Beck & Beck
[2004] FamCA 92
•25 February 2004
[2004] FamCA 92
FAMILY LAW ACT 1975
IN THE FULL COURT Appeal Nos. WA3L of 2002
OF THE FAMILY COURT OF AUSTRALIA and WA8L of 2002
AT PERTH File No. PT 5888 of 1995
BETWEEN:
DEANN BEVERLEY BECK
Applicant/Appellant Wife
- and -
CEDRIC RICHARD PALMER BECK
Respondent Husband
REASONS FOR JUDGMENT OF THE FULL COURT
BEFORE: Ellis, Finn and Chisholm JJ
DATE OF HEARING: 2 July 2003
DATE OF JUDGMENT: 25 February 2004
APPEARANCES:
Mr Hooper of Counsel (instructed by Summers Partners, Level 3, 190 St Georges Terrace, Perth WA 6000) appeared on behalf of the applicant/appellant wife.
Dr Dickey of Queen’s Counsel (instructed by the Paterson & Dowding, 2nd Floor, BGC Centre, 28 The Esplanade, Perth WA 6000) appeared on behalf of the respondent husband.
APPEAL SUMMARY
MATTER:BECK and BECK
APPEAL NUMBER: WA 3L of 2002 and 8L of 2002 (PT 5888 of 1995)
CORAM:Ellis, Finn and Chisholm JJ
DATE OF HEARING: 2 July 2003
DATE OF JUDGMENT: 25 February 2004
CATCHWORDS: FAMILY LAW – APPEALS – Leave to appeal from summary dismissal of wife’s application under s 79A of Family Law Act 1975 – Principles governing summary dismissal of s 79A application – In determining an application for summary dismissal, regard should only be had to the material of the respondent to that application – Trial Judge erred in having regard to the material of the applicant for summary dismissal – Leave to appeal granted – Appeal allowed
FAMILY LAW – APPEALS – SUBPOENA – Appeal not argued – Appeal dismissed.
Caselaw cited:
Bigg v Suzi (1998) FLC 92-799
Pelerman v Pelerman (2000) FLC 93-037
Webster v Lampard (1993) 117 CLR 598
Lindon v The Commonwealth (No 2) (1996) ALJR 541
WA3L of 2002:
Appeal dismissed (appeal not argued).
WA8L of 2002:
Leave to Appeal granted.
Appeal allowed. Orders set aside. Application for summary dismissal remitted for re-hearing.
Directions made for the filing of written submissions as to costs of both appeals.
REPORTABLE
APPLICATION FOR LEAVE TO APPEAL NO. WA8L
Introduction
This is an application by the wife for leave to appeal, and if leave is granted, an appeal against an order made by Holden J on 8 November 2002. The effect of that order was to dismiss on a summary basis part of an application by the wife under s 79A(1) of the Family Law Act 1975 (“the Act”) for the variation of a property settlement order made by consent on 8 March 1996. Section 79A(1) provides as follows:
“(1) Where, on application by a person affected by an order made by a court under section 79 in proceedings with respect to the property of the parties to a marriage or either of them, the court is satisfied that:
(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
(e) a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage;
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.”
Historical background to the order of 8 November 2002
The husband, who is the respondent before us, and the wife separated on 26 October 1994, after approximately 25 years of marriage. On 7 November 1995 the wife filed an application for property settlement.
On 14 February 1996 the parties attended a conciliation conference at the Family Court of Western Australia accompanied by their respective solicitors. At the time of the conciliation conference the husband had not filed a Statement of Financial Circumstances, nor had he given discovery notwithstanding that he had apparently been requested to do so by the wife's solicitors and had been ordered to do so on 15 November 1995.
