were engaged in or entered into and that documents exist in respect of them. It is likely that in some cases documents may well not exist, e.g. in relation to the cash payments and furniture. Nor does the respondent establish that income, by way of commission or otherwise, alleged to have been received had, in fact, been received or that any discoverable documents relating to any such income exist. The remainder of the affidavit deals with hardship suffered by the respondent as a result of the litigation and the appellant's oppressive and vexatious conduct. Much of the latter material is argumentative in form and of a hearsay nature.
- On the hearing of the subject application the respondent obtained leave to read and file two further affidavits sworn by her on 16 July 2010. In the longer of the two affidavits the respondent swore that the appellant had disclosed some bank statements, which she identified, "by sending electronic links" to the respondent's solicitors in around November 2009 but had not disclosed:
- bank statements for "the businesses and enterprises he was involved with as listed in his Statement of Financial Circumstances";
- bank statements for identified accounts listed in the appellant's Statement of Financial Circumstances;
- any superannuation statements;
- any valuations for a property at Great Hall Drive, any loan agreement for the Great Hall Drive property, any completed loan application for Great Hall Drive, any mortgage over Great Hall Drive, any loan statements for Great Hall Drive;
- financial statements, income tax returns, notices of assessment, BAS statements and account ledgers for the companies in which he is interested and through which he carried on business activities or any valuations for those businesses;
- any documents referrable to the sale or disposition of any business in the last five years;
- any valuations for his motor vehicles;
- any share statements and dividend statements for shares listed in his name or in respect of specified credit cards;
- any document evidencing his loan agreement with KD;
- any personal income tax returns and notices of assessment for the previous three years;
(k)any payslips received for employment in the last three years;
(l)any life or disability insurance policies and statements;
(m)any Trust Deed for which he is principal, trustee or beneficiary;
(n)any child support assessments over the previous five years.
- The respondent swore also that the appellant had not complied with paragraph 2 of the order of the Chief Justice.
- The other affidavit filed by leave on 16 July appears to have been filed in response to an affidavit of the appellant filed by leave on 16 July 2010. The respondent swore in this affidavit that she had not been provided "with any disclosure material apart from the bank statements and credit card statements" referred to in her affidavit of 16 July 2010. She swore also that the file obtained in early 2008 by her from her previous solicitors, Hopgood Ganim, contained no list of documents and no bundles of bank statements in lever arch files. She identified the contents of the solicitors file and said that she had never seen the list of documents handed to her legal representatives that morning or any of the "contents thereof".
The appellant's evidence
- The appellant obtained leave to file and read a two page affidavit sworn on 16 July 2010. It appears to have been completed with reference to the Chief Justice's order of 17 September 2009. That order not only required disclosure of the documents specified in sub-paragraphs (a) to (s) of the order, but required the appellant within 21 days to "file and serve on the solicitors for [the respondent] an affidavit stating that any of the documents in order number 1 herein are not in his possession, swearing to that circumstance, stating the documents have ceased to exist or have passed out of the possession and/or control of [the appellant]".
- The substantive part of the appellant's affidavit is as follows:
"1.a.That I have provided 3 copies of Bank Statements of all my Bank Accounts to my Solicitors at the time being Adrian Dore of NR Barbi Solicitors NEW FARM and those documents included Superannuation Statements and were in Folders marked Disclosure KAE and also were delivered to WAK or her solicitor at the time being Hopgood Ganim
b.That I do not have access to Valuations for E33 Great Hall Drive
c.That I do not have access to any loan agreement for Miami Property
d.That I do not have access to any loan application for that property
e.I do not have access to or a mortgage over the property
f.I do not have Loan Statements for that property
g.I do not have Financial Statements
h.I have provided Income Tax Returns in my disclosure
i.Do not have any Notices of Assessment
j.Do not have the following BAS Statements for
i.(1)Auswealth Enterprise Group
ii.(2)Auswealth Financial Solutions
iii.(3)Advance Financial Consulting
v.(5)Advance Home Loans
vi.(6)KAE and Partners (covering the three financial years)
Nor do I have any valuations obtained for those businesses in the last five years nor do I have nor retain any documents referable to the sale or disposition of any of these businesses in the last 5 years
k.I have no Motor Vehicles in my name.
l.I have provided Credit Card statements as part of my disclosure to Ms WAK when I was with my previous solicitors NR Barbi Solicitors.
m.I have provided the Income Tax Assessment notices for the previous 3 financial years and Ms WAK has requested the same from my previous accountant.
n.I have no payslips from employment as these were in my boxes stored under the house at Marne Street at the time of separation.
o.I have not been able to maintain Life Insurance Policies since soon after the time of separation. Ms WAK has been sent copy files from a Joint Life Policy we had during the time of our defacto relationship which the Life Insurance staff cannot disclose to me the result of that correspondence
p.I have no Child Support Issues outstanding. The daughters of my Previous Relationship were born in 1988 and 1990 and are now Adults in their own right."
The subpoenaed documents
- The respondent subpoenaed records of the Director-General, Department of Transport and Main Roads, relating to the appellant and the companies referred to in paragraph  above in answer to the subpoena. Some 16 certificates of registration were produced in respect of motor vehicles registered or which had been registered in the names of KAE & Partners Pty Ltd, Advanced Home Loans Pty Ltd, Jalmill Pty Ltd or the appellant, yet the disclosed material makes reference only to two vehicles.
