Allesch v Maunz

• Jurisdiction: Australia Federal only
• Judge: Gaudron,McHugh,Gummow,Hayne JJ,Kirby J
• Judgment Date: 03 August 2000
• Neutral Citation: [2000] HCA 40,2000-0803 HCA B
• Court: High Court
• Docket Number: C15/1999
• Date: 03 August 2000

Ernest Franz Allesch

Appellant

and

Brigitte Maunz

Respondent

[2000] HCA 40

Gaudron, McHugh, Gummow, Kirby AND Hayne JJ

C15/1999

HIGH COURT OF AUSTRALIA

Allesch v Maunz

Family Law — Family Court of Australia — Appeals — Nature of an appeal to the Full Court of the Family Court — Discretion to set aside an order made in the absence of a party — Miscarriage of justice where a party suffers effect of an adverse order and that party's absence adequately explained.

Family Law — Family Court of Australia — Appeals — Appeals by way of rehearing from discretionary judgments — Appellate court seeking to re-exercise discretion by reference to circumstances as they presently exist — Parties must begiven an opportunity to adduce evidence as to circumstances as they presently exist in such cases.

Practice and Procedure — Appeal — Discretion to set aside order made in absence of a party.

Words and Phrases — ‘miscarriage of justice’.

Family Law Act 1975 (Cth) s 79A, s 93A(2), s 94

1 Gaudron, McHugh, Gummow AND Hayne JJ. This is an appeal from a decision of the Full Court of the Family Court of Australia (Lindenmayer, Kay and Brown JJ) dismissing an appeal from a decision of Finn J. Her Honour had dismissed an application to set aside orders for property settlement in proceedings between the appellant (‘the husband’) and his former wife (‘the wife’), the respondent to this appeal.

Gaudron

History of proceedings

2 So far as concerns this appeal, the history of the proceedings begins on 18 May 1995 when an officer from the Registry of the Family Court delivered a letter to the husband's home informing him that, if he did not appear or arrange to be represented at a directions hearing the next day, 19 May, the wife's application for final property settlement orders could well be listed as an undefended matter. The husband, who did not then have legal representation, did not appear. In consequence, on 19 May, Finn J ordered that the wife's application be listed for an undefended hearing on 14 June 1995. Her Honour also ordered that a copy of the orders then made be served on the husband.

3 The orders made on 19 May were served on the husband on 22 May. When the matter came on for hearing on 14 June 1995, an affidavit of service disclosed that the husband had informed the person who served the orders that he was ‘very sick’ and, also, had ordered that person out of his house. Inquiriesrevealed that the husband had not made any contact with the Registry of the Family Court since 22 May and the hearing proceeded on the basis that Finn J would ‘allow a short period of time to elapse after service of the orders on the husband in which he could apply to have the orders set aside’.

4 At the conclusion of the hearing on 14 June 1995, Finn J reserved her decision. Her Honour's decision was handed down on 10 July 1995. In consequence of that decision, there was to be a division of the property of the husband and wife, which property was found to have a nett value of $735,000, with 55% being awarded to the wife and 45% to the husband. Orders were made giving effect to that decision on 10 August 1995 (‘the property settlement orders’). The orders were expressed to take effect seven days after service of them together with a copy of the reasons for judgment delivered on 10 July 1995 upon the husband.

5 The property settlement orders required the husband to transfer his interest in two properties to his wife, to pay her the sum of $87,513 and, also, to pay the costs of various proceedings, including the proceedings of 14 June 1995 (‘the primary orders’). On payment of all moneys due to the wife under the primary orders, she was to transfer to the husband her interest in EBMA Investments PtyLimited. Orders were also made as to the means to be employed by the husband to give effect to the primary orders and the steps to be taken if he failed to comply (‘the secondary orders’).

6 The property settlement orders made on 10 August were served on the husband on 17 August 1995 and on 24 August, he applied for them to be set aside. In his affidavit in support of that application, the husband swore that he had been in hospital in Canberra with a myocardial infarct for approximately two weeks from 1 May 1995 and had no recollection of receiving the notice served on 22 May notifying him of the hearing on 14 June. He also swore that he was admitted to hospital in Sydney on 3 June 1995 and had had a triple valve bypass on 5 June. He was discharged from hospital prior to 10 July, but according to his affidavit, was still recuperating on 14 June. The husband also made various claims in his affidavit as to the value and extent of the property owned by him and his former wife and as to his reduced earning capacity.

