Danilov & Wynn
[2022] FedCFamC1F 1085
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Danilov & Wynn [2022] FedCFamC1F 1085
File number(s): BRC 15350 of 2019 Judgment of: HOWARD J Date of judgment: 15 June 2022 Catchwords: FAMLY LAW – PRACTICE AND PROCEDURE – Where the husband made an application for the mother’s solicitor to be restrained from acting – Where a substantially similar application had already been determined by another judge of this Court – Common law estoppel – Where the jurisdiction to restrain a lawyer from acting is to be exercised with caution – Where the husband failed to provide sufficient evidence to support his application – Where the application is dismissed.
FAMLY LAW – PRACTICE AND PROCEDURE – Where the husband made an application for the joinder of additional parties, including the family company and its liquidators – Where the husband seeks an order that the appointment of the liquidators be declared invalid and an injunction issue restraining further dealings with the company – Where the appointment of the liquidators was ordered by the Queensland Supreme Court – Where the husband did not appeal this order – Where the circumstances did no justify setting aside the orders of another court – Where the application is dismissed.
FAMLY LAW – COSTS – Where the husband was wholly unsuccessful – Where the Court notes that impecuniosity is not a bar to a costs order – Where the husband has failed to comply with a costs order made previously by a judge of this Court – Where the husband is ordered to pay the costs of the respondents and the proposed parties in accordance with the scale.
Legislation: Corporations Act 2001 (Cth) ss 198G, 474
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 79, 117, 121
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.01, 3.02, 5.08
Cases cited: B Pty Ltd v K (2008) FLC 93-380
Clayton v Bant (2020) 272 CLR 1
Fox v Percy (2003) 214 CLR 118
Grieves & Tully [2011] FamCA 617
Kallinicos v Hunt (2005) 64 NSWLR 561
Magro v Magro (1989) 93 FLR 365
Northern Territory v Sangare (2019) 265 CLR 164
Sanchez & Lee (2013) 49 Fam LR 567
Tomlinson v Ramsey Food Processing (2015) 256 CLR 507
Wayne & Dillon (2008) 40 Fam LR 543
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 96 Date of hearing: 15 June 2022 Place: Brisbane Solicitor for the Applicant: Mr Nowers The Respondents: Litigants in Person Independent Children’s Lawyer: No appearance ORDERS
BRC 15350 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DANILOV
Applicant
AND: MR WYNN
First Respondent
MS F
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOWARD J
DATE OF ORDER:
15 JUNE 2022
THE COURT ORDERS:
1.That the first respondent husband’s Application in a Proceeding filed 21 September 2021 (and amended 15 February 2022) be dismissed.
2.That the first respondent husband’s Application in a Proceeding filed 6 May 2022 be dismissed.
3.That the first respondent husband’s Application in a Proceeding filed 27 May 2022 be dismissed.
4.That the first respondent husband pay to the:
(a)Applicant wife;
(b)G Pty Ltd and Mr Hinkley, the appointed Receiver and Manager of the company 1D Pty Ltd (In Liquidation) (Mr J’s clients); and
(c)Mr Benoit and Mr Coombs as Joint & Several Liquidators of 1D Pty Ltd ACN … (In Liquidation) (Mr K’s clients).
their costs of the Application in a Proceeding filed 21 September 2021 (and amended 15 February 2022) in accordance with the scale contained in Schedule 3 to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), with such costs to be agreed or failing agreement, as assessed.
5.That the first respondent husband pay to the applicant wife her costs of the Application in a Proceeding filed 6 May 2022 in accordance with the scale contained in Schedule 3 to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), with such costs to be agreed or failing agreement, as assessed.
THE COURT FURTHER ORDERS:
6.That these proceedings remain listed for a final hearing for not more than six (6) days commencing at 10.00am on 11 August 2022 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
7.That in the event a party or a party’s lawyer has failed to comply with an obligation imposed by these Orders (or any part of these Orders) then at the final hearing commencing on 11 August 2022 the Court shall consider:
(a)making a costs order against a non-complying party; and/or
(b)proceeding with the matter as an undefended hearing.
8.That the parties and their legal representatives personally attend Court for the final hearing commencing on 11 August 2022.
9.That the Applicant pay any hearing fee or seek a waiver of the fee no later than 4.00pm on 14 July 2022.
10.That each party file and serve on each other party no later than 4.00pm on 21 July 2022:
(a)one (1) consolidated Affidavit of evidence in chief of that party;
(b)an updated Financial Statement; and
(c)one (1) Affidavit of each witness intended to be relied upon at the trial.
11.That any Affidavit filed in accordance with the preceding Order shall:
(a)have any annexures which the deponent may refer to in the Affidavit attached to the Affidavit;
(b)contain an index of any attached annexures; and
(c)be paginated from the commencement of the Affidavit through to the end of the attached annexures.
12.That each party file and serve on each other party no later than 4.00pm on 4 August 2022, a Case Outline setting out:
(a)a precise minute of the final orders sought;
(b)a relevant chronology;
(c)a schedule of the asserted assets and liabilities;
(d)a list of the issues which each party asserts that the Court needs to determine at the trial; and
(e)a list of Affidavits and Applications and/or Responses intended to be relied upon at trial.
13.That no party shall be entitled to rely upon any affidavit material not filed in accordance with these directions without leave of the Court.
14.That should either party wish to raise any objections to the evidence contained in the trial affidavit material – such party shall file and serve a “Notice of Objections to Evidence” (containing a list of objections) at least fourteen (14) days prior to the commencement of the final hearing of the matter.
15.That in the event that a party wishes to cross examine the family report writer at the final hearing, that party shall provide written notice to the family report writer of such intention as soon as reasonably practicable, but by no later than 4.00pm on 21 July 2022.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Danilov & Wynn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOWARD J:
The matter before the Court is an interlocutory application brought by the husband and father in these parenting and property proceedings. They were filed in the Family Court of Australia, as it was then known, now known as Division 1 of the Federal Circuit and Family Court of Australia. The application filed by the applicant father Mr Wynn was filed on 6 May 2022. The orders sought are firstly the time for the hearing of this urgent Application in a Case be abridged. Secondly, that Mr Nowers, solicitor, be restrained from acting on behalf of the applicant mother in these proceedings. Thirdly, such further and other orders as this honourable Court deems appropriate.
The father filed an affidavit on the same date, which is significantly longer than permitted by the rules of this Court. In particular, I drew the attention of the parties to r 5.08 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). I drew attention to that rule on two counts. Firstly, in relation to how many affidavits each party is permitted to rely upon at the hearing of an interlocutory application and secondly, in relation to the length of the affidavit. Each party is only permitted to rely upon one affidavit.
