Belby and Towler

[2009] FMCAfam 869

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BELBY & TOWLER [2009] FMCAfam 869

FAMILY LAW – Property – superannuation – application under s.79A – lack of jurisdiction in Family Court to make consent orders – exercise of discretion – use of s.79A compared with appeal.

Family Law Act1975 ss.4, 79, 79A, 79A (1)(a), 19A (1)(b), 90MU, 90MZB
Superannuation Act 1990, ss.3, 41

Arthurman & Arthurman (2008) 222 FLR 104; (2008) 40 Fam LR 512; (2008) FLC ¶93-389
CDJ v VAJ (No 1) (1998) 197 CLR 172; (1998) 157 CLR 686; (1998) 72 ALJR 1548
C & C (2005) 193 FLR 9; (2005) 33 FamLR 414; (2005) FLC ¶93-220
Gabel & Yardley (2008) 221 FLR 270; (2008) 40 Fam LR 66
In the Marriage of Gebert (1990) 99 FLR 147; (1990) 14 Fam LR 62; (1990) FLC ¶92-137
Gilbert and Estate of Gilbert (1989) 98 FLR 68; (1990) 13 Fam LR 632; (1990) FLC ¶92-125
Gitane & Velacruz (2008) 39 Fam LR 460
In the Marriage of Harris v Caladine (1991) 172 CLR 84; (1991) 99 ALR 193; (1991) 65 ALJR 280
In the Marriage of Hickey (2003) 30 Fam LR 355; (2003) FLC ¶93-143
In the Marriage of Holland (1982) 8 Fam LR 233; (1982) FLC ¶91-243
de Lasala v de Lasala [1980] AC 546; [1979] 2 All ER 1146
M & M (2006) 203 FLR 122; (2008) 37 Fam LR 150; (2006) FLC ¶93-281
In the Marriage of Oastler (1989) 108 FLR 276; (1989) 16 Fam LR 674; (1993) FLC ¶92-390
In the Marriage of Patching (1995) 18 Fam LR 675; (1995) FLC ¶92-585
In the Marriage of Pelerman (2000) 26 Fam LR 505; (2000) FLC 93-037
Semmens v Commonwealth (1989) 99 FLR 294; (1989) 13 Fam LR 715; (1990) FLC ¶92-116
In the Marriage of Simpson (1982) 8 Fam LR 467
Smith & Smith (1984) FLC ¶91-512
Sommerville and Sommerville (1999) 27 Fam LR 233; (2000) FLC 93-042
W and W [2006] FamCA 209
West & Green (1991) 114 FLR 74; (1991) 16 Fam LR 811; (1993) FLC ¶92-395

Applicant: MS BELBY

Respondent: MR TOWLER

File Number: CAC 1484 of 2008

Judgment of: Neville FM

Hearing date: 18 May 2009

Date of Last Submission: 16 June 2009

Delivered at: Canberra

Delivered on: 27 August 2009

REPRESENTATION

Counsel for the Applicant: Mr Brzostowski, SC

Solicitors for the Applicant: Mazengarb Barralet Family Lawyers

Counsel for the Respondent: Mr Millar

Solicitors for the Respondent: Certus Law

ORDERS

1. THAT both parties are to file and serve written submissions within

   
   

   21 days in relation to the future conduct of this matter.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRRA

CAC 1484 of 2008

MS BELBY

Applicant

And

MR TOWLER

Respondent

REASONS FOR JUDGMENT

A.       Introduction

1. This matter, which has, in a number of respects, meandered somewhat, concerns an application pursuant to s.79A of the Family Law Act1975 (“the Act”). It arises out of the interpretation and application of particular terms contained in Consent Orders (“the Consent Orders”) that are dated 7^th November 2000, and which were filed in the Family Court of Australia.

2. The original application, which was filed on 17^th September 2008, only sought injunctive relief to restrain the Respondent from dealing with his Public Sector Superannuation Scheme (“PSS”) until such time as he had paid out the Applicant in accordance with Order 6 of the Consent Orders to which I have already referred. 

