CAGAN & SABONE (No.2) - [2019] FCCA 3164

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAGAN & SABONE (No.2)

[2019] FCCA 3164

Catchwords:
FAMILY LAW – Summary Dismissal – application for property adjustment –whether the husband’s case is doomed to fail – the evidence on which the application is to be determined – the husband’s failure to comply with orders for disclosure – where the husband has had no less than three opportunities to provide disclosure – where the husband cannot prove any of the facts that he asserts – where the husband’s application is summarily dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.45A, 44(3), 78, 117, 79(4)

Federal Circuit Court Rules 2001 (Cth), r 13.03B, 13.02, 13.10, 24, 24.03, 24.04, 24.05, 18.01.

Family Law Rules2004 (Cth), rr.10.14, 19.18

Federal Circuit Court Act 1999 (Cth), s.17A

Cases cited:

Lindon & The Commonwealth of Australia 91996) ALJR 541

Skivington & Skivington [2019] FamCAFC 36

Taffa & Taffa [2009] FamCA 85

Hunter & Morrison [2014] FamCA 199

Yim & Zieth [2019] FCCA 436

Stanford & Stanford (2012) 247 CLR 108

Jones & Dunkel (1959) 101 CLR 298

Tate & Tate (No.3) (2003) FLC 93-138

Jabour & Jabour [2019] FamCAFC 78

Mayne & Mayne [2011] FamCAFC 192

Beck & Beck [2004] FamCA 92

Webster v Lampard[1993] HCA 57

Applicant:

MR CAGAN

Respondent:

MR SABONE

File Number:

PAC 2113 of 2017

Judgment of:

Judge Harman

Hearing date:

14 October 2019

Date of Last Submission:

14 October 2019

Delivered at:

Parramatta

Delivered on:

14 October 2019

REPRESENTATION

Counsel for the Applicant:

Mr Shaw

Solicitors for the Applicant:

Hutchison Lawyers

Counsel for the Respondent:

Mr Cunningham

Solicitors for the Respondent:

Cunningham Solicitors

ORDERS

I summarily dismiss the husband’s application for property adjustment filed 13 August 2018.
I remove all issues from the list of cases awaiting hearing

IT IS NOTED that publication of this judgment under the pseudonym Cagan & Sabone (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2113 of 2017

MR CAGAN

Applicant

And

MS SABONE

Respondent

REASONS FOR JUDGMENT

These proceedings relate, on their face, to issues of property adjustment.
The proceedings are between a former husband and wife, being Mr Cagan, the applicant and the husband to the marriage which founds jurisdiction, and Ms Sabone, the respondent and wife.
Although the proceedings, on their face, relate to issues of property adjustment, the application before the Court today is an application for summary dismissal.
There are a number of grounds upon which relief is agitated. I will deal with each in turn as, whilst they have some degree of connection, each with the other, each ground cascades, as it were, towards what I am satisfied is an inevitable position.
The three grounds upon which it is sought to terminate these proceedings forthwith or, to adopt the language of the High Court and specifically that used in Webster v Lampard[1993] HCA 57, whether the action should “…not be permitted to go to trial in the ordinary way because it was apparent that it must fail” are:
a)Dismiss of the proceedings pursuant to the Federal Circuit Court Rules2001. In particular, the Court is taken to Rule 13.03B headed “Orders on Default”. It must be made clear, lest there be a suggestion that the appellate court has previously dealt with such an application, that the rule that is relied upon is different to that which, as far as I can ascertain, has previously been considered by the Full Court.[1] In that regard I am conscious that my sister Judge Obradovic had been overturned on appeal for having dismissing proceedings when a party had failed to file documents. Reliance is also placed on Rule 13.02(3), the Court’s power to stay proceedings when a party is in default of payment of an order for costs;
b)Secondly, it is sought that the proceedings be summarily dismissed. Accordingly, the principles relative thereto must be discussed;
c)Thirdly, and whilst it is not a ground specifically agitated, I propose to consider the difficulties that face the applicant in these proceedings in prosecuting his case on its merits and, thus, connected with the issue of summary dismissal and the test required therein that it may well be difficult, if not impossible, for the applicant to prove the relevant facts that would be necessary for him to obtain the verdict he seeks or any verdict.
[1] Skivington & Skivington [2019] FamCAFC 36 dealt with dismissal of proceedings pursuant to rule 13.12 Federal Circuit Court Rules 2001 “Dorman proceedings”
I make clear that the test as espoused by the High Court (and, as discussed by various superior and appellate courts, including the Full Court of the Family Court), is not that a party may have difficulty prosecuting the case, but that their case is hopeless, incapable of successful prosecution or, as is described in one iteration of the test, has no reasonable prospects of success. That might infer, import or imply a somewhat lesser test than the test of hopelessness.
It is also important to observe that the Court’s powers in relation to summary dismissal, are addressed in the Federal Circuit Court Act 1999 (Cth) itself and, in particular, section 17A thereof.[2]
[2] Section 17A applies to general federal law proceedings but references the Court’s power to summarily dismiss in Family Law Act 1975 (Cth) proceedings as created by section 45A of that Act. The power is expressed in remarkably similar terms to that contained within the Family Law Rules2004 (Cth) at rule 10.14. The power is also addressed in rule 13.10 of the Federal Circuit Court Rules2001 titled “Disposal by Summary Dismissal”.
It is to be observed that the inclusion of such a power within this Court’s enabling legislation, or that applied by the Court, vests the Court with jurisdiction to engage with and determine applications for summary dismissal of proceedings rather than expanding upon that which is espoused in the case law, to which I will refer.
That power is contained within the Family Law Rules 2004 (Cth) – is also addressed in Rule 13.10 of the Federal Circuit Court Rules2001 (Cth) titled Disposal by Summary Dismissal.