However, at the conciliation conference the wife’s solicitor was provided with a document which, as recorded by Holden J in his reasons for judgment of 8 November 2002, “purported to set out the husband’s understanding of the then financial position of the parties.” The content of that document was as follows:
“ASSETS
| Deann | Richard | ||||
| Yunderup | 350,000.00 | Sea Eagle | 200,000.00 | ||
| Furniture | 50,000.00 | Pen, shed | 40,000.00 | ||
| Car | 30,000.00 | Lavinia | 15,000.00 | ||
| Unit | 250,000.00 | Super $550,000 deferred 3 years @ 8% | 420,000.00 | ||
| Contents | 20,000.00 | Landcruiser | 15,000.00 | ||
| Mercedes | 75,000.00 | ||||
| 700,000.00 | 765,000.00 | ||||
DEBTS
| Commonwealth Bank Less Deposit held by Agent – approximately: approx. after commission: | 575,000.00 115,000.00 | |
Current bills owing | 85,000.00 – | |
| B.N.Z. | 685,000.00 | |
| Tax | ? $1,245,000.00 + tax | |
| Less distribution from sale of shops | 870,000.00 | |
| Approximate debt non tax deductable | $380,000.00 + tax ” |
Again, as recorded by Holden J, broad agreement on a division of property was apparently reached at the conciliation conference and after further negotiation between the solicitors, the parties signed a minute of consent orders on 29 February 1996. The consent orders were then made by a Registrar in Chambers on 8 March 1996.
Over five years later, on 15 August 2001 the wife filed an application seeking the following orders:
“1.That pursuant to Section 79A there be a finding that there has been a miscarriage of justice by reason of:
(i) Fraud and Suppression of Evidence
Representations by the husband by virtue of a document headed “Assets” provided by him or at his direction on or about 14 February 1996 which was materially false and misleading and upon which the wife relied to consent to orders to her detriment.
Particulars
(a)the husband misrepresented the net assets at or about $1,090,000.00 when in fact they were at or about $1,996,500.00;
(b)the husband misrepresented the true value of his superannuation, his share holdings, and the liability to the Bank of New Zealand;
such that overall the wife received less than 25% of the net value of the assets and not as represented by the husband in his calculations of the “Assets” schedule produced by him.
(ii) Duress
The husband persistently and on numerous occasions represented and/or threatened the wife orally and by his excessive expenditure that if she did not accelerate her efforts to settle, the pool of assets (on (sic) which he was in large part in control) was fast diminishing and would diminish to the point that the wife would be severely prejudiced.
(iii) Insufficient Material to address the requirements of Section 79(4)
That in the making of the Consent Orders the learned magistrate did not properly or at all address the requirements of Section 79(4) nor was there sufficient material on which he could do so.
2.Consequent upon any such finding the Court do vary the orders made on 8 March 1996 by the making of a further order or orders such that the husband do pay to the wife and/or transfer property to her in the sum and to a value to be quantified by the wife by an amended application filed within 28 days of the husband giving full discovery.
3.The husband do pay the wife’s costs of and incidental to this application.”
On 24 September 2001 the husband filed a response in which he sought by way of final order that the wife’s application be dismissed, and that by way of interim orders she file and serve a minute providing “further and better particulars” of her application.
An order requiring the wife to provide further and better particulars was made on 26 September 2001. A minute of such particulars was filed on 10 October 2001. It provides as follows:
“A.1Estimated Assets of the Parties as at the Date of the Property Settlement agreed on 14 February 1996 (the "Settlement")
(a) Furniture & Paintings Value Unknown (b) Cars (three) $131,000 (c) Shares in Berostah Pty Ltd (65% interest) $900,000 (d) Husband's superannuation $937,892 (e) Husband's or husband's entities' shares or interest in each of the following companies:
(i) Hester Brook Pty Ltd (true value not known)
(ii) Needlers End Nominees Pty Ltd (true value not known)
(iii) Shipston Pty Ltd (true value not known)
(iv) Gred Pty Ltd (true value not known)
(f) Cash Estimate approx $40,000 (g) Foreign collateral and overseas investments
(value not known)(h) Sea Eagle (boat) $220,000 (i) Boat pen and shed $40,000 (j) Lavinia (boat) $15,000 (k) Yunderup property $330,000 (l) Westpac Sydney Acc No 400163032044178085 (funds not known)
approx $2,613,892 A.2. Estimated Liabilities
(a)
Commonwealth Bank Debt
$460,000
(b)
Current Bills Owing
$100,000
(c)
Bank of New Zealand (Berostah Pty Ltd)
$685,000
________
$1,245,000
A.3.Estimated Net Assets (not inclusive of husband's shareholdings)
approx $1,368,892B.Value of each asset (See A.1, A.2 and A.3 above)
C.True value of the husband's superannuation: (see A.1(d) above)
D.At the time of settlement, the husband did not disclose the full extent of his shareholdings such that the wife could then assess the true value of his shareholdings. Pending full disclosure and discovery by the husband, the wife is unable to assess the husband's shareholdings as at the time of settlement or the true value thereof.