3. That application also sought injunctive relief against the Trustee of the PSS until Order 6 of the Consent Orders had been complied with.

4. An Amended Application was filed on 24^th February 2009, which sought rather more amplified orders, including the previously sought injunctions as well as relief (in the alternative) under s.79A(1)(a) and/or under s.79A(1)(b). Pursuant to one or both of those sections, the Applicant seeks that Order 7 of the Consent Orders be discharged.

5. The ground upon which the Applicant seeks relief is because [it is submitted] the Family Court, at the time the orders were made, did not have jurisdiction to make the orders. This argument is predicated upon the fact that, in 2000, Part VIIIB of the Act had not [yet] been enacted. Therefore, so the argument runs, the Court had no jurisdiction to make the orders contained in the Consent Orders. In 2000, superannuation was not “property”, stricto sensu, under s.79 of the Act, and having regard to the definition of it in s.4.[1] Therefore, no order under s.79 could be made. Any orders made in such circumstances are, it is submitted, voidable and unenforceable.

   [1] It is important to note but otherwise unnecessary here to enter the discussion dealt with at some length by the Full Court in C & C (2005) FLC ¶93-220 about the appropriate means or manner of dealing with or treating superannuation under Part VIIIB of the Act.

6. It was further argued that, in any event, the relevant Consent Orders are [so] ambiguous as to render them at least unworkable if not unenforceable.

7. A third and related issue, which was likely to arise on any version of events and whatever the orders sought, was whether the matter should have proceeded by way of an appeal of the 2000 Consent Orders, or by way of an application under s.79A.

8. The Respondent argued that the most appropriate course was for the Applicant to seek leave to appeal rather than to proceed with the s.79A application. I will deal with this procedural aspect first before considering the grounds of the application proper. Before doing anything, however, for ease of reference, I set out s.79A(1)(a) and s.79A(1)(b).

   (1)  Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, 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

   (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;

B.            Procedural Issues: Appeal or s.79A Application

1. There have been a number of recent Full Court decisions that have addressed the question of whether an appeal should proceed before considering any s.79A application. The two cases I have in mind are Gitane & Velacruz (Bryant CJ, Warnick & Boland JJ) and Arthurman & Arthurman (Boland, Thackray & O’Ryan JJ).[2]  Unsurprisingly, in both cases, the Full Court followed earlier authority.  For current purposes, it is sufficient to note the following.

   [2] Respectively (2008) 39 Fam LR 460, and (2008) FLC ¶93-389. More generally, see also the general discussion in Gabel v Yardley (2008) 221 FLR 270; (2008) 40 Fam LR 66.

2. First, in the earlier decisions in Oastler and Patching,[3] the Full Court opined that, procedurally, it would be preferable if there was no splitting of any s.79A application. For example, in Oastler, the Full Court (Strauss, Baker & Mullane JJ) said that s.79A “strongly suggests that there should be one proceeding only in which the proceedings to vary or set aside the order and if appropriate, to make another order, should be disposed of.” The Court went on to note that “there was every reason to determine all the issues which were raised by the application under s.79A and which included the final disposition of the property proceedings.”[4]

   [3] Respectively, (1989) 16 Fam LR 674, and (1995) 18 Fam LR 675.

   [4] 16 Fam LR at pp.676 and 677.

3. More recently in Gitane & Velacruz, the Court said, at [13]:

   We opine that an application under s 79A(1A) involves an examination of whether the ground – a consent – is made out – the first step – and then, a consideration of all other matters that bear upon the question of whether to vary or set aside - the second and final step.  However, an alternative view is that, after making the decision to vary or set aside, the court must decide how to vary, or, if setting aside, what, if any, new s 79 order to make.  Our own view is that all the discretionary factors, including how to vary, if at all, or what new order to make, if any, after setting aside the initial order, can be considered in the one step.  Otherwise one could encounter the oddity of a decision to vary (based on some discretionary factors) followed by an ultimate conclusion not to vary (based on other discretionary factors).