That power provides:
No reasonable prospect of successfully prosecuting proceedings
(2) The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:
(a)the first party is defending the proceedings or that part of the proceedings; and
(b)the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
When there is no reasonable prospect of success

(3) For the purposes of this section, a defence or proceedings or part of proceedings need not be:
(a) hopeless; or

(b) bound to fail;
to have no reasonable prospect of success.

That rules speaks to the broader power which, again, I will refer to by reference to decided authority.

Federal Circuit Court Rules

The rule-based approach that might be taken is, as already alluded to, contained in rules 13.03B and rule 13.02(3).
Rule 13.03B is headed “Orders on Default”. It provides at sub-rule (1):
If an applicant is in default the Court may order that:
(a)the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or,
(b)a step in the proceedings be taken within the time limited in the order; or
(c)if the applicant does not take a step in the time mentioned in subparagraph (b) the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by the applicant.
All three sub-sections have some relevance.
The proceedings, being for financial relief, invoke, upon their commencement, the obligations contained both at common law and, more specifically, in Part 14 of the Federal Circuit Court Rules 2001, together with Part 24, that is, an obligation to provide full and frank disclosure.
Those obligations are discussed at length by the Full Court in Black & Kellner [1992] FLC 92-287, Weir & Weir [1993] FLC 92-338 and Burgoyne & Burgoyne (1978) FLC90-467. The Federal Circuit Court Rules 2001 at Rule 24.03, for example, speak directly to and particularise that which is required. It lists a number of documents or classes of documents which must be provided by each party upon the commencement of proceedings or upon their being served with proceedings. Rule 24.04 builds upon that obligation. Rule 24.05 provides a time for production of documents.
Accordingly, it could not be suggested that any litigant would be unaware of their obligation of disclosure.
The categories or classes of documents provided by Rule 24, and spoken to by the obligations for disclosure in Part 14 of the Rules, do not include classes of documents the subject of the present controversy, however, they are somewhat relevant.
One would think the general common law duty of full and frank disclosure, as discussed in the above authorities, would alert any party to the reality that they must disclose documents that are relevant to proving the facts upon which they rely in any proceedings, all the more so once they are made aware, by service of the respondent’s material, that there is a judiciable controversy raised.
In this case, orders were made on 12 February 2019 which required that both parties provide certain documents. Importantly, for the purpose of this determination, order 3(f) of those orders required that each party disclose, by provision of copies of documents within their possession, custody or control “any document .... proving, disproving or tending to prove or disprove any allegation of fact contained in either party’s financial statement or Affidavit or which will be raised as an allegation of fact at hearing”.
There are a number of significant facts which will require proof at hearing but the most significant, for present purposes, relate to the purchase of a parcel of real estate, the disposal of previous parcels of real estate and businesses, the receipt of compensation claims and the suggested receipt of a windfall from a poker machine win. Each of those will be touched upon briefly.
What is apparent is that following the making of that order on 12 February, which provided that each party must, within 21 days comply therewith, the matter returned to court on 12 April 2019.
On that date further orders were made in relation to disclosure. The wife, through her counsel, indicated that she had complied and had provided some 400 pages or so of documents. It was alleged that the husband had not. Accordingly, orders were made as follows:
(3) The husband shall, by close of business 3 May 2019, provide copies of each and every document within his possession, custody or control so as to comply with the orders for disclosure made 12 February 2019 and to seek to establish by admissible evidence any allegation of fact he proposes to rely upon in these proceedings.
(4) Any document not provided by the husband by 3 May 2019 will not be admitted into evidence.
The parties were also directed, pursuant to Rule 18.01 of the Federal Circuit Court Rules2001, to attend upon a Registrar for the purpose of the Registrar “seeking to investigate, report and recommend as to what is required with respect to the proceedings to bring them to a conclusion and to provide such assistance to the parties so as to facilitate a resolution of the matter”.
A conference with the registrar was fixed for 5 June 2019 at 9.15 am. At that time and on that date counsel for the husband, together with the wife and her counsel, attended before the Registrar.
The Registrar’s bench sheet is illuminating. It notes that at the commencement of the conference the Registrar was informed by counsel for the husband that the husband was not attending as he needed to attend work. That is curious in light of the husband’s evidence, to which I will turn in due course, that he is not working and may not be able to work. The husband was contacted by the Registrar and he indicated he was driving in Suburb E. He was directed by the Registrar to come to the Court to participate in the conference. He did not arrive until 10.45. That is an hour and 30 minutes after the conference was scheduled to commence and a period of time significantly greater than should have been required to traverse the modest distance from Suburb E to Parramatta.
The parties’ positions were then noted, including the wife’s position in Notation B, that she had provided all relevant disclosure to support her assertions of fact and that the husband had failed to comply with numerous orders relating to disclosure, the last of which was 12 April 2019.
The wife complains that the husband had wasted money on gambling and businesses that he recklessly operated and that the husband contributed little to the relationship and nothing towards acquisition of a parcel of real estate, the major asset the subject of the dispute at present, were also noted. The husband’s position was noted, together with the fact that he alleges and that have been clearly and consistently alleged since the first tranche of proceedings between these parties. Notation C concludes with the following:
He, the husband, is not prepared to engage in any attempt at settlement and wishes the judge to make a decision.
