Phillips v Herne
[2015] QCA 236
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Phillips v Herne[2015] QCA 236
- Add to List
Phillips v Herne[2015] QCA 236
Phillips v Herne[2015] QCA 236
CITATION: | Phillips v Herne [2015] QCA 236 |
PARTIES: | ROBIN PATRICK HENRY PHILLIPS |
FILE NO/S: | Appeal No 1163 of 2015 SC No 5538 of 2013 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Extension of Time/General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane – Unreported, 26 July 2013 |
DELIVERED ON: | 20 November 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 August 2015 |
JUDGES: | Margaret McMurdo P and Gotterson JA and Ann Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | The application for an extension of time is refused with indemnity costs. |
CATCHWORDS: | APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the applicant and the respondent were in dispute over a property they owned as tenants in common – where the respondent commenced proceedings in the Supreme Court seeking an order in respect of the property alleging they were in a de facto relationship – where the applicant denied any de facto relationship and applied to the court for a declaration under s 320 Property Law Act that no de facto relationship existed between them – where the parties then entered into a deed of settlement and applied to the court for consent orders that both parties’ applications be dismissed and there be no order as to costs – where the applicant later applied to the Supreme Court for orders under Part 19 Property Law Act for the deed of settlement to be set aside and to vary the consent orders so that his original application for a declaration would be upheld – where at the hearing of his application, he applied to the court for a “McKenzie friend” to speak on his behalf – where the application was adjourned for two days to allow the applicant to consider the respondent’s written submissions – where at the second hearing, the applicant did not renew his application for a “McKenzie friend” – where the applicant contended that the respondent had committed a fraud on the Supreme Court by alleging before the Social Security Appeals Tribunal that she was not in a de facto relationship with the applicant, while claiming in the Supreme Court proceeding that she was in a de facto relationship – where the primary judge found that the Supreme Court never made a finding that a de facto relationship existed – where the deed of settlement did not state that it was entered into on the basis of a de facto relationship – where the primary judge found the applicant’s submissions were so tenuous as to amount to an abuse of process and dismissed his application with indemnity costs – where the applicant applied to this Court 17 months out of time – where the applicant contends that the reason for his delay is that only in July 2014 did he learn he suffered from atherosclerosis – where the applicant contends that the primary judge acted without due regard for the rules of natural justice and procedural fairness in that she did not allow him to have a “McKenzie friend” – where the applicant contends that his health disabilities meant that he could not adequately place his case before the court without a “McKenzie friend” – whether the application for an extension of time should be granted APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF THE COURT – COSTS – where the applicant unsuccessfully applied to the Supreme Court to set aside a deed of settlement and vary consent orders – where the applicant entered into the deed of settlement and agreed to the consent orders after receiving and accepting prudent, pragmatic legal advice – where the primary judge awarded indemnity costs against the applicant at first instance – where the respondent’s solicitors informed the applicant that his application to this Court was “doomed to fail”; that his material contained disparaging remarks about the primary judge and the respondent’s lawyers; that he should seek legal advice; and that if he continued with his application the respondent would seek indemnity costs – where the respondent applies to this Court for indemnity costs in relation to this application – whether the respondent should be awarded indemnity costs Property Law Act 1974 (Qld), s 320 Uniform Civil Procedure Rules 1999 (Qld), r 667 Coronis v Jilt Pty Ltd & Anor [2013] 1 Qd R 104; [2012] QCA 66 , cited McKenzie v McKenzie [1970] 3 WLR 472; [1971] P 33, cited |
COUNSEL: | The applicant appeared on his own behalf J Bunning for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Simonidis Steel Lawyers for the respondent |
[1] MARGARET McMURDO P: The applicant, Mr Robin Phillips, has applied for an extension of time to appeal from an order made by Philippides J (as her Honour then was) on 26 July 2013. His application was filed on 4 February 2015 and was over 17 months out of time. He has not filed a proposed notice of appeal but he contends the reasons justifying the extension of time are that the 26 July 2013 proceedings “were held without due regard for the Rules of Natural Justice and Procedural Fairness” and that “the Respondent’s lawyer and barrister failed in their duty to the court.”