4. A little later in the same judgment, the Court went on to say, at [17]:

   … we do not think it would be correct to say that there is even a prima facie entitlement to have the consent orders set aside once a miscarriage of justice has been established, because to do so would be to limit the discretion of a court and to place an onus on the respondent to show circumstances why the order should not be made.  The better view, in our opinion, is that an applicant for an order under s 79A (1) bears the onus of satisfying the court that the original orders should be set aside or varied, and that includes the onus of satisfying a court not just that there has been a “miscarriage of justice” but also that the appropriate exercise of the discretion is to so order.

5. One of course must be mindful that the Full Court in Gitane was dealing specifically with s.79A(1A), which is not in play in these proceedings. However, the general procedural principles outlined by the Full Court ought to be noted at least.

6. In the even more recent decision in Arthurman, the Full Court preferred the observations of Finn J (with whom Warnick & May JJ agreed) in W and W,[5] where her Honour was considering the utility (and obviously much else) of proceeding with a s.79A application at the same time that an appeal that was on foot. There was also before the Court an application to adduce further evidence. Finn J referred to and quoted from the High Court in CDJ v VAJ.[6] As quoted by Finn J, the High Court said, at 197 CLR 172 [111] and [119]:

   … Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial.  Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.

   … Applications for a variation of an order, rather than resort to s 93A (2) [that is of course, the statutory provision under which applications to adduce further evidence before this Full Court are bought], will generally be the preferred mode of procedure even where there has been a change of circumstances between the making of the order and the hearing of any appeal.

   [5] [2006] FamCA 260. Respectfully, this seems to be an incorrect citation; it should be [2006] FamCA 209.

   [6] (1998) 197 CLR 172.

7. Having regard to the observations of the Full Court in the cases to which I have just referred, in my view, the s.79A application should proceed. This should take place over any suggestion that the better or more appropriate course would be to seek leave to appeal. That submission or suggestion could be answered by asking the question (somewhat rhetorically): what would be the subject of an appeal? There are only, and could only be, the Consent Orders before the Court and some affidavit material. A Full Court would be faced with issues of “evidence”, somewhat similar to those faced by the Full Court in Arthurman. As well, the Full Court would not have the benefit of any findings from any first instance determination. In short, the most appropriate course is pursuant to s.79A rather than by way of appeal.

8. As to the conduct of the s.79A application, noting again that these proceedings began life seeking injunctive relief to which s.79A was added later, the Applicant filed detailed written submissions before the hearing, and amended written submissions on the day thereof. Those submissions addressed all of the “steps” proposed by reference to extensive judicial authority. I interpolate here that there is some difference as to how many steps are involved in s.79A applications. The Full Court in Patching referred to “four steps”.[7]  In Gitane, as I have already observed, the Court there referred to the `preferred’ course of there being “one hearing” while not ruling out circumstances where the parties may wish to adopt a “two-step” or split hearing approach.  It is unnecessary to repeat the concerns expressed by the Full Court about that latter approach, or to distinguish between the procedural two-steps in Gitane and the four steps in Patching, some of which are procedural and others that clearly are not.

   [7] (1995) 18 Fam LR at p.677 [35] – [50].

9. In the current proceedings, Mr Millar indicated to the Court that he had assumed that the Court would take the split hearing approach, and this notwithstanding that Mr Brzostowski SC had filed written submissions, covering `all bases,’ so to speak, five days before the hearing.  Having regard to (a) the range of cases to which I have referred above, which clearly indicate the preference for a single hearing, (b) the filing of detailed submissions by the Applicant a reasonable period prior to the hearing, and that (c) there was no prior notice to the Applicant or the Court about the “preference” of the Respondent to conduct the hearing on a “split basis”, I confess to some disappointment, primarily for the parties, in being essentially forced to conduct two separate hearings in relation to the same issue(s).  Even leaving aside questions of costs (which should not be ignored given that, presumably, there will [now] be more than one hearing.  This is more so a cause of concern having regard to what follows.

