Curtain & Curtain - [2019] FamCA 919

FAMILY COURT OF AUSTRALIA

CURTAIN & CURTAIN

[2019] FamCA 919

FAMILY LAW – PRACTICE AND PROCEDURE – Application in a case to bifurcate s.79A and s.79 application – application refused.

Family Law Act 1975 (Cth) s 79A

Patching & Patching (1995) FLC 92-585
Lancer & Lancer [2008] FamCAFC 112
Riley & Pateman [2000] FamCA 1296
Trustee of the Bankrupt Estate of Hicks & Hicks & Anor (2018) FLC 93-824

APPLICANT:

Ms Curtain

RESPONDENT:

Mr Curtain

FILE NUMBER:

ADC

4409

2013

DATE DELIVERED:

4 December 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Mead J

HEARING DATE:

26 & 28 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jordan

SOLICITOR FOR THE APPLICANT:

Jordan & Fowler Barristers & Solicitors

COUNSEL FOR THE RESPONDENT:

Mr McQuade (on 28 November 2019)

SOLICITOR FOR THE RESPONDENT:

CM Tucker & Associates

Orders

That the application in a case filed herein by the wife on 20 November 2019 be dismissed.
That the application in a case filed herein by the husband on 26 November 2019 seeking orders for the adjournment of all court hearings including the trial listed for 3 and 4 December 2019 be dismissed.
That paragraph 3 of the second application in a case filed herein by the husband on 26 November 2019 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Curtain & Curtain has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4409 of 2013