E. (i) $685,000
(ii) True value not known
F.(i) 20 September 1994 – husband valued the net assets of the parties as $1,975,000 net to include $1,000,000 net assets in superannuation trusts.
(ii)26 February 1996 – Statement of Assets provided by the husband re-valuing his superannuation and refraining from making any reference to the full extent of his shareholdings, cash savings, overseas investments, foreign collateral or the value thereof.
(iii)Shortly subsequent to 1997, the husband committed funds totalling in the sum of approximately $937,000 toward the acquisition, maintenance and conservation of the husband’s assets notwithstanding his lack of income and resources in the interim period extending between the period 14 February 1996 and the respective dates of such commitment of funds.
G.Estimated Assets the wife did actually take were:
Yunderup property $330,000 Motor vehicle $15,000 Furniture & Painting Value unknown Cash savings $85,000 $430,000”
When applications by both parties for interim or interlocutory orders came before Barlow J on 18 February 2002, his Honour made the following orders:
“1.If the husband wishes to file an application seeking an order that Paragraph 1(i) of the wife’s Form 3 application filed on 15 August 2001 be struck out disclosing no cause of action he do so with 28 days.
2.If the husband does not file an application in the terms of Order 1 hereof he file and serve an affidavit of discovery with 28 days.”
On 19 March 2002 the husband filed an application seeking orders that:
“1.Paragraph 1(i) of the final orders sought by the wife in her application filed 15 August 2001 be summarily dismissed on the basis that there are no grounds to support the wife’s claim that on or about 14 February 1996 the husband had misrepresented or suppressed relevant facts or had otherwise provided false or misleading facts which led the wife to consent to the property orders made on 8 March 1996.
2.In light of the financial information now provided to this Court and the other information before the Court at the time when the parties’ property orders were made by consent on 8 March 1996, paragraph (1)(iii) of the final orders sought by the wife in her application filed 15 August 2001 be summarily dismissed.”
This application by the husband was heard by Holden J on 12 September 2002. At an early stage in that hearing, leave was given to Counsel for the wife to amend paragraph 1(i) of her application filed 15 August 2001 to read as follows:
“1.That pursuant to Section 79A there be a finding that there has been a miscarriage of justice by reason of:
(i)Fraud and Suppression of Evidence and Any Other Circumstance
Representations by the husband by virtue of a document headed “Assets” provided by him or at his direction on or about 14 February 1996 which was materially false and misleading and upon which the wife relied to consent to orders to her detriment.
Particulars
(a)the husband misrepresented the net assets at or about $1,090,000.00 when in fact they were at or about $1,996,500.00;
(b)the husband misrepresented the true value of his superannuation, his share holdings, and the liability to the Bank of New Zealand;
such that overall the wife received less than 25% of the net value of the assets and not as represented by the husband in his calculations of the “Assets” schedule produced by him.
That the information about his financial position as presented by the husband at the conference in February 1996 was materially false and was presented to the wife with the intention that the wife and her advisors should rely upon it.”
On 8 November 2002, Holden J delivered reasons for judgment and made an order in the following terms:
“[That t]he relief sought in paragraph 1(i) of the wife’s application filed 15 August 2001 be dismissed.”
It is this order which the wife now seeks leave to appeal.
The scope of the wife’s proposed appeal
The grounds of appeal upon which the wife would rely in the event that she was granted leave to appeal, are as follows:
“That the learned Trial Judge having identified the correct test relating to applications for summary dismissal failed to properly apply that test to the facts of the case and of [sic] the argument and submissions presented to him and thereby erred in the exercise of his discretion.