10. A few weeks after the hearing my Associate contacted the lawyers for the parties indicating that, because the case had been conducted on the basis of it being a “split hearing”, to avoid difficulties in finding mutually agreeable dates with counsel, on the one had, and the very significant burden in finding available dates and times in this Court’s busy calendar, as well as in an effort to avoid further costs, I was prepared to deal with the subsequent “steps” by way of written submissions. This course was acceptable to the Applicant. This was hardly surprising given that Senior Counsel had already prepared detailed written submissions which covered all eventualities, as I have already noted. The course offered by the Court was not acceptable to the Respondent because of the view taken that evidence and submissions would only be required if I formed the view, according to s.79A, that there had been a miscarriage of justice, and that otherwise there were no discretionary reasons against the application of the section. The Court can only offer assistance; it cannot force parties to accept it.

C.       The Consent Orders & Background Facts

1. Orders 6 and 7 of the Consent Orders of 7^th November 2000 provide as follows:

   [Order] 6.The husband do all acts and things to ensure the wife receives the following benefit form [sic] his Public Sector Superannuation entitlements or any subsequent superannuation scheme into which the husband’s Public Sector Superannuation entitlements have been transferred (“the superannuation scheme”):

   [A     x       C]  x 55%  =  Benefit to wife

   B

   Where:A  =  13 years

   B=  the total years of membership by the husband in the superannuation scheme at the time of exit.

   C=  the net benefit payable to the husband after taxation and any fees and costs, if he elected to receive the maximum lump sum upon his exit from the superannuation scheme.

   [Order] 7.For the purposes of the payment of the benefit to the wife pursuant to paragraph 6 above:

   (a)within 30 days the husband shall provide the superannuation scheme with a copy of these Orders and his authority to effect the payment of the benefit to the wife pursuant to paragraph 6 above;

   (b)the husband provide the wife with copies of annual benefit statements from the superannuation scheme within 14 days of receipt by him;

   (c)the husband provide the wife with [sic] 21 [sic] written notice of his intention to cease full time employment from the Public Service and to exit from the superannuation scheme;[8]

   (d)save for the amount payable to the wife pursuant to paragraph 6 above, the husband otherwise be at liberty to commute or covert [sic] his superannuation benefit entitlements to a pension; and

   [8] Obviously the correct wording of this order should read: “the husband provide the wife within 21 days written notice of his intention to cease full time employment from the Public Service and to exit from the superannuation scheme.”  Likewise, in the following order, “covert” should read “convert.”

   (e)these Orders shall be binding upon the parties’ estates.

2. Leaving aside the number of obvious typographical and other errors on the face of the orders to which I have referred to in footnotes, the arguments of the parties, and relevant background facts may be summarised as follows.

3. First, on a number of occasions, the solicitors who act for the Applicant have written to the Public Sector Superannuation Scheme (“the PSS”), most recently on 9^th October 2008.  Those letters, which are before the Court as annexures to various affidavits by the Applicant, and by her solicitor, purport to do a number of things:[9] (a) they confirm to the PSS that there are proceedings before this Court in relation to the Consent Orders (copies of the Consent orders and the Application and affidavit of the Applicant sworn 10^th September 2008 have all been provided to the PSS); and (b) they also seek to confirm the position of the PSS in relation to the Consent Orders and the likely impact on the Applicant.

   [9] There is also some correspondence to the PSS annexed to the respondent’s affidavit, which was affirmed on 13^th October 2008.

4. The earliest of this correspondence that is before the Court is a letter from Mr B of the Family Law Unit of the PSS addressed to the Applicant (then known as [Ms Towler]), dated 9^th October 2006.  This is annexure B to Ms Belby’s affidavit sworn 10^th September 2008.  The advice in that letter is consistent with that which is contained in later correspondence, also attached to Ms Belby’s affidavit.[10]

   [10] See Annexure C (letter from Mr B to Ms Belby’s solicitor, Mr Mazengarb, dated 19^th October 2006) and Annexure E (letter from Mr M to Mr Mazengarb, dated 1^st September 2008).