Ms Curtain

Applicant

And

Mr Curtain

Respondent

REASONS FOR JUDGMENT

On 25 November 2013 the wife instituted proceedings for settlement of property.
On 15 July 2016 Berman J made final orders (as amended on 26 July 2016) in relation to those proceedings.
On 12 August 2016 the wife filed an appeal against those orders.
The appeal was deemed to be abandoned on 28 November 2016.
On 29 November 2017 the wife filed an initiating application.
The final orders sought by the wife in that application were as follows:
1.That pursuant to Section 79A(1)(a) of the Family Law Act 1975 as amended the Order made by Honourable Justice Berman on 26 July, 2016 be set aside.
2.That pursuant to Section 79 of the said Act the Court do make such Order for settlement of property or adjustment of interests in property as the Court deems just and equitable.
3.That the husband pay the wife’s costs on an indemnity basis.
No interim or procedural orders were sought in the application.
The application was accompanied by an affidavit filed 29 November 2017.
The wife referred in [8] of that document to evidence contained at [138] and [164] respectively of her affidavit filed in support of her initiating application for settlement of property filed 25 November 2013.
[164] of that earlier affidavit was in the following terms:
“I have learned through an ASIC search that the husband is a director of a company called “W Pty Ltd”. He does not have any shares. I understand this company to be the trustee of a trust called “Q Trust”. I have seen a letter from the Chief Executive Officer thereof offering the husband a consultancy position which was to be paid. He was offered this position in 2013. I do not know whether or not the husband has taken this up and, if so, what remuneration he has received or how it has been banked. I also think that this correspondence may not be truthful in that well before our separation the husband would speak to me about the shares that he expected to be given in the corporate entities associated with Q Trust. The Chief Executive Officer, Mr LL is a person with much experience in this sector. He builds and operates transport. He has invented a “machine” and I understand that he was interested in having the husband use his industry expertise to market this invention. My suspicion is that the husband is now trying to minimise the extent to which he is involved or could potentially be involved in this venture, which I would expect to be quite remunerative for him, indicating that his is limited to only part time consultancy.”
In [11] and [12] of her affidavit of 29 November 2017 she deposed to the husband’s responses to the said [138] and [164] in the following terms:
“…With respect to paragraph 138 of the said affidavit, I provided consultancy work for W Pty Ltd on an “as needs” basis as the company’s representative in South Australia…
…With respect to paragraph 164 of the said affidavit, I am a director of W Pty Ltd. I received no remuneration as a director with the exception that all my travel costs are reimbursed. I also provide services as a consultant to represent the company as required, with payment of $70 per hour. I hold no shares in the company. The company is seeking to develop options for transport in South Australia, but none of the proposals have been developed or established. I expect it will be some time before it does so.”
She further deposed to Judge Cole making orders for discovery in the Federal Circuit Court and in particular to discovery provided by the husband’s solicitors on 28 July 2015 including “10. Employment Agreement between W Pty Ltd and Mr Curtain”.
In [18] of her affidavit filed 29 November 2017 she deposed to the husband’s solicitor asserting in the letter accompanying the discovery as follows:
“…With respect to item 10 above, we are instructed that the employment contract has not been effected. The board of W Pty Ltd agreed to engage our client (E Pty Ltd) as a contractor in a role which oversees the operations and project management of the company’s South Australian projects. This arrangement allows our client to work on the projects as required.”
She deposed to being provided with a list of documents including a reference to the husband’s Employment Agreement with W Pty Ltd on 6 November 2015 but further, to not believing that she was provided with a copy of the document at that time.
Her evidence in relation to the matter of W Pty Ltd was set out in [80-82] of her trial affidavit filed 15 February 2016 in the following terms:
“I believe that this trust is effectively controlled by Mr LL a business man interested in transport projects.
The trustee is W Pty Ltd of which the husband is a director but not a shareholder.
I am unable to say what if any interest, entitlement, or expectation the husband has in the trust.”
She deposed to remarking in annexure “A” to her trial affidavit at item 10 that the 2015 financials for Q Trust were not available.
In [22] she set out [51] of the husband’s trial affidavit filed 30 March 2016 wherein he set out his evidence with respect to his involvement with and in W Pty Ltd. That evidence was in the following terms:
“…In 2014 I became a director of W Pty Ltd. I receive no remuneration as a director but all of my travel costs are re‑imbursed. I do not own any shares in the company. I also provide consultancy work for the company from time to time, as a South Australian representative. This work is undertaken on an ‘as needs’ basis, with payment of $70 per hour and a motor vehicle costs allowance of $345.15 per week for travel costs incurred (i.e. for travel to construction sites and meetings).”
She deposed to the husband not disclosing any interest in W Pty Ltd or Q Trust in [159] of his trial affidavit wherein he set out his evidence as to the assets and liabilities comprising the asset pool and to him disclosing income from W Pty Ltd as an employee/director in his updated financial statement filed 1 April 2016 but to not disclosing any proprietary or other interest in Q Trust.