Now, I gave to the husband certain leave to rely upon a couple of other documents, including an email from a Mr N that is annexed to an affidavit of the father that seems to have been filed on 20 April 2022. So that particular email forms part of the evidence. I also gave him leave to rely upon an annexure known as MF7 to the affidavit of Mr Wynn that was filed on 16 February 2022. It was sworn on 15 February 2022. MF7 is an affidavit of Ms F. Ms F is the maternal grandmother. She is a party to these current family law proceedings. So leave was given in respect of those two documents.
The family law proceedings currently before the Court were commenced on 17 December 2019 in the Federal Circuit Court (as it was then known). They were transferred to this Court on 17 February 2020. A similar application seeking the restraint of Mr Nowers from acting for the mother was brought by the father and heard by Baumann J on 19 June 2020. His Honour delivered reasons on 17 September 2020. It is in relation to the background of this case, that is to say filing dates of the Application and the Response and so on. I do note what was stated by his Honour. His Honour dismissed the application of the father at that stage.
In essence, what is before the Court in the broader family law proceedings are proceedings for property adjustment under s 79 of the Family Law Act 1975 (Cth) (“the Act”), and proceedings for parenting orders under part 7 of the Act. The reason that Ms F is a party is because it seems that Ms F says that she lent money to one or both of the parties and seeks the recovery of that money.
In the first set of proceedings before Baumann J, many matters were ventilated by the father in relation to reasons why he says Mr Nowers should be restrained from acting for the mother. Many of them related to the development that is known as “D Street”, which, of course, is 1 D Street at Suburb E. It seems to me that in relation to any matters that pre-date the judge’s decision, the better view is that an estoppel has arisen in relation to those matters.
There are a number of leading cases in this area, including Tomlinson v Ramsey Food Processing (2015) 256 CLR 507 (“Tomlinson”). From that case I note the following was stated by the Court:
“20.An exercise of judicial power, it has been held, involves "as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons". The rendering of a final judgment in that way "quells" the controversy between those persons. The rights and obligations in controversy, as between those persons, cease to have an independent existence: they "merge" in that final judgment. That merger has long been treated in Australia as equating to "res judicata" in the strict sense.
21.Estoppel in relation to judicial determinations is of a different nature. It is a common law doctrine informed, in its relevant application, by similar considerations of finality and fairness. Yet its operation is not confined to an exercise of judicial power; it also operates in the context of a final judgment having been rendered in other adversarial proceedings. It operates in such a context as estoppel operates in other contexts: as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law.
22. Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as "cause of action estoppel". Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as "issue estoppel". Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies". The third form of estoppel is now most often referred to as "Anshun estoppel", although it is still sometimes referred to as the "extended principle" in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a "true estoppel" and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.
23. The present significance of the recognition of those three forms of estoppel is that each has the potential to preclude assertion of a right or obligation, or the raising of an issue of fact or law, between parties to a proceeding or their privies. Absent a principled basis for distinction – and none has been suggested – one principle must govern the identification of privies for the purpose of all forms of estoppel which result from the rendering of a final judgment in an adversarial proceeding.”
(footnotes omitted)
On a consideration of those principles, it seems to me that in respect of matters that arose prior to Baumann J’s decision and/or in relation to matters raised before the judge – cause of action estoppel has arisen. I do not consider that it is a case of res judicata. It seems to me there is no merging of a cause of action in a final judgment. But I do think that it is what is known as a common law estoppel, in particular a cause of action estoppel. Possibly also the second category referred to by the High Court of an “issue estoppel” and probably also in relation to the third form, which is often referred to as “Anshun estoppel”.
Those paragraphs of the decision in Tomlinson set out very clearly what each form of estoppel means. It is important, I think, to look at the first example; the cause of action estoppel. Estoppel in that form, as stated by the High Court in paragraph 22:
“22.…operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment.”
So any matters, it seems to me, relating to the fact that Mr Nowers may have represented Mr B in relation to 1 D Pty Ltd or other matters that he might have represented Mr B in relation to – they have all been looked at. These issues have been looked at by Baumann J and estoppel does arise.
The other decision upon which I rely is the decision of Clayton v Bant (2020) 272 CLR 1, and in particular there is a helpful explanation of this area of the law by Edelman J in relation to the “Anshun estoppel”. That is the third form that I referred to from Tomlinson. His Honour said at [70]:
“70.…A party will be precluded from relying upon a cause of action or an issue if it was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it.”
That is the situation here in relation to any aspect of the matter relating to Mr Nowers acting for Mr B in relation to 1 D Street and Mr Nowers acting for Mr B in relation to any other dealings. All of those issues and matters were before the previous judge and have been determined and an estoppel does arise.
As I have made it clear, there is only certain material that is included in the father’s Outline of Case that I have permitted him to rely upon. It is the main affidavit of his filed 6 May 2022 and the other documents to which I have referred. In relation to the wife’s or the mother’s response thereto, there is a Response to the Application in a Proceeding and there is an affidavit, both of which were filed on about 20 May 2022.
In the decision of Baumann J, his Honour set out the principles to be relied upon in deciding whether or not this Court should exercise its discretion and issue an order restraining Mr Nowers from continuing to act for the mother. I note in particular in paragraph 5 of the reasons of Baumann J. His Honour conveniently set out the relevant principles and made references to many of the applicable cases. I think it is helpful to actually include those paragraphs here in this judgment. They read as follows:-
In Antony & Joyce [2020] FamCA 150, I set out the following principles:
“4. In Osferatu (supra) at [20], the Full Court said:
“There are three established categories on the basis of which solicitors may be restrained from acting against their client or former client. They are: breach of confidence, breach of fiduciary duty and the inherent jurisdiction of a court over its officers and to control its process. Each category has its own principles which guide its operation. The third category may be involved in conjunction with either of the first two so there is clearly an overlap; nonetheless, the basis for the exercise of the jurisdiction in each is different (Kallinicos v Hunt (2005) 64 NSWLR 561).”
5.In Kallinicos v Hunt (supra) Brereton J summarised the relevant principles at [76]:
“…
However, the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice...
The test to be applied in this inherent jurisdiction is whether a fairminded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
The jurisdiction is to be regarded as exceptional and is to be exercised with caution.
Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause.
The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.”
…
6. …
7. …
8.I accept that the authorities adopted and summarised in McMillan & McMillan (2000) FLC 93-048 require the husband in this case to:
“…give evidence that he has provided confidential information to the solicitor… The client does not have to divulge the content of that information.” At [87].
9.When considering how appropriate weight must be given “to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause (see Billington & Billington (No. 2) [2008] FamCA 409, this must be balanced against the competing interests of the client which were described by Lord Millett in Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222 at [236] as follows:
“It is of overriding importance for the proper administration of justice that a client should be able to have complete confidence that what he tells his lawyer will remain secret. This is a matter of perception as well as substance. It is of the highest importance to the administration of justice that a solicitor or other person in possession of confidential and privileged information should not act in any way that might appear to put that information at risk of coming into the hands of someone with an adverse interest.”
