Davies v Hawthorn [2005] ACTSC 88 (26 August 2005)

Last Updated: 14 September 2005

JENNIFER MAY DAVIES v PETER GEORGE HAWTHORN [2005] ACTSC 88

(26 August 2005)

EX TEMPORE JUDGMENT

No SC 370 of 2004

Judge: Crispin J

Supreme Court of the ACT

Date: 26 August 2005

IN THE SUPREME COURT OF THE )

) No. SC 370 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: PETER GEORGE HAWTHORN

Appellant

AND: JENNIFER MAY DAVIES

Respondent

ORDER

Judge: Crispin J

Date: 26 August 2005

Place: Canberra

THE COURT ORDERS THAT:

1. the appeal be dismissed;

2. the appellant pay the respondent's costs.

1. This is an appeal against a decision of the Registrar of this court ordering the defendant to file an Affidavit of Financial Circumstances in the same form as prescribed by Rule 13.05 of the Family Law Rules (Form 13) by 22 August 2005.

2. The appeal is brought pursuant to section 10(2) of the Supreme Court Act 1933 (ACT) ("the Act"), which provides that:

A person who is dissatisfied with a judgment of the registrar made in the exercise of jurisdiction under the rules may appeal, as prescribed by the rules, to the court constituted by a single judge.

3. Order 61 rule 5(1)(h) of the ACT Supreme Court Rules provides that an appeal shall be by way of a rehearing de novo of the application, but each party may, subject to a further provision of the rules and to any proper objections as to admissibility, rely on any affidavit used and any evidence given orally before the registrar.

4. Mr Thomas, who appears for the appellant, has argued that the Registrar lacked the power to make the orders sought because, not only did the orders require the defendant to comply with rules of a different court made under different legislation, but the orders also required the appellant to disclose information otherwise than in accordance with the usual process of discovery and/or interrogatories provided by Order 34 of the Supreme Court Rules.

5. Having regard to the nature and extent of those rules, and to the history of principles governing discovery and interrogatories, Mr Thomas submitted that it was inappropriate for the Registrar to have made the order in circumstances where there was not a clear cut rule authorising such a course.

6. Mr Thomas acknowledged the existence of a practice direction, being 1/1998, which provides for directions to be made concerning the filing of financial statements, but submitted that that direction actually made was beyond the Registrar's power. He submitted, in the alternative, that even if it had been within her power, to make directions of that kind, they should not be made a "blanket" basis without the need for applicants to demonstrate the real need for a direction of that kind by, for example, showing that injustice might otherwise be caused since the normal process of discovery and interrogatories would be inadequate.

7. There are, I think, two issues, which have to be addressed within this appeal. The first is the question of the court's power, and the second is the question of whether the power should be exercised.

8. Section 20 of the Act provides:

The court has the following jurisdiction:

(a) all original and appellate jurisdiction that is necessary to administer justice in the Territory; and

(b) jurisdiction conferred by a Commonwealth Act or a law of the Territory.

9. The grant of jurisdiction provided by subsection 20(1)(a) is a very broad grant of jurisdiction and one, which in my view, should not be taken to be subject to any implied constraint arising from the practice of courts in other jurisdictions, although, of course, those practices may be relevant to the manner in which the jurisdiction so conferred on this court is exercised.

10. Furthermore, there are two other sections of the Act which are of some potential relevance.

11. Section 35 provides:

In a proceeding, if no provision about a matter of practice or procedure of the court is made under this Act or another Territory law, the court may give the directions about practice and procedure that is considers appropriate.

12. In my opinion, having regard to the breadth of the provisions contained in section 20 and section 35 of the Act, the court clearly has the power to issue practice directions and practice direction 1/1998 was well within that power.

13. Additionally, section 36 of the Act provides:

The resident judges or any 2 of the resident judges may make rules of the court, not inconsistent with this or any other Act, with regulations under this Act or any other law of the Territory-

(a) for regulating and prescribing-

i. the practice and procedure, including the method of pleading, to be followed in the court and in the offices of the court; and

ii. all matters and things incidental to or relating to any such practice and procedure or necessary or convenient to be prescribed for the conduct of any business of the court

14. The power of the Registrar arises from section 47(1) of the Act, which provides that:

The registrar has power to administer oaths and may exercise the other functions given to the registrar under this Act, another Territory law or a special order of the Court.

15. The powers of the Registrar are given pursuant to the Act and are provided by Order 61 Rule 3 of the Supreme Court Rules which provides inter alia:

(1) The jurisdiction of the court that is exercisable in accordance with the Act, section 8(1) may be exercised by the registrar:

(a) in the hearing and determination of applications under... a number of rules which include those contained in order 33

16. Order 33 of the Supreme Court Rules states:

Any party to a cause may at any time after the commencement of proceedings apply for directions.

17. Subrule (2) of Order 61 Rule 3 provides:

notwithstanding subrule (1) the court may at any time give such directions, and upon such terms, as may be just and expedient, including directions with respect to...a number of matters that are listed in the ensuing portion of that subrule.

18. It follows, in my opinion, that the Registrar had the power to give directions, and the only question is whether or not her power extended to the giving of the direction made in this particular case.

19. It must be said that the generality of the power provided by Order 33 would, in its terms, extend to the direction that is the subject of this appeal. Accordingly, it seems to me that in the absence of some clear indication in the Supreme Court Rules or the Act of an implied limitation on the Registrar's power, there would be no reason to hold that the power did not extend to the making of that direction.

