CABB & CABB
[2013] FamCA 572
•7 August 2013
FAMILY COURT OF AUSTRALIA
| CABB & CABB | [2013] FamCA 572 |
| FAMILY LAW ─ RES JUDICATA |
| Family Law Act 1975 (Cth) s 79 |
| Caddy and Miller (1986) FLC 91-720 Spencer, Bower and Handley, Res Judicata (Butterworths, 4th ed., 2009) |
| APPLICANT: | Mr Cabb |
| RESPONDENT: | Ms Cabb |
| FILE NUMBER: | SYC | 6670 | of | 2010 |
| DATE DELIVERED: | 7 August 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 7 June 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Grieve QC |
| SOLICITOR FOR THE APPLICANT: | Southern Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Stenmark SC with Mr Grew |
| SOLICITOR FOR THE RESPONDENT: | Turner Freeman Lawyers |
Orders
IT IS ORDERED
That the application of the wife filed 21 October 2010 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cabb & Cabb has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 6670 of 2010
| Mr Cabb |
Applicant
And
| Ms Cabb |
Respondent
REASONS FOR JUDGMENT
the application
The application before the Court arises out of the marriage between Ms Cabb (“the wife”) and Mr Cabb (“the husband”). The parties were married in Country G in 1994 and lived in Country B (“B”) from 1 March 1994 where the husband was employed. The husband and the wife are both Australian citizens and at all relevant times they were permanent residents of B. The parties have two children, C and D, who are both 16 years old. During the whole of the period of their marriage the parties were resident in B until the wife left in January 2004 and thereafter lived in Australia.
The wife’s application before this Court is an application for property settlement filed on 21 October 2010. In that application she seeks orders which would effect the distribution of the matrimonial assets in her favour as to 70 per cent. Specifically she seeks to retain a property at E Town, the furniture and contents of the E Town home, her bank accounts and her superannuation. She also seeks orders that the husband retain a property in Suburb F, his bank accounts and his superannuation. She seeks an order for the delivery to her of specific chattels and an order for spousal maintenance in the sum of $2,692 per week.
The husband by an Application in a Case filed on 5 February 2013 seeks an order that the wife’s Initiating Application filed 21 October 2010 be summarily dismissed. The husband in his submissions filed in support of that application sets out the history of the proceedings between the parties in B. As his history is not controversial it is set out in full:
1.On 17 September 2010 the husband petitioned the National Court of Justice in Country B (“the National Court”) for a decree of dissolution of marriage and a property settlement.
2.On 13 October 2010 the wife filed a notice of address for service in the B proceedings.
3.On 21 October 2010 the wife filed an initiating application in the Family Court of Australia (“the Family Court”) claiming orders for a property settlement under section 79 of the Family Law Act 1975.
4.On 3 November 2010 the husband applied to the National Court for an anti-suit injunction restraining the wife from continuing with the proceedings in the Family Court.
5.On 8 November 2010 the National Court made the injunctive order claimed by the husband.
6.By notice of motion filed in the National Court on 12 November 2010 the wife claimed an order that the injunction of 8 November 2010 be dissolved and that the husband’s proceedings in the National Court be dismissed as “frivolous and vexatious”.
7.On 28 December 2011 the National Court constituted by Mr Justice Kassman, having heard counsel for both the husband and the wife, ordered that the marriage be dissolved and made certain orders for the settlement of property of the parties [...].
8.On 23 January 2012 the wife filed an appeal against the orders made on 28 December 2011.
9.On 28 September 2012 the Supreme Court of Justice in Country B (“the Supreme Court”), having heard counsel for the husband and the wife, ordered that the wife’s appeal be dismissed with costs.
Thus the husband contends that the orders made by the National Court in B on 28 December 2011 and by the Supreme Court in B on 28 September 2012 constitute a res judicata and that the wife is therefore estopped from continuing with the proceedings in the Family Court of Australia.
The wife opposes the application. The wife submits that the decision of Kassman J of the National Court in B:
a)was not Judicial;
b)was not final and on the merits; and
c)did not determine the same question as that which is raised in the wife’s application in the Family Court of Australia.
the law
In Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597, Gibbs CJ., Mason and Aickin JJ defined res judicata estoppel in the following terms:
The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding.
In Caddy and Miller (1986) FLC 91-720 the Full Court said at 75,233 that the doctrine of res judicata:
...reflects the general interest of the community in the termination of disputes and in the finality and conclusiveness of judicial decisions, together with the right of the individual litigant to be protected from multiple suits for the same cause. It is part of the common law, and parties who go to a court to effect a resolution of a dispute are bound by its operation and consequences.