10.When considering Lord Millett’s judgment, Goldberg J in PhotoCure ASA v Queen’s University at Kingston [2002] FCA 905 at [50] – [51] said inter alia:
“50. It is apparent from Lord Millett’s judgment that there are three stages which need to be considered:
•whether the firm is in possession of information which is confidential to the former client;
•whether that information is, or may be, relevant to a matter in which the firm is proposing to act for another party with an interest adverse to the former client;
•whether there is any risk that the information will come into the possession of those persons in the firm working for the other party.
51.The burden of establishing the first two propositions is upon the former client but the burden of establishing the third proposition moves to the firm proposing to act once the first two propositions are satisfied.”
11. Again at [35] in Osferatu (supra) the Court said:
“A balancing of the nature of the information against a consideration of the person to whom the information was given, when the information was given, the relevance of that information to the current proceedings, the risk of disclosure and any proposed protective measures is required before any determination can be made as to whether any relief is required and, if so, what is the appropriate relief.””
Of particular note are a number of things. I note from the case of Kallinicos v Hunt[1] that Brereton said at paragraph 76 that:-
“The jurisdiction granted to the Court to restrain a lawyer from acting for a particular party is to be regarded as exceptional and is to be exercised with caution.”
His Honour said that:-
“Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause.”
His Honour also said that:-
“The timing of the application may be relevant in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.”
[1] (2005) 64 NSWLR 561 (“Kallinicos”).
In the case currently before the Court, the Application was filed on 6 May 2022 by the father. It is well-known that the Courts in Australia in the family law jurisdiction have hundreds, if not thousands, of cases waiting for trial. This matter was previously given trial dates in May of 2022 but that needed to be vacated. Trial dates have been given to commence on 11 August 2022 for six days. That is less than two months from today.
At the outset I would say that the cost, inconvenience and impracticability of requiring Mr Nowers to cease acting for the mother at this stage would, in my view, provide a sufficient reason for refusing to grant the relief sought by the father. Less than two months before a six day hearing where there are many serious issues in contention would, it seems to me, unnecessarily impede the administration of justice. There are, for instance, allegations of sexual abuse. As I understand the submissions today, those allegations have been made by including allegations by the father against other persons; that is sexual abuse of the children in this family.
Quite apart from that issue, the father maintains that the mother has attempted to alienate the children from him. That is a complex issue to be considered at the trial. Apart from the parenting issues, all of which are complex, there is the property issues which are not straightforward, to say the least, involving, as they do, a failed development at D Street in Brisbane. The other issue that the father has reiterated today is the fact that much has been made by others, in particular on behalf of the mother, I suppose, in relation to the actual state of his mental health. Now, these are all matters to be considered at the final hearing.
It seems to me that with less than two months to run until the trial starts it would be nigh on impossible, at the very least extremely difficult, for a new solicitor to take over what has been a relatively long running litigation, having been commenced in 2019. To put it another way, if the Court restrained Mr Nowers from acting, then it seems to me that there would be very little likelihood that the matter could proceed in August. And if the matter does not proceed in August, then noting the current Court listings and diary, the matter would not be heard until at least midway through 2023. Such a delay, it seems to me, is not in the interests of this family. It certainly would not be in the interests of the children in this family.
In addition to my conclusion that the timing of this application is relevant and, as I have said, provides a sufficient reason for refusing to grant the relief sought, there are, it seems to me, many other reasons why this application should be dismissed. The father has said that the matters upon which he relies in respect of this application postdate the matters raised before Baumann J and the father has specifically highlighted certain submissions.
Now, the father did provide a written submissions but he also made oral submissions today. He is self-represented. I have taken that into account and, frankly, a good deal of latitude was granted to the father. In particular, for instance, in relation to relying upon some additional pieces of evidence, to which I have already referred, beyond the one affidavit he was permitted by the rule to rely upon.
Many of the father’s submissions come down to this. He complains repeatedly that Mr B is a person relevant to the father’s arguments. Mr B is married to the maternal grandmother. As is evident from Baumann J’s decision, Mr B had, it seemed, provided funding in respect of the number 1 D Street development. As I have noted, the development didn’t go well. The father is clearly unhappy with the way things turned out in respect of that development.
He is very concerned that Mr Nowers is actually taking instructions in respect of these family law proceedings from Mr B. In fact, the father, as I recall his oral submissions, submitted not only that he considered it was Mr B exercising control over Mr Nowers, but that Mr B was exercising control over the mother. I do not consider there is sufficient evidence to support such a contention. Mr Nowers has sworn to the fact that he takes instructions from his own client; the mother Ms Danilov.
An allegation that a lawyer is improperly taking instructions from someone other than his client is, it seems to me, an allegation that would come within s 140 of the Evidence Act 1995 (Cth) (“Evidence Act”), which reads:-
“(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.”
The gravity of the matters alleged here is extremely serious; that a person not a party to the proceedings, namely Mr B, is exercising control which, in the form of this submission, I would have to infer that Mr Wynn was asserting that it was undue control over Mr Nowers, who is a solicitor who has been in practice in Queensland for many years, including in the family law jurisdiction.
As I have indicated, I do not consider that the evidence put forward by the father comes anywhere close to proving on the balance of probabilities such an assertion, taking, as I do, into account the gravity of the matters alleged. The father returned to this issue time and again. Indeed, I clarified with him and he agreed that he was really saying this was at the heart of the matter. There is not sufficient evidence to support such a conclusion. And not only do I note s 140 of the Evidence Act, but I note what Brereton J said in Kallinicos at paragraph 76; that the jurisdiction is to be exercised with caution.
The father was also particularly upset with what he said was evidence of – he maintained that Mr Nowers had used material from this Court and provided it or used it improperly in respect of other proceedings. There were domestic violence proceedings which I understand were not concluded before Baumann J’s decision. The father was upset in relation to documents that might have been provided to the Magistrates Court of Queensland.