The parties were provided with a copy of the bench sheet, the matter listed to today’s date and a direction made for the husband to attend, noting that if he failed to attend his application might be dismissed presumably for want of attendance or want of prosecution. It was otherwise recommended that the matter be listed for trial or, if the husband failed to attend, that consideration be given to dismissal and that the wife’s costs be reserved (presumably they were).
Nothing could be achieved at the conference arising from both the husband’s failure to attend in a timely fashion, but, more importantly, his lack of disclosure. That, of course, is a matter for costs in relation to the conference rather than summary dismissal as such.
What might be relevant, however, is the reality, as would be apparent from the above, that this is not the first tranche of litigation between these parties with respect to this issue.
These proceedings were commenced by an Application Initiating Proceedings filed on 13 August 2018.
Nearly 18 months earlier, on 3 May, 2017, the husband had commenced almost identical proceedings. By that earlier application the husband had sought leave, pursuant to section 44(3) of the Family Law Act 1975, to commence proceedings and had sought orders that a property at Suburb A be converted from its present sole registered proprietorship in the wife’s name to the property being held by the parties as tenants in common in equal shares. That may or may not have been effective in achieving an alteration of interest in properties between the parties, however, in the alternative the husband sought that the property be sold and that the net proceeds be divided as to 55 per cent to the wife and 45 per cent to the husband, together with declaratory relief pursuant to section 78.
That first application came before a Registrar on 24 July 2017 and then came before a judge of the Family Court on 13 November 2017. On that date there was no appearance by the husband or his counsel. The husband seeks to explain his non-appearance in the material that he has filed in these proceedings, alluding to a family discussion, including with adult children of the relationship, and his being led to believe certain things with respect to the proceedings. Whilst I need not consider it for present purposes, (I am concerned with this tranche of proceedings, not the earlier tranche), noting that the adult child, suggested to be the “go-between”, for want of a better description, between the husband and wife, has filed evidence in this tranche of proceedings expressly disavowing the husband’s position.
However, nothing turns upon that issue as I have already indicated and, accordingly, I make clear the evidence of that adult child is not considered as regards the issue of summary dismissal, merely to observe that the evidence has been filed.
Having dismissed the first application, an order was also made for the husband to pay the wife’s costs within one month of the order. No specified sum was provided and, accordingly, by operation of the Family Law Rules 2004[3] it would be necessary for the cost to be agreed or assessed.
[3] Rule 19.18
It is unclear that any application has ever been made to press enforcement of the order or to seek assessment of costs. That is not a criticism of the wife or those retained by her, merely to observe that as a consequence the costs which are asserted in the amount of approximately $13,000 have not yet crystallised. However, nor has the husband taken any action to seek to instigate those processes, and the husband’s evidence with respect to the costs order does him no credit at all, the husband asserting in his Affidavit filed in this tranche of proceedings, paragraph 73:
It is my contention that those costs should not have been sought or awarded against me ...
Whether that is his contention or not the reality is somewhat different.
This tranche of proceedings was commenced by an Initiating Application filed on 13 August 2018, as observed some 18 months or so after the first set of proceedings were concluded. There is little, if any, explanation for that further delay. There is no suggestion that the husband sought to utilise such provisions as exist within the Family Law Rules 2004 to apply to reopen the proceedings on the basis that he was absent when the order was made,[4] nor that he has sought to appeal that decision.
[4] the analogous provision in the Federal Circuit Court Rules2001 being rule 16.05
The husband’s more recent application, that which is to be determined by the Court on this occasion, came before the Court on 19 September. At that point it was clear that the wife opposed the relief sought by the husband, including leave to apply out of time. Orders were made to prepare that issue for trial in relation to the leave application. The matter was before the Court on 11 January when it was not reached. It was adjourned, thankfully, for a brief period of time until 12 February. On that date the application proceeded. Leave was granted. The hearing proceeded without cross-examination and, accepting the husband’s evidence on its face as possibly capable of maintenance.
The evidence was taken at its highest and an arguable claim was apprehended as to hardship, satisfactorily established, to permit the proceedings to proceed. That was, however, subject to the orders for disclosure that were made requiring that the husband prepare his case promptly and diligently and afford procedural fairness to the wife by making his material available so that a proper forensic assessment could be made by the wife, with the assistance of her counsel, as to the husband’s likely prospect of proving any allegation of fact.
The husband has filed two Affidavits in these proceedings, that which accompanied his Initiating Application filed on 13 August and an Affidavit filed on 24 December 2018. As is pointed out by counsel for the wife, that Affidavit itself is somewhat late. It was to have been filed by 19 October 2018, a full two months earlier. Thus, the suggested difficulties in the husband’s compliance with orders are compounded.
It should also be observed that there is some dispute between the parties as to their separation, however, I am satisfied that I should treat the parties’ separation, for present purposes, as the date alleged by them jointly in the application for divorce which was granted by this Court. By that application for divorce a finding was made that the parties had separated, as alleged by the parties jointly, on 6 May 2014. I do not propose to further revisit that issue, although it is common ground that the parties have occupied the same accommodation being the parcel of real estate the subject of the present dispute, after the divorce. There is significant dispute between the parties as to what was represented by that common residence. I need not enter the controversy for present purposes.

