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Procedural fairness matters - Zagar & Bacall

The recent case of Zagar & Bacall [2020] FamCAFC 268 (6 November 2020) is a reminder that procedural fairness matters.

In this case, the original judgment was set aside and the court made an order for costs certificates, reminding the reader that -

Want of procedural fairness cuts to the heart of the integrity of the judicial process and orders made in those circumstances must be set aside (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at 612; Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 at [9]–[10]). (emphasis added)

The issue that was appealed was His Honour's view that the husband had failed to give proper financial disclosure and His Honour's decisions made as a result of that failure, but this was not argued by the wife nor was it put to the husband. This is a good reminder that the rule in Browne v Dunn is not just something that criminal lawyers need to worry about (in fact the original case was not even a criminal case).

Again, from the judgement, paragraph 13 - It was not part of the wife’s case that the husband had failed to make proper disclosure, albeit there was a minor disagreement about the correct amount of his superannuation, although an agreed figure was ascribed to it on the balance sheet. Certainly the husband was not cross-examined to suggest that he had failed to provide adequate disclosure. Nor were his Honour’s concerns raised with the parties at any time during the hearing. That his Honour had been troubled by the husband’s asserted failure to make proper disclosure was first disclosed in his Honour’s reasons.

In this case the error was considered to be so clear that costs certificates were granted. It is not a long read and it is a good reminder of the importance of process.


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