I pointed out to the father the fact that under s 121 of the Family Law Act there is the very important subsection (9), which reads:-
“(9) The preceding provisions of this section do not apply to or in relation to:
(a)the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or
(aa)the communication of any pleading, transcript of evidence or other document to authorities of States and Territories that have responsibilities relating to the welfare of children and are prescribed by the regulations for the purposes of this paragraph; or
(b)the communication of any pleading, transcript of evidence or other document to:
(i)a body that is responsible for disciplining members of the legal profession in a State or Territory; or
(ii)persons concerned in disciplinary proceedings against a member of the legal profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the legal profession in that State or Territory; or
(c)the communication, to a body that grants assistance by way of legal aid, of any pleading, transcript of evidence or other document for the purpose of facilitating the making of a decision as to whether assistance by way of legal aid should be granted, continued or provided in a particular case; or
(d)the publishing of a notice or report in pursuance of the direction of a court; or
(da)the publication by the court of lists of proceedings under this Act, identified by reference to the names of the parties, that are to be dealt with by the court; or
(e)the publishing of any publication bona fide intended primarily for use by the members of any profession, being:
(i)a separate volume or part of a series of law reports; or
(ii)any other publication of a technical character; or
(f)the publication or other dissemination of an account of proceedings or of any part of proceedings:
(i)to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved; or
(ia)to an individual who is a party to any proceedings under this Act, in connection with the conduct of those proceedings; or
(ii)to a person who is a student, in connection with the studies of that person; or
(g)publication of accounts of proceedings, where those accounts have been approved by the court.
I note that, to the extent that any person has provided a document (for instance the father alleged that someone may have provided a copy of a family law order in the domestic violence proceedings), subsections (a) and (aa) it seems to me – not to mention (b) – well and truly cover the situation, as they permit provision of such documents if they were provided to the Magistrates Court of Queensland. And frankly it seems to me that the complaint about a Mr N providing information or documents to the Ombudsman for Health in Queensland is also likely covered by s 121(9), either (a), (aa) or (b).
But quite apart from that, I note that there is no evidence that Mr Nowers ever acted for Mr N and what Mr N might have done in relation to documents or information relating to the ombudsman is a matter for Mr N. The initial point I make, though, is that the s 121(9) would appear to provide full protection to Mr N, in any event. I make no concluded decision in that regard because I am not required to.
The father was also drawing to the Court’s attention the matters in the annexure MF7 of his own affidavit from February this year, to which I earlier referred. There is a paragraph there where Ms F says that she sought independent legal advice from Messrs Nowers of Q Lawyers and that appears on page 2 of the affidavit. It seems to me that even if that is correct, and it may well be, it seems to me that that is not a sufficient reason to prevent Mr Nowers from acting in these family law proceedings for Ms Danilov, the mother in the case. Those proceedings were in the Supreme – that is, the affidavit of Ms F was filed in the Supreme Court proceedings relating to the liquidation of 1D Pty Ltd.
The father says that Mr Nowers witnesses various affidavits in those Supreme Court proceedings. That proceedings, I add, postdate the decision of Baumann J. But the evidence from Mr Nowers is that he did not act for Mr B, nor did he act for a company called C Pty Ltd. They had a lawyer called P Lawyers. Mr B himself was self-represented. Ms F was self-represented. Ms Danilov was self-represented. Mr Nowers witnessed some of the affidavits, but he did not act for the parties. Mr Nowers has sworn to the fact that he takes instructions from the wife. And there is that clear evidence from Mr Nowers, in contrast to the assertions or suspicions of Mr Wynn, the father in this case.
I do not see there is any relevance in the fact that Mr Nowers, on behalf of the mother, at one stage filed an application to join the liquidators in these family law proceedings but it was not proceeded with. I do not see that that assists the father in his argument that Mr Nowers should be restrained from acting for the mother. There were, last year, proceedings in the Magistrates Court of Queensland in relation to a domestic violence application brought by the father. In that situation Mr Nowers acted for Mr B. The Court dismissed the father’s application. The mother was not involved in that domestic violence application.
Allegations were made by Mr Wynn, that is, the father in these proceedings, against Mr B and others, but the Court dismissed the father’s application. I am told that matter is under appeal to the District Court. The father made specific mention to the fact that Mr Nowers will have come into possession of information relating to, for instance, Mr Wynn’s mental health, and the sexual abuse allegations, and all these matters were raised in the domestic violence proceedings. But the point that I come back to is – and one that I made during argument – is that those issues were well and truly live in this Court before any domestic violence application.
The allegations in relation to sexual abuse have been known in this Court for some time. The evidence or allegations relating to the father’s mental health are also matters to be considered in this Court, and they predate the domestic violence application. I do not consider that there is any sound argument put forward by the father to the effect that because Mr Nowers acted for Mr B in the domestic violence application last year Mr Nowers should, thereby, be prevented from representing the mother in this family law proceedings. Many of the cases, if not all of them, refer to matters for the Court to consider, such as whether there has been a breach of confidence or a breach of fiduciary duty and, of course, the inherent jurisdiction of a court over its officers, and to control its process.
In relation to a breach of confidence, often the matter for consideration is whether a person has provided confidential information to the solicitor. Now, in those circumstances, the situation is that the father would have to prove to the Court’s satisfaction in this application that he has provided confidential information to the solicitor, not, for instance, that other people might have provided confidential information to the solicitor, unless he somehow proved it was inherently linked to his own confidential information. From what I have read and seen, I do not think the father even makes this assertion. He may well have raised that assertion – and believe he did – before Baumann J, but his Honour dealt with that in relation to 1D Pty Ltd, and his Honour dismissed that application.
As I have said, a common law estoppel arises, and that matter cannot be re-litigated by this Court. If the father was unhappy with Baumann J’s decision he ought to have appealed it. That time has well and truly passed. Those principles to which I have referred relating to the provision of confidential information and so on are included in the summary of the cases provided by Baumann J in paragraph 5 of his decision, and which I have also included here in these Reasons for judgment. I do not see, for instance, that there is any evidence that Mr Nowers is in possession of information which is confidential to, for instance, Mr Wynn. Mr Wynn has run an argument that, for instance, Mr Nowers has represented Mr B in the past; he represented Mr B in the domestic violence proceedings last year; on the affidavit of Ms F, Mr Nowers may have given information or advice to Ms F concerning the Supreme Court litigation.
It seems to me that much of what has been said by Mr Wynn, that is, the father, relates to a submission which could be summarised as, there are really just too many situations where Mr Nowers has acted for various members of the family and he ought be restrained from acting for the mother. To my mind, though, it simply does not follow. A person who brings an application to restrain a lawyer from acting needs to descend to particularity. The Court cannot make a decision based on suspicion. The Court cannot make a decision based on unproved facts. At the heart of the issue, it is apparent from the cases, is the possession of confidential information generally in the context of a situation where the lawyer in question may have acted previously for one of the parties to the family law litigation, the party now applying to prevent the lawyer acting from the other party to the family law litigation.
My attention was drawn by Mr Wynn to the case of Sanchez & Lee[2]. That case is easily distinguished by the fact that her Honour restrained the lawyer from acting in that case. The lawyer was the father-in-law of the mother in that case. It seems to me to be a sufficient point to distinguish with that straightaway, quite apart from looking any closer to what the confidential information was in Sanchez. But the other point here is, the father went on to say that is a similar set of circumstances to the fact that Mr B is in the background and – so says the father – providing directions and instructions to the lawyer, Mr Nowers.