Particulars
1.His Honour found that there was a substantial difference between the tax liability asserted by the husband and relevant entities and the actual liability but dismissed the wife’s contention that the discrepancy was real and sufficient to lead to a miscarriage of justice in circumstances where:
a.The proposition as to the husband’s knowledge of an extravagant taxation estimate was not inherently incredible.
b.The wife had not been able to obtain access to the 1996 and 1997 assessment notices for the husband and for the Beck Corporation (Australia) Pty Ltd or to notes and working papers in relation to 1996 and 1997 returns as a consequence of orders earlier made by Penny J limiting the ambit of subpoena (which orders were then the subject of an application for leave to appeal).
2.In respect of the wife’s assertions concerning husband’s non disclosure of his entire superannuation interests the learned Trial Judge found it to be inherently incredible that the husband would secrete superannuation belonging to the wife in circumstances where:
a.The evidence indicated he had in fact approached the wife about superannuation entitlements in her name post separation; and
b.The learned Trial Judge (Judgement [sic] para 46) misdirected himself by stating that it was not possible to make a finding that the husband suppressed evidence or otherwise misled the wife when the test on the application before him was whether the wife had an arguable case which was not so weak, shadowy or doomed to fail as to warrant determination on a summary basis.
3.His Honour did not properly address the contention of the wife that the husband’s wealth in 1998 was inconsistent with his financial position as put at time of settlement and his income and activities between settlement and mid 1998.
4.His Honour found that the wife had considerable knowledge of and involvement in the husband’s business activities (para 43) in circumstances where:
a.The wife had in these proceedings and in 1995 complained about a lack of knowledge of the husband’s post-separation financial activities; and
b.Post-separation and at the time of the settlement the husband had resided in Sydney and the wife in Perth.”
It will be seen that the wife does not challenge the manner in which Holden J identified the test to be applied in determining applications for summary dismissal. Rather, her complaints are limited to his Honour’s application of that test.
However, in order to determine whether there is substance in the wife’s complaints concerning his Honour’s application of the test for the summary dismissal of an application, it is necessary for us first to refer to that test.
The principles governing the summary dismissal of a s 79A application
In his reasons for judgment (after setting out the factual background to this matter largely in the terms which we have used above), Holden J identified the principles to be applied to the application before him in the following way:
“12.This application seeks to summarily dismiss the relief sought in order 1(i) of annexure A to the application of the wife filed 15 August 2001. That is, that there be a finding that there has been a miscarriage of justice by reason of fraud and suppression of evidence or any other circumstance. It is well established that the following principles apply: (see Bigg v Suzi (1998) FLC 92-799 at 84,973-84,974) and also Pelerman and Pelerman (2000) FLC 93-037 at 87,582)):
‘(a) The power for summary dismissal is a discretionary one.
(b)Relief “is rarely and sparingly provided”.
(c)The parties seeking summary dismissal must show that the application is “doomed to fail” or as has been otherwise described “that the opponent lacked a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.
(d)A weak case or one that is unlikely to succeed is not “sufficient to warrant termination”.
(e)“If there is a serious legal question to be determined, it should ordinarily be determined at a trial”.
(f)“If notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleadings”.’
13.In determining an application of this nature I accept that the rule to be extracted from the authority is that if a version of the facts put forward by the respondent is not inherently incredible, then in the absence of any opportunity for cross-examination it is incumbent upon the court to proceed on the basis that the respondent's version will ultimately be accepted at the trial of the action (see Webster v Lampard (1993) 177 CLR 598 at 608.”
Given that there is no challenge to his Honour’s formulation of the test for the summary dismissal of an application, it is unnecessary that we discuss the principles stated in the Full Court decisions of Bigg v Suzi and Pelerman v Pelerman (as set out by Holden J in paragraph 12 of his reasons for judgment).
