DBL & GJL

[2006] FamCA 1289

FAMILY COURT OF AUSTRALIA

DBL & GJL [2006] FamCA 1289

APPEAL –summary dismissal of s79A application seeking to reopen property settlement of 1994 – order restraining the applicant wife from filing further proceedings without leave of the court - Wife asserted that there had been a miscarriage of justice at the original hearing before a Judicial Registrar - Both parties had been represented – The trial judge’s function was not to conduct a review but to determine whether the wife’s s79A application had any merit – Having properly concluded that it had no merit, no appealable error in dismissing the application summarily – No error in s118 order - Given the length of time since the original property order and numerous applications made to the court it was open to trial judge to find wife was likely to continue to press a hopeless claim.

APPEAL - BIAS – Trial judge’s refusal to disqualify himself – Wife based her claim on the trial judge having previously dismissed an earlier application of hers in relation to the same issues – This was mentioned at the commencement of proceedings but the trial judge indicated that he would consider whether any new issues were raised in the proceedings before him and heard argument from the parties – The trial judge’s remarks about the conduct and motivation of the wife were not indicative of prejudice – Nothing to indicate the trial judge brought anything but an impartial and unbiased mind to the proceedings.

Family Law Act 1975 (Cth)

Johnson v Johnson (2000) 201 CLR 488

APPELLANT WIFE: DBL

RESPONDENT HUSBAND: GJL

FILE NUMBER: BRF 4692 of 1993

APPEAL NUMBER: NA 1 of 2006

DATE DELIVERED: 30 November 2006

PLACE DELIVERED: Melbourne

JUDGMENT OF: KAY, WARNICK & MAY JJ

HEARING DATE: 21 November 2006

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 8 December 2005

LOWER COURT MNC: [2005] FamCA 1187

REPRESENTATION

COUNSEL FOR THE APPELLANT: In person

COUNSEL FOR THE RESPONDENT: Mr Hanlon

SOLICITORS FOR THE RESPONDENT: Twohill Lawyers

Orders

1. That the appeal be dismissed.

2. That the appellant pay the respondent’s costs in the sum of $3,500.

FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 1 of 2006
File Number: BRF 4692 of 1993

DBL

Appellant Wife

And

GJL

Respondent Husband

REASONS FOR JUDGMENT

1. This is the wife’s appeal against orders made by Carmody J on 8 December 2005 dismissing applications filed by her on 19 July 2005 that sought to set aside property orders that had been made by Jordan JR (as he then was) in April 1994. The orders appealed against also restrain the wife from bringing any further proceedings to set aside the property orders without leave of the Court having first been obtained.

Background

1. The parties married in 1982 and separated in 1993. 

2. Competing proceedings for alteration of property interests were heard and determined by Jordan JR (as he then was) on 12 April 1994.  In those proceedings each of the parties had legal representation.  According to the findings of Jordan JR there was an asset pool of $172,500.  In addition the husband had superannuation entitlements notionally valued at $12,651 and the wife superannuation at a notional value of $7,341.  The Judicial Registrar determined that the wife should receive 47 per cent of the asset pool and the husband ought retain the balance.  In the course of his reasons for judgment the Judicial Registrar identified an imbalance in the capital contributions of the parties that favoured the husband but indicated that its significance was diminished by “the very industrious efforts made by the wife during the marriage”.

3. In October 1996 the wife filed an application to “review” the 1994 property orders, challenging them as being unfair because:

   i.         they were financially detrimental to the child of the marriage;

   ii.no orders were made regarding custody and maintenance or spousal maintenance;  and,

   iii.the division of superannuation and life insurance entitlements was inequitable and required adjustment.

4. After a series of proceedings arising out of the husband’s application for security for costs in relation to that application, which proceedings went twice to the Full Court, the wife failed to comply with an order made by Hilton J and affirmed by a Full Court, to pay $10,000 by way of security for costs and the proceedings lapsed.

5. In April 1997 the wife brought an action in the District Court of Queensland against her former solicitors asserting they had incompetently conducted the matrimonial proceedings on her behalf.  That claim was dismissed in September 2002 and an appeal against its dismissal lapsed when the wife failed to comply with a further order for security for costs.

6. In 2003 the wife filed a further application in the Family Court of Australia seeking “special leave” to have the 1994 property orders “altered fairly” pursuant to s 79A of the Family Law Act1975 (Cth). She named the husband and her former lawyers as parties to the application.

7. On 30 January 2004 Carmody J dismissed her application saying that her claims against her husband were “obviously untenable and utterly hopeless” and that her claims against her former solicitors either did not fall within the jurisdiction of the Family Court of Australia or, even if they did, had already been the subject of a decision and could not be relitigated because of the doctrine of issue estoppel.

8. On 19 July 2005 the wife commenced the proceedings that are the subject of this appeal.  In her application she sought the following orders:

   1.        That the property order of 12 April 1994 be declared unlawful;

   2.That the property order of 12 April 1994 be set aside pursuant to section 79A [of] the Family Law Act;

   3.That the matter be fast tracked and remitted for hearing before a single judge;

   4.That the husband be restrained from transferring, encumbering or in any way dealing with the property at 16 [M] Road, [C] in the State of Queensland;

   5.Costs be reserved.

9. Her claim was supported by an affidavit in which she set out her case under various sub-headings.  Paragraphs 4 to 8 deal with allegations of “fraud” asserting that her solicitors in the previous proceedings were somehow in breach of statutory requirements relating to the manner in which they conducted their practice.  Paragraphs 9 to 13 under the heading of “Duress” complained that at some time prior to the 1994 hearing the husband had ransacked the former matrimonial home, removing all the family possessions.  There had been late service of documents on the day of the hearing, and that the wife’s legal practitioner had intentionally stopped the wife’s support person from entering into the courtroom.

10. Under the hearing “Suppression of evidence (including failure to disclose relevant information)” there was an assertion that the Judicial Registrar and the wife’s legal practitioner had refused to take into account the wife’s direct financial contributions to the matrimonial property, and in particular her income earned from 1992 to 1994.  She also made complaints that the husband had refused to disclose the sale of 13 trees from the family property at N.  She made a number of other complaints about the sufficiency of evidence that had been provided at the hearing in 1994.

11. Under the heading of “The giving of false evidence” the wife complained that the husband had misrepresented his and the wife’s financial contributions, and under the heading “Or any other circumstance – misuse of the court process” the wife made a number of general complaints about matters that had occurred since the hearing, including a deterioration in her own health and financial position.

The trial judgment

1. In his reasons for judgment delivered 8 December 2005 Carmody J dealt first with an application made by the wife that he disqualify himself for bias. 

2