[2] (2013) 49 Fam LR 567.
It seems to me the father is quite wrong in that submission. It is not a similar set of circumstances at all. The father took the Court to a case called Magro v Magro[3]. Again, at the outset, a lawyer in that case was prevented from acting for a party. I note in that case that the wife’s former solicitor, in Magro, was now employed by the husband’s solicitor. That simply is a different factual scenario to what is currently before the Court, and is not relevant. I do add that that sort of scenario is often what we note or see in applications of this kind. The Court was also taken to a decision of Grieves v Tully[4] by the father.
[3] (1989) 93 FLR 365.
[4] [2011] FamCA 617.
Again, that decision is easily distinguished from the current case before the Court. In that case the husband’s solicitor had a longstanding friendship with the husband. The firm involved had previously ceased to act for the husband, but then, it seems, came back into the matter, and the Court there considered the various cases and the law, and so on. Here, the complaints raised by the father do not fall into any of those particular categories, in terms of the factual scenarios.
Having regard to the principles that I have included here, I do not think it could be said that a “fair-minded, reasonably informed member of the public” would conclude that the proper administration of justice required that Mr Nowers should be prevented from acting for the mother.[5]
[5] Kallinicos at [76].
The father complains that apparently, at some stage, possibly, Mr Nowers had become involved in relation to a subpoena served on L Company, and the father alleged, I apprehend from his submission, that Mr B was involved in the background there and somehow this would be a reason for the Court to restrain Mr Nowers from acting for the mother. Again, I reject that submission. I do not think there is any proper basis for coming to that conclusion. I have had regard to all of the father’s written submissions and his oral submissions. The Court is not required to refer to each and every submission put forward by the losing side. The Court is not required in the reasons for judgment to specifically address each issue raised.[6]
[6] Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]; Fox v Percy (2003) 214 CLR 118 at 132
I do not accept the assertion made by Mr Wynn that somehow Mr Nowers is not acting in the best interests of the children. I am not satisfied that there is any evidence that would support such a contention. I do not consider there is any evidence to support the contention that Mr Nowers has impeded the father’s negotiations with the mother, as asserted in the written submissions of Mr Wynn. Many of the complaints made by the father related to the fact that Mr Nowers may have acted for other persons in the family. I have already made reference to this. The father seemed to be complaining that this could mean that Mr Nowers has possession of information from various sources, but I note that in that particular complaint made by the father he does not seem to actually refer to confidential information provided by him.
No one else is complaining about Mr Nowers’ involvement in these proceedings, other than the father. The father has also filed before this Court an application listed for today to join various parties, including Mr B, and various other entities, including, for instance, Mr Coombs and Mr Benoit, who are, I presume, the liquidators of 1D Pty Ltd. And the father also seeks to join G Pty Ltd (in receivership) and the receiver, Mr Hinkley. Mr J will appear when we resume after lunch for G Pty Ltd as will the receiver of G Pty Ltd, Mr Hinkley. Mr K will appear for Mr Coombs and Mr Benoit. Mr B is self-represented. I will hear also, obviously, initially, from the father, who brings the applications.
I will hear from Mr Nowers, on behalf of the mother. And I will hear from Ms F, who is already a party to this litigation. I am telling the parties now that I will be settling those Reasons for judgment and, to the extent that I need to perhaps quote from another case or two, I will be doing that. But primarily, I will be attending only to grammatical issues and issues of form, rather than content.
The matter before the Court involves proceedings under s 79 of the Act and a parenting claim under Part 7 of the Act. The applicant mother/wife is Ms Danilov; the respondent father/husband is Mr Wynn. Another respondent is Ms F who is the maternal grandmother. She is a party because she says she leant money to the married couple and seeks recovery of the money.
The proceedings have been on foot since late 2019. At some stage last year there was an application filed by the husband to join additional parties. The application was amended. The Amended Application in a Proceeding was filed on 15 February this year and the orders sought in the Amended Application in a Proceeding are as follows:-
“(1)Pursuant to rule 3.02 of the Federal Circuit and Family Law Rules 2021 (Cth) and section 79(10)a) of the Family Law Act 1975 (Cth) and pursuant s 1337H(2) of the Corporations Act 20021 (Cth) [MR BENOIT] AND [MR COOMBS] AS JOINT AND SEVERAL LIQUIDATORS OF [1D PTY LTD] ACN […] (IN LIQUIDATION) are joined to these proceedings as a Second Respondent.
(2)Pursuant to rule 3.02 of the Federal and Family Law Rules 2021 and section 79(10)(a) of the Family Law Act 1975 and pursuant s 1337H(2) of the Corporations Act 20021 (Cth) [1D PTY LTD] ACN […] (IN LIQIDATION) is joined to these proceedings as a Third Respondent.
(3)Pursuant to rule 3.02 of the Federal and Family Law Rules 2021 and section 79(10)(a) of the Family Law Act 1975 [C PTY LTD] ACN […] ATF [B TRUST] is joined to these proceedings as a Fourth Respondent.
(4)Pursuant to rule 3.02 of the Federal and Family Law Rules 2021 and section 79(10)(a) of the Family Law Act 1975 [MS F] is joined to these proceedings as a Fifth Respondent.
(6)Pursuant to rule 3.02 of the Federal and Family Law Rules 2021 and section 79(10)(a) of the Family Law Act 1975 [G PTY LTD] ACN […] is joined to these proceedings as a Sixth Respondent.
(7)Pursuant to rule 3.02 of the Federal and Family Law Rules 2021 and section 79(10)(a) of the Family Law Act 1975 [MR HINKLEY] AS RECEIVER AND MANAGER of [1D PTY LTD] ACN […] (IN LIQIDATION) is joined to these proceedings as a Seventh Respondent.
(8)Pursuant to the Corporations Act 2001 (Cth) ss 447C(1)(2), the purported appointment of [MR BENOIT] AND [MR COOMBS] AS JOINT AND SEVERAL LIQUIDATORS OF [1D PTY LTD] ACN […] (IN LIQUIDATION) be declared to be invalid
(9)Pursuant to the Corporations Act 2001 (Cth) ss 419A, the purported appointment of [MR HINKLEY] AS RECEIVER AND MANAGER of [1D PTY LTD] ACN […] (IN LIQUIDATION) be declared to be invalid.
(10)Pursuant to section 114(1) of the Family Law Act 1975 grants an injunction restraining [MR HINKLEY] AS RECEIVER AND MANAGER of [1D PTY LTD] ACN […] (IN LIQUIDATION) from taking any steps in concerning the company including but not limited to the closure of the company.
(11)Following the joinder of the Parties leave is sort to commence proceedings against the parties nominated in orders 8 and 9.
(12)Such further or other order as the Court deems appropriate.