5. The letters from the PSS to which I have referred confirm the following: (a) notwithstanding order 7(c) and the requirement on the husband to provide notice, until the Applicant had done so, the PSS had not received a copy, or any notice, of the Consent Orders until late 2006; (b) the Consent Orders were not binding on the Trustee of the PSS; (c) in the event that the Member (the Respondent) lodged a benefit application, the PSS’s obligation would be to the member and would not have regard to any orders on file; (d) the Consent Orders contained no “flagging” provision, which would not, in any event, prevent payment being made to the Respondent. 

6. The same correspondence “advised” that a “flagging order” under s.90MU of the Act might or should be sought, and or otherwise that new orders be sought (or “updated”) under Part VIIIB of the Act. Finally, the PSS advised that no statements regarding the Respondent’s superannuation could be provided, although certain superannuation information could be sought pursuant to s.90MZB of the Act.

7. For the sake of completeness I should note two things in relation to the PSS.  First, by letter dated 24^th October 2008 the PSS indicated that the Trustee of the PSS did not object to being the subject of injunction to restrain any distribution of Mr Towler’s interest until his obligations under Order 6 had been satisfied.

1. Secondly, by letter dated 1^st September 2008, the PSS confirmed advice it had received from the Attorney-General’s Department that any authority which authorised the Trustee of the PSS to pay a third party (such as Ms Belby) part of a member’s benefit was, in fact, an assignment of that member’s benefit.[11] Under s.41 of the Superannuation Act 1990, it is statutorily prohibited from assigning any pension or benefit that is payable under its Rules.

   [11] See Annexure B to Mr Mazengarb’s affidavit dated, and filed on, 3^rd November 2008.

2. The final thing to note about correspondence before the Court is that the Applicant’s solicitors wrote to the respondent on 26^th October 2008 advising of the intention to seek injunctive relief against the trustee of PSS.[12]  There is a curiosity – and perhaps more – in that letter.  It seeks the Respondent’s consent to the course of action proposed.  I confess to some difficulty in immediately seeing what difference the consent of a member of a superannuation fund might make to an injunction being sought or granted in relation to that fund.  At least in terms of the generality of the letter, there are problems.  It might simply be that the letter was couched in such wide terms that caused my disquiet.  Presumably what was sought was the Respondent’s agreement to his account with the fund being injuncted, rather than injuncting the whole Fund itself.

   [12] See Annexure F to the Applicant’s affidavit sworn 10^th, and filed on 17^th, September 2008.

3. For his part, Mr Towler contended that he had telephoned the administrator of PSS in November 2000 who, he alleges, advised him that there was no need to send a copy of the Orders because he would not be retiring any time soon.[13]

   [13] See Mr Towler’s affidavit affirmed 13^th , and filed on, 14^th October 2008, par.6.

4. Following him obtaining legal advice in October 2006, Mr Towler sent a copy of the Orders to the PSS on 9^th November 2006.  He confirmed that he received written advice from the PSS stating that the Fund was not bound by the Consent Orders.

5. On 21^st November 2006, Mr Towler wrote to the Applicant’s solicitor and enclosed copies of his PSS member statements since 2001.  A further statement was forwarded on 19^th February 2007.  Further statements for 2007 and 2008 have been promised.

6. Mr Towler contends that he will give the agreed notice of 21 days of his intention to retire, and that otherwise he intends to comply with the Consent Orders. Accordingly he seeks that the application be dismissed.

7. Two further, final factual matters should be noted.  First, by faxed letter dated 6^th November 2000 from Mr Towler’s [then] solicitors to the Applicant’s [then] solicitors, further information was provided regarding Mr Towler’s superannuation interests.  Those interests, not previously disclosed, related to him becoming a member of the [O] Superannuation Fund in January 1994.  At the time of this letter being sent, there had been a conciliation conference (held on 4^th September 2000) and another such conference was scheduled for 7^th November 2000.

8. In her affidavit filed on 24^th February 2009, to which the faxed letter of 6 November 2000 is annexed (“D”), the Applicant deposes (at par.10) to never having seen this letter until a copy of it was faxed to her current solicitors on or about 5^th January 2009.

9. Secondly, in this same affidavit, the Applicant deposes to a telephone conversation between the parties’ solicitors on 30^th October 2008.  The substance of that conversation, as set out in her affidavit, related to different interpretations of Order 6.  According to the Applicant, the Respondent’s solicitor confirmed that there was a dispute between the respective camps about the interpretation of Order 6. Ms Belby annexes (“A”) to her affidavit a copy of her solicitor’s letter to

   
   

   Mr Towler’s solicitor, dated 3^rd November 2008, which outlines the respective positions.  Ms Belby contends, and it seems not to be challenged, that there has never been a reply to that letter.

10. From the Applicant’s perspective, the interpretation advanced by the Respondent will significantly diminish her entitlement under that Order.  As contended in Mr Mazengarb’s letter to Mr U [sic] of 3^rd November 2008, the Respondent contends that Order 6 embraces or “picks up” the Respondent’s earlier [O] superannuation.  This is so, it is contended, notwithstanding the definition of superannuation set out in Order 6 of the Consent Orders.

D.           Submissions

1. The arguments of each of the parties, summarily stated, are as follows. They might also conveniently be seen through the procedural prism suggested by Counsel for the Respondent, Mr Millar, regarding the options open to the Court. At the end of his submissions, he contended that there were three options available to the Court: (a) dismiss the s.79A application; (b) find that there had been a miscarriage of justice but, on discretionary grounds, still dismiss the application; or (c) find that there had been a miscarriage of justice, that there are no discretionary grounds to dismiss the application, and therefore, the matter should proceed “in the usual way” to a conciliation conference and, in the event that the matter was not resolved at that stage, it would proceed to a final hearing.

2. I accept this succinct procedural overview of Mr Millar.

3. Applicant’s Submissions: The Applicant’s submissions were framed by two questions: `was the order within the jurisdiction of the Family Court, and therefore “valid” for all purposes?’, or `was it an order made outside the Court’s jurisdiction?’  If the latter, it remains an order of the Court albeit a voidable one.  It remains voidable until set aside.  The preferred position of the Applicant is that the latter is correct; that is,  the orders were made without the Court having jurisdiction. 

4. Thus, in her submission, in 2000 the Family Court did not have jurisdiction to deal with or make orders of the kind the subject of these proceedings. They were and remain voidable and should be set aside under s.79A. Extensive written submissions were provided in support of this basic submission. I will not traverse in detail, and certainly not exhaustively, each of the cases cited in support of, each of the “six principal problems” identified with Order 6 of the Consent Orders. I will simply summarise the import of them. As well, the arguments, to a significant degree, significantly overlap.

5. As well, some are consequential, while others are substantive. For example, the argument that the relevant order is voidable is a consequence of finding that it was made beyond jurisdiction. To so argue is to rely upon a consequence of a separate submission. This is also to say that a “consequence” is not a “stand alone” argument.  It only has force or relevance if other grounds establish the truth of that submission.

6. First, to the extent that the Consent Orders seek to effect a “split” of future superannuation, and that they do so prior to the enactment of Part VIIIB of the Act, the relevant order (Order 6) was and remains beyond the jurisdiction of the Court. This is argued in

   
   

   Mr Brzostowski’s first and third “principal problems.” 