However, given the nature of the wife’s complaints concerning his Honour’s application of the test, we consider it useful at this stage to set out the following passages from the joint judgment of Mason CJ, Dean and Dawson JJ in Webster v Lampard (to which Holden J referred in paragraph 13 of his reasons):
“It is important to note at the outset that the issue before the learned Master on the application for summary judgment was not whether Mr and Mrs Webster would probably succeed in their action against Sergeant Lampard. It was whether the material before the Master demonstrated that that action should not be permitted to go to trial in the ordinary way because it was apparent that it must fail. The power to order summary judgment must be exercised with "exceptional caution" (General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 CLR 125, at p.129.) and "should never be exercised unless it is clear that there is no real question to be tried" (Fancourt v. Mercantile Credits Ltd. (1983) 154 CLR 87, at p.99.). As Dixon J commented in Dey v. Victorian Railways Commissioners ((1949) 78 CLR 62, at p.91.):
“A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his (or her) case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”
Nowhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact. In such a case, it is essential that "great care ... be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his (or her) opportunity for the trial of his (or her) case by the appointed tribunal" (General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 CLR, at p.130; see, also, Church of Scientology v. Woodward (1982) 154 CLR 25, at p.31.). [602-603]
…
As has been said, it was incumbent on the Master, in the absence of any opportunity of cross-examination, to dispose of the case on the basis that the Websters' version of the facts, which was not inherently incredible, would ultimately be accepted on the trial of the action. [608]”
Further support for the proposition that an application for summary dismissal must be determined on the basis only of the material put forward by the respondent (to that application) is to be found in the passage from the judgment of Kirby J in Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 at 544-5 (which was quoted by the Full Court in its judgment in Bigg v Suzi) where his Honour said:
“…2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action (Munnings v Australian Government Solicitor (1994) 68 ALJR 196 at 171f, per Dawson J) or in advancing a claim that is clearly frivolous or vexatious; (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91.)”
Regard should also be had to paragraph 6.31 of the judgment in Bigg v Suzi where the Full Court referred to the fact that the wife, who was the applicant for the summary dismissal of a s 79A application by the husband, “had no right to adduce any evidence at that summary hearing to contradict the evidence of the husband or to seek to contradict any inference which it might be submitted should be drawn from that evidence.”
The application by Holden J of the principles governing summary dismissal
We turn now to consider his Honour’s application of the principles governing summary dismissal. Although it is clear that it is his Honour’s application of those principles that is the gravaman of the wife’s appeal, we have some difficulty in understanding the exact complaints encompassed in the four so-called “particulars” contained in the wife’s grounds of appeal.
However it was certainly clear from the oral submissions made on behalf of the wife that one of her chief complaints was that in determining the husband’s application for summary dismissal of her s 79A claim, his Honour relied on the husband’s material as well as her own material.
As to the wife’s material, it appears from the transcript and other material in the appeal book, that before his Honour the wife relied on:
· the application, filed 15 August 2001, initiating her s 79A application;
· the minute of further and better particulars, filed 10 October 2000;
· two affidavits sworn by her respectively on 20 December 2001and 12 August 2002;
· an affidavit of documents sworn by her on 5 February 2002; and
· three affidavits sworn by an accountant, Charlie Sam Napoli, on 27 May 2002, 12 August 2002 and 11 September 2002 respectively.
The wife’s initiating application (even as amended at the hearing before his Honour) and her statement of further and better particulars appear to do little more than allege a miscarriage of justice constituted by the husband having presented false information regarding his financial position with the intention that the wife should rely on it (apart of course from the allegations of duress and insufficient material to address the requirements of s 79(4), which allegations do not concern us). The wife’s affidavit of documents sworn 5 February 2002 does not advance an understanding of her claim.
Although her affidavits sworn 20 December 2001 and 12 August 2002 and those of her accountant, Mr Napoli, of 27 May 2002, 12 August 2002 and 11 September 2002 contain numerous allegations concerning the husband’s failure at the time of the conciliation conference and the consent orders to provide any information in some instances, or false information in other instances, about his financial position, it is not easy to gain an understanding of the wife’s case for relief under s 79A(1) from a reading of those affidavits and their annexures.
Having regard to the state of the wife’s material before his Honour, we find it hardly surprising that at the commencement of the hearing, his Honour pressed Counsel for the wife to identify his “best shot” or “shots”.
It is convenient to mention at this point that from the exchange which followed between his Honour and Counsel for the wife, it emerges that the three major areas, which were the subject of the wife’s complaints about the husband’s disclosure at the time of the conciliation conference and the consent orders, were the husband’s future tax liabilities, the parties’ superannuation entitlements, and the application of the proceeds of sale of a property at 44 Kings Park Road. His Honour recorded the wife’s case in the following terms, the accuracy of which we do not understand the wife to have challenged:
“22The wife asserts that there were a considerable number of discrepancies between the estimate given by the husband at the time of the conciliation conference and the true position at that time. It is said that they consist of three major discrepancies and a number of minor ones. It is conceded that some of the minor ones favour the wife. The three major areas of complaint are as follows:
(i)An inaccurate estimation of future tax to be paid by the husband;
(ii)What are said to be unsatisfactory estimations concerning his superannuation; and
(iii)The application of the proceeds of sale of a property at 44 Kings Park Road.”