Thus, the wife is entitled to point to, and to seek to invoke Rule 13.03B(1) as well as Rule 13.02(3). The husband is in default of compliance with an order. He has failed to take a step required of him within the time period provided by the order. He has failed to pay costs and thus the proceedings might be stayed. That, indeed, is one of the difficulties in this matter. Ordinarily a consideration would be, in the case of a party prosecuting a position which might be described as weak, although not necessarily hopeless, that costs would be the remedy.
There is no prospect at all of costs being obtained from Mr Cagan if he is unsuccessful and an order were made, bearing in mind section 117 of the Family Law Act 1975 creates the general rule, as it is often referred to, that each party should bear their own costs. However, in proceedings of a financial nature it is at least possible that an order for costs might be made, particularly if the plea that is prosecuted by Mr Cagan is wholly or substantially unsuccessful, noting again that his plea is to receive 45 per cent of the net equity in a property presently registered in the wife’s sole name.
The husband’s Statement of Financial Circumstances, again, taking it on its face as more probably correct than not, makes clear that he is well within the description of, as the older case law describes, a “man of straw”. He deposes to being unemployed, although curiously his Affidavits filed in these proceedings make the frank and candid admission that he works cash in hand from time to time and sometimes several days per week, earning an undisclosed income and presumably an income upon which tax is not paid.
The husband also was clearly working on the date of the Registrar’s conference. It was the basis for his failure to attend in a timely fashion. It was somewhat highhanded of the husband to simply send the message to the Court through his counsel that he would not be attending on that basis.
The husband does not possess assets of any significance. He resides in Department of Housing accommodation, perhaps thankfully so in light of his disclosed income. He deposes to having savings of $480 in a bank account and a car worth $1,500. Beyond that there are some items of furniture and contents and nothing else upon which the wife could move to secure payment of any order for costs, including the order already made.
On that basis there would be some temptation to invoke Rule 13.02(3) and to stay these proceedings until such time as the husband has paid costs as ultimately agreed or assessed in relation to the first tranche of proceedings. However, I am satisfied that would be, at best, problematic. It would be to preclude the husband’s access to justice on the basis of his impecuniosity. That may well fall foul of relevant principles as espoused by the High Court in relation to access to justice.
Rule 13.03B certainly is in play. The Court would be entitled, by reference to that rule, to dismiss the husband’s proceedings for having failed to take a step in the proceedings as required. The husband has failed to take several steps in these proceedings, but, most importantly, with respect to disclosure.
However, the Rules of Court are exactly that. They are in aid of jurisdiction and nothing more. I am concerned that an injustice might be done if such procedural rules, a strident adherence to compliance with the Court’s orders, were the basis upon which a person’s plea for relief to the Court were summarily dismissed.
That would be the net effect of the imposition of the penalty or relief discussed within the order. However, those circumstances are relevant, particularly the husband’s impecuniosity. There is a body of case law relating to security for costs, particularly in class actions, but certainly also with respect to individuals when their claim is, at the very best, weak and they are unable to meet any order that might ultimately be made against them.
The real penalty to the husband is that which is imposed by the disclosure order already recited. He will be precluded from introducing evidence of documentary nature that has been within his possession, custody or control at the time that the order was made and continuing to the present.
By reference to the above, I am not satisfied that I can or should, by reference to the above rules, dismiss the husband’s proceedings and exclude him from the matter.
I make clear that I am satisfied that if the grounds are made out, that it would be unjust to the wife if she were required to continue with this litigation and incur further cost when she is addressing proceedings in which the husband is substantially in default with his common law obligations and with obligations imposed by orders of this Court, but that is because the net consequence of that non-compliance is an inability on the husband’s part to prove matters of fact which are fundamental to his case.
Accordingly, I propose to move to move to the second ground of summary dismissal.