[2] Ordinarily, an extension of time is granted after a lengthy delay only when applicants have provided plausible explanations for the delay in pursuing their appeal rights and demonstrated that an extension of time is in the interests of justice. The applicant has not given an entirely satisfactory explanation for the 17 month delay. More importantly, for the reasons which follow, his proposed appeal is misconceived, entirely unmeritorious and ultimately is fatally flawed so that the application for an extension of time must be refused.
The background facts and the decision at first instance
[3] Mr Phillips and the respondent, Ms Kanjana Herne, were in dispute over a property they owned as tenants in common at Molendinar. Ms Herne commenced proceedings in the trial division of this Court seeking an order in respect of the Molendinar property under Part 19 Property Law Act 1974 (Qld), alleging that they had a de facto relationship. Mr Phillips denied any de facto relationship and applied to the court for a declaration under s 320 Property Law Act that no de facto relationship existed between them. Mr Phillips’ former solicitors subsequently prepared a deed of settlement which provided that he would pay Ms Herne $25,000 within 28 days; a further $40,000 from his fifty per cent share of the proceeds of the sale of the property; and otherwise they were to share the proceeds fifty/fifty. The deed recorded that Mr Phillips denied the existence of any de facto relationship; that he had continually maintained that no de facto relationship existed between them; that their relationship was a business one and that he had entered into the deed based on that understanding. The deed also recorded that the parties released each other from any past or future claim relating to any issue concerning these proceedings. On 14 April 2009, the parties signed the deed and, with their consent, Byrne SJA made orders including that both parties’ applications be dismissed and that there be no order as to costs.
[4] On 18 June 2013 Mr Phillips applied to the Supreme Court for orders under Part 19 Property Law Act for the deed of settlement to be set aside and to vary the consent orders of Byrne SJA so that Mr Phillips’ original application for a declaration was upheld, with Ms Herne paying his costs. His application came on for hearing before Philippides J on 24 July 2013. Mr Phillips, who was self- represented, asked for an adjournment to enable him to respond to the written outline of argument handed to him shortly before the hearing by Ms Herne’s barrister. The judge adjourned for 20 minutes to allow Mr Phillips further time to read counsel’s submissions. Mr Phillips then told the judge that he had damaged vocal cords which made it difficult for him to speak. He asked her Honour to allow a “McKenzie friend” to speak on his behalf. The judge asked whether he had any difficulty in responding to the barrister’s submissions. Mr Phillips told the judge that when he spoke aloud he was unable to use his mind properly and he could not think and speak at the same time; this was a “very great difficulty”. Her Honour then granted Mr Phillips’ application for an adjournment until Friday, 26 July 2013, explaining that he would need to prepare and argue the case then.
[5] On 26 July 2013 Mr Phillips again appeared self-represented. He thanked the judge for the opportunity to reply to the submissions and handed up his own written submissions. He did not renew his application for a “McKenzie friend”. He asked the judge to set aside both the deed of settlement and the consent orders made by Byrne SJA on 14 April 2009 on the basis that he had discovered that on 9 March 2007 Ms Herne, who was then living at their Molendinar address, provided the following information to Centrelink. She informed Centrelink that they began living in a de facto relationship in early 1996 in Thailand. They moved to Australia in early 1999 and continued their de facto relationship until 22 January 2007 when they separated. When she claimed a widow’s allowance in 1999 she was not aware she was claiming as a single person. She and Mr Phillips purchased the Molendinar property in August 2002. The house and mortgage were in both their names. She notified Centrelink of these changes as she and Mr Phillips were going through a de facto settlement for the property.[1]
[6] Mr Phillips also placed emphasis on a submission which he contended her lawyers had made to the Social Security Appeals Tribunal for a hearing on 15 July 2009. This was to the effect that she had instructed her lawyers that she was not in a de facto relationship with him at any stage; the only reason that there was documentation suggesting the contrary was because she was advised by her former solicitors to say this to resolve the property dispute with Mr Phillips. She was not very proficient in the English language. She instructed her solicitors that her arrangement with Mr Phillips was of a commercial nature only; they never lived in a marriage-like relationship such as would disentitle her to the widow’s allowance. I note that her present lawyers were not those who represented or assisted her before the Social Security Appeals Tribunal.