The Full Court also at 75,233 said that:
...the application of the doctrine of res judicata does not affect the existence of a right given by sec. 79; rather it operates on the ability of a party to prosecute that right. The rule of estoppel by res judicata is a rule of evidence. Humphries v. Humphries (1910) 2 K.B. 531, C.A.; Marginson v. Blackburn Borough Council (1939) 2 K.B. 426; Morrison, Rose & Partners v. Hillman (1961) 2 Q.B. 266 at p. 277. A party so estopped is not allowed to prove in litigation particular facts or matters which, if proved, would assist him to succeed in an action. Thoday v. Thoday (1964) P. 181, C.A. at p. 197, per Diplock L.J.
The Full Court further recorded at 75,233-34 that:
...estoppel by res judicata is a rule of evidence and in no way impinges on the jurisdiction of a court. If this Court be seized of an application under sec. 79 it has jurisdiction to and must decide it according to law. However that law includes the rule that a party is precluded from adducing evidence in a case the object or effect of which is to dispute against another party the correctness or merits of an earlier decision in proceedings between the same parties disposing of the same cause. Nor will an earlier decision be treated as wanting in finality if its incompleteness results from a party’s failure to put forward his whole case when he had the opportunity to do so (as the wife may have failed in this case to have the Californian Court make a determination in respect of the Landvest Pty. Ltd. shares). See Port of Melbourne Authority v. Anshun Pty. Ltd. (1981) 149 C.L.R. 589.
The Full Court in Kemeny and Kemeny (1998) FLC 92-806 cited with approval the decision in Caddy and Miller and said that:
12.3.1...The decision of the Full Court in Caddy and Miller (1986) FLC 91-720 is an authority for the proposition that res judicata can be invoked in respect of matrimonial causes brought in this Court when the earlier proceedings have taken place in a foreign jurisdiction.
The constituent elements of the doctrine of res judicata were set out in Marginson v Blackburn Borough Council [1939] 2 KB 426:
1.the decision was judicial
2.the decision was in fact pronounced
3.the tribunal had jurisdiction over the parties and subject matter
4.the decision was final and on the merits
5.the decision determined the same question as that raised in later litigation
6.the parties to the later litigation were parties to the earlier litigation.
The formulation of the constituent elements in Marginson has been adopted in the Family Court in a number of decisions (see Caddy and Miller, Kemeny and RJ and AJ [2005] FamCA 1075).
Both Senior Counsel for the husband and Senior Counsel for the wife relied on Marginson. Senior Counsel for the husband submitted that the six constituent elements of res judicata as outlined in Marginson were satisfied whereas Senior Counsel for the wife argued that the Marginson test had not been met.
the proceedings in COUNTRY B
In order to deal with the argument on behalf of the wife, it is necessary to set out in some detail what occurred in the courts in Country B.
It is not disputed that the matter proceeded in accordance with the Matrimonial Causes Act 1963 of the Independent State of Country B (“the B Act”). Neither is it disputed before me that the National Court of B (“the Court”) had jurisdiction to hear and determine the proceedings.
Section 14 of the B Act gives the Court jurisdiction to hear applications for principal relief where the applicant is domiciled in B. The husband had been resident in B since 1994 and was a permanent resident.
Section 17 of the B Act sets out the grounds for dissolution of marriage which include, relevantly, at section 17(B) that since the marriage, the other party to the marriage has, without just cause or excuse, wilfully deserted the petitioner for a period of not less than two years.
Once the jurisdiction of the Court has been properly invoked in relation to principle relief the Act gives the Court the power to deal with ancillary relief in relation to both property settlement and matters relating to children.
The husband’s petition filed on 17 September 2010 sought a decree for the dissolution of the marriage on the grounds of desertion. The petition then sought ancillary orders relating to the care and support of the children and in relation to maintenance for the wife and settlement of property. In essence, the petition sought an order in relation to financial matters, that the wife retain the ownership of a property in E Town, her motor vehicles, the contents of the E Town property, the payment to her of an amount of $A500,000 within 14 days and a payment of $A4,500 per month for a limited period of time.
The petition set out the assets and liabilities of the marriage, both the assets and liabilities in the husband’s name and those in the wife’s name. The petition also set out the income earning ability of each of the parties and the facts asserted were verified by affidavit.
The petition was served upon the wife and, on 13 October 2010, a Notice of Address for Service was filed on her behalf by lawyers in B. It was after she had been served with the petition that she instituted the proceedings in the Family Court of Australia seeking orders for property settlement pursuant to s 79 of the Family Law Act 1975 (Cth).
On 8 November 2010, on the application of the husband for an anti-suit injunction, the Court made orders restraining the wife from continuing with proceedings in Australia. Thereafter, the matter came before the Court on a number of occasions.
On 26 May 2011 the transcript indicates that the matter was before the Court and the wife was represented by counsel. On that occasion the presiding Judge observed that the respondent had not filed, or had not filed within time, much of what had been required by way of answer and affidavit but nevertheless gave leave to counsel for the respondent to file submissions within seven days. Those submissions were directed towards the question of jurisdiction and domicile which the wife asserted was an issue. His Honour also directed that the petitioner (the husband) file and serve affidavits as to property or assets and the ownership and valuations of those assets by 16 June 2011 and that the respondent file and serve affidavits as to “property, assets, ownership and valuations by 16 June”.
The matter next came before the Court on 26 November 2011 and again the respondent was represented. The presiding Judge noted that there had been no answer or cross petition filed by the respondent (the wife). The legal representative for the wife asked the Court for a chance for the respondent to be heard indicating to the Court “there is no time for affidavits”. The issue in relation to which the wife wished to be heard was that she denied desertion and preferred that the Court grant the decree of dissolution of the marriage for “different reasons”. The Court directed that the matter proceed on an undefended basis noting that the wife had had 18 months in which to put material before the Court and that she was represented before the Court. The legal representative for the wife said “On the question of matrimonial property, she should be heard. On the question of the grounds of marriage, her reason for prevailing on that is simply that it is not true what is being said.” His Honour then asked “Is there an affidavit sworn by the respondent that addresses these issues?” And his Honour was told that there was no affidavit.
The matter was again before the Court on 1 December 2011, 23 December 2011 and 28 December 2011. On each of those occasions the wife was represented and it is clear on the reading of the transcript that the Court was told that the parties substantially had reached agreement in relation to matters of property settlement and the arrangements for the children.
Insofar as it is asserted by the wife in the proceedings before me that the Court did not make findings of fact, state principles of law, give reasons for his decision or make findings of what is just and equitable, those complaints have to be viewed in the context of the clear indication, by the lawyers then appearing, that the parties had resolved the parenting and financial issues.
The judgment of the Court issued on 28 December 2011. The orders which related to property settlement, maintenance and custody of the children are set out at paragraphs 1 – 11 of the judgment. Those orders accord with the agreement of which the presiding Judge had been advised.
In broad terms the orders provide for the wife to retain the E Town property, its contents and her motor vehicles; for the husband to retain the Suburb F property; for the husband to pay the reasonable costs of the completion of renovations to the E Town property and to pay to the wife the sum of $A1 million in four instalments. In addition the husband was to pay lump sum spousal maintenance of $A180,000 to be made in lieu of a monthly spousal maintenance of $A5,000 for three years and to pay the reasonable costs of shipping the wife’s personal belongings to Australia. There was also an order that the husband contribute an amount of money toward the wife’s legal costs.
discussion
Dealing then with the submissions made on behalf of the wife I reject the submission that the proceedings in the National Court of B were not judicial. Senior Counsel for the wife conceded before me that the wife failed to file any response to the petition. Notwithstanding that failure, the wife was given every opportunity to be heard, even in circumstances where she had failed to file material in accordance with directions of the Court. She was represented at all times in the proceedings and it was the position of both the lawyer appearing for the wife and the lawyer appearing for the husband that an agreement had been substantially reached in relation to the issues of property settlement and parenting.
The written submissions in support of this contention state:
56.The Wife submits that a close reading of the transcripts and examination of the judicial process in [Country B] would lead this court to the view that there was.
“…such a departure from the rules which permeate all judicial procedure as to make that which happened not judicial.”
See Suiker (1993) FLT 92-436 at page 80471 (sic).
A reading of the whole of the tendered transcript demonstrates that the wife was accorded procedural fairness at every step. She was permitted legal representation and allowed to file affidavits although she had not responded to the petition. The matter was dealt with on an undefended basis because of her failure to respond but she was permitted, through her lawyer, to make submissions. The Full Court in Suiker and Suiker (1993) FLC 92-436 cited, in the context of orders, being made by consent pursuant to the Family Law Act, the judgment of Dawson J in Harris v Caladine (1991) 172 CLR 84 where his Honour, at page 124, said:
Provided that a court, or a Registrar, is adequately informed, where the parties are at arms length and are properly represented little more than consent may be needed to establish that the requirements of the section have been met: see Jenkins v. Livesey. (Footnote omitted)
Their Honours in Suiker go on to say that the consent to an order is itself part of the judicial process on which the court places reliance.