In particular, it is sought to join Mr Benoit and Mr Coombs as the liquidators of 1D Pty Ltd (in liquidation). Furthermore, an order is sought joining 1D Pty Ltd (in liquidation) as a party to these Family Law proceedings.
Next, it is sought that a company called C Pty Ltd as trustee for the B Trust be joined as a party to the proceedings. Another order sought related to Ms F but Ms F is already now a party to the proceedings. A further order sought that G Pty Ltd be joined as well as the receiver and manager of – according to this amended application – 1D Pty Ltd (in liquidation) named as a Mr Hinkley.
Various other orders are sought – and I will come back to those shortly if necessary – there as stated in paragraphs 8, nine, 10 and 11 of the Amended Application in a Proceeding.
In the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, there is contained in Part 3.1 the following rules:-
“3.01 Necessary Parties
A person whose rights may be directly affected by an issue in a proceeding, and whose participation as a party is necessary for the court to determine all issues in dispute in the proceeding, must be included as a party to the proceeding.
…
3.02 Necessary parties to applications for parenting orders
(1)If an application is made for a parenting order in relation to a child, the following must be parties to the proceeding:
(a)the parents of the child;
(b)any other person in whose favour a parenting order is currently in force in relation to the child;
(c)any other person with whom the child lives and who is responsible for the care, welfare and development of the child;
(d)if a State child order is currently in place in relation to the child—the prescribed child welfare authority.
(2)If a person referred to in subrule (1) is not an applicant in a proceeding involving the child, the person must be joined as a respondent to the application.
3.03 Adding a party
…
(4) A party may only add another party after the first court date with the leave of the court.
(5)A party who relies on subrule (4) must:
(a) file:
(i) an Application in a Proceeding; and
(ii)an affidavit setting out the facts relied on to support the addition of the proposed new party, including a statement of the proposed new party’s relationship (if any) to the other parties; and
(b) serve on the proposed new party:
(i)a copy of the Application in a Proceeding; and
(ii)the affidavit referred to in subparagraph (a)(ii); and
(iii)any other relevant document filed in the proceeding; and
(c) serve on the other parties:
(i)a copy of the Application in a Proceeding; and
(ii)the affidavit referred to in subparagraph (a)(ii).
The husband here, Mr Wynn, seeks leave of the Court to add the parties I have mentioned and subrule (5) of rule 3.03 sets out what a party must do in seeking an order replying on rule 3.03, subrule (4). An Application in a Proceeding is required and an affidavit setting out the facts relied on to support the addition of a proposed new party including a statement of the proposed new party’s relationship, if any, to the other parties. The rule then goes on to talk about service of the material on the proposed new party, etcetera.
The proposed new parties have been served and they are here and they have made submissions. The applicant in respect of this application is Mr Wynn, the husband. The respondent, Ms Danilov, is represented by Mr Nowers. One of the proposed respondent’s, being C Pty Ltd and Mr B, who is self-represented it seems, on behalf of the company; Mr J appears on behalf of another of the proposed respondents, namely G Pty Ltd, a company which has had a receiver appointed, and Mr J appears for Mr Hinkley, who apparently is a receiver and manager it seems of certain assets owned or formerly owned by 1D Pty Ltd (in liquidation). Mr K, solicitor, appears on behalf of the liquidators, Mr Benoit and Mr Coombs; that is the liquidators of 1D Pty Ltd in liquidation.
The Court should look carefully then at the affidavit setting out the facts relied on to support the addition of a proposed new party and I note, for instance, what was said by the Full Court in B Pty Ltd v K (2008) FLC 93-380. To start with, at paragraph 44, the Full Court, when considering an appeal against orders adding parties to Family Law proceedings said at paragraph 44:
“However, the narrative or descriptive nature of evidence is often unsuited to formulate or particularise a cause of action against a third party. Something resembling a statement of claim will generally be necessary.”
And in paragraph 52 of the same decision, the Full Court said:
“We do not accept that it is proper to allow joinder of third parties merely upon the formulation of a paragraph in or to be added to an application on the basis that, at trial, facts to support the application may be asserted and proved. Sufficient facts must be asserted to demonstrate that, if proved, the law arguably provides the relief sought.”
Less than one month ago, on 18 May 2022, the husband, Mr Wynn filed an affidavit which included a document which is headed the statement of claim. The so-called statement of claim forms part of the body of the affidavit and starts at page 3 of the actual document.
Mr J, Mr K and Mr Nowers at the outset maintained that the proposed statement of claim indicates that the current applicant, Mr Wynn, does not have standing to pursue the claims as pleaded in the proposed statement of claim. Paragraph 7 of the statement of claim says that from paragraphs 8 onwards, any reference of plaintiff refers to 1D Pty Ltd at paragraph 1, and paragraph 1 had spoken of 1D Pty Ltd as trustee for, in liquidation, 1D Trust, was a company duly incorporated and capable of suing.
The difficulty highlighted by those lawyers, Mr J, Mr K and Mr Nowers, the difficulty for the applicant, Mr Wynn is that he – Mr Wynn – does not have standing to commence or progress a claim on behalf of 1D Pty Ltd. That company is in liquidation and it has been in liquidation since mid-2019 when the Supreme Court of Queensland made orders appointing Mr Benoit and Mr Coombs as liquidators of the company, 1D Pty Ltd as trustee for 1D Trust.
It is a winding-up order and it is an appointment of liquidators order. That order by the Supreme Court was made almost three years ago. The husband in the current proceedings, Mr Wynn, in his amended Application in a Proceeding makes it clear that one of the other orders that he will be seeking will be, essentially, a declaration that the appointment of the liquidators was invalid. As I understand his argument, he seeks to have the liquidation set aside. I note that Mr Wynn did not appeal the order made by the Supreme Court. I note further it is almost three years since that order was made.
The point for present purposes is as follows. By s 474 of the Corporations Act 2001 (Cth) (“Corporations Act”), if a company is being wound up in insolvency or by the Courtor a provisional liquidator has been appointed, it is the liquidator who must take into his or her custody all the property which appears to be property of the company. Section 474 of the Corporations Act states as follows:
“(1)If a company is being wound up in insolvency or by the Court, or a provisional liquidator of a company has been appointed:
(a) in a case in which a liquidator or provisional liquidator has been appointed the liquidator or provisional liquidator must take into his or her custody, or under his or her control, all the property which is, or which appears to be, property of the company; or
(b) in a case in which there is no liquidator--all the property of the company is to be in the custody of the Court. Note: Section 465 extends the meaning of the property of the company to include PPSA retention of title property if the security interest in the property has vested in the company in certain situations.