[7] Mr Phillips contended that these matters demonstrated that Ms Herne had committed a fraud on the Supreme Court such that the deed and the consent orders before Byrne SJA should be set aside under either Part 19 Property Law Act or Uniform Civil Procedure Rules 1999 (Qld) (UCPR) r 667.
[8] Her Honour explained to Mr Phillips that his fundamental problem was that he was a party to a consent order disposing of the original proceedings and that the consent order had finally determined the matter. It was additionally in the nature of a contract between the parties and there was an interest in finality of litigation.
[9] Ms Herne deposed that since they entered into the deed of settlement, Mr Phillips had applied in the Magistrates Court for distributions of monies pursuant to the deed over a disputed amount of $12,000. Those proceedings had been transferred to the Supreme Court at Brisbane and then back to the Magistrates Court at Beenleigh. He had also filed a Claim and Statement of Claim in the District Court on 9 April 2013 seeking effectively the same relief as that which he was seeking before Philippides J. Her barrister emphasised that under the deed the parties agreed to release each other from any and all liability other than that which was specifically set out in the deed and each party released the other from any claim which it may have had or which may arise in the future related to any issue concerning these proceedings. Ms Herne contended that Mr Phillips’ application be dismissed with indemnity costs.
[10] Philippides J, in short ex tempore reasons, accurately identified Mr Phillips’ contentions before observing that the Supreme Court had never made a finding that a de facto relationship existed. Further, her Honour noted, the deed of settlement did not state that it was entered into on the basis of a de facto relationship. Mr Phillips should not be permitted to pursue the matter. His submissions were so tenuous as to amount to an abuse of process and were frivolous. In those circumstances it was appropriate to award costs on the indemnity basis.
Mr Phillips’ contentions in this application
[11] In essence and as best I apprehend them, Mr Phillips’ present contentions are as follows. First he claims that he should have an extension of time as the primary judge acted without due regard for the rules of natural justice and procedural fairness in that she did not allow him to have a “McKenzie friend” appear for him. He hoped to have Mr John Lake[2] speak on his behalf. Mr Phillips claimed that his health disabilities meant that he could not adequately place his case before the court without Mr Lake’s assistance. Her Honour did not fulfil her duty to a self-represented litigant.
[12] His second reason said to justify the extension of time is that Ms Herne’s lawyer and barrister failed in their duty to the court. This complaint seems to arise from his concern that after bringing an application in the Supreme Court in which she claimed she was in a de facto relationship with him, she informed the Social Security Appeals Tribunal that they had never been in a de facto relationship. He argues that Ms Herne’s legal representatives should not have brought and pursued the application in the Supreme Court knowing that Ms Herne did not believe she was in a de facto relationship with him. As a result, he contends that Philippides J erred in not setting aside the consent orders made by Byrne SJA and the deed of settlement.
[13] By way of explaining the lengthy delay in seeking to progress his appeal rights, he states that only in July 2014 did he learn that he suffered from atherosclerosis with resulting mild cognitive impairment. He then investigated how to proceed with an appeal but it took him some time to understand the details of this process. He was hospitalised twice during this period. He progressed his appeal rights as quickly as he could in the circumstances.
Conclusion
[14] There are several problems with Mr Phillips’ first contention that Philippides J acted without due regard for the rules of natural justice and procedural fairness in not allowing him a “McKenzie friend” on 26 July 2013. The first is that he applied for a “McKenzie friend” at the hearing on 24 July 2013, and did not renew that application on 26 July 2013. On 24 July the judge gave him every opportunity to address the court and treated him with courtesy and respect. She allowed him a 20 minute adjournment to read the outline of argument prepared by Ms Herne’s barrister. She explained to him the difficulties in his case but when he continued to press for an adjournment, she generously acceded to that request and adjourned the matter for two days. This could not possibly have amounted to a breach of natural justice and procedural fairness.
