ADLER & MADIGAN

Case [2019] FCCA 194

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADLER & MADIGAN [2019] FCCA 194
Catchwords:
FAMILY LAW – Interim – property.

Legislation:

Family Law Act 1975 (Cth) s.79A
Federal Circuit Court of Australia Act 1999 (Cth) s. 17A

Cases cited:

Badawi & Badawi [2016] FamCA 804

Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
Etheridge & Goddard [2017] FCCA 800
In the Marriage of Clifton and Stuart [1990] FamCA 154
In the Marriage of Gebert [1990] FamCA 105
In the Marriage of Kokl [1981] FamCA 60

Holland & Holland [1982] FamCA 31
Lancer & Lancer [2008] FamCAFC 112
Maclean & Maclaen [2011] FamCAFC 148
Penfold v Penfold (1980 144 CLR 311
Saleeby & Moon [2015] FamCA 43
SH & DH (No. 1) [2003] FamCAFC 330
Spencer v Commonwealth of Australia [2010] HCA 28
Spring & Spring [2014] FCCA 970
Applicant: MS ADLER
Respondent: MS MADIGAN
File Number: BRC 2714 of 2018
Judgment of: Judge Spelleken
Hearing date: 5 November 2018
Date of Last Submission: 26 November 2018
Delivered at: Brisbane
Delivered on: 1 February 2019

REPRESENTATION

Solicitors for the Applicant: Cornerstone Law Offices
Solicitors for the Respondent: Raymond Murphy Lawyer

THE COURT ORDERS:

  1. That the sum of $28,016.65 be paid to the respondent from the funds held in the trust account of Spranklin McCartney Lawyers.

  2. That the sum of $41,185.48 be paid to the applicant from the funds held in the trust account of Spranklin McCartney Lawyers.

  3. That the sum of $11,998.80 be held in the trust account of Spranklin McCartney Lawyers.

  4. That the respondent’s application to set aside the Order of 9 May 2018 be dismissed.

  5. That the respondent be granted leave to file and serve a response in relation to costs within twenty-eight (28) days of the date of this judgment. 

IT IS NOTED that publication of this judgment under the pseudonym Adler & Madigan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 2714 of 2018

MS ADLER

Applicant

And

MR MADIGAN

Respondent

REASONS FOR JUDGMENT

Introduction

  1. The Court is asked to summarily dismiss the orders sought by the respondent husband Mr Madigan (‘the husband’) against the applicant wife Ms Adler (‘the wife’) filed on 2 November 2018 to set aside the final orders for a property settlement made by consent on 9 May 2018 (‘the Orders’).

  2. The husband’s application was filed as a response to the wife’s Application in a Case which sought to enforce the final orders on 6 September 2018 for the division of the former matrimonial property at Property A with the husband.

  3. The final property settlement orders are as follows:

    1. That the net assets of the parties (including superannuation) be divided equally between the parties.

    2. The real property situated at Property A (“the real property”) be listed for sale, forthwith, and the parties do all such things as may be necessary and pay all such monies equally so as to effect the sale of the real…

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ADLER & MADIGAN [2019] FCCA 194
Case
[2019] FCCA 194
Decision Date

CaseChat Overview and Summary

This matter concerned an application for summary judgment in family law proceedings before Spelleken J of the Federal Circuit Court of Australia. The specific details of the parties and the precise nature of the property dispute were not elaborated upon in the provided text.

The central legal issue before the Court was the interpretation and application of section 17A of the *Federal Circuit Court of Australia Act 1999* (Cth). This provision allows the Court to grant summary judgment if satisfied that a party has no reasonable prospect of successfully prosecuting or defending a proceeding. The Court was required to determine what constitutes "no reasonable prospect" of success, particularly in light of subsection 17A(3), which clarifies that a proceeding need not be hopeless or bound to fail to fall within this category.

Spelleken J, referencing *Spencer v Commonwealth of Australia*, emphasised that the phrase "no reasonable prospect" requires a different enquiry than under earlier procedural regimes that demanded a certain and concluded determination of failure. The Court noted that the legislative purpose of section 17A would be defeated if its application were confined to cases previously covered by older, different procedural rules. While acknowledging that the power to dismiss an action summarily should not be exercised lightly, the Court indicated that the meaning of "no reasonable prospect" is best elucidated through a succession of decided cases, rather than by attempting to define it with a fixed lexicon of terms such as "frivolous" or "untenable". The Court stressed the importance of giving full weight to the expression as a whole and avoiding judicial glossing that could unduly restrict its operation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 17A of the Federal Circuit Court of Australia Act 1999 (‘the Federal Circuit Court Act’), which is applicable to family matters,[1] provides that a summary judgment may be granted in favour of the applicant as follows: [1] Maclean & Maclaen [2011] FamCAFC 148 . 17ASummary judgment(1) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a) the first party is prosecuting the proceeding or that part of the proceeding; and(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a) the first party is defending the proceeding or that part of the proceeding; and(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:(a) hopeless; or(b) bound to fail;for it to have no reasonable prospect of success.(4) This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section. In particular, s.17A(3) establishes that proceedings need not be hopeless or be bound to fail in order for the Court to be satisfied that there is no reasonable prospect of success. In Spring & Spring,[2] Judge Reithmuller recognised that s.17A(3) is in the same terms as s.31A of the Federal Court of Australia Act 1976. The latter provision was the subject of discussion in Spencer v Commonwealth of Australia[3] by Hayne, Crennan, Kiefel and Bell JJ stating at [51] – [52]: [2] [2014] FCCA 970.[3] [2010] HCA 28[51] First, the central idea about which the provisions pivot is "no reasonable prospect" (emphasis added). The choice of the word "reasonable" is important. If s 31A is to be seen as deriving from r 24.2 of the Civil Procedure Rules 1998 of England and Wales, its provisions underwent an important change in the course of their translation from that jurisdiction to this. The English rule speaks of "no real prospect"; s 31A speaks of "no reasonable prospect". The two phrases convey very different meanings.[52] Second, effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is "hopeless" or "bound to fail". It will be necessary to examine further the notion of "no reasonable prospect". But before undertaking that task, it is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the enquiry required in this case is whether there is a "reasonable" prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.[53] In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail. That this was the basis of earlier decisions may be illustrated by reference to two decisions of this Court often cited in connection with questions of summary judgment: Dey v Victorian Railways Commissioners[69] and General Steel Industries Inc v Commissioner for Railways (NSW)[70].…[56] Because s 31A(3) provides that certainty of failure ("hopeless" or "bound to fail") need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s 31A is to be understood as requiring a different enquiry from that which had to be made under earlier procedural regimes. It follows, of course, that it is dangerous to seek to elucidate the meaning of the statutory expression "no reasonable prospect of successfully prosecuting the proceeding" by reference to what is said in those earlier cases.…[58] How then should the expression "no reasonable prospect" be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is "no reasonable prospect". The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like "no reasonable prospect" is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes[82], as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.[59] In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.[60] Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.

Ratio Decidendi

Legal Principle Established

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