Aon Risk Services Australia Ltd v Australian National University

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 26 August 2025, at the request of both parties, I listed this property adjustment application for trial before me for five days to commence nearly seven months later on 23 March 2026. At the request of the parties, I also made some directions that varied some earlier directions for the instruction of valuers and other experts that had been made in May 2025. The applicant pressed for an order for further mediation but the respondent resisted that request, referred to the difficulties "with the availability of cash leading up to trial" and said that the court could consider an order for another mediation:

"...as long as trial dates are not pushed out, because of providing for a further mediation, and also that any mediation would be best informed by having the material that is to be used at trial available for the mediation".

1. In the result, I listed the application for trial and made trial directions that required the applicant and the respondent to, amongst other things, file their evidence-in-chief by 2 and 16 February 2026 respectively. Although I declined to make a further order for mediation, the parties accepted my proposition that if the evidence was filed by that date, there would be sufficient time for the parties to explore a further mediation before the final hearing. I fixed a further directions hearing in advance of the trial at the request of the parties.
2. As matters have turned out, the parties and the solicitors that they instruct, have demonstrated themselves to be unable to prepare the application for trial. Despite the detailed order made upon the parties' agreement in May 2025 for the instruction of various valuers and experts, and despite the further order made by me, again with the parties' agreement, the relevant valuers and experts have only been instructed in the days leading to today.
3. By her Application in a Proceeding filed on 20 February 2026 the applicant seeks that the trial directions be discharged, the final hearing dates be vacated and the parties attend private mediation not later than six weeks from the release of expert valuation reports authored by single experts. The respondent consents to the orders. They both submit that the application will not be ready for hearing on the allocated trial dates.
4. The parties initially approached the court to vacate the trial dates by way of joint correspondence. There was no application for the requisite adjournment. I set out in full the correspondence from the solicitors for the applicant:
   1. We refer to the above matter in which we continue to act for the Applicant Wife.

2. Sheehan & Co Solicitors continue to act for the Respondent Husband.

1. This is a joint letter from both parties and is sent with the consent of each party.
2. These are property proceedings which commenced in February 2024.
3. The matter is presently listed for a five-day Final Hearing commencing on 23 March 2026.
4. In preparation for that, a Directions Hearing is scheduled on 23 February 2026.
5. These are complex and highly contested proceedings, which commenced in Division 2 but have since been transferred to Division 1 due to the anticipated length of the final hearing, the complexity of the issues and the size of the property pool.
6. The parties jointly request the hearing dates in March 2026 be vacated, and the matter listed for mention to allocate later hearing dates.
7. The reasons for the request is the single expert valuation reports (of the parties' properties at [City B], [Town C] and [Town D]; plant and equipment; and the business entities) will not be available to the parties prior to the trial material being filed and potentially may not be available prior to the commencement of the trial.
8. In addition, we note that:
   1. The parties have not yet been able to exchange genuine offers of settlement.
   2. The parties are hopeful to attempt a further mediation to resolve the matter outside Court.
9. By way of her Costs Notice dated 25 August 2025, the Applicant Wife reports having incurred legal fees in the sum of $828,731.62.
10. By way of his Costs Notice dated 25 August 2025, the Respondent Husband reports having incurred legal fees in the sum of $627,398.87.
11. In these circumstances, the parties jointly and respectfully seek that the Court consider vacating the current Final hearing dates in order that the parties may obtain the necessary expert evidence in order that the Court have that information at the final hearing.
12. The parties have signed the proposed minute of order indicating their consent to the hearing dates being vacated, with that proposed order attached to this email.
13. The parties are hopeful that allowing additional time for these steps will provide an opportunity to resolve the matter without the need for a Final Hearing, thereby avoiding the costs associated with trial preparation.
14. Thank you for your consideration of this request

1. The request was refused. Before moving on from it however, some observations are necessary. First, what emerges from the correspondence is that despite the proceedings having been commenced in February 2024 and despite four orders requiring the parties to engage and/or instruct valuers for their property (29 February 2024, 24 April 2024, 22 May 2025 and 26 August 2025) the single expert valuation reports "will not be available to the parties prior to the trial material being filed, and potentially may not be available prior to the commencement of the trial". Second, no explanation for that failure is given. None whatsoever. Third, there is no indication of what, if anything, had been done by the parties towards securing the relevant valuations. Fourth, between them, the parties have paid over $1,500,000 in legal costs. That is in a case that has had four court events before a judicial registrar, one outing before a senior judicial registrar (which was settled by consent), one case readiness hearing before a judge in the Federal Circuit and Family Court of Australia (Division 2) and one directions hearing at which the trial dates were set but where, to that point, no valuations sufficient for the purposes of a trial had been obtained. Fifth, no indication is given as to how long an adjournment was required or when the parties might consider that they would be ready to proceed.
2. Leaving aside the arrogant and ill-founded assumption that the parties could simply agree to vacate final hearing dates and the court would acquiesce to that agreement, given the matters to which I have just referred, the parties could hardly have been surprised that the request was refused.
3. The application remained listed for a directions hearing on 23 February 2026. The applicant filed the present Application in a Proceeding seeking that the final hearing dates be vacated. In support, she relied upon an affidavit filed on 18 February 2026 to which she annexes some of the correspondence between the parties' solicitors between May 2025 and the filing of her application. Although he has not bothered to file a Response to an Application in a Proceeding, the respondent supports the application for an adjournment. Despite rules 8.13 and 5.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the respondent did file an affidavit in which he set out his side. He annexed some of the missing correspondence.
4. From the parties' affidavits, the following timeline appears:

(a) On 22 May 2025 the parties agreed to consent orders providing for the appointment of joint experts, including a single expert accountant to value the parties' business interests and related entities;

(b) On 30 May 2025 the applicant's solicitors wrote to several forensic accountants (including Ms E) seeking availability, fees and scope, with a view to proposing a panel of joint experts to the respondent's solicitors;

(c) On 5 June 2025 Ms E responded and confirmed she could accept the proposed appointment subject to agreed scope, valuation date and provision of financial material. She indicated timeframes for preparation of any report;

(d) On 30 June 2025 the applicant's solicitors forwarded the panel of proposed single expert accountants (including Ms E) to the respondent's solicitors. There was no response. On 5 August 2025 the applicant's solicitors followed up, seeking a response and reiterating the need to progress valuations to enable mediation;

(e) On 8 August 2025 the respondent's solicitors confirmed Ms E as the respondent's selection as the single joint expert accountant. The terms of her appointment were not proposed by either party to the other;

(f) On 26 August 2025, I made some orders maintaining the joint‑expert regime and setting a timetable directed toward trial in March 2026;

(g) It was not until 8 September 2025 that the applicant's solicitors sent a draft joint letter of instruction for Ms E's appointment to the respondent's solicitors in Word and PDF formats. The PDF form of the document had been signed by the applicant's solicitors. In the event that its terms found favour with the respondent, his solicitors were invited to sign and return the PDF document. If not, they were invited to mark up the Word document with their proposed amendments;

(h) However, despite two follow-ups by the applicant's solicitor it was not until 22 September 2025 that the respondent's solicitors raised additional matters to be included in Ms E's instructions, including CGT and recouped depreciation issues;

(i) On 29 September 2025 the applicant's solicitors emphasised urgency, noting Ms E's report would take months and warning of prejudice to trial preparation;

(j) On 2 October 2025 the respondent's solicitors provided a re‑drafted letter of instruction on their firm's letterhead, but in PDF form only, rather than amending the joint draft. They signed the PDF document;

(k) On 11 October 2025, the applicant's solicitors wrote requesting that the respondent's solicitors provide a Word version of their proposed letter. They pointed out that a PDF document prevented tracked changes and the efficient settling of joint instructions;

(l) On 13 October 2025 the respondent's solicitors replied but did not provide a Word version, maintaining the PDF‑only approach;

(m) On 24 October 2025 the applicant's solicitors formally objected to the PDF‑only process, characterising it as obstructive and inconsistent with standard practice. They proposed an alternative mechanism whereby each party provided their own statement of facts to accompany a joint instruction if agreement on wording could not be reached. They again requested a Word version to enable easier revision;

(n) On 26 November 2025 the respondent's solicitors suggested that because no joint experts had been instructed, the respondent would instruct separate adversarial experts unless signed instructions directed to all of the proposed experts were provided;

(o) On 6 January 2026 the applicant's solicitors sought the respondent's agreement to adjourn the final hearing because, amongst other reasons, Ms E's valuation had not commenced. The next day, the applicant's solicitors again circulated a joint letter of instruction to Ms E, incorporating the respondent's earlier proposed amendments;

(p) On 19 January 2026 the joint plant and equipment valuation report was finalised;

(q) However, the instructions to Ms E remained an issue. On 28 January 2026 the respondent's solicitors provided a signed version of the proposed letter of instruction to Ms E in PDF form, containing further amendments;

(r) On 2 February 2026 the applicant's solicitors set out proposed amendments to the letter of instruction and again complained about the continuing absence of a workable joint Word document;

(s) Between 5 and 16 February 2026 there were further exchanges between the parties' solicitors concerning property valuation instructions, which were eventually finalised. However, MMs E's engagement remained incomplete.

1. This course of correspondence shows the parties' solicitors in a particularly poor and unprofessional light. The terms and tone of the correspondence between them, but particularly that from the applicant's solicitor to the respondent's solicitor at times, are to be deprecated (see for example paragraph 4 of the letter from the applicant's solicitor to the respondent's solicitor dated 5 August 2025).
2. Moreover, the argument about the format of the letter of instruction to Ms E is both unseemly and entirely unnecessary in equal measure. Whilst good professional practice required the provision of the draft instructions in a form that could easily be worked on collaboratively by each solicitor, the moment it became apparent that it was not to happen, the applicant's solicitor could have, and I venture to say should have, produced the document in an appropriate format and just got on with it. The conversion of a PDF document to an editable Word document is just not that difficult. The stance taken by both solicitors over this issue benefitted neither client and only served to delay matters.
3. Section 96 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) requires the parties and their lawyers acting on their behalf, to conduct the proceedings (including negotiations for settlement of the dispute to which the proceedings relate) in a way that is consistent with the overarching purpose of the family law practice and procedure provisions. Section 95 of the Act provides:

(1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:

(a) in a way that ensures the safety of families and children; and

(b) in relation to proceedings under this Act in which the best interests of a child are the paramount consideration - in a way that promotes the best interests of the child; and

(c) according to law; and

(d) as quickly, inexpensively and efficiently as possible.