I reject the submission that the decision of the National Court in B was not final or on the merits. The decision dealt with all of the assets of the parties and nothing in the legislation which is applicable in B suggests that the parties were entitled to make any further application once judgment had been delivered.
I reject the submission that his Honour failed to consider or to deal with the issue of what was just and equitable between the parties. His Honour was told that the parties had reached an agreement.
The evidence before the National Court was that the husband had assets of $4.06 million and liabilities of $1.315 million giving net assets of $2.745 million. The wife was the owner of the property at E Town worth $1.433 million. Pursuant to the orders the husband was to pay the wife $1 million leaving him with net assets of $1.745 million and the wife with net assets of $2.433 million. In addition the wife received lump sum spousal maintenance and costs.
The wife had ample opportunity to file a response and affidavits and participate properly in the proceedings in B. She did not do so. She was represented on each occasion the matter was before the Court according to the transcripts.
If the wife was dissatisfied with the outcome of the proceedings in B then the remedy which was available to her was to appeal.
The wife filed a Notice of Appeal on 23 January 2012 but did not serve it on the respondent until 14 May 2012. In the intervening period the respondent complied with the orders which had been made on 28 December 2011.
The decision of the Supreme Court in B handed down on 28 September 2012 forms part of the documents in the volume of exhibits relied upon by the wife. There were five grounds of appeal. The first three dealt with the decree of dissolution of the marriage. Grounds (d) and (e) which deal potentially with financial issues are set out below.
(d)The learned trial Judge erred in law and in fact in ordering property, settlement, maintenance and custody of the children based on his findings above.
(e)The Appellant’s materials evidence and facts in defence to the Respondent’s petition which were relevant to these proceedings was, through no fault of the Appellant, not made known to the Court before the proceedings were finalized. (Errors as in original)
The judgment of the Supreme Court deals with grounds 3(c) and 3(d) at paragraphs 12 to 15 and ground 3(e) at paragraphs 16 to 17 of the judgment. The Court concluded at paragraph 18 :
We are of the view that none of the grounds of appeal are errors of law or mixed law and facts. They are questions of facts which require leave of the court. The appellant requires leave to appeal. As leave is not obtained, we uphold the objection to competency of the appeal. The appellant is to pay the respondent’s costs to be agreed if not taxed.
In any event, the correctness of the decision in B is not relevant. The learned authors of Spencer, Bower and Handley, Res Judicata (Butterworths 4th ed., 2009) discuss how “a party is estopped, against any other party, from disputing the correctness of the decision, except on appeal”. The learned authors also record:
The decision need not be correct in law or fact. ‘Res judicata ... gives effect to the policy of the law that the parties to a judicial decision should not afterwards be allowed to re-litigate the same question, even though the decision may be wrong’. A competent tribunal has jurisdiction to decide, and if it makes a mistake its decision is binding unless corrected on appeal. Error within jurisdiction is a wrong exercise of a jurisdiction the court or tribunal has, and not a usurpation of a jurisdiction which it has not. ‘The doctrine [of res judicata] comes into its own only when the decision is wrong; if it is right it merely serves to save time and costs’. (Footnotes omitted)
I reject the submission that the judgment of the Court did not determine the same question as that which the wife seeks to raise in the Family Court of Australia. The judgment finally determined the division of the property of the parties between them. The difference between the scheme of the legislation in B and the scheme of the legislation in Australia, which is relied upon by the wife, is irrelevant. The issue, as the High Court made clear in Port of Melbourne Authority v Anshun Pty Ltd, is whether a party is attempting in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding.
conclusion
For the reasons which I have set out above, the following conclusions emerge from the recitation of the facts above:
1.The proceedings were intended to, and did, deal with all of the property of the parties wherever situated.
2. The judgment in the proceedings was final.
3.The wife exercised her right of appeal against the decision and that appeal was unsuccessful.
All of the constituents of res judicata as set out in Marginson are satisfied and the wife is estopped from re-litigating the issue of property settlement in the Family Court of Australia. Therefore her application is dismissed.
I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 7 August 2013.
Associate:
Date: 7 August 2013
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