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The recent case of Maddyson & Maddyson (No. 2) [2020] FamCAFC 285; (19 November 2020) is once again covering the issue of procedural fairness. This original case occurred in Western Australia. We also recently covered another case dealing with procedural fairness in Zagar & Bacall here.
An important theme also covered here was, if you are no longer acting then you should move swiftly to get yourself off of the record.
Both parties were appearing without legal representation, though the husband had the benefit of legal advice in the lead up to the trial. At the readiness hearing the husband was not ready and had not complied with the requirements for full and frank disclosure or filing trial documents. The trial date was put back 42 days.
On the first day of trial the husband still had not complied and made an oral application for the trial to be adjourned, this application was refused.
Failure of procedural fairness is fatal
The husband had a number of grounds of appeal, some of which were said to be repetitive, but he claimed that the Magistrate failed to afford the husband "procedural fairness" and so the court noted that they needed to hear this issue first. In words that sound very familiar to those cited in Zagar & Bacall, and citing the same cases, the Court this time stated that -
... where a defect in the administration of justice is found to have occurred, for example, where there is apprehended bias, or as in this case, the failure to provide procedural fairness, the orders must be set aside (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd[2006] HCA 55; (2006) 229 CLR 577 at 611; Royal Guardian Mortgage Management Pty Ltd v Nguyen[2016] NSWCA 88; (2016) 332 ALR 128 per Basten JA at [9] and [10]).
Get yourself off the record
Interestingly part of the problem here was the failure of the court to send documents to the husband. They were sent instead to his previous solicitor who (it would appear) had not taken themselves off the record by that time. It is stated and not apparently challenged that the solicitors did not forward these documents to the husband. On the day that the orders were made to forward the documents the solicitors were officially on the record, but the husband appeared in person and indicated that he was now self-represented.
The husband also cited other reasons, like he thought he had settled with the wife, or he wanted an adjournment to get legal advice, but the problem of the solicitors failing to forward the documents particularly stuck out to me and came up multiple times in the judgment.
Fortunately for those solicitors, in the end, the Court found that this issue was not a successful grounds of appeal. It could have very easily turned the other way, particularly as a solicitor is an officer of the Court, and the failure to provide court orders to a party is a significant failure which was discussed by the Court but the Court satisfied itself that the husband was otherwise aware of the case he had to meet.
Comply with all the orders
The bigger issue, and the one that was successful, ended up being the failure of the parties to obtain a joint single expert witness (as was ordered by the Court). The wife obtained a valuation but it kept being delayed, the Court adjourned once but was unable to adjourn again. The wife received a text message with the value and was cross-examined briefly on that value by the husband. She was however unable to answer his questions as she only had a text message. Her Honour then adopted the wife's schedule of assets and liabilities, including the texted value. The husband had put forward a different lower figure for that asset.
The Court found that in accepting this texted figure the husband was not afforded procedural fairness. It was not accurate that the husband did not object to the valuation, he was unable to sensibly ask questions about a text message.
The court found that -
However, apart from incorrectly suggesting that the husband did not dispute the valuation figure, nowhere does her Honour explain how, and on what basis she exercised her discretion to utilise the figure provided. (Para 62)
The court then points out that even if she exercised her leave it would be difficult to bring a text message within the requirements for a single expert valuation or report, but this was not the reason for the appeal being successful.
An additional procedural fairness claim, not successful
There was also an additional issue in relation to the lack of evidence regarding a debt that the husband claimed the business owed. There was a failure of evidence from the husband, the wife included her objections in her Affidavits, and the husband failed to cross-examine the wife on this issue or seek any evidence from the person he said he was borrowing from. The judgment then goes on to explain why this was not an issue of procedural fairness, this issue is discussed from paragraph 64 through 76.
The finding
The balance of the husband's claims failed, but the issue in relation to the texted valuation and the failure to comply with the orders for a single expert valuation (or spell out any reasons to exercise her leave) were considered fatal and the matter was remitted for re-hearing to the Magistrates Court of Western Australia to be reheard by a Magistrate other than the primary Magistrate. The court also made an order for costs certificates due to the appeal being allowed on a question of law.
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