7. He contends also that to endeavour to effect a “split” before the commencement of Part VIIIB is contrary to the authority of the

   
   

   Full Court in M & M.[14]  For the reasons that follow I do not need to make any formal ruling on such a proposition, although if pressed, I would be more likely than not to say that the Full Court decision is rather more nuanced than the blunt proposition proposed on behalf of the Applicant.  I do not read the Full Court as saying precisely what

   
   

   Mr Brzostowski says it said.  Rather, the Full Court, at [113] through to [123], indicates the position before the enactment of Part VIIIB and the problems, including the inaptness, associated with the continued use of or reference to the “formula approach” in West & Green.[15]

   [14] (2008) 37 Fam LR 150; (2006) FLC ¶93-281.

   [15] (1991) 16 Fam LR 811.

8. A further contention by the Applicant was that superannuation, in any event, is not “property” under s.4 of the Act.

9. Thirdly, according to the definition in Order 6, and in the light of s.3 of the Superannuation Act1990, the entitlements under the orders can only refer to the PSS entitlements and not to the [O] superannuation.  Thus, the Consent Orders do not, and cannot, embrace the earlier superannuation interests of the Respondent.

10. Respondent’s Submissions: The written submissions (in particular) for the Respondent had (typically) an elegant simplicity about them.  To some of them I have already adverted. 

11. For example, again by way of summary, Mr Millar submitted that (a) ambiguity in orders was not, nor should it be, a ground for activating s.79A; (b) rightly, the orders do not purport to bind the trustee because the orders were and are intended to be binding only on the parties. As well, there is evidence before the Court that the Respondent intends to comply with the Consent Orders.

12. Fourthly, the Consent Orders do not purport to deal with “property.”  Rather, they seek to provide for obligations on the husband when he received his entitlement(s) under his superannuation.

13. Fifthly, Mr Millar contends that the appropriate course for the Applicant to have taken where there is the assertion of an error of law (i.e. the lack of jurisdiction point) was/is to appeal rather than to agitate the matter under s.79A. From what has been said earlier, in the light of very recent Full Court authority, at the very least, it is not inappropriate that the s.79A application be dealt with before any appeal.

14. Finally, the Respondent submits that if there is any contest about what is ultimately paid by the Husband to the Wife under the Consent Orders, then and only then should the matter be agitated. Otherwise it is premature to consider the s.79A application or otherwise deal with the “ambiguity” in the Consent Orders.

15. As Mr Brzostowski submitted, this is [in effect] an admission that there is a problem with the Consent Orders.

E.           Resolution

1. For my part, the current contest should be resolved in the Applicant’s favour for the following reasons.

2. It was the parties’ clear intention in November 2000 to effect a once and for all property settlement, including the Respondent’s superannuation.  This intention accords with the established principle to which Nygh J referred (cited below) and to which the Full Court in Hickey also referred (also cited below).

3. In Hickey,[16] the Full said, at [46]: “The principle referred to by Nygh J, namely that an order made under s.79 is a “once and for all proposition”, was recently affirmed in Sommerville and Sommerville (2000) FLC 93-042.” Then the Full Court stated, at [47]:

   The principle demonstrates that but for the operation of s.79A, the Court has power to make only one order for property settlement pursuant to the provisions of s.79.  Thus, any such order inherently has the effect of finally disposing of all issues relating to the disclosed property of the parties.  This has two significant effects on property orders.  … it means that ‘catch all’ orders are essentially ineffectual if they do not effect an alteration of interest.

   [16] In the Marriage of Hickey (2003) 30 Fam LR 355.

4. The issues on the facts of this case are twofold: (a) whether that intention was actually effected by the Consent Orders, and (b) whether the Court had the jurisdiction to make those orders in November 2000.  In my view, the answer to both questions must be in the negative. In terms of the description in Hickey, it can be reasonably argued that the Consent Orders did not “effect an alteration of interest.” One or both of the parties may well feel personally bound by them, even estopped from denying their intended operation. But as many cases have confirmed, the effect of the orders comes not from the consent of the parties but from the fact that they are orders of the Court.[17] Moreover, as a matter of construction and of jurisdiction, it cannot be said with considered certainty that the Consent Orders “effected an alteration of interest.” As well, there can be no certainty that the Respondent’s [O] superannuation interests are properly the subject of the 2000 Consent Orders.