She further deposed to receiving from the husband’s solicitors the husband’s list of documents and copies of various documents including a copy of the Employment Agreement between the husband and W Pty Ltd on 2 April 2016, two days prior to the commencement of the trial, which agreement did not confer upon the husband any entitlement to a proprietary interest in the company or trust.
She deposed to cross-examining the husband at trial and to the husband making no disclosure in his evidence of any expectation or other interest in the company or trust and that his evidence was that he was working as a consultant rather than the General Manager as had been originally envisaged in the Employment Agreement signed between he and the company.
She deposed to communication with a Mr NN in March 2016 and with Ms MM in September 2016 in an effort to try and obtain information regarding the relationship between the husband and W Pty Ltd, to receiving a letter from Mr LL on 7 August 2017 signed by him as the CEO of W Pty Ltd with respect to issues relating to the husband and to having been informed in October 2016 that the husband was in conflict with the company. That much appeared to be evident from the correspondence she received on 7 August 2017 from Mr LL.
On 13 February 2018 the husband filed a response to the wife’s application.
He sought, in essence, that the wife’s application be dismissed, that the orders of Berman J remain in full force and effect and that the wife pay his costs on an indemnity basis.
In his somewhat convoluted affidavit in support of his response also filed 13 February 2018 he referred in [36] to his financial statement filed in the original proceedings on 1 April 2016 and to deposing in paragraph 41 thereof to being a director but not holding shares in W Pty Ltd, to his percentage share in that business as having a value of NIL and declaring it to be a proprietary company/trust.
In [37] the husband deposed, inter alia, as follows:
“1/04/2016 I confirm that I had no share in W Pty Ltd at the time of the signing financial statement. W Pty Ltd had loans and debts to other related companies within the W Pty Ltd and OO Super Fund. The company W Pty Ltd had no equity due to internal company borrowings,…”
In [40] of the same affidavit he deposed as follows:
“30 June 2016 Q Trust – Financial Statements adopted 23 March 2017. I declare I was not a Director at the time of financial adoption and hold no shares in the company W Pty Ltd”
The said financial statements were annexure 3 to his affidavit.
In [61] the husband deposed as follows:
“6/02/2018 – I confirm that I have not received a share interest in the company - W Pty Ltd.”
The wife’s application to set aside the orders of Berman J of 15 July 2016 (as amended on 26 July 2016) was listed before Registrar Paxton on 16 January 2018.
At that time the husband was ordered to file and serve answering documents within 14 days and the matter was further adjourned for a directions hearing before Registrar Paxton on 13 February 2018.
On that date the Registrar adjourned the matter to a case assessment conference on 26 February 2018 at 9:15am.
The matter was further adjourned to 10 April 2018 noting that there was further disclosure to be made by the husband and the wife.
The matter was further adjourned for a directions hearing before the Registrar on 8 May 2018 and then further adjourned before the Registrar to 26 June 2018.
The Registrar listed the matter before Justice Berman on 17 July 2018 with respect to argument in relation to objection to a subpoena and a judicial mention. On that date His Honour listed the matter for hearing on 7 August 2018 in the absence of any appearance by the husband or counsel. The matter was further adjourned to 13 September 2018, with procedural orders for the filing of additional affidavit material.
On that occasion Justice Berman reserved judgment with respect to documents subpoenaed from Mr KK Solicitor and made procedural and costs orders.
Judgment with respect to the subpoena issue was delivered on 27 September 2018. Procedural orders were made in Chambers by Registrar Paxton on 10 April 2018 and on 22 October 2018 with respect to subpoena issues.
On 30 October 2018 Registrar Paxton made procedural orders with respect to listing an application for costs before Justice Berman on 27 November 2018 and further listed a directions hearing before herself on 18 December 2018.
On 27 November 2018 a costs order was made against the husband by Justice Berman, together with procedural orders with respect to material produced pursuant to subpoena.
On 28 November 2018 Registrar Paxton made procedural orders in chambers in relation to subpoena issues and on 4 December 2018 Berman J made procedural orders with respect to placing the matter in a list of cases awaiting a first day hearing.
On 5 June 2019 I listed the matter for trial on 3 December 2019 allowing 2 days.
Trial directions were adjourned to 9 September 2019.
On each of 15 July 2019 and 9 September 2019 the matter was listed before me with respect to arguments arising from subpoena issues.
On 20 August 2019 and 3 September 2019 the matter came before Registrar Paxton with respect to subpoena issues.
On 21 October 2019 I made orders with respect to the filing and serving of affidavit evidence for trial and for a summary of argument to be provided including reference to any authorities on which the parties intended to rely.
At no time during the course of the numerous hearings following upon the first hearing of the wife’s application to set aside the final property settlement orders was the issue of bifurcation of the wife’s section 79A application and any consequential section 79 application raised by the wife.
As of the hearing on 26 November 2019 with respect to the wife’s application in a case filed 20 November 2019 the husband had been a self-represented litigant.
By order of 21 October 2019 the wife was to file and serve affidavits of all evidence on which she intended to rely at trial together with an updated statement of financial circumstances and a book of documents on or before 6 November 2019.
On 6 November 2019 the wife filed a statement of financial circumstances and on 11 November 2019, a trial affidavit together with her books of documents.
In circumstances where the husband was a self-represented litigant, and where the wife’s trial documents did not specify the orders she was seeking by way of section 79, the matter was listed before me for further direction on 18 November 2019.
Counsel for the wife submitted that the wife had not specified the orders she is seeking pursuant to section 79 (her application filed 27 November 2017 only seeking orders pursuant to section 79 in general terms) in circumstances where the wife intended to conduct the case on the basis of a bifurcation of the section 79A application and her section 79 application.
In those circumstances the Court directed the wife to file and serve an application in a case which was listed for hearing before me on 26 November 2019.
On that occasion the Court permitted the husband to tender responding documents in the circumstance of such short notice of the application due to the hearing times ordered by the Court.
The husband’s responding documents consisted of two documents headed “Application in a Case” rather than either document being “Response to an Application in a Case”, with one application in a case seeking an adjournment of all Court hearings and the trial listed for 3 and 4 December 2019 whilst legal advice and instructions are obtained in preparation of trial affidavit and the other seeking orders with respect to the issuing of further subpoenas and objecting to the bifurcation of the proceedings.
In the application in a case filed by the wife on 20 November 2019 she sought the following orders:
1.That paragraphs 1 and 2 of the Initiating Application of the applicant filed 29/11/2017 be bifurcated.
2.That this application be specially returnable before Justice Mead on 26/11/2019 at 9:15am.
In the affidavit of Andrew Ley Jordan filed in support of the wife’s application in a case filed on 20 November 2019 he deposed to being the solicitor for the wife and, in [1] to [5] thereof, a background to the proceedings generally.
He deposed to being informed by his client that the asset pool had not materially changed since the trial save that a property at C Town had been sold by the husband, and that in the event of a rehearing or reconsideration of the section 79 claims of the parties valuations would be required in relation to the remaining properties.
He deposed in [8] as follows:
“In the event of a re-hearing or reconsideration of the Section 79 claims of the parties a valuation of the husband’s interest in Q Trust and funds received by or due to E Pty Ltd (the subject of the non-disclosure allegation of the wife) will have to be valued both as to asset backing and forensically (including a consideration of the issue of the minority interest of the husband). The process of the assessment of the value is likely to be both lengthy and complex.”
He deposed to the rehearing being likely to take significantly longer than the two days allocated for trial and to the issue of the parties being put to significant expense, presently beyond the capacity of the wife, to prepare a section 79 case for trial when the outcome of the application pursuant to section 79A(1) application is unknown.
He further deposed in [11]to the wife proposing to make a costs application to fund the second stage of her application in the event of being successful with respect to the section 79A(1) application.
He further deposed to the material already filed with respect to the 2016 trial including affidavits and financial statements, the material contained in the wife’s affidavit filed on 11 September 2019 and the matters referred to in the judgment of Berman J being sufficient to enable the Court to assess whether or not “the husband’s non-disclosure of his interest in Q Trust has materially affected the outcome of the earlier litigation.”
At the hearing on 26 November 2019 the wife was represented by Mr Jordan of Counsel with the husband appearing as a self-represented litigant.
Mr Jordan submitted on the wife’s behalf that the application was to bifurcate the section 79A(1)(a) and section 79 aspects of the wife’s application in circumstances where the issues had always been understood to be bifurcated. He conceded that such issues were generally heard together but submitted that in the circumstances of this case the facts justified separate hearings.
Mr Jordan referred the Court to the cases of Patching & Patching (1995) FLC 92-585 and Lancer & Lancer [2008] FamCAFC 112.
He referred in particular to the Full Court’s reasons in Patching’s case at p 81,797 where the Court said:
“Of course there will be cases where it is convenient to divide the procedure into several hearings; for example, where there is a discrete issue under the first and/or second step and the property circumstances of the parties are complex.”
He submitted that in the case of Lancer & Lancer (supra) the Full Court of the Family Court upheld the trial Judge’s decision to bifurcate the proceedings in circumstances where:
1.The trial with respect to section 79A would not be lengthy;
2.Determination of the section 79A issue would only require an assessment by a Judge of the evidence raised in the affidavits already filed;
3.The costs of the parties would be significantly less;
4.Further witnesses and greater disclosures would be required if the matter was not simply determined on the section 79A issue.
He submitted that the facts of this matter only require the Court to look at the affidavits already filed and that the parties’ costs would be significantly less if the issues were bifurcated.
It was his submission that if the section 79A application and section 79 application were heard at the same time further witnesses would be required.