Summary Dismissal

Thankfully, the principles relating to summary dismissal are conveniently and eruditely elucidated in a number of judgments, including a judgment of his Honour Le Poer Trench J in Taffa & Taffa [2009] FamCA 85, Tree J in Hunter & Morrison [2014] FamCA 199, and Judge Kelly in Yim & Zieth [2019] FCCA 436.
I incorporate from the decision of Tree J that which is set out at paragraph 4:
In Pelerman [2000] FamCA 881; (2000) FLC 93-037 at 46 the Full Court said in relation to the test for summary dismissal as follows:-
The gravaman of the appeal is that the trial Judge erred in the exercise of the discretionary power to summarily dismiss the application. It is well established that the following principles apply as were recently reviewed and stated in Bigg v Suzi:-
(a) The power for summary relief 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 lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
(d) A weak 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 would ordinarily allow that party reframe its pleadings.
As his Honour observes:
a)The power for summary relief is a discretionary one;
b)It should be used rarely and sparingly;
c)It must be shown that the application is doomed to fail or that there is some other ground to impeach the motive or prosecution of the application;
d)The case that is weak or unlikely to succeed is not sufficient in itself;
e)If there is a serious legal question to be determined, it should be determined at trial, although in this case the legal issues are secondary to the factual issues; and
f)If it appears that a party has a reasonable cause of action which it has failed to put in proper form, the Court would ordinarily allow amendment or reframing rather than simply dismiss the application summarily.
Le Poer Trench J sets out eruditely the relevant law, including by reference to Full Court authority, commencing at paragraph 56 of Taffa, through to a discussion of Webster & Lampard [1993] HCA 57 and the High Court’s decision in Lindon v The Commonwealth:
56.The judgment in Gitane & Velacruz [2007] FamCA 183; (2007) FLC 93-309 sets out a concise summary of the main principles which must be satisfied when determining whether to summarily dismiss a matter. These principles were drawn directly from Kirby J’s judgment in Lindon v Commonwealth No 2[1996] HCA 14; , (1996) 136 ALR 251, and the case of Beck and Beck [2004] FamCA 92; (2004) FLC 93-181 (referred to in submission in this matter), similarly draws out the same principles (albeit through the Family Court cases of Bigg & Suzi (1998) FLC 92-799 and Pelerman & Pelerman [2000] FamCA 881; (2000) FLC 93-037: see Beck at [12]). The Court in Gitane (Bryant CJ, Warnick and Boland JJ) stated:
25. ...
(1) that relief for summary dismissal is rarely and sparingly provided;
(2) that it is only available if it is clear on the face of the documents of the person asserting a cause of action that there is no reasonable cause of action or that it is a frivolous or vexatious one;
(3) that it is not enough to attain summary dismissal to show that it is a weak case;
(4) that there is a defect in the pleading and it appears that the party still has a reasonable cause of action, the Court will allow the party to reframe its pleading; and
(5) that one only summarily dismisses if it is clear that the case is doomed to fail.
57.The judgment in Beck sets out the standard for the application of the principles:
19. ... 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. [emphasis added]
Judge Kelly, as is his want, eruditely summarises the position at paragraph 32 of Yim & Zieth:
32.The power to grant summary judgment is expressed in permissive terms; the court may give judgment and may order that it be dismissed generally or in relation to any claim. Critically, in the case of summary judgment, the power is not engaged unless the court is satisfied that the party has no reasonable prospect of successfully prosecuting the proceeding. In Upaid Systems Ltd v Telstra Corporation Limited, Perram, Jagot and Beach JJ considered the principles applicable to summary judgment not to be in doubt and, after referring to the principles as enunciated by the plurality in Spencer, stated a series of further propositions, including the following:
a. first, a proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success;
b. secondly, summary dismissal may be justified where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification;
i.thirdly, the exercise of the power should be exercised with caution, particularly where complex questions of fact or law are involved;
a.fourthly, the familiar intensifying epithets such as ‘clearly’, ‘manifestly’ ‘obviously’, ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ should not be understood as providing a sufficient chart of the metes and bounds of the power to grant summary judgment.
The propositions stated in Upaid Systems were endorsed by the Full Court in Nichol v Discovery Africa Limited.
I will proceed on Judge Kelly’s interpretation and elucidation of the principles, not to disrespect that set out in the earlier decision, but as it is the more recent case and very much in keeping with that which is set out in the decisions of Tree J and Le Poer Trench J.
What is also made clear, particularly in Taffa, is that I must proceed on the basis of considering whether the husband’s case is hopeless, incapable of successful prosecution, or as Judge Kelly summarises, “having no reasonable prospects of success”, perhaps expanding upon that which fell from their Honours in the above decisions, by reference to the husband’s evidence, without specific regard to the wife’s.
As Judge Kelly sets out:
a)The proceedings need not be hopeless or bound to fail for them to have no prospects of success, but there must be some prospect of success;
b)Summary dismissal must be justified where unanswerable or unanswered evidence of fact is pleaded, (his Honour relying on the statement of principle articulated in authority of the Full Court of the Federal Court, not inconsistent with that which has fallen from the High Court, but perhaps adopting different language to that which has fallen from the Full Court of the Family Court); and
c)The power should be used with caution, particularly if complex questions of fact or law are involved. I make clear none of the questions of fact in this case are at all complex.
By reference to all of the above authorities, I turn to the issues that are factually in dispute and the difficulties now faced by the husband, as I do not propose to permit the admission of evidence which has not been disclosed as was directed. There has been an abundant opportunity. The husband had some months in this tranche of litigation and had been involved in litigation 18 months earlier in which the same duty of disclosure arose.