But whatever the state of the wife’s material, it is clear from the authorities to which we earlier referred (being Webster v Lampard, Lindon v The Commonwealth and, although perhaps indirectly, Bigg v Suzi), that it was on the basis of the wife’s material alone that his Honour should have determined the husband’s application for summary dismissal of the wife’s s 79A application.
However, it is clear from the transcript that his Honour also had before him at the hearing a list of affidavits on which the husband sought to rely. That list of affidavits read as follows:
“
Deponent
Date sworn
Present proceedings:
1. Husband 28 March 2002 2. Husband 2 September 2002 3. Anna Beck 23 July 2002 4. Thomas Hyde Page 3 April 2002 5. Jennifer Low 2 September 2002 Previous proceedings:
6. Wife 3 November 1995 7. Wife (Affid. of Financial Circums.) 2 November 1995 8. Wife (Form 7) 3 November 1995 9. Wife (Affid. of Documents) 14 February 1996”
Further, the written submissions on behalf of the husband, which were before his Honour, directed his attention to the husband’s affidavit sworn 28 March 2002 (see for example, paragraphs 8, 9, 10, 17, 20, 22 and 26 of the submissions) and also to his affidavit sworn 2 September 2002 (paragraphs 18 and 20 of the submissions). Moreover, the transcript reveals that at an early stage in his oral submissions, Counsel for the husband directed his Honour’s attention to the list of affidavits on which the husband relied, and also to the fact that he would “be making frequent references” to the exhibits to the husband’s affidavit of 28 March 2002. The transcript also reveals that Counsel for the husband then proceeded to refer his Honour to certain parts of, or annexures to, affidavits of the husband or of his witnesses.
While the exact extent to which his Honour ultimately relied on the husband’s affidavit material in his determination that the wife’s s 79A application should be summarily dismissed, is not entirely clear, nevertheless there are a number of references in his judgment to the husband’s material. These references (which we need to quote in this context) are as follows (with emphasis added):
“33In the document entitled "Assets" the husband disclosed that he had superannuation to a value of $550,000. He brought it into account at $420,000 by discounting it, using a rate of 8% and that is the basis on which the parties negotiated.
34The wife now alleges one of two things, namely:
(a)at the time the husband's superannuation may have in fact been $1,000,000; or
(b)there was a separate superannuation fund in her name which the husband did not disclose and which could have been worth $325,000.
35In support of her allegations the wife relies upon the following evidence:
(a)a document handwritten by the husband entitled "Joint Asset and Liability Statement RP & DB Beck 20/9/94"…
(b)the fact that on 26 February 1997 a firm known as Lambda Consulting wrote to the husband …
(c)the fact that she discovered a document (which has not been produced) describing the fund as having two members …
36The contrary evidence consists of:
(a)the husband's denial that the wife ever was a member of the Beck Superannuation Fund. This is supported by the financial statement for that fund;
(b)a letter from Lambda Consulting confirming that the purpose of the exercise was to facilitate a divorce settlement and the reference to two members of the fund was an error; and
(c)the husband's evidence established as best he can by documentary evidence, given the passage of time that at one time he had term insurance connected to his superannuation.
37It has to be the case that the wife is alleging either that she did not know the amount of the husband's superannuation at the time of the conciliation conference or that she had superannuation entitlements of her own about which she had no knowledge and which the husband did not disclose.
38This is not a case in which the wife had little or no knowledge of her husband's financial affairs. In fact, the evidence suggests quite the contrary.
39In her initiating application, filed on 7 November 1995, the wife alleged that she provided support and assistance to the husband in his business dealings. This included:
(a)giving the husband her counsel and support; and
(b)conducting the parties' finances and attending to payment of accounts, banking and managing their income and expenditure, liaising with their accountants and keeping books of account.