- Also produced in response to a subpoena were documents which had been in the possession of the appellant's former solicitors, N R Barbi & Associates. A copy of an uncompleted list of documents in the file kept by those solicitors produced in answer to the subpoena, on the face of it, was incomplete. For example, the subpoenaed material contained only two BAS statements and they were in respect of the one "enterprise".
- The affidavit was a singularly belated and casual response to the 17 September 2009 order, particularly in light of the ample notice given to the appellant by the respondent of the application to strike out the originating application. It has the appearance of an eleventh hour attempt to produce something to permit the appellant to argue that the order was not simply ignored. Paragraph 1(a) is lacking in credibility. Hopgood Ganim had ceased to be the respondent's solicitors on the record by the time of the 17 September 2009 order. The respondent swore that no such documents were on Hopgood Ganim's file when it was delivered to her.
- The affidavit does not attempt to comply with paragraph 2 of the 17 September 2009 order, merely stating that the appellant does not have or does not have access to many documents. Even now, although the appellant claims to have conducted an exhaustive search for relevant documents, he has not attempted to produce an affidavit complying with the 17 September 2009 order or demonstrating that he has made a diligent attempt to comply with his disclosure obligations. His claim that he found the 17 September 2009 order difficult to understand, having regard to the nature and extent of his business activities, is implausible.
- In the course of argument, the primary judge said to the appellant, "Look, your compliance has been less than even rudimentary". The appellant assented. The primary judge stated:
"You have ignored a series of orders from this Court. I am convinced of that. You have delayed. You have perseverated. You have denied your opponent the opportunity to see documents. Why should I not strike your application out?"
- The appellant's response was, "I would then have no option but to go bankrupt, your Honour. I owe my parents".
- The appellant had been put on notice that such an application may be made at the time of the appearance before Ann Lyons J on 17 December 2009.
- The appellant's failure to give disclosure has made it impossible for the matter to be prepared for trial, let alone tried. His non-compliance has plainly put the respondent to great inconvenience and expense and has caused her distress and financial hardship. The purpose of the Uniform Civil Procedure Rules 1999 (Qld) is, "to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense". Rule 5(3) provides:
"In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way."
- The appellant was in clear breach of his implied undertaking and his conduct has frustrated the purpose stated in Rule 5(1). The following observations in Mango Boulevard P/L v Spencer & Ors are apposite:
"Paragraph  of the joint reasons in Aon Risk Services Australia Ltd v Australian National University explains the meaning of 'just resolution' in the ACT equivalent of r 5(1) of the Uniform Civil Procedure Rules 1999 (Qld). Their Honours there said:
'… Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.'
The joint reasons proceed to explain that 'justice cannot always be measured in money' and that emotional and financial strain on litigants who are natural persons and financial stress on corporations are relevant considerations, as are the effect of uncertainty on business and other plans and on the deployment of resources.
The present Chief Justice of Australia, when a judge of the Federal Court, referring to a statement of principle to the effect that a party could be protected by a costs order, observed:
'… That may well have been so at one time, but it is no longer true today … Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary.'
The decision in Aon acknowledges, at least implicitly, what has long been recognised: delay is productive of significant increases in the costs of litigation. Such costs have long been a concern of legislators, judges, lawyers and members of the public. The approach in Aon and the discipline it imposes on litigants addresses these concerns."
- Compliance with the rules relating to disclosure is not optional. Their purpose is to secure a fair trial in accordance with due processes of the court and, I might add, to ensure that the parties’ conduct of the proceeding and the court’s determination are properly informed.
"… it is central to our conception of the administration of justice that documents relevant and material to the issues arising in litigation should not be withheld from the parties and that each party enjoys as an incident of his right to a fair trial the right to present as part of his case all the relevant and material evidence which supports or tends to support that case. …"
Mason J went on to remark on the undermining of public confidence in the administration of justice and in the judicial process which may result from the withholding of relevant and material documents from parties to litigation.
- Disclosure assumes more than usual significance in cases involving claims under Part 19 of the Property Law Act 1974 (Qld) as s 289(2) of that Act provides that a court "may make a property adjustment order in favour of a party only if the party has complied with subsection (1)". That subsection obliges parties to a proceeding for a property adjustment order to disclose the party's financial circumstances "in the way prescribed by the rules, or a practice direction".
- Although the consequences for the appellant of the primary judge's order may have been harsh, he was the author of his own misfortune. His conduct deprived the respondent of the ability to have the proceeding resolved in a timely and cost effective way. She has been put to unnecessary inconvenience and expense. The maintenance of public confidence in the courts is dependent, in part, on insistence by the courts on the performance by litigants of their obligations under rules such as Rule 5 and the rules relating to disclosure. The primary judge, with respect, was correct in deciding that the appellant should be permitted no further indulgence.
- No appellable error has been demonstrated. For these reasons I would dismiss the appeal with costs.
- WHITE JA: I have read the reasons for judgment of Muir JA and agree with those reasons and the order proposed by his Honour.
- PHILIPPIDES J: I have had the advantage of reading the reasons for judgment of Muir JA. I agree with the reasons of his Honour and with the proposed order.
- Published Case Name:
KAE v WAK
- Shortened Case Name:
KAE v WAK
 QCA 327
Muir JA, White JA, Philippides J
23 Nov 2010
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|Appeal Determined (QCA)|| QCA 327||23 Nov 2010||-|