Evidence and issues in dispute

In relation to the matter generally, the husband deposes that he has made significant financial contributions and that they have dramatically outweighed those of the wife. Indeed, the husband refers to the wife and her employment as something which occurred post-separation, save and except at paragraph 56 of his December Affidavit, (filed after having been served with the wife’s material), wherein the husband concedes that the wife had commenced a Business at the premises at Suburb A, the property the subject of this controversy. That might be interpreted as suggesting earlier employment, although the Business conducted at Suburb A would only have been from the latter part of 2012.
Earlier in the paragraph, the husband refers to the wife being engaged in a home business and tying that to 2009. Clearly, the wife has had some financial input in the relationship and has, in any event, made an unchallenged homemaker and parent contribution.
The specific areas of the evidence which are problematic for the husband relate to the purchase of the Suburb A property. What is largely beyond dispute, both parties have referred to it in their evidence, although for present purposes it is the husband’s evidence only that I consider, is the conduct by them of a number of businesses and the purchase by them of a number of parcels of real estate.
The most recently purchased parcel of real estate, prior to the purchase of the Suburb A property, the subject of this controversy, was a home at Suburb B. It is common ground that this home was purchased in the wife’s sole name. That is curious as the husband asserts that he was, at that point in time, the only party who was in paid employment and that he was self-employed in a business which was doing well. Why then the home needed to be purchased in the wife’s sole name is unexplained on the husband’s evidence.
The home was purchased with a substantial mortgage. The equity was something approaching $200,000. However, it is also common ground that that property was sold by a mortgagee in possession, as a consequence of which there was a substantial loss.
The husband asserts that the businesses that had been established and operated by him during the relationship had been sold and he asserts with profit on each occasion. There is no evidence, however, to support that contention and the difficulty for the husband is that the documents that would prove those contentions are within his possession, custody or control. They have been neither produced and, on the basis of the orders made and as recited above, will not be admitted into evidence.
In relation to the purchase of the Suburb A property, the husband’s evidence is somewhat changing. In his August 2018 Affidavit, the husband asserts that the property was purchased (paragraph 18) for $573,000, that a loan of $410,000 was obtained and that the balance of proceeds were provided by him - $60,000 from a workers’ compensation claim, $40,000 from the sale of the business previously operated by the husband at Suburb F, together with an additional sum of $30,000 alleged to have been borrowed from a friend of the adult daughter of these parties. In the December Affidavit, the husband gives a somewhat different version as to the purchase of that property.
What is non-controversial is that the property was purchased in the wife’s sole name, although nothing of great moment turns upon that. It should be observed that each of these parties, throughout their material, although I am focused upon the husband’s at this point, asserts to what was in, registered in or held by a party in their sole name as though that has particular meaning.
I am conscious of the High Court’s decision in Stanford & Stanford (2012) 247 CLR 108, particularly commencing at paragraph 37, that the Court’s jurisdiction to adjust interests in property need not be bound by the ownership or proprietorship of particular assets. That ownership can, of course, change as part of the Court’s exercise of jurisdiction. However, their Honours comprising the High Court did not suggest that the present legal and equitable ownership of property and how that property is held is entirely irrelevant. It is a matter that goes to justice and equity, although as their Honours were clear, at paragraph 42 onwards, justice and equity would generally be established by the parties having separated and no longer having joint use of those assets irrespective of ownership.
In this case, the decision to purchase the property at Suburb A in the wife’s sole name was deliberate, as was the decision to purchase the Suburb B property in the wife’s sole name. The earlier transaction is perhaps less relevant.
The husband, in his second Affidavit, suggests at paragraph 48 that he contributed:
a)$48,000 from a compensation claim;
b)An equal portion of the $40,000 which the wife apparently asserted by her to have been provided from her savings, (both the husband’s and wife’s allegations can be gleaned from reading the husband’s material). The husband asserts that he provided an equal proportion of that money on the basis that the funds, presumably those which, by reference to the husband’s manner of responding to the wife’s evidence in the latter Affidavit, are suggested by her to be her sole savings, were derived from the proceeds of the Suburb F business;
c)The husband asserts provision of $58,800 from a poker machine jackpot; and
d)A further $25,000 or possibly $30,000 from the friend of the adult daughter.
Again, a mortgage is obtained, although it is suggested to be in a slightly different amount on this occasion.
The husband annexes to his material a transfer with respect to the property. What is curious, in that regard, is that the price paid for the property, as shown on the transfer, is completely different to that which the husband alleges in his earlier Affidavit and which does not tally with the husband’s evidence in his December Affidavit. The husband annexes a copy of the certificate of title of the property to demonstrate that the wife is the sole registered proprietor, but that has never been an issue in dispute.
There is some real issue, from the husband’s perspective, of being able to prove any of the allegations of fact he asserts in relation to the purchase of that property, leaving aside the inconsistencies in his own evidence. There must be some concern, even at this preliminary point, as to the husband’s credit were the matter to proceed to a hearing, when, in the space of four months, he has deposed on oath to two remarkably different versions of events in relation to the acquisition of that property. That is without even needing to consider the wife’s evidence.
The wife, understood, again, by reference to the husband’s December Affidavit, which commences by referring to his desire to answer the wife’s evidence, (paragraph 6), has a different version in that regard.