40In her affidavit in support of that application she said:
"8.During the marriage and since separation I have been the party who has attended to paying bills and handling the money. I am concerned that if my husband were forced to attend to these matters he would not properly do so."
41The husband points to other evidence of the wife's involvement in his business activities, some examples of which are:
(a)the list of creditors prepared by the wife of various amounts the husband owed to his creditors on 31 January 1996 (Exhibit 31 to his affidavit filed 28 March 2002);
(b)the schedules prepared by the wife to enable the parties' accountants to prepare tax returns for the 1995 financial year (Exhibit 44); and
(c)letters sent to the wife by the parties' accountants in 1995 and 1996 seeking information from her on financial matters about the husband and his entities (Exhibit 37). One of those letters is dated 18 April 1996 and on that letter are manuscript notations in the wife's handwriting providing the information requested by the accountant.
…
44.Notwithstanding the extensive enquiries she has made she has not been able to produce one shred of hard evidence that would indicate that the husband had more superannuation than he declared or that he was secreting superannuation to which the wife was entitled.
…
45.There is another aspect to this matter. As I have already indicated, the wife had a considerable involvement with the husband's business activities and his financial affairs. The inference is clear that she knew the extent of the husband's superannuation at the time of the conciliation conference. That, presumably, is how she was able to depose in paragraph 43 of her affidavit filed 7 November 1995, that "my husband has a self managed superannuation fund with Colonial of approximately $550,000".
46Finally, on this issue, it is, in my view, inherently incredible that the husband would secrete superannuation belonging to the wife when he knew, or must have known, that the only way he could access it in the future would be with the wife's co-operation. I am satisfied that on the evidence available to me it is not possible to make a finding that the husband suppressed evidence or otherwise misled the wife.
…
47In her affidavit filed 12 August 2002 the wife says:
"16.We sold a property in 44 Kings Park Road, West Perth which was a commercial property. This property was sold in about 1991 or 1992. The husband netted approximately $500,000 from the sale of that property, being payment for his interest in that property which was held by him with other parties. I do not know where that money went and there is no record given by the husband or any accounting made by the husband for the expenditure of those moneys either during our marriage or during the period of separation leading up to the property settlement agreed in February 1996."
48I accept on the evidence that there is some uncertainty as to whether the interest in this property was disposed of in 1986 or 1989. A resolution of that issue is irrelevant to these proceedings. The fact is, the interest was disposed of, even on the wife's case, at least five years before the conciliation conference.
49In his written submissions, counsel for the wife refers to the affidavit of the husband filed 3 September 2002 and the exhibits attached thereto and submits:
"37.This material does not support the contentions of the husband as to value (see consideration panel of transfer) and lends support to the recollection of the wife as to date."
50A re-reading of the husband's affidavit does not lead me to conclude that he made any contention as to value.
51He goes on to say:
"38.The wife's submission is that if given the opportunity to conduct her case in the usual way and of access to material produced on subpoena for documents created after 30th June 1996 then she will be able to satisfactorily establish to a Trial Judge that the orders made in March 1996 should be set aside and a fresh settlement fashioned by the Court."
52In my view, this is a meaningless submission. The wife does not say that she only learned of the Kings Park Road transaction after the settlement. It would appear that she was at all times aware of the transaction and that it played no part in the negotiations leading up to the consent orders being made, it having taken place many years before. The wife produces no evidence that would indicate that the husband has suppressed evidence or otherwise misled her over this matter.
…
53The next matter raised by counsel for the wife in his written submission relates to a bank passbook. This is an account with St George Bank A/C 035 519 232. In his affidavit filed 12 August 2002, Mr Napoli says:
"8.… On 11 March 1994 he deposited $238,953 and on 16 March 1994 he closed the account by withdrawing the balance of $148,798.08. I do not know how these funds were used. …"
He goes on to say:
"9.Around 20 July 1994 the husband received $130,000 upon the liquidation of Shipston Pty Ltd."
54The complaint is that the husband does not produce documents as to what happened with these moneys and/or gives inadequate explanations. Frankly, I am surprised that the husband took the trouble of giving any explanation at all. These are transactions that happened approximately eight years ago. Furthermore, they were transactions that took place approximately two years before the parties entered into their consensual arrangement. The reality is that the wife produces no evidence that the husband had any sum of money which he did not disclose at the time of the conciliation conference.