(2) The Court may, on the application of the liquidator, by order direct that all or any part of the property of the company vests in the liquidator and thereupon the property to which the order relates vests accordingly and the liquidator may, after giving such indemnity (if any) as the Court directs, bring, or may defend, any action or other legal proceeding that relates to that property or that it is necessary to bring or defend for the purpose of effectually winding up the company and recovering its property.
(3) Where an order is made under this section, the liquidator of the company to which the order relates must, within 14 days after the making of the order, lodge with ASIC an office copy of the order.”
The liquidators then have standing to apply to the Court to bring or defend any action or other legal proceeding that relates to the property of the company in liquidation or that is necessary to bring or defend for the purposes of effectually winding up the company. Furthermore, by s 198G of the Corporations Act, while a company is under external administration including, for instance, liquidation, an officer of the company must not perform or exercise a function or power of that office.
External administration is further referred to in Schedule 2 of the Corporations Act at clause 5-15.
Section 198G of the Corporations Act provides:
Powers of officers while company under external administration
(1) While a company is under external administration, an officer of the company must not perform or exercise a function or power of that office.
Offence
(2) A person commits an offence if:
(a) the person is an officer of a company; and
(b) the company is under external administration; and
(c) the person purports to perform or exercise a function or power of that office.
Penalty: 30 penalty units.
Exceptions
(3) Subsections (1) and (2) do not apply to the extent that the officer of the company is acting:
(a) as the external administrator of the company; or
(b) with the written approval of the external administrator of the company or the Court; or
(c) in circumstances in which, despite the fact that the company is under external administration, the officer is permitted by this Act to act.
…
(4) Subsections (1) and (2) do not apply if the company has executed a deed of company arrangement and the deed has not yet terminated.
…
(4A) Subsections (1) and (2) do not apply in relation to:
(a) a company under restructuring; or
(b) a company that has made a restructuring plan that has not yet terminated.
Functions and powers of liquidator or provisional liquidator prevail in case of conflict
(5) If subsection (3) applies and there is a conflict between a function or power of the external administrator of the company and a function or power of the officer in relation to the company, the external administrator's function or power prevails.
Effect of section
(6) This section does not remove an officer of a company from office.
(7) For the purposes of this section, a person is not an officer of a company merely because he or she is a managing controller, appointed under a power contained in an instrument, of property of the company.
(8) Nothing in this section affects a secured creditor's right to realise or otherwise deal with the security interest.
Definitions
(9) In this section:
"External administration" of a company has the same meaning as in Schedule 2.
"External administrator" of a company has the same meaning as in Schedule 2.
(Notes omitted)
Clause 5-15 from schedule 2 of the Corporations Act:
Meaning of external administration of a company.
A company is taken to be under external administration if:
(a) the company is under administration; or
(b) a deed of company arrangement has been entered into in relation to the company; or
(ba) the company is under restructuring; or
(bb) a restructuring plan has been made in relation to the company; or
(c) a liquidator has been appointed in relation to the company; or
(d) a provisional liquidator has been appointed in relation to the company.
Note: A company is not under external administration for the purposes of this Schedule merely because a receiver, receiver and manager, or other controller has been appointed in relation to property of the company.
That is the clause that makes it clear that external administration includes, for instance, when a liquidator has been appointed in relation to the company.
The point being made by Mr J, Mr K and Mr Nowers is that the husband, as I have said earlier, does not have the standing, at this stage, to bring any claim on behalf of 1D Pty Ltd. That company is in liquidation; liquidators have been appointed by the Supreme Court of Queensland. I also note that given that 1D Pty Ltd is in liquidation, that company which is referred to as having acted as trustee for the 1D Trust, by going into liquidation, that company was disqualified from holding office as a trustee.
Mr J drew this to the Court’s attention in his submission by reference to an affidavit of Mr O which the Court granted leave to Mr J to rely upon and, in particular, page 29 of 35, rule 15 related to the resignation and appointment of trustees.
The husband says he could amend his statement of claim or his proposed statement of claim but this version is less than one month old and the trial begins in about six to eight weeks’ time. Seeking to join a party to litigation is a serious step. It can involve a significant financial cost on the proposed parties if orders are granted allowing the joinder.
The claim, as framed in the proposed statement of claim is not a claim which is open to this applicant, Mr Wynn, to bring. He does not have necessary standing to do it. Mr Wynn says, look, if they can be joined, he would then seek orders setting aside the liquidation. I have significant issue with taking that approach. Firstly, as I have said, there is no arguable claim that he – Mr Wynn – can pursue having regard to his proposed statement of claim. Secondly, the order placing the company into liquidation was made almost three years ago by the Supreme Court.
It may well be the case that this Court, being a superior court, has the power under the Corporations Act to make all sorts of orders provided, of course, it can be said that there is a sufficient nexus to the parties to the marriage. But just because this Court may have the power to do something, it does not mean that it is appropriate to do it. It seems to me the better approach for the husband would have been to apply promptly to the Supreme Court of Queensland after mid-2019 to set aside the appointment of the liquidators, but he did not do that.
The standing issues that I have identified, or in particular, the standing issue that I have identified, which is apparent on the face of the statement of claim is a sufficient point and an obstacle to the husband’s proposed claims which, it seems to me, this close to the final hearing, it cannot be adequately negotiated or navigated either by the husband in terms of what is currently pleaded, or even if the Court were to grant an incredible indulgence to the husband to amend at this late stage, his proposed statement of claim.
The problem is, without standing, there is no claim against Mr J’s clients, there is no claim against Mr K’s clients and there is no claim against C Pty Ltd. In relation to C Pty Ltd, it is difficult to discern precisely what the claim was, in any event, but I will leave that to one side.
Quite apart from the point that I have made about the failure by the husband to apply to set aside the appointment of the liquidators in the Supreme Court, I note, of course, that he failed to appeal that actual order. I understood his submission to be that, at that stage, he was more interested in parenting matters rather than property.
I asked the husband during argument whether there was any evidence at all in relation to whether there was any money to satisfy any of the claims that he purported to make on behalf of 1D Pty Ltd (in liquidation) or any other claim he purported to make. I raised that because when the Court looks at the prayer for relief at page 13 of the proposed statement of claim, there are amounts sought of approximately $1.493 million as damages for breach of contract and there is an amount sought further of $2.607 million.
As far as I am aware, there is not one scintilla of evidence that would lead the Court to conclude that there is any chance that such claims could be satisfied, even if the statement of claim was in order, which it is not.
I can conceive of factual scenarios where the Court may exercise its discretion to act pursuant to the Corporations Act or the general law and make an order setting aside the appointment of a liquidator, but I would have thought that it would be rare and it would be, for instance, in a situation perhaps where there were already on foot family law proceedings, where the property of the parties to the marriage was held in a company controlled by the parties, where one of the parties had placed the company into liquidation by seeking an order in the Supreme Court.