The husband refers above to the receipt of workers’ compensation funds. The husband asserts, in his earlier Affidavit, that this is a sum of $60,000.00. In his latter Affidavit it is distilled as being two different payments: $11,000 and a latter payment of $48,000. Leaving aside the minor mathematical discrepancy (those amounts do not equate to $60,000), there is nothing else of any value offered by the husband in relation to the claim. He does not describe when it occurred, who the insurer was or any other detail that would assist in ascertaining the basis for the claim.
What is clear from the registrar’s bench sheet is that the wife concedes that the husband received $18,225 in January 2011. It is a matter for the husband to obtain documents that quell that controversy. They are within his possession, custody or control. He is the only one able to obtain that evidence as the details he has provided do not permit the wife to make inquiry through subpoena or otherwise. I have some difficulty in accepting that the husband could, particularly as he is now precluded from introducing documents that he has not already disclosed, prove the receipt of funds beyond that which the wife concedes.
Of course, that does not speak to the manner in which those funds are applied. The husband does not assert that he has applied $18,225 to the purchase of the Suburb A property. He asserts that he has applied $48,000. He could not be accepted in that regard as the evidence that would corroborate his position, which is challenged by the wife, is not produced, notwithstanding that he has had, since the commencement of the first tranche of proceedings, 3 May 2017, to do so. It has always been open to him to make inquiries through the insurer alleged, G Insurance, to obtain that information. He has not.
As is submitted by counsel for the wife, a Jones & Dunkel (1959) 101 CLR 298 inference might ultimately be available and might properly be drawn. It need not be drawn at this time, sufficient to observe that it would create significant problems for the husband in prosecution of his case.
The husband’s evidence with respect to the sale of businesses and other parcels of real estate is vastly inadequate. The husband refers to having purchased various properties. They simply vanish into thin air it would seem or, at best, have broad assertions made. The husband, in replying to the wife’s apparent dispute in relation to those properties, describes, for example, at paragraph 6.16, that two units that had been purchased for specific prices were then sold at a profit, although there is no suggestion when those transactions occurred or what the profit was. Again, they are documents in the husband’s possession, custody or control that he is now precluded from introducing.
The husband’s evidence in relation to the balance of businesses, for example, is similarly non-specific. The husband suggests that a business was purchased at Suburb D for a sum certain (paragraph 6.17), and that the business was eventually closed as there were difficulties with the lease. There is nothing really to suggest any detail with respect to any of those transactions.
On the basis that the husband has had possession, custody or control of those documents and has chosen not to produce them, he would have an impossible, or at the very least, grave difficulty in establishing any of the matters he alleges. They are not conceded by the wife.
The alternate course, of course, is to adjourn the proceedings, to stay them, for example, under Rule 13.03B, until such time as the husband complies with his duty of disclosure. But that might beg the question: how much time and how many opportunities is the husband to be given to the disadvantage of the wife?
The husband has had, since the first tranche of proceedings were commenced by him, a period now of two and a half years and still not a single piece of paper has been produced, when clearly the sources from which they might be obtained are well known to the husband.
That must be balanced against the disadvantage to the wife. She is dragged into these proceedings. She has not chosen to commence them. They are the second set of proceedings. She has done what is required of her, (at least no suggestion is raised that she has not). She has certainly asserted that she has and she will continue to incur cost. Her income is not substantial, on the husband’s own evidence. She is engaged in the home business industry, operating a relatively small enterprise from the home, that which the husband seeks to sell. Thus, ultimately, section 79(4) of the Family Law Act 1975 would require a consideration of that very issue and would cause difficulty in granting the relief the husband seeks, perhaps in whole, but certainly in part.
The final issue is the most curious perhaps. The wife makes complaint that the husband has engaged in gambling throughout the relationship and that this has caused substantial losses. Indeed, again by reference to the husband’s evidence in reply to the wife, he concedes her allegation that it has led to the sale of properties by mortgagees in possession.
The wife contends that the Suburb B property, (whilst in her name, the mortgage was serviced from the income produced from the business operated by the husband), was sold on this basis. All that the husband offers in reply is two matters:
a)Firstly, at paragraph 6.22 of the December Affidavit, he denies he was a frequent gambler. At paragraph 25, the husband denies that he lost a specific sum of money gambling and denies saying to the wife that it was so. That is in connection with the sale of one of the properties or businesses;
b)Finally, the husband asserts that whilst he did gamble from time to time, but never chronically and never incurred, one would presume by his denial, substantial losses, that he did receive a windfall, $58,800, from a poker machine jackpot. This is the one allegation with respect to which the husband is more clear and specific. The husband asserts in his earlier Affidavit that the jackpot was won at a poker machine in or about late 2012, corresponding with the purchase of the Suburb A home and engaging in gambling at the Suburb C. Records with respect to such poker machine transactions are maintained and those documents could have been obtained by the husband at any time in the last two and a half years. He has not obtained them. It is for him to obtain them and to prove that which he alleges.
Accordingly, those difficulties are now manifest for the husband. He cannot prove what he alleges as the document has never been obtained or disclosed and an order now precludes him introducing the document into evidence. It would be mischievous to permit him to do so. As the Full Court discussed in Tate & Tate (No.3) (2003) FLC 93-138, an order of the Court, even if only an interlocutory order or direction as to the filing of a document, let alone something as fundamental as the provision of disclosure, is an order of the Court which warrants and requires compliance.
To make orders repeatedly for the husband to give disclosure and provide documents and then to excuse or ignore his non-compliance by simply again extending the time, would undermine the rule of law in society let alone create disadvantage for the wife.
The husband has had no less than three opportunities, in this tranche of proceedings, let alone the earlier tranche, to provide those very documents. He was fully aware, I am satisfied, from the orders made on 12 April 2019 that should he fail to produce documents by 3 May that they would not be admitted into evidence. They are still not disclosed. Accordingly, the husband cannot prove any of the facts that he asserts.
That leaves the case, on the basis of the husband’s evidence, as follows:
a)The parties’ relationship was significantly deteriorating in late 2012 and at which time the parties had begun to disentangle their finances. That arose as a consequence of a number of circumstances, some peculiar to the relationship, but also arising from the sale of the Suburb B property.
b)There is no means by which the husband could establish that any of the funds held by the wife at the time of the purchase of the Suburb A property came from the earlier sale of a business or any source other than, as the wife asserts again, discernible from the husband’s Affidavit in reply, she had saved from the conduct of a home business. That of itself does not determine any issue. It merely means the husband could not prove the fact he alleges and the wife’s evidence would irresistibly be accepted.
c)The husband could not demonstrate that he made any contribution of funds, although the parties were at that time married and continuing to live together, towards the purchase of the Suburb A property. I am conscious to pause and observe two matters at that point:
i)Firstly, as the Full Court has been clear about in Jabour & Jabour [2019] FamCAFC 78, I must have regard, in a merits determination of the case, to assessing and balancing the myriad of contributions made by the parties throughout the course of their relationship. However, it is the parties themselves that have sought to define their contributions in such specific asset-based fashion, notwithstanding that authorities such as Jabour. The Family Law Act1975 itself, in section79(4), is clear that a contribution need not be demonstrated specific to an asset before the contribution attracts weight.
ii)Secondly, however, there is the difficulty for the husband that arises from Stanford. I do not suggest that a threshold is created by their Honours in that which fell from them. Far from it. But as their Honours described, the Court cannot proceed, and nor can the husband, on the premise or expectation that an order will be made.
d)If one were to balance the myriad of contributions, they must be assessed by reference to the evidence that is available. What is clear from the difficulties which the husband now faces, difficulties of his own creation through failure to comply with order after order in relation to disclosure, is that his desire to have the Court determine the case must be by reference to the evidence that he will be permitted to present. As a consequence of the orders already made and the husband’s failure to comply with them, the husband cannot prove the facts he alleges.
On that basis, I am satisfied that the husband could not be argued to have a strong case. I am satisfied that the husband could not be argued to have a case that is anything other than bound to fail or hopeless. In those circumstances, I am satisfied that his application can and should be summarily dismissed.
It is regrettable in many respects. That is not to suggest some empathy or misericordia as regards the husband, but because the wife has already been put to cost. The arguable case that sufficiently established hardship to permit leave to proceed out of time, was premised and prefaced upon the husband being able to prove the facts he alleged, the very same facts that are considered today, but in the now very different context that the husband cannot produce evidence which will support or corroborate those allegations. Thus, when the wife, quite clearly on the husband’s own evidence in his Affidavit in reply, has a counter proposition which is suggested to have been the subject of disclosure and corroboration, the husband’s version could not be accepted. For those reasons, I am satisfied summary dismissal would follow.
That arises from a consideration of the merits of the husband’s case, by taking his evidence at its highest, but acknowledging the difficulties the husband has created for himself, that he cannot prove the facts he needs to prove.
What is overwhelmingly apparent is that there are matters that the husband has not eluded to that are put in submissions. It is suggested the husband receives an aged pension from an overseas jurisdiction not disclosed.
Whilst it is conceded that there are section 75(2) adjustments which might be considered, they would seem on the evidence and, for the present determination, the husband’s evidence solely, to favour the wife. She is the one with the care of the infant child of the relationship and there is no controversy that she does not receive child support. That must be such a substantial adjustment in the context of this case, accepting the husband’s evidence alone, on its face, as more probably correct than not, as would obviate against what would be left of the husband’s evidence and what it could speak to as regards contributions so as to render his case hopeless.
I am also conscious of that which fell from the Full Court in Mayne & Mayne [2011] FamCAFC 192. It is not the Court’s job to audit the relationship between the parties.
What is clear and apparent is that both of these parties had, in various capacities, and whether they accept it of each other or not, worked hard in their relationship, but the reality is that until a point proximate to 2012 when the parties purchased this property at Suburb A, although it was purchased in the wife’s sole name (I accept that both parties may have had some involvement in the purchase), the parties did not have any assets of any great significance other than possibly small and modest amounts of savings that were applied towards the deposit.
The parties had experienced financial ruination, as the husband describes in his evidence, through sale of businesses, whether voluntarily or otherwise, and the sale of the property at Suburb B. What became of the other properties or what resulted as profit, loss or otherwise is entirely unclear from the husband’s evidence taken on its face as more probably correct than not.
For all of those reasons, I am satisfied that the husband’s application must be summarily dismissed. The husband, of course, has a remedy that he can pursue. They are matters for him. However, to adopt the language of the High Court in Webster & Lampard and of the Full Court in Beck & Beck [2004] FamCA 92, I am not satisfied that it is demonstrated that this action should be permitted to go to trial in the ordinary way.
Adding thereto is the reality that the claim that the husband would have is so modest as to be outweighed, even if he could overcome the apparently irreconcilable inconsistencies in his evidence and the difficulties that he faces through his non-compliance with orders and thus lack of disclosure and admissible evidence, to warrant the cost and inconvenience.
Due process must be afforded to both parties. The wife now faces the second set of proceedings against her. She has already obtained dismissal of the husband’s first application and he has not explained, in any meaningful way, why it took him 18 months to commence proceedings again and why he did not, instead, pursue the remedies available to him in relation to the first decision. But, in any event, he did not.
The problem is that the husband is such a “man of straw”, leaving aside the suggested credit issues raised by the wife, and will simply not be in a position to meet any order for costs as might be made. One alternative today, for example, might be to order costs for the day, let alone for the Registrar’s conference, some thousands of dollars. There is no realistic prospect the husband will ever pay them.
Accordingly, justice would be denied henceforth to the wife if the matter proceeded and she continue to incur cost, delay and uncertainty and she could not possibly obtain recompense in what might be described as the usual fashion, an order for costs. That adds to the commitment that is already expressed that the application should not proceed.
For those reasons I make orders as follows.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date: 11 November 2019