…
55The final complaint relates to the deposit on the sale of the Sydney property. At the conciliation conference the husband indicated a sum of $115,000 as being the deposit from the sale of the Sydney property which was to be applied towards the reduction of mortgages. The submission is that he should have been well aware that the deposit was in fact $126,068.93 as shown in Exhibit 35 of his own affidavit, sworn 28 March 2002.
56The husband concedes that this was an error. In my view, the discrepancy was irrelevant as it is beyond doubt that the entire amount was used to reduce the parties' indebtedness to the Commonwealth Bank. Even if the discrepancy had been relevant, it is de minimis and would not support a s 79A application.”
It will be recalled that “particulars” 2 and 4 contained in the wife’s proposed grounds of appeal challenge his Honour’s conclusions in relation to the wife’s assertions concerning the non disclosure by the husband of the parties’ superannuation interests and also concerning the wife’s involvement in the husband’s business activities. It will be seen from the above quoted passages from his Honour’s judgment that in reaching his conclusions regarding both these matters his Honour erroneously had regard to material from the husband as well as from the wife. (It should be noted that neither party was cross-examined on the other’s material).
In these circumstances and having regard to the strong authority for the proposition that it is only the respondent’s material to which regard should be had in the determination of an application for summary dismissal, we do not consider that we can allow his Honour’s judgment to stand.
While it might in theory have been possible for us to have substituted our own decision for that of his Honour based on the wife’s material alone (and indeed we understood both Counsel to submit that we should do), we do not consider this is a safe or desirable course given the knowledge that we now have of the husband’s material. Accordingly, we consider that we must remit the matter for re-determination by a single Judge.
We appreciate that this is a most unfortunate result for the parties although we note that other aspects of the wife’s s 79A claim apparently still await determination. Presumably all aspects of her claim can now be determined in a single hearing.
In conclusion, we would emphasize that in our view his Honour was led into the error of relying on the husband’s material by the written and oral submissions made on behalf of both parties.
Conclusion in relation to application for leave to appeal No 8L WA
This matter has come to us by way of an application for leave to appeal the order made by Holden J on 8 November 2002. There may well be a question as to whether leave is in fact needed to appeal that order. However, given that neither party questioned the need for leave, we propose to proceed on the basis that leave is needed.
Because we consider that the use of the husband’s material constituted a significant error of principle, we would grant leave and, as we have previous foreshadowed, allow the appeal and remit the husband’s application for summary dismissal for re-hearing.
APPLICATION FOR LEAVE TO APPEAL NO. WA 3 L
At the time when we heard the application for leave to appeal the order made by Holden J on 8 November 2002, there was also listed before us for hearing an application by the wife for leave to appeal orders made by Penney J on 7 June 2002 in relation to various subpoenae issued by the wife.
However, we were ultimately informed by Counsel for the wife that he did not wish to argue this application for leave. Accordingly, we will make an order dismissing that application, noting that it was not pursued.
Costs
As both parties asked that the matter of costs of the applications for leave to appeal the orders of 7 June 2002 and 8 November 2002 be the subject of written submissions, we propose making appropriate directions for the filing of such submissions.
ORDERS
That the application for leave to appeal the orders made by the Honourable Justice Penny on 7 June 2002 be dismissed.
It is noted in connection with this order that no submissions were put in support of the application for leave to appeal.
That leave to appeal the order made by the Honourable Justice Holden on 8 November 2002 be granted (to the extent that such leave is required).
That the appeal against the order made the Honourable Justice Holden on 8 November 2002 be allowed.
That the order made by the Honourable Justice Holden on 8 November 2002 be set aside.
That the application of the husband (filed 19 March 2002) for the summary dismissal of the application filed by the wife on 15 August 2001 be remitted for re-hearing.
(6)(a)That each party be at liberty to file and serve any written submissions in relation to the costs of the applications for leave to appeal the orders of 7 June 2002 and the order of 8 November 2002within 28 days of the date hereof.
(b)That each party have a further 21 days in which to file and serve any written submissions in answer to any submissions filed by the other party.
(c) That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.
I certify that the preceding 42 paragraphs
are a true copy of the reasons for judgment
of this Honourable Full Court
Associate
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