7 The husband's application to set aside the property settlement orders washeard by Finn J on 6 September 1995 and judgment was delivered on 18 September. Her Honour varied the property settlement orders so that they took effect from 18 September but otherwise dismissed the application.

8 On 4 October 1995, a notice of appeal was filed in respect of the decision of Finn J refusing to set aside the property settlement orders. The appeal was listed for hearing on 28 May 1996. There was no appearance by or on behalf of the husband on that day and the appeal was taken to have been abandoned. On 20 May 1998, the appeal was reinstated. It came on for hearing on 24 September 1998 and was dismissed on 26 November 1998.

9 Between September 1995, when Finn J dismissed the husband's application to set aside the property settlement orders, and November 1998, when the Full Court dismissed the appeal from her decision in that regard, there were other proceedings between the husband and wife. As a result of those proceedings, the wife obtained possession of the matrimonial home, one of the two properties which, pursuant to the primary orders, were to be transferred to her. It is not clear whether there were proceedings with respect to the other property but it seems that both properties have since been sold.

10 The husband did not pay the wife the sum of $87,513 as required by the primary orders and it seems that he did not take the steps required by the secondary orders to make that payment. In consequence, Finn J ordered, by consent, that a property at Fyshwick, owned by EBMA Investments Pty Limited, be sold. On 18 March 1998, Finn J ordered that the proceeds of that sale bepreserved in an interest bearing account pending the husband's application to have his appeal reinstated. Apparently, the proceeds have not yet been disbursed.

The decisions of Finn J and of the Full Court

11 In her decision refusing to set aside the property settlement orders made on 10 August 1995, Finn J accepted the evidence of the husband as to his illness. Her Honour also accepted the submission that:

‘if all, or perhaps even some, of the evidence which the husband … wishe[d] to put before the Court regarding his financial affairs, was accepted by the Court in a re-hearing of the wife's property settlement application, then the result of that application may well be substantially different than that embodied in the [property settlement] orders of 10 August 1995.’

In that context, her Honour indicated that, but for two other matters, she may well have taken the view that ‘the interests of justice required the matter to be re-opened’. The other two matters were ‘the wife's state of health, and the protracted nature … of the property settlement proceedings’.

12 Finn J noted that the matter, which was commenced in August 1993, had been listed for final hearing in September 1994 but could not proceed until June 1995 because of action taken by the husband and, also, because of his failure to appear on two separate occasions. Her Honour also noted that there was evidence from the wife's treating doctor that the ‘protracted proceedings … “[were] having a detrimental effect on her mental health”’ and indicated that she accepted and gave ‘great weight’ to that evidence.

13 Although Finn J indicated the countervailing matters to be taken into account were the wife's health and the protracted nature of the proceedings, she also expressed the view that an important consideration was the husband's explanation for his non-appearance. In that regard, her Honour repeated an earlier conclusion that, although she accepted that ‘the husband was seriously ill’, she was not ‘satisfied that he didnot have the capacity to take the necessary steps to obtain an adjournment of the proceedings on account of his ill-health at some time in the period 1 May 1995 to 14 June 1995’.

14 Ultimately, Finn J expressed the view that the husband's application to set aside the property settlement orders presented:

‘a choicebetween permitting, on the grounds of the husband's ill-health in May/June 1995, a re-hearing … in which the husband's foreshadowed evidence might be accepted, thus resulting in a significantly different property settlement, and a decision that this protracted litigation should now be held to have been finalized in the interests of the wife's mental health and … also of the general public interest in the finalization of litigation.’

Against the background of her lack of satisfaction that ‘it was not possible for the husband to take the relatively small step of applying in the proper way for an adjournment of his case’, her Honour concluded that the interests of justice were best served by dismissing his application.

15 In the Full Court, Kay and Brown JJ pointed out in their joint judgment that, although the power to set aside orders made in circumstances in which a party has not been heard is discretionary, ‘once a reasonable excuse has been proffered for non-attendance and it is clear that there may well be a significantly different result achieved if the matter is...