FABRIZI -v- GRASSO (DECEASED) [2021] WASCA 9 (14 January 2021)

1. We heard the applications on 13 January 2021. The respondent's application was dismissed. The appellant's application was stood over to the appeal hearing. We stated that the reasons for those orders would be provided in writing. These are our reasons for the orders made on 13 January 2021.
2. The appellant's application was supported by an affidavit of John David Lawley, her solicitor, affirmed 3 December 2020. The appellant's affidavit sworn 18 November 2020 is attachment 'JDL‑8' to that affidavit. The appellant had also filed submissions dated 8 January 2021. The respondent's application was supported by an affidavit of Daniel Murdzoski, his solicitor, sworn 15 December 2020. The respondent had also filed submissions dated 8 January 2021 (those submissions attaching written submissions that were before the primary judge).
3. On 17 December 2020 Vaughan JA ordered that the respondent's time to file a respondent's answer be extended until 4 pm on 20 January 2021. Accordingly, so as to permit the competing applications to be heard and in particular for the respondent's application to be determined on its merits, the respondent had already been afforded a degree of indulgence.
4. The appeal is from a decision of the Family Court of Western Australia (Duncanson J) that the proceedings below be dismissed.[1] One of the grounds of appeal raises a procedural fairness point. Ground 2 reads:

The appellant was denied procedural fairness in that the learned Judge below dismissed the proceedings below by reference to the merits of the case without there having been any affidavits filed by the parties, specifically the Appellant, on that issue.

1. The appellant said that, had procedural fairness been afforded as she contends it should have been, she would have prepared and relied on an affidavit containing the evidence in the appellant's affidavit sworn 18 November 2020. The affidavit is sought to be relied on in the appeal should the court be willing to do so.
2. By Mr Murdzoski's affidavit the respondent asserted that, if the appellant's application was not first determined before any further steps are taken in the appeal, the respondent would not know the content of and will not be able to complete his respondent's answer. It was said that if the appellant's application was not determined before any further steps are taken in the appeal it would likely lead to unnecessary duplication of work, expense and the time of the parties and the court being taken up unnecessarily.
3. Ordinarily any application to adduce additional evidence is referred to the appeal hearing. There are good case management reasons for that course. Often whether or not the additional evidence should be allowed will be bound up in the issues to be addressed at the hearing of the appeal. Moreover, the application is more readily determined when the settled appeal books are before the court.
4. No good reason was advanced by the respondent as to why the ordinary course should not be followed in the present case. There was nothing in the respondent's written submissions in support of the proposition that the application to adduce additional evidence had to be determined to enable preparation of the respondent's answer. As to the asseverations in Mr Murdzoski's affidavit, there was no substance in the respondent's protestation that the appellant's application must be determined so that he can prepare the respondent's answer and otherwise avoid unnecessary costs and duplication of work. There is one brief footnote in the appellant's case that refers to the application to adduce additional evidence (footnote 50). Otherwise the appellant's submissions in support of ground 2 occupy a mere one short paragraph of the appellant's case (par 37). That can be answered without reference to the affidavit if the respondent considers it appropriate to take such a course. Alternatively, the respondent can deal with the affidavit if he chooses to do so.
5. It is readily apparent that the intended purpose of the appellant's affidavit sworn 18 November 2020 is to forestall any suggestion that, had the alleged breach of procedural fairness not occurred, there would have been no difference in outcome. While the absence of such evidence is not necessarily determinative, its provision will often be a sensible course to adopt. Whatever might be the respondent's preference, the merits of the appellant's application - and ultimately whether there should be leave to adduce the additional evidence - is inextricably bound up in the merits of ground 2.
6. In the circumstances we were satisfied that the appellant's application should be stood over to the appeal hearing. The respondent's application was without merit and was dismissed. To the extent that the respondent sought an extension of time for the filing of the respondent's answer until 7 days after the determination of the appellant's application it was sufficient that the order of 17 December 2020 extended time until 20 January 2021.
7. We considered that the respondent should pay the appellant's costs of the respondent's application including the costs of the hearing on 13 January 2021. The costs of the appellant's application were reserved. Accordingly, there were orders that:
   1. The appellant's application dated 11 December 2020 to adduce additional evidence on the appeal is referred to the appeal hearing. The costs of that application are reserved.
   2. The respondent's application dated 15 December 2020 is dismissed.
   3. The respondent pay forthwith the appellant's costs of the respondent's application dated 15 December 2020, to be assessed if not agreed, such costs to include the costs of the hearing on 13 January 2021.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Fabrizi and Grasso (Deceased) [2020] FCWA 164. These reasons of the court adopt the same pseudonym as was used in the primary judge's reasons.