[15] As I have noted, when the hearing resumed on 26 July Mr Phillips did not renew his application for a “McKenzie friend”. Further, Mr Phillips did not appear to apprehend that a “McKenzie friend” could not speak on his behalf but could merely assist him at the bar table.[3] Another difficulty was that it seemed Mr Phillips wanted his proposed “McKenzie friend”, Mr Lake, to be a witness in his case so that it would have been most inappropriate for him to act as a “McKenzie friend”. [4] The primary judge on 24 July exercised her discretion to refuse the application for a “McKenzie friend” in an entirely orthodox way. She made no orders about a “McKenzie friend” on 26 July when Mr Phillips provided his written submissions and put his case as clearly and as well as it could be put. There was no breach of natural justice or procedural fairness on either 24 or 26 July 2013.
[16] Nor are Mr Phillips’ allegations of fraud against Ms Herne and impropriety on the part of her present lawyers made out. He may genuinely believe that she told the Social Security Appeals Tribunal that they had never been in a de facto relationship; that this was inconsistent with her earlier statements to Centrelink; that she brought an application in the Supreme Court falsely alleging they were in a de facto relationship; and as that claim was ultimately settled by deed and consent orders so that she received a significant property settlement, she has acted wrongly. But there are at least five reasons why that reasoning is misconceived. First, the material he has placed before this Court as to what Ms Herne may or may not have said to Centrelink and the Social Security Appeals Tribunal is not in an admissible form and does not demonstrate that the deed or the consent orders made by Byrne SJA were tainted by fraud. Second, there is no evidence that Ms Herne’s present lawyers, who were not those advising her in the Social Security Appeals Tribunal, were doing anything other than acting on her instructions in bringing and pursuing her original application in the Supreme Court and in its subsequent settlement by way of deed and consent orders. Mr Phillips’ allegations that Ms Herne’s barrister and lawyer failed in their duty to the court is baseless. Third, it is clear from Mr Phillips’ own case that he entered into the deed of settlement and agreed to the consent orders after receiving and accepting prudent, pragmatic legal advice. He is bound by them. Fourth, the deed of settlement is neither a separation agreement under s 265 nor a recognised agreement under s 266, Part 19 Property Law Act which deals with property in de facto relationships; the deed specifically eschews on Mr Phillips’ part that they ever had a de facto relationship, and the agreement makes no mention of Part 19. There are no grounds for setting aside the deed under Part 19 Property Law Act. Fifth, it is only in rare circumstances that consent orders are set aside at the request of one party, for example, if it was demonstrated that the order was obtained by fraud: see UCPR r 667. But as I have explained, Mr Phillips’ allegation of fraud is misconceived and unproven. He signed the deed and agreed to the consent orders after receiving and accepting sound legal advice and he is bound by them.
[17] For these reasons the primary judge rightly concluded that Mr Phillips is bound by the deed and the consent orders. His application before Philippides J was rightly dismissed. Given his irrational, relentless and intemperate pursuit of Ms Herne in the face of the deed of settlement and the consent orders, the judge was also right to award indemnity costs.
[18] Ms Herne’s lawyers tendered at the hearing of the application a copy of their letter to Mr Phillips dated 3 March 2015 in which they told him his application to this Court for an extension of time was “doomed to fail”; that his material contained disparaging remarks about the primary judge and Ms Herne’s lawyers; that he should seek legal advice; and that if he continued with this application Ms Herne would seek costs on the indemnity basis. Despite that caution, he continued his hopeless application forcing Ms Herne to expend yet more money on legal fees. In these circumstances Ms Herne should also be awarded her costs of this application on the indemnity basis.
Orders
[19] I propose the following order:
The application for an extension of time is refused with indemnity costs.
[20] GOTTERSON JA: I agree with the order proposed by Margaret McMurdo P and with her Honour’s reasons for it.
[21] ANN LYONS J: I agree with Margaret McMurdo P’s reasons for refusing this application for an extension of time with indemnity costs.