20. It should be noted that there is nothing in Order 33 that requires the Registrar to give particular directions. Furthermore, paragraph 4 of practice direction 1/1998 states:

If the matter is relisted in accordance with sample direction 3 (of that practice direction) the Court will make directions including directions for the filing of financial statements (in the same format as Form 17 in the Family Court).

21. At the time the practice direction was issued, the relevant form under the Family Law Regulations was Form 17 rather that Form 13 but that distinction is immaterial for present purposes. The practice direction does state that the Registrar "will" make a direction but I do not accept that she is compelled to adopt a "blanket" approach. It is open to the Registrar to make such directions as the Registrar regards appropriate, having regard to the circumstances and needs of the particular case. In this respect the procedural requirements governing applications made under the Domestic Relationships Act 1994 (ACT) may be somewhat different from the procedural requirements governing the conduct of property proceedings in the Family Court of Australia.

22. The second question is whether the power should have been exercised by the Registrar in the manner she chose. As Mr Farrar, who appears for the respondent, has pointed out section 15 of the Domestic Relationships Act provides that:

On application by a party to a domestic relationship, a court may make an order adjusting the interests in the property of either or both of the parties that seems just and equitable to it having regard to the matters set out in the succeeding sub-praragraphs of the section, including the matters referred to in section 19(2) as far as they are relevant.

23. Section 19(2) provides;

That in exercising a power under subsection (1) a court shall have regard to:

(a) the income, property and financial resources of each party; and

(b) the physical and mental capacity of each party for appropriate gainful employment; and

(c) the financial needs and obligations of each party.

24. Having regard to the statutory requirement for the court to take into account the matters to which I have referred, it seems to me that it was well open to the Registrar to conclude that directions should be given which enable the court to quickly and efficiently be appraised of the parties' financial position.

25. It seems to me that it was also open to the Registrar to decide that the most efficient means of obtaining that information would be via the making of a direction which required the provision of information in the same way as that which would have been required by the relevant provisions of the Family Law Rules, had the parties been married to each other during the course of the relationship in question and had the proceedings been pending in the Family Court of Australia.

26. There is, of course, one matter of form that should be mentioned, and that is that the form of affidavit contained within Form 13 which requires the deponent to affirm various matters including compliance with particular rules under the Family Law Rules. Such assertions are, of course, inappropriate to proceedings in this court. Accordingly, it seems to me that the Registrar's direction insofar as it refers to "the same form" should be understood to require the provision of information of the kind that would be required in such a form and set out in the manner that would be required by a person completing that form in the Family Court. The affidavit should verify the truth in those statements but not the particular references to regulations under the Family Law Act 1975 (Cwth) or assertions of compliance with such regulations.

27. I fully understand the concern which Mr Thomas has advanced about directions of this nature being used for a purpose that is referred to within the context of discovery proceedings as "fishing". However, it seems to me that any risk of directions being sought for improper purposes can be adequaltely dealt with by the Registrar in the exercise of her discretion.

28. In the present case, however, as I have already indicated, I am required to deal with the matter as if this were an application de novo. Having regard to the nature of the proceedings as discernible from the pleadings, is seems to me that a direction in the terms that I have mentioned is entirely appropriate. Accordingly, whilst I have qualified the manner in which the Registrar's order should be construed, it seems to me that the direction is nonetheless, one that is entirely appropriate.

29. Before leaving the matter I might observe that in recent years courts have been obliged to pay considerable attention to the need to facilitate access to justice by members of the community who may be of limited means and who may, indeed, find themselves in a position in which they are unable to afford legal representation. Whilst that consideration does not jusify a wholesale departure from established practices, it does provide an adequate need for the court to consider what directions should be given in order to ensure that the litigation in question can be conducted efficiently and in a manner which will minimise the time, expense and inconvenience to the parties.

30. In a case of this nature, that is, a case of the kind disclosed by the pleadings in this case, it seems to me that it would involve quite unnecessary time and expense to permit the parties to become bogged down in interlocutory trench warfare of the kind that might erupt if the plaintiff were obliged to: first, seek discovery documents; second, interrogate; third, deal with any objections to the interrogatories; and then fourth determine whether or not there should be a further application made for a direction of the kind now provided. The quickest and most efficient means of dealing with such a situation is by means of a direction of the kind that the Registrar made and, subject to the qualification I have given, I think it was entirely appropriate.

31. I therefore, dismiss the appeal.

32. The order I make is that the direction that the defendant file an Affidavit of Financial Circumstances in the same form as prescribed by rule 13.05 of the Family Law Rules (Form 13) by 22 August 2005 be varied in the following respects: firstly, that the words "the defendant" be omitted, and in lieu thereof the words "each of the parties" inserted; and secondly, that the date "22 August 2005" be deleted and in lieu thereof the date "16 September 2005" be inserted.

33. I order the appellant pay the respondent's costs of the appeal.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin

Associate:

Date: 8 September 2005

Counsel for the Appellant: Mr R Thomas

Solicitor for the Appellant: Trevor Barker & Associates

Counsel for the Respondent: Mr D Farrar

Solicitor for the Respondent: Farrar Gesini & Dunn

Date of hearing: 26 August 2005

Date of judgment: 26 August 2005