(2) Without limiting subsection (1), the overarching purpose includes the following objectives in relation to proceedings under this Act:

(a) the just determination of all such proceedings;

(b) the efficient use of the judicial and administrative resources available for the purposes of courts exercising jurisdiction in such proceedings;

(c) the efficient disposal of the overall caseload of courts exercising jurisdiction in such proceedings;

(d) the disposal of all such proceedings in a timely manner;

(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

(3) The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make applicable Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

(Note omitted)

1. Ironically, the applicant's solicitor referred to this overarching purpose in one of her correspondences with the respondent's solicitor. Nonetheless, no heed appears to have been paid to it. The overarching purpose provided for in s 95 reflects not just the parties' interests in resolving their disputes, but also the expectation on parties and their lawyers to pay proper regard to and respect other litigants who have submitted disputes to the court for resolution. In that respect, the observations in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 are apposite.
2. In Aon Risk, the High Court of Australia considered an appeal against the granting of an application for leave to amend a statement of claim made on the third day of a four-week hearing. The plurality observed (at [93]):

The achievement of a just but timely and cost effective resolution of a dispute has an effect upon the court and upon other litigants". In [Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841, at 849] Toohey and Gaudron JJ explained that case management reflected:

"[t]he view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard...".

1. At [95] of Aon Risk, the plurality rejected the notion that case management principles should only be applied "in extreme circumstances" (cf Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, at 154). The plurality held that refusing to apply case management principles, save only in extreme circumstances, "denies the wider effects of delay upon others" (at [95]). The plurality recognised that the effect of delay caused by an adjournment has deleterious effects, not only upon the parties' directly affected by the delay, but upon other litigants seeking a resolution of their cases (at [114]). French CJ observed (at [5]):

In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not have been allowed. The discretion of the primary judge miscarried.

(my emphasis)

Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation. These are matters which, even under the Australian versions of the Judicature Act system, unaffected by the sequelae of the civil procedure reforms of 1998 in the United Kingdom, are to be regarded as both relevant and mandatory considerations in the exercise of the discretion conferred by rules such as r 502.

1. These statements are all the more important in a court where jurisdiction is regularly exercised in respect of the welfare of children. Delays caused by a failure to observe proper and timely case management practices, a failure to comply with directions of the court and a failure to conduct litigation as quickly, inexpensively and efficiently as possible all have the real potential to impact upon the timely disposition of such cases. The adjournment of the present case has the very real potential to visit that type of impact upon other cases in this court in two obvious ways. First, by making the present trial dates unavailable for a case that is ready to proceed. It is too late now to sensibly attempt to fill them. Second, by requiring the allocation of further dates which will make any dates allocated in the future unavailable to a case that is ready to proceed.
2. None of the parties' conduct or that of their solicitors pays any attention to the effect upon the other litigants in this court who are waiting for their cases to be listed for trial. None of the conduct seems to have been undertaken with a view to assisting the efficient administration of justice. Nor did any of the submissions made for them by their senior counsel address the matters raised for consideration by the High Court as I have set out above.
3. Were it the case that I could be satisfied on the evidence that the conundrum in which the parties now find themselves was of their own doing, I would refuse the adjournment. Despite the submissions of senior counsel for the respondent that I would be "at risk" if I refused the adjournment because I would not have at my disposal all of the necessary evidence to arrive at a just and equitable order, I do not accept that submission.
4. However, the correspondence annexed to the parties' affidavits persuades me that it is highly likely that the parties have found themselves in the current predicament largely because of the conduct of their solicitors. The correspondence shows a disregard of the overarching purpose to which I have referred above and an insistence on matters that ought not to have been insisted upon. That is even more so in circumstances where I was asked to give a trial date as soon as I effectively could at the directions hearing in August 2025.
5. I do not know and need not know, to what extent the solicitors were acting on the express instructions of their clients since August 2025 because, in the first instance, their duty is to the court (see r 3.1 of the Australian Solicitors Conduct Rules 2023). If the conduct reflected in the correspondence I have summarised above reflects the parties' instructions, those instructions conflicted with the solicitors' duty to the court. The latter has priority over the former.
6. It is thus, with significant hesitation, that I am persuaded that I should grant the adjournment. These parties should not be visited with the consequences of what is likely a situation created by their solicitors.
7. The orders will be as set out at the commencement of these reasons.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett.