Curtain & Curtain
[2022] FedCFamC1A 134
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Curtain & Curtain [2022] FedCFamC1A 134
Appeal from: Curtain & Curtain [2022] FedCFamC1F 186 Appeal number: NAA 78 of 2022 File number: ADC 4409 of 2013 Judgment of: ALDRIDGE, MCGUIRE & STRUM JJ Date of judgment: 31 August 2022 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Appeal from an interlocutory decision dismissing an application for summary dismissal – Where the applicant unsuccessfully argued before the primary judge that the respondent’s application under s 79A of the Family Law Act 1975 (Cth) should be summarily dismissed – Merits of the proposed appeal considered – Decision not attended by sufficient doubt to warrant reconsideration – No substantial injustice – Application for leave to appeal dismissed – Appeal dismissed – Applicant to pay the respondent’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 45A
Federal Court of Australia Act 1976 (Cth)
Family Law Rules 2004 (Cth) rr 10.12, 10.14, 13.04
Cases cited: Ebner & Pappas (2014) FLC 93-619; [2014] FamCAFC 229
Edmunds & Edmunds (2018) FLC 93-847; [2018] FamCAFC 121
Harford & Spalding [2022] FedCFamC1A 78
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lindon v Commonwealth(No 2) (1996) 136 ALR 251; [1996] HCA 14
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Ritter & Ritter and Anor (2020) FLC 93-957; [2020] FamCAFC 86
Spencer v The Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 43; [1993] QCA 114
Number of paragraphs: 67 Date of hearing: 29 July 2022 Place: Heard in Melbourne (via video link), delivered in Brisbane Counsel for the Applicant: Mr McQuade Solicitor for the Applicant: CM Tucker & Associates Counsel for the Respondent: Mr Tredrea Solicitor for the Respondent: Jordan & Fowler Family Lawyers ORDERS
NAA 78 of 2022
ADC 4409 of 2013FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR CURTAIN
Applicant
AND: MS CURTAIN
Respondent
order made by:
ALDRIDGE, MCGUIRE & STRUM JJ
DATE OF ORDER:
31 august 2022
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant pay the respondent’s costs of the application for leave to appeal, fixed in the sum of $18,370.39.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Curtain & Curtain has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, MCGUIRE & STRUM JJ:
This is an application by the husband, Mr Curtain (“the applicant”), for leave to appeal and, if successful, an appeal from an interlocutory discretionary decision. The proposed appeal was argued with the application for leave to appeal on the basis of the grounds set out in the Amended Notice of Appeal. For the reasons which follow, we refuse the application for leave to appeal and it will be dismissed.
Background
On 15 July 2016, Berman J made final orders for alteration of interests in property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”), which were amended on 26 July 2016.
On 29 November 2017, the wife, Ms Curtain (“the respondent”), filed an Initiating Application seeking to set aside those orders pursuant to s 79A(1)(a) of the Act, on the ground of a miscarriage of justice, by reason of fraud, suppression of evidence (including failure to disclose relevant information) or the giving of false evidence. In summary, she relied upon:
(a)the failure by the applicant to disclose a letter dated 18 February 2013 from W Pty Ltd as trustee for the Q Trust, which confirmed their intention, upon the commencement of his employment with them, to issue him or his nominee with 20 per cent of the equity in the Q Trust;
(b)an email dated 19 August 2013 from the applicant to W Pty Ltd, in which he advised them that the respondent and he had separated; that she had asked for his “correspondence of engagement” with them; that he had told her (falsely) that he was engaged as a consultant, and not as an employee, “on a needs basis”; and that he had drafted the letter attached to that email (backdated to 4 May 2013) for their consideration, throughout which there were references to the applicant being a consultant (at [22]); and
(c)the failure by the applicant to disclose income from PP Pty Ltd, namely the sum of $74,200, for work undertaken but not billed by him prior to the trial before Berman J.
On 13 February 2018, the applicant filed a Response to Initiating Application seeking that the s 79A application be dismissed.
Nearly three years later, on 18 January 2021, the applicant filed an Application in a Case seeking that the respondent’s application pursuant to s 79A be summarily dismissed. Before us and, it would appear, before the primary judge, there was no explanation for his delay in bringing that application.
On 19 April 2021, the respondent filed a Response to the summary dismissal application, seeking that it be dismissed.
The summary dismissal application was argued before the primary judge on the papers on 23–24 August 2021. It was submitted before her Honour, on behalf of the applicant, that it was apparent on the face of the respondent’s documents that they did not disclose any fraud or suppression of evidence or, if they did, no miscarriage of justice had occurred, such that the respondent’s s 79A application had no reasonable prospect of success. The primary judge delivered judgment on 25 March 2022, dismissing the application for summary dismissal.
On 20 April 2022, the applicant filed a Notice of Appeal seeking, as is required, leave to appeal. An Amended Notice of Appeal was subsequently filed on 7 July 2022.
Relevant principles and provisions
Leave to appeal an order dismissing an application for summary dismissal is required: Ebner & Pappas (2014) FLC 93-619 at [30]–[32]. Leave to appeal will only be granted where the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court and where a substantial injustice would result if leave to appeal were refused, supposing the decision to be wrong: Medlow & Medlow (2016) FLC 93-692 at [57]. The merits of the proposed appeal are relevant to the success of an application for leave to appeal: Ebner & Pappas at [39]; Harford & Spalding [2022] FedCFamC1A 78 at [16].
As this is an application for leave to appeal from a discretionary judgment of the primary judge, we begin by referring to the principles established by the High Court in House v The King (1936) 55 CLR 499 at 504–505 applicable to such judgments:
… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. …
As the hearing of the summary dismissal application occurred prior to 1 September 2021, the primary judge applied the provisions of s 45A of the Act and Pt 10.3 of the Family Law Rules 2004 (Cth) (“the 2004 Rules”), in particular, s 45A(2) and s 45A(3) and r 10.12(d) and r 10.14(a). See [14].
Sections 45A(2)–(3) provide:
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.
Rule 10.12 of the 2004 Rules provided:
10.12Application for summary orders
A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a)the court has no jurisdiction;
(b)the other party has no legal capacity to apply for the orders sought;
(c)it is frivolous, vexatious or an abuse of process; or
(d)there is no reasonable likelihood of success.
Rule 10.14 of the 2004 Rules provided:
10.14 What the court may order under this Part
On an application under this Part, the court may:
(a) dismiss any part of the case;
(b) decide an issue;
(c) make a final order on any issue;
(d) order a hearing about an issue or fact; or
(e)with the consent of the parties, order arbitration about the case or part of the case.
In Ritter & Ritter and Anor (2020) FLC 93-957, an appeal from a summary dismissal of an application pursuant to s 79A of the Act, to which the primary judge referred in her reasons for judgment at [30], the plurality of the Full Court said:
48.… That a case is said to be weak is insufficient to justify its summary dismissal (see Coe v The Commonwealth (1979) 24 ALR 118; Wickstead v Browne (1992) 30 NSWLR 1).
Further, the plurality said:
66.The determination of the issue must only take into account the material on which the respondent seeks to make out the case, or as often expressed takes the respondent’s case “at its highest” unless the respondent’s version is inherently incredible or unreliable (see Munnings v Australian Government Solicitor (1994) 68 ALJR 169 at 171; Bigg & Suzi (1998) FLC 92-799; Webster v Lampard (1993) 177 CLR 598 at 608). …
The primary judge at [53] also correctly referred to and cited from the judgment of Kirby J in Lindon v Commonwealth(No 2) (1996) 136 ALR 251 at 255–256, where his Honour set out the approach to be taken in applications for summary relief, namely:
1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.
2.To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
3.An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
4.Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. A question has arisen as to whether O 26, r 18 applies to part only of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim.
6.The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
(Footnotes omitted)
In Spencer v The Commonwealth of Australia (2010) 241 CLR 118 at [58]–[60], the plurality considered what constitutes “no reasonable prospect of success” for the purposes of the equivalent provision in the Federal Court of Australia Act 1976 (Cth):
58.How then should the expression “no reasonable prospect” be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is “no reasonable prospect”. The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like “no reasonable prospect” is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
59.In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.
60.Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
(Footnote omitted)
In Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, an appeal against a refusal to order an extension of the period of limitation within which an action might be instituted, Macrossan CJ relevantly said at 434:
If a general observation is permissible at this point it can be said that applicants for extension of limitation periods are not intended by the legislation to be placed in the position where they must establish an entitlement to recover on two occasions, first on the hearing of the application and once more at the trial of the action. Although the requirements of the legislation must be complied with if an extension is to be granted, the extent to which an applicant must show a case on the hearing of the application to extend time will frequently depend on the impression on the judge's mind of the material which the applicant presents or the existence of which he demonstrates or points to. It is nevertheless recognised as wrong to place potential plaintiffs in anything like a situation where they must on the probabilities show that it is likely they will succeed in their actions. A judge may harbour a feeling that there is a strong chance that particular applicants will fail at trial but, in my opinion, he should not act on the basis of this impression both because that is a question reserved for another occasion and because he cannot know and should not insist on being able to see in all of its ramifications the full strength of the case which will eventually be presented at trial. There are some resemblances in this to the situation of a defendant who resists a summary judgment application. The Court should be cautious in shutting out a party from the opportunity to make his case at the appropriate time. In any situation where proof of a case is difficult and very far from straightforward, it would be very expensive to require a party applying to extend time to demonstrate his case with any high degree of elaboration.
(Emphasis added)
This passage in Wood v Glaxo Australia Pty Ltd was referred to by the Full Court in Edmunds & Edmunds (2018) FLC 93-847, in a successful appeal against a refusal of leave to institute property proceedings out of time, where the plurality said:
18.The point to be drawn from this passage is that an applicant for leave is not required to establish their final case on the leave application. Similarly, the Court is not to approach the application on that basis.
A similar approach is to be taken in applications for summary dismissal. The Court does not undertake a preliminary trial, nor is a detailed hearing of the case on its merits required.
Reasons for judgment at first instance
After identifying the documents relied upon by each of the parties and the legal principles pertaining to summary dismissal, the primary judge extensively addressed first the evidence of the applicant and then that of the respondent. In circumstances where (at [30]) her Honour recognised that, in determining the summary dismissal issue, she could only take into account the material on which the respondent sought to make out her case or, put another way, take the respondent’s case at its highest (unless it was inherently incredible or unreliable), it is unusual that she first considered the applicant’s evidence, rather than that of the respondent. However, in circumstances where it is the applicant who complains about the dismissal of his application, nothing turns upon the order in which the primary judge considered the parties’ evidence.
The primary judge then properly recognised (at [28]) that the applicant could only succeed in obtaining an order for summary dismissal if the Court was satisfied that the respondent had no reasonable prospect of successfully prosecuting her s 79A application, “noting that no reasonable prospect of success does not equate to the Court finding the proceedings to be hopeless or bound to fail”.
Her Honour further recognised (at [32]) that, to succeed in her s 79A application:
32.It will be necessary for the [respondent] to succeed to firstly satisfy the Court that the [applicant] failed to disclose relevant financial information to the Court at the time of the hearing before Berman J and secondly, that as a result, there has been a “miscarriage of justice”.
Her Honour then said (at [36]–[37]):
36.It is the nub of the [respondent’s] case that despite an acknowledged request in writing from her then solicitors, Law Firm AC, to the [applicant’s] then solicitors Law Firm AE dated 2 December 2014 requesting an explanation of why the letter from W Pty Ltd to the [applicant] dated 18 February 2013 had not been made available and advising it was still required, the document was not discovered at that time or at any other time prior to trial.
37.In addition, the [respondent] contends, in support of her s 79A application, that the [applicant] deliberately withheld other documents that gave lie to his claim of merely working on a consultancy basis for W Pty Ltd and having no interest or prospective interest in that entity or in Q Trust. Further, she contends he was not frank in cross-examination about those matters such that the understanding gained by the [respondent] and the Court of the true relationship between the [applicant], W Pty Ltd and Q Trust was incorrect, and the suppression of that evidence ultimately resulted in a miscarriage of justice.
The primary judge then considered some of the instances of non-disclosure complained of by the respondent:
(a)In relation to the letter dated 18 February 2013 from W Pty Ltd as trustee for the Q Trust to the applicant, her Honour found that he had a duty both to the respondent and to the Court to disclose it, but that he did not do so after it was raised in her solicitor’s correspondence of 2 December 2014 or at any later time prior to the date of trial in 2016 (see [43] and [41]). How the respondent came to know of the existence of that letter and whether she knew the contents thereof, without them being disclosed by the applicant, are matters in dispute which cannot be resolved before trial. What is not in contention is that he did not disclose the letter or its contents to her or to the Court.
(b)In relation to the employment of the applicant by W Pty Ltd, her Honour found that, by his email dated 19 August 2013, he advised them that the respondent and he had separated; that she had asked for his “correspondence of engagement” with them; that he had falsely told her that he was engaged as a consultant, and not as an employee, “on a needs basis”; and that he had drafted the letter attached to that email, backdated to 4 May 2013, for their consideration. Throughout that letter, there were references to the applicant being a consultant “at a rate of $75/hour, plus the reimbursement of specific cost travel and accommodation costs on presentation of receipts” (see [46] and [47]).
(c)In relation to the applicant’s employment agreement with W Pty Ltd dated June 2013, which was for a period of five years, with a total annual salary of $218,000 (including superannuation) and an annual motor vehicle allowance of $18,000, her Honour found that there was no reference in that document to the matters referred to in the correspondence dated 18 February 2013 (see [40] and [45]).
The primary judge found (at [48]) that the three pieces of correspondence dated 18 February 2013, 19 August 2013 and purportedly 4 May 2013 (but in fact dated on or about 19 August 2013) “could not be described as other than information material to the question of property settlement as between the [applicant] and the [respondent]”.
It was submitted on behalf of the applicant that:
(a)the respondent had not identified a fraud or suppression of evidence material to the proceeding, nor did any fraud or suppression of evidence result in a miscarriage of justice (see [50]); and
(b)the respondent was unable, on the face of her documents, to establish any value in relation to the asset she asserted was not disclosed, namely, any interest the applicant might have in W Pty Ltd (see [51]).
The primary judge correctly recognised that proceedings should not lightly be summarily dismissed and that the evidence to be relied upon by the parties with respect to the s 79A application was as yet untested (at [52] and [54]).
Her Honour noted that the only mention of W Pty Ltd in the reasons for judgment of Berman J was in the context of the applicant becoming a director thereof in 2014 and having a consultancy arrangement with that company (at [56]). Further, neither in the applicant’s Case Outline at trial (whether in the orders sought by him or in his list of assets) nor in his Financial Statement filed for the trial did he disclose any interest, actual or prospective, in W Pty Ltd or the Q Trust (at [57]). Having so found, her Honour said (at [64]) that what the applicant did not tell Berman J was:
64. …
•that he had received the letter from W Pty Ltd, trustee for the Q Trust dated 18 February 2013; and
•that the correspondence purportedly from Mr LL to him dated 4 May 2013 had been drafted by him on 19 August 2013 for Mr LL and backdated to the May date.
The primary judge found that whilst, on the face of the respondent’s documents, she had not at that preliminary stage established the applicant had any interest in W Pty Ltd or the Q Trust, as at the time of trial in April 2016, nor had she established any value with respect to the asset she said was not disclosed, nevertheless:
69.The [applicant] was aware however prior to trial in 2016 that he had received a formal written offer of employment from W Pty Ltd on 27 December 2012 essentially in the same terms as evidence given by him during trial, but had also received the correspondence of 18 February 2013. In addition, he knew he had received correspondence from Mr NN approximately one month prior to trial, including discussion as to how the Units in the Q Trust could be allocated to him in a manner that allowed them to be transferred to him at a later stage when settlement as between he and the [respondent] was finally completed.
Her Honour found that all of that information was material to the matter before the Court; that the applicant failed to disclose any of those documents; and that he had an obligation to do so (at [70]–[71]).
At [73]–[74], her Honour purported to “find” that the respondent had established that the applicant failed to disclose information material to the facts of the case before Berman J prior to and during the trial in 2016 and that he had intentionally misled the respondent and the Court as to the true nature of his relationship with W Pty Ltd and the Q Trust. However, these were not final findings of fact, which must await trial. Rather, they clearly must be read as being preliminary or prima facie findings, taking the respondent’s evidence at its highest. Her Honour concluded (at [75]) that, had those facts been known to the respondent, her legal advisers and the Court, the outcome of the proceedings may have been materially different.
The primary judge acknowledged (at [76]) that the respondent was unable, at the time of the hearing before her, to establish a value for any interest the applicant may have had in W Pty Ltd or the Q Trust as at the date of trial before Berman J (if, indeed, he had any interest at all) or whether it was a financial resource available to him. However, her Honour acknowledged that such failure on the part of the respondent was attributable to the applicant’s lack of disclosure prior to and during trial and his lack of frankness in his evidence before the Court. Neither the respondent nor the Court had the requisite knowledge to pursue what may have been important and material issues (at [77]).
Relevantly, in this regard, her Honour said earlier at [72]:
72.The fact that the [applicant] took no formal steps to obtain the benefit to which he considers himself entitled until the issuing of proceedings in the Federal Court in 2020, an application in respect of which he may or may not succeed, is immaterial to this element of the parties’ dispute.
Indeed, this highlights the absurdity of the applicant’s argument before us. The applicant clearly believes that his interest does have a value at present; he has issued proceedings in the Federal Court of Australia for that very reason. It follows that, but for the applicant’s non-disclosure at and prior to the trial before Berman J, a valuation thereof may have been undertaken by the respondent at that stage.
The primary judge then turned to consider another instance of non-disclosure by the applicant, namely, his failure to disclose income from PP Pty Ltd (at [78]–[82]). Prior to the trial before Berman J in April 2016, the applicant had discovered an invoice dated October 2015, which had been paid. Thereafter, he did not issue any invoices until after the trial, his next invoice being dated 19 June 2016, in the sum of $86,414.68 for the period 28 December 2015 to 6 May 2016. The invoice amount for the period up to 19 March 2016, which predated the trial, totalled $74,200. In this regard, her Honour said at [82]:
82.This is a matter of less significance than that relating to any interest the [applicant] may have in W Pty Ltd or the Q Trust. Nevertheless, an amount of $74,200 is not trifling, although it is the [applicant’s] untested evidence that the amount was never paid.
Her Honour concluded (at [83]) that, taking all of those matters into account, she was unable to find that the respondent had no reasonable prospect of successfully prosecuting her s 79A application.
Proposed grounds of appeal
The applicant’s Amended Notice of Appeal proposes four grounds. Given the way the matter was argued by counsel for the applicant, both in his “supplementary” (but, in fact, amended) Summary of Argument and in oral submissions, we shall deal with the proposed first ground of appeal and then with the proposed second, third and fourth grounds of appeal together. Indeed, in his Summary of Argument, in support of proposed Grounds 3 and 4, counsel for the applicant states that he relies upon and repeats the submissions made in support of the proposed second ground of appeal.
Proposed first ground of appeal
The first ground of appeal states that:
1.The learned primary judge erred at law and made an error of principle in dismissing the [applicant’s] application for summary dismissal filed 18 January 2021 in circumstances where Her Honour had found that the respondent had not only failed to establish that at the time of trial the [applicant] had any interest in [W Pty Ltd] or the [Q Trust] but had also failed to establish any value for such interest and where Her Honour was unable to find that income alleged to have been undisclosed at trial had in fact been received by the [applicant].
This proposed ground of appeal, which consists of two limbs, may be succinctly disposed of.
As to the first limb, it was submitted on behalf of the applicant that the primary judge found at [66] that the respondent had not established that the applicant had any interest in W Pty Ltd or the Q Trust, nor any value for such interest. However, that submission ignores the immediately following paragraph in the reasons for judgment, where her Honour found (taking the respondent’s case at its highest) that she did not become aware of offers made to the applicant regarding the position of chief executive officer, the salary and the offer of the units in the Q Trust until approximately August 2017, leading to the filing of her s 79A application.
As is clear from the passage in Wood v Glaxo Australia Pty Ltd cited above, with which we agree, the respondent was not required to establish her case on two occasions, first on the hearing of the summary dismissal application and once more at the trial of her s 79A application.
Further, whether the applicant has any interest in W Pty Ltd or the Q Trust and whether any such interest has value were matters which, as her Honour observed, were (and remain) in the hands of the Federal Court of Australia (at [76]).
In relation to the second limb of this proposed ground of appeal, it was submitted on behalf of the applicant that the primary judge was unable to find that income alleged to have been undisclosed at trial had, in fact, been received by the applicant. That submission is misconceived.
Her Honour found that, after the invoice dated October 2015, the applicant did not issue any further invoices until that of 19 June 2016, after the trial, in the total sum of $86,414.68 for the period 28 December 2015 to 6 May 2016 (at [78]–[79]).
At [80]–[81], her Honour found:
80.In paragraph 46 the [applicant] deposed to continuing to work on approvals for the project after the mine which supplied the rock revetment closed down for three months in late October 2015, but did not issue any supply invoices during that period and for a further period of six months until the invoice issued on 19 June 2016. He deposed to this invoice never having been paid.
81.There is no doubt however that it does refer to rock haulage for the period 28 December 2015 to 6 May 2016, including the period 28 December 2015 to 19 March 2016 which predated the trial. The invoice amount for that period totals $74,200. The invoices the [applicant] deposes to subsequently issuing all post-date the trial.
Insofar as it is asserted that her Honour was unable to find that income alleged to have been undisclosed at trial had in fact been received by the applicant, that is immaterial. The applicant had undertaken work in the period from 28 December 2015 to 19 March 2016, which predated the trial, to the value of $74,200. There is no issue that he had not been paid that amount prior to the trial in April 2016; that is because he had not rendered an invoice for it, deferring doing so until June 2016, after the trial. It was nevertheless a chose in action and required to be disclosed by him. Rule 13.04(1) of the 2004 Rules required a party to a financial case to make full and frank disclosure of his/her financial circumstances, including (but not limited to):
(1) …
(a)the party’s earnings, including income that is paid or assigned to another party, person or legal entity;
…
(d)any income earned by a legal entity fully or partially owned or controlled by a party, including income that is paid or assigned to any other party, person or legal entity;
…
Accordingly, there is no merit in the proposed first ground of appeal.
Proposed second, third and fourth grounds of appeal
The second, third and fourth grounds of appeal state that:
2. The learned primary judge’s findings that: -
(a)The respondent had established that the [applicant] had failed to disclose material information prior to and during trial;
(b)The [applicant] had intentionally misled the respondent as to his relationship with [W Pty Ltd] and the [Q Trust];
(c)That the alleged unknown material information and his relationship with [W Pty Ltd] and the [Q Trust] had not been known by the respondent and her legal advisors prior to or during trial, and
(d)That the respondent at trial did not have the requisite knowledge to pursue important and material issues, and
(e)The respondent’s solicitors [Law Firm AC], by letter dated 2 December 2014, to the [applicant’s] solicitors, [Law Firm AE], advised the latter that discovery and/or production of the letter from [W Pty Ltd] to the [applicant] dated 18 February 2013 was still required.
(f)The information contained in the letter of 18 February 2013 was known only to the [applicant].
are not supported by the respondent’s evidence and are against the weight of the evidence.
3.The learned primary judge erred at law and in the exercise of her discretion in failing to find that such material, knowledge and information and the [applicant’s] relationship with [W Pty Ltd] and the [Q Trust] had been known by the [respondent] and her legal advisors prior to and during the trial.
4.The learned primary judge erred at law and in the exercise of her discretion in failing to find that the respondent’s version of her knowledge at trial was inherently incredible and/or unreliable.
(Emphasis in original)
The gravamen of these grounds of appeal is that:
(a)certain findings of the primary judge were not supported by the respondent’s evidence and were against the weight of the evidence (Ground 2); and
(b)her Honour “erred at law and in the exercise of her discretion” in failing to make certain findings (Grounds 3 and 4).
As we have noted above, in his Summary of Argument, in support of Grounds 3 and 4, counsel for the applicant states that he relies upon and repeats the submissions made in support of the second ground of appeal. In his oral submissions before us, he proceeded likewise.
It will be recalled that s 45A of the Act provides that the Court “may make a decree” for summary dismissal for one party if the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings (emphasis added). Similarly, r 10.12 and r 10.14 of the 2004 Rules provided that a party might apply for summary orders if that party claimed, in relation to the application or response, there was no reasonable likelihood of success. On such an application, the Court might dismiss any part of the case.
It was incumbent upon the applicant to satisfy the primary judge that the respondent had no reasonable prospect or likelihood of success and, if so, in the exercise of her Honour’s discretion, that she should summarily dismiss her s 79A application. Having not satisfied her Honour as to the first limb, her discretion to summarily dismiss was not enlivened.
The applicant’s Summary of Argument makes it readily apparent why her Honour was not prepared to conclude, at an interlocutory stage and without a testing of the evidence, that the respondent’s s 79A application had no reasonable prospect or likelihood of success. That is because much of his argument is directed to inferences which, it is submitted, her Honour should have drawn. See [18], [20], [21], [22], [24], [26], [28], [30], [33], [35], [39] and [40].
Much of the applicant’s argument in support of these remaining grounds of appeal focus on the letter dated 18 February 2013 from W Pty Ltd to him. Whilst his counsel sought to establish before the primary judge and before us, by inference, that the respondent had a copy of it, he could not establish that it had in fact been discovered by the applicant to her, notwithstanding that it squarely fell within the purview of his disclosure obligations under the 2004 Rules. At this interlocutory stage, it is no answer to submit, as the applicant does, that the respondent having knowledge of a letter dated 18 February 2013 from W Pty Ltd to him, amounts to her being aware of its contents or had a copy of it or that he was thereby absolved of his obligation to discover the letter.
Once the evidence has been tested at trial, the trial judge may or may not find, including by inference, that the applicant had a copy of that letter. However, in the absence of any evidence by the applicant that he discovered a copy of the letter to the respondent, we would be most concerned if, save in the clearest of cases, proceedings were found to have no reasonable prospects of success, and summarily dismissed, on the basis of inferences. As the Full Court said in Ritter & Ritter (supra), even if a case is weak, that is insufficient to justify its summary dismissal. However, we express no view in this regard, other than to agree with the primary judge, who was unable to find that the respondent has no reasonable prospect of successfully prosecuting her s 79A application.
We turn to address the remaining matters in the second, third and fourth proposed grounds of appeal not dealt with above.
It is contended in proposed Ground 2(a) that the primary judge’s finding that the respondent had established that the applicant had failed to disclose material information prior to and during the trial was not supported by her evidence and was against the weight of the evidence. This is demonstrably wrong in at least one regard. The applicant had failed to disclose prior to or during the trial that he had deliberately withheld rendering an invoice to W Pty Ltd for work done in the period between 15 October 2015 (before the trial) and 19 June 2016 (after the trial), which included the sum of $74,000 for the period from 28 December 2015 to 19 March 2016, an amount described by her Honour as “not trifling” (at [82]).
Similarly, it is contended in proposed Ground 2(b) that the primary judge’s finding that the applicant had intentionally misled the respondent as to his relationship with W Pty Ltd and the Q Trust was not supported by the respondent’s evidence and was against the weight of the evidence. Again, this is demonstrably wrong in at least one regard. In his email dated 19 August 2013, the applicant advised W Pty Ltd that the respondent had asked for his “correspondence of engagement” [sic] with them; conceded that he had told her (falsely) that he was engaged as a consultant (and not as an employee) on a needs basis; and attached a letter drafted by him and backdated to 4 May 2013 for their consideration which dishonestly referred to him being a consultant at a rate of $75 per hour and which contained no reference to the matters referred to in the correspondence dated 18 February 2013.
Therefore, aside from the letter dated 18 February 2013, in circumstances where the applicant deliberately misled the respondent and the Court by not disclosing the unpaid income earned by him from W Pty Ltd between 28 December 2015 and 19 March 2016 and further sought to mislead the respondent and the Court in relation to his employment with W Pty Ltd, including by backdating the letter drafted by him on 19 August 2013 to 4 May 2013, it cannot be said that the primary judge erred in holding that she was unable to find that the respondent had no reasonable prospect of successfully prosecuting her s 79A application and dismissing the summary dismissal application.
Accordingly, there is no merit in the proposed second, third and fourth grounds of appeal.
Conclusion
In the circumstances, having considered the merits of the appeal (or, rather, lack thereof), we conclude that the decision of the primary judge is not attended by sufficient doubt to warrant it being reconsidered by the Full Court, nor would a substantial injustice result if leave to appeal were refused, supposing the decision to be wrong.
The application for leave to appeal shall be dismissed.
Costs
Prior to the hearing, we were provided by each party with costs schedules in the event one or the other was successful. At the conclusion of the hearing, we heard brief argument on behalf of each party.
The applicant has been wholly unsuccessful in his application for leave to appeal. If any application had no reasonable prospect of success, it was that application, rather than the respondent's s 79A application at this stage.
We shall order the applicant to pay the respondent’s costs of the application for leave to appeal, fixed in the sum of $18,370.39.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, McGuire & Strum. Associate:
Dated: 31 August 2022
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