Procedural Fairness, Judge Errs in Dismissing Case: Skivington & Skivington [2019] APPEAL – PROCEDURAL
Skivington & Skivington [2019] FamCAFC 36 (11 March 2019)
The husband pursued parenting and property orders and the wife filed a response to that application.
The judge made an order directing the parties to attend mediation and the matter was adjourned for further directions. There were several adjournments that took place some of which the court motioned other times the parties requested for more time to mediate.
The orders by consent instructed the parties they must attend mediation before the next mention date and for there to be no further adjournments, if the husband and wife failed to prosecute their claim, the matter would be dismissed on the next occasion.
During the interim stages, the parties resolved the parenting issues and had agreed to a method of valuing the property. The judge was informed the parties expect on completion of mediation for the matter to be resolved.
The matter was adjourned again in chambers at the parties’ request because the expected mediation had not occurred. The matter returned before the judge where the parties again requested more time to complete the mediation process.
The Judge dismissed both the initiating application and response on the basis that the parties had failed to prosecute the matter.
The wife appealed those orders, and claims the orders were complied with and that both parties were attending the mediation process, however the mediation process was incomplete, due to the mediator’s other commitments. The husband also conceded the judges orders were erroneous.
FACTS SUMMARY:
- The husband pursued parenting and property orders and the wife filed a response to that application.
- Orders by consent instructed the parties that they must attend mediation before the next mention date and for there to be no further adjournments.
- The judge was informed the parties expect on completion of mediation the matter to be resolved.
- The parties again requested more time to complete the mediation process.
- The mediation process was incomplete, due to the mediator’s other commitments
- The Federal Circuit Court Judge dismissed the parties' initiating application and response for failure to prosecute the matter.
- The wife is appealing; the husband concedes the orders were erroneous.
ISSUE:
Did the judge fail to comply with the requirements of Rule 13.12 of The Federal Circuit Court Rules 2001 (Cth)?
HELD:
The appeal against the orders were allowed.The initiating application and response are remitted to the FCC for a rehearing with a different Judge. The court grants both parties a costs certificate.
In determining this matter Rule 13.12 of The Federal Circuit Court Rules 2001 (Cth) provides:
13.12 Dormant proceedings (1) If a party has not taken a step in a proceeding for 6 months, the Court may, on its own initiative, order that the proceeding, or a part of the proceeding, be dismissed.
(2) The Court must not make an order under subrule (1) if:
(a) there is a future listing for the proceeding or a part of the proceeding; or
(b) an application in a case relating to the proceeding has not been determined; or
(c) a party to the proceeding satisfies the Court that the proceeding, or part of the proceeding, should not be dismissed; or
(d) the Court has not given the parties to the proceeding notice under subrule (3).
(3) The Court must, at least 14 days before making the order, give each party to the proceeding written notice of the date and time when it will consider whether to make the order.
(4) Notice under subrule (3) must be sent by post in an envelope marked with the Court's return address:
(a) to each party's address for service; and
(b) if a party has no address for service--to the party's last-known address.
It was established the matter was not “dormant” for the parties had attended mediation in accordance with the order, although the mediation was incomplete, due to the mediator’s other commitments. Whilst the process may have been slow going it was still in motion, the parties had therefore “taken steps to advance the proceedings.”
Furthermore, the judge stated at [10] “no evidence was tendered or relied upon on the adjournment application to explain why orders had not been complied with” contrary to this, a transcript extract from the submissions made on the adjournment application at [1] was included in the judges reasons.
It was determined the judge had erred in failing to consider the actions of the parties that demonstrated they were in fact prosecuting the proceedings. The judge did not clarify why the partial settlement and the incomplete mediation process were inadequate to avoid the proceedings being rejected.