   [17] See, for example, the regularly quoted comments of Lord Diplock (for the Privy Council) in de Lasala v de Lasala [1980] AC 546 at p.560, cited by Brennan J in Harris v Caladine (1991) 172 CLR 84 at p.104.

5. Among other things, in my view sufficient doubt – factual and jurisprudential - attends the Consent Orders of November 2000 that it seems almost inevitable that further contest will occur.  That doubt arises both from the drafting of the clauses in question as well as the lack of jurisdiction in the Court in making the orders at the relevant time.  In such circumstances, as a matter of justice as between the parties it is better to resolve the interpretation and application of issues sooner rather than later.  Subject to further submissions, either in writing or orally on behalf of the Respondent, that can be done swiftly, efficiently and with minimal cost at a conciliation conference, or even as between the respective attorneys.

6. Put another way, I accept the force of Mr Millar’s argument, as a matter of principle, that “ambiguity” of itself, would not usually be a ground of a court finding that there had been a miscarriage of justice.  However, on the facts of this case, not least being the jurisdictional issue, as well as the problems with the interpretation and application of the orders themselves, there are, in my view sufficient grounds to make a finding that there has been a miscarriage of justice. 

7. Moreover, in my view, the miscarriage applies to both parties and not just to the Applicant.  The Respondent is entitled to have sufficient certainty in the Orders to be as free of the risk (all things considered) of further litigation as he can under the orders that affect his superannuation interests – both with the PSS and the [O]. As the orders currently stand, he does not have that certainty.

8. There are, of course, multiple cases that deal with what does and what does not constitute “miscarriage of justice.” For example, in Holland,[18] the Full Court endorsed the comments of the trial judge that “miscarriage of justice” under s.79A was intended to cover “any situation “which sufficiently indicates that the decree or order [including consent orders] was obtained contrary to the justice of the case.””

   [18] (1982) 8 Fam LR 233 at p.236. Internal citations omitted.

9. Similarly, the Full Court in Gebert held that the meaning of the words “miscarriage of justice” should not be read ejusdem generis with “fraud, duress, suppression of evidence or the giving of false evidence.”  Rather, they are “intended to cover other situations where, for one reason or another, a miscarriage of justice has occurred.”[19]

   [19] Gebert & Gebert (1990) FLC ¶92-137 at p.77,935.

10. Summarily, procedural irregularities can constitute miscarriage of justice;[20] absence of jurisdiction is also embraced by “any other circumstances”;[21] and, a consent order that was held to be void for uncertainty was a circumstances `by reason of which there was a miscarriage of justice.’[22]

    [20] Semmens v The Commonwealth (1989) 13 Fam LR 715; In the Marriage of Pelerman (2000) 26 Fam LR 505.

    [21] Gilbert and Estate of Gilbert (1989) 13 Fam LR 632; Smith & Smith (1984) FLC ¶91-512 at p.79,166.

    [22] In the Marriage of Simpson (1982) 8 Fam LR 467.

F.       Conclusion

1. In the light of the authorities mentioned, and having regard to the facts of this case, I repeat the view that there has been a miscarriage of justice here, and it is one which impacts, or will almost certainly do so, on both parties. As such, intervention pursuant to s.79A is apposite.

2. For the above reasons, in my view, there has been a miscarriage of justice for the purposes of s.79A. As a matter of discretion, there is nothing that would prevent the Court’s use of s.79A as sought by the Applicant. In these circumstances, and in the light of these determinations, I will await submissions from the parties (either in writing and/or orally) as to how they wish the matter to proceed. However, until I have the benefit of submissions from both parties or otherwise their indication as to the way forward, I do not propose to grant any injunctive relief, or any of the other orders sought in the Amended Application filed on 24^th February 2009, including those that relate to costs.  All such matters are for another day.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Neville FM

Associate:  J. Curtis

Date:     27^th August 2009