He submitted that the material already before the Court in relation to the matter indicated that there had been non-disclosure by the husband which was obvious from the judgment of Berman J, that the non-disclosure involves a significant amount in that the material before the Court showed that the husband was claiming $2.5 million from W Pty Ltd and therefore it is easy for the Court to find that there has been non-disclosure materially affecting the outcome of the proceedings.
He further submitted that the company had made a clear offer to the husband to settle their dispute in the sum of $1.3 million and that in the proceedings before Berman J the Court had determined the asset pool without taking into account an asset with a value of $1-2 million.
Mr Jordan also submitted that if the issues were not bifurcated significant problems would be caused to the parties, including that in the original proceedings five days of final hearing was required and significant property valuations were required to ascertain the asset pool.
He submitted that the assets taken into account by Berman J in 2016 still exist save and except for a property at C Town, but to enable a determination of the section 79 application all the properties would have to be revalued and the husband’s 20% interest in the Q Trust which involves developments with land and third parties involved would have to be valued.
It was his submission that all of those exercises are lengthy, complicated and enormously expensive forensic exercises.
In addition, he submitted that there would be additional costs for a longer trial which on his client’s case would take some 7-8 days if all matters were to be determined, and that this was beyond the financial capacity of the wife.
He submitted that the only focus of the proceedings to the date of the hearing of the application in a case had been the section 79A aspect of the matter, and that if the wife was unsuccessful in her application she may be liable for costs which would be onerous and unreasonable in the circumstances.
He argued that the authorities would suggest bifurcation of the issues to be appropriate in this matter, which involved a long marriage and where the asset pool had not changed significantly since trial save as to the issue in dispute.
He submitted that the husband’s interest in Q Trust had not been valued but was significant, that therefore it must surely follow that the alleged non-disclosure of the husband of relevant facts pertaining to his interest in that entity materially affected the outcome of the earlier litigation and that in those circumstances the Court would have no trouble in exercising its discretion to bifurcate the proceedings.
It was his submission that the alleged non-disclosure on the part of the husband must result in a finding of miscarriage of justice and it must follow thereafter that the Court exercise its discretion with respect to the section 79A application.
Mr Curtain, appearing for himself, applied for an adjournment in circumstances where he had sought legal advice and had arranged to see a solicitor and counsel on the afternoon of 26 November 2019.
Taking into account the complexity of the matter before the Court and the self‑representation of the husband between the filing of the wife’s application on 27 November 2017 and the hearing on 26 November 2019, the Court made the following orders:
1.That the question of bifurcation and adjournment of the trial currently listed for 3 December 2019 be adjourned to 9:15am on 28 November 2019 to enable the respondent to obtain legal advice NOTING he has an appointment with a solicitor and counsel this day.
2.That the legal representative for the respondent be at liberty to make oral submissions on the adjourned hearing as to the issue of bifurcation and adjournment without the necessity of the respondent filing a further affidavit.
On 28 November 2019 Mr McQuade of Counsel appeared for the husband.
In circumstances where counsel for the husband had not been present at the hearing on 26 November 2019 counsel for the wife repeated the main aspects of his submissions of 26 November 2019.
Mr McQuade submitted that one of the significant difficulties in bifurcating the issues was that there was nothing in the documents filed by the wife with respect to the current application where she asserted a value with respect to the husband’s interest in Q Trust or W Pty Ltd at the time of trial. He said that this was because, with respect to the section 79A application, not only does she have to satisfy the Court that the husband failed to disclose the evidence in respect of which her complaint arises, but that the non‑disclosure resulted in a miscarriage of justice because of its material nature.
In reply Mr Jordan submitted that the offer to the husband referred to in [45] of the wife’s trial affidavit filed 10 November 2019 should be sufficient for the Court to find as a preliminary matter that there had been a miscarriage of justice by reason of suppression of evidence.
The wife’s application filed 29 November 2017 sought firstly that the order of Berman J of 15 July 2016 (as amended on 26 July 2016) be set aside pursuant to section 79A(1)(a) of the Family Law Act 1975 and further that pursuant to section 79 of the said Act the Court make such order for settlement of property or adjustment of interest in property as the Court deems just and equitable.
These reasons only pertain to the application in a case filed by the wife on 20 November 2019 wherein she sought that the application for the order sought in paragraph 1 of her initiating application be heard and determined prior to her application for the order she sought in paragraph 2 of the said application.
Section 79A(1)(a) of the Family Law Act 1975 (as amended) is in the following terms:
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;…”
It is the wife’s case that the husband failed to disclose, both prior to and at the hearing of the trial with respect to property settlement as between the parties before Berman J, evidence with respect to his dealings with W Pty Ltd and the Q Trust and in particular his proper interest including any shareholding in those entities.
In [45] of the wife’s trial affidavit filed 10 November 2019 she deposed to W Pty Ltd offering to settle the husband’s claim against it for $1.3 million. She further deposed to the husband rejecting that offer on 13 July 2017.
In the unreported decision of Riley & Pateman [2000] FamCA 1296, Jordan J discussed the principals relating to an application pursuant to section 79A of the Family Law Act 1975.
His Honour said:
“As is relevant to the matter before this Court, the application was brought pursuant to section 79A of the Family Law Act. Again, as is relevant to this application, the portion of the section applicable reads, that where the Court is satisfied that:
“(a)there has been a miscarriage of justice by reason of .. duress … or any other circumstance;
…the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.<
The process gives rise to a wide discretion which is specifically referred to within the section itself to determine whether or not to set aside the earlier orders, and it is a matter for the Court, even if it finds that one of the grounds is established, whether or not to set aside the orders. The Court is obliged to consider the circumstances of the individual case, but it should also consider issues such as the public interest in having litigation finalised, the public interest in overseeing that, in general, the parties should be regarded as being the authors of their own financial outcomes, and finally, as a matter of policy, if there are any defects in the process and there are remedies elsewhere, then ordinarily such matters should not be visited upon the other party to the proceedings.
I accept that the process involves four distinct steps which are as follows:-
(1)Whether one of the grounds has been established, and in this case the ground argued has been duress, although in the course of submissions Mr Hamwood of Counsel for the wife sought to broaden the ground to include any other circumstance.
If such a ground is established, then the next inquiry is:
(2)Whether that ground gave rise to a miscarriage of justice, and if so
(3)Whether the Court in its discretion should vary or set aside the order, and if so
(4)What order should be made applying the provisions of section 79 and 75(2).
I reject the submission of counsel for the wife to the effect that, if I find that there has been duress, such a finding alone would justify the setting aside of the order without the need to address the question of the outcome and whether the duress alleged had the effect of producing an unfair outcome. The reasoning behind the submissions of counsel for the wife is that, should the Court find that there was duress which had the effect of preventing the wife from providing free, informed and independent consent, the Court should find that the resolution process was so tainted by such duress alone that the Court should not allow its orders to stand, and that it should set aside those orders and re-exercise its discretion, effectively, regardless of the outcome at the time of the consent orders and regardless of the outcome of the re-exercised discretion.
In my view, such an argument is not sustainable in the face of the clear terms of section 79A. Pursuant to the provisions of that section, the capacity of the Court to revisit property claims is dependent upon a miscarriage of justice having been occasioned by one of the matter specified in the section. If the end result is a just and equitable distribution of property, then no financial harm has been occasioned by the conduct of the respondent.
Remedies under Part VIII of the Family Law Act, which includes section 79A, are pecuniary by nature and not punitive. They are designed to ensure that each of the parties meet their financial obligations and receive their proper entitlement. If that end result has been achieved, notwithstanding defects in the process, and if the grievance complained of has not produced an unjust and inequitable result, then, in my view, the role of the Court has expired and the final order should not be interfered with.
To approach the provisions of section 79A differently, and as suggested by Mr Hamwood, would have the effect of rendering the words of the section where “the court is satisfied that there has been a miscarriage of justice by reason of…” as nugatory. On those submissions, those words would be superfluous, and the capacity of the Court to set aside orders would arise simply by proving fraud or duress, for example. At the same time, I appreciate that the words “miscarriage of justice” are to be interpreted in their ordinary meaning and applied broadly and are not limited to vitiating elements in the Court process, but extend to any situation which sufficiently indicated that the decree or order was obtained contrary to the justice of the case, of that there was a failure, in all the circumstances, to do justice between the parties. Of course, section 79A applies only to circumstances occurring before, or at the time of, the making of the order.”
I do not accept the submission of the wife’s counsel that this is a matter where the hearing of the two applications filed by the wife on 27 November 2017 should be bifurcated.
In Patching & Patching (supra) the Full Court said at p 81,797:
“In Oastler & Oastler (1993) FLC 92-390 the Full Court emphasized that it is generally preferable to deal with all of the steps in the one hearing. The reasons for that are obvious, namely that even if the Court concludes that there have been circumstances which amount to a miscarriage of justice it must then consider whether in all the circumstances it should exercise its discretion to vary or set aside the orders and/or make a new s.79 order. In exercising that discretion it will have regard to, inter alia, the degree and nature of the miscarriage in question, any delay, alterations in the parties’ positions in the meantime, and the extent to which, if at all, it is now appropriate to vary the original orders ;…Of course there will be cases where it is convenient to divide the procedure into several hearings; for example, where there is a discrete issue under the first and/or second step and the property circumstances of the parties are complex…”
In Trustee of the Bankrupt Estate of Hicks & Hicks & Anor (2018) FLC 93-824 His Honour Justice Strickland said at paragraphs 46 and 47:
“This appeal highlights the difficulties in bifurcating the s 79A and the s 79 proceedings, rather than determining both issues together as is generally the preferred option according to the authorities (e.g. see Patching & Patching (1995) FLC 92-585).
The particular difficulty which arose in this case is the exercise of the discretion under s 79A of the Act. It is beyond doubt that in exercising that discretion the court is entitled to take into account the likely outcome of the s 79 proceedings, if the orders are set aside (Official Trustee in Bankruptcy v Donovan and Donovan and Stevens (1996) FLC 92-703, at 83,423). The question in any case though is the extent to which that can be done given that the s 79A and the s 79 proceedings are separate proceedings, and the discretions to be exercised are different. The ability to address the likely outcome can also be dependent on what evidence is before the court…”
That illustrates the difficulty in bifurcating the proceedings in this matter. Even if the Court were to find that the husband failed to disclose relevant information regarding his interest at the time of trial in either the Q Trust and/or W Pty Ltd, and even if it was determined that such a failure on his part amounted to a miscarriage of justice, in the circumstances of this case the Court would be severely hampered in determining whether to exercise its discretion to set the order aside, thereby enabling the wife to proceed with her section 79 application.
There is no evidence before the Court as to the value, if anything, of the husband’s interest in the entities at the date of trial.
The husband signed a document entitled “Employment Agreement between W Pty Ltd and Mr Curtain”.
In 2013 the document was executed as an agreement and signed for W Pty Ltd by Mr NN in his capacity as director.
Annexure A to the agreement was a schedule of the employment package component and the work related expenses component. Annexure B to the agreement set out a series of key performance indicators.[1]
[1] Wife’s book of documents (volume 1)
It is the wife’s case that on the basis of material filed in these proceedings to date by both parties, the Court is in a position to make findings as to the issue of the wife’s claim that a miscarriage of justice has occurred and further, that the Court is in a position to find that at the very least the husband failed to disclose an interest in the entities of at least $1.3 million being the amount allegedly offered to the husband by W Pty Ltd on or about 27 July 2017 to resolve all issues of dispute between the company and the husband.
The parties are in dispute as to the nature of the offer of settlement, in particular whether the offer was unconditional, and if conditional, the extent to which the offer may be varied dependant on the conditions.
The circumstances of the husband’s employment with W Pty Ltd, whether either party complied with the terms of the employment contract the husband concedes he signed with the company and the allocation to or entitlement of the husband to a 20% equity in the Q are all issues that are relevant and in respect of which evidence needs to be adduced before the Court is in a position to consider the essential aspect of the section 79A application, namely whether the Court should exercise its discretion to set aside the order of Berman J previously referred to herein.
In Lancer & Lancer (supra) the Full Court upheld the trial Judge’s decision to bifurcate the trial with respect to section 79A and section 79 issues.
The trial Judge’s reasons for so doing included that the trial with respect to section 79A would not be lengthy.
As previously referred to herein the Court must firstly determine whether there has been a miscarriage of justice by, in this case, failure on the part of the husband to disclose relevant information, and then, determine whether that failure to disclose relevant information gave rise to a miscarriage of justice and then, most importantly, exercise its discretion to vary or set aside the order.
In the circumstances of this case I do not accept the submission of counsel for the wife that the trial with respect to those issues would not be lengthy for the reasons to which I have already referred.
Her Honour also determined that the hearing should be bifurcated because of her finding that the determination of the section 79A issue would only require an assessment by a Judge of the evidence raised in the affidavits already filed.
For the reasons already stated, I do not consider that to be analogous to the facts of this case.
Her Honour also found that the costs of the parties would be significantly less by bifurcating the proceedings, and that further witnesses and greater disclosure would be required if the matter was not simply determined on the section 79A issue.
This is certainly a matter where further witnesses and greater disclosure would be required if the matter was not simply determined on the section 79A issue.
The fact that the parties costs may be less if the applications were bifurcated is almost certainly true but is not a matter of such weight that would remedy the problems of so doing to which I have referred.
I find that this is not a matter where the Court should depart from the general rule that a section 79A application and any consequential section 79 application should be heard at the same time.
I do not consider that the circumstances of this case are sufficiently exceptional to justify such a departure from that process.
For these reasons I make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mead delivered on 4 December 2019.

Associate:

Date: 4 December 2019