Perhaps in those sorts of circumstances, it may arise that the Court would be persuaded to make the type of order sought by Mr Wynn. That is not the set of circumstances we have here. The events that took place in the Supreme Court took place years ago, that is to say in relation to the appointment of the liquidators.
Moreover, I have been told there was a summary judgment application in November 2021 brought by the liquidators against Mr Wynn, whereby the liquidators obtained a summary judgment in the order of $50,000, the order being made by Boddice J. I gathered from the submissions made by Mr Wynn that he would be seeking an order setting aside that judgment. Therefore, I am not certain whether that was his submission or not. In any event, it does not make any difference to my conclusion today. The claim as proposed by Mr Wynn does not have any legs. Mr Nowers makes a valid point, also. This case now is quite close to the starting time for the trial, 11 August. The statement of claim that the husband sought to rely upon was only filed by affidavit on 18 May 2022.
There would be significant extra costs involved to, for instance, the wife, Ms F, and indeed, the husband if all these additional parties were joined at this late stage. Once again, it seems to me that, not dissimilarly to the application I dealt with this morning that had been brought by Mr Wynn, this application would be highly likely to require an adjournment of the trial. As I indicated earlier, in my view, that it would not be in the best interests of this family or the children in this family. Now, I know it would be possible to split the questions of property and parenting in theory; however, I have not been asked to do that. In any event, I would not be inclined to exercise my discretion to do it.
I am well aware that under part VIII of the Act, this Court has the jurisdiction to make orders under s 79 binding a third party. I am well aware of those sections. I have taken those sections into account when considering whether or not to join as additional parties those parties referred to by Mr Wynn. As I indicated earlier, there will be certain circumstances, it seems to me, where this Court, Division 1 of the Federal Circuit and Family Court of Australia, may well entertain the making of an order to set aside a liquidation order that has been made in another Court. I must say, a judge would be very reluctant to make such an order in the absence of full argument and submissions in relation to whether this Court does have that power.
But given that the Supreme Court of Queensland would have the power to set aside the appointment of a liquidator, it seems to me that this Court might also have such a power provided issues in relation to the jurisdiction are satisfied. Namely, that there is a sufficient nexus to the property of the parties to the marriage, or either of them. I have had regard to the various cases to which I have been referred. Namely, Wayne & Dillon[7] and B Pty Ltd & K, and have referred to various paragraphs in B Pty Ltd & K. I am not satisfied that the proposed additional parties are necessary for the Court to determine all the issues in dispute in this proceeding, as is required by Rule 3.01.
[7] (2008) 40 Fam LR 543.
Applications for costs have been made. I will deal with this afternoon’s application first. Section 117 of the Act and the subsections therein are relevant. The usual rule is each party would bear his or her own costs, but if the Court considers it to be just, the Court can make a costs order. In considering what order, if any, should be made under subsection (2), the Court is to have regard to the various matters set out in s 117(2A). Subsection (a) deals with the financial circumstances of each of the parties to the proceedings. In relation to Mr J’s clients and in relation to Mr K’s clients, the husband sought to join them to these family law proceedings.
The husband relied upon a statement of claim annexed to an affidavit, filed 18 May 2022. The statement of claim, on the face of it, was wholly deficient. As I said in the Reasons, the husband had no standing to pursue the claim that he pleaded in the proposed statement of claim. As to subsection (a) of s 117(2A), I note that the impecuniosity of a party, as it seems is claimed by the husband here, is not a reason to avoid making a costs order[8].
[8] Northern Territory v Sangare (2019) 265 CLR 164
Subsection (b) talks about whether anyone has access to Legal Aid. It has not been raised as an issue here.
Subsection (c) relevantly requires consideration of the parties in relation to the proceedings.
Now, the husband put forward the proposed statement of claim in terms which were simply not maintainable and consequently, noting subsection (e), he has been wholly unsuccessful in his application, at least so far as the liquidators are concerned. They sent a letter telling Mr Wynn, in January, that they would seek costs in the vicinity of $20,000. This does not seem to have deterred Mr Wynn.
The issue of a letter being sent is applicable, noting subsection (f).
Subsection (d) is not necessarily relevant.
All of those matters I have referred to there from section 117(2A) apply to the costs applications brought by Mr J, Mr K and Mr Nowers on behalf of their clients.
As to the type of costs order that ought to be made, it seems to me it should be on a standard basis in respect of costs allowed in the Federal Circuit and Family Court of Australia, Division 1. I do not consider it is an appropriate situation from an indemnity costs order, or anything other than the standard basis. Mr Wynn had asked for extra time to prepare a submission on costs. The resources of this Court are limited. The trial of the action is coming up in less than two months’ time. Neither Mr K nor Mr J, nor their clients will be present at the Court at that stage. They are not joined as parties. The application has been dismissed. The Court needed to deal with the matter now.
Mr Wynn is familiar enough with Court processes, noting the number of applications he has brought, to understand that if you lose such an application, you may get a costs order against you. I note that a costs order was made by Justice Baumann in September 2020, which has not been paid by the husband to the wife, more than $4000. In the circumstances, I consider it appropriate to exercise my discretion to grant costs in favour of Mr J’s clients, Mr K’s clients and to the mother – that is, Mr Nowers’ client – in respect of the failed application by the husband to add to these proceedings the various other parties referred to in his amended application in a proceeding. The costs, as I say, will be on a standard basis, as agreed or to be assessed.
The view that I have formed is that there should be a costs order made in favour of the wife in respect of the application brought by the husband concerning Mr Nowers’ continuation as the solicitor for the wife. I would have thought that after failing once in such an application, the father might be somewhat reticent to pursue, again, another application.
The father was not so deterred. He continued on the course that he took. For the reasons given earlier today, he was wholly unsuccessful in the application. The reasons on costs in relation to the second application are applicable to the first application.
The wife has been put to expense to come to the Court to defend her right to have the lawyer she chooses represent her in the proceedings that are about to commence. I have taken all of s 117(2A) into account. The Court is required to consider those matters. I have considered them. As I said earlier, the financial circumstances are a matter for consideration, but impecuniosity is not a reason to avoid making a costs order. Legal Aid is not relevant, as far as I am aware. The conduct of the parties of the proceedings – I have probably said enough about that in the main judgment dealing with this issue. The reality is that the father had already tried to have Mr Nowers restrained from acting but was unsuccessful.
He pursued a similar course. He says he had different material to rely upon. None of which was sufficient to persuade the Court. The father has been wholly unsuccessful in the proceedings in that application. The father was ordered almost two years ago to pay a costs order to the wife. That has not been done. Litigation costs money. Litigation is expensive. The father pursued this application to have Mr Nowers restrained and has been unsuccessful and for the reasons that I have outlined, he ought to pay the costs on a standard basis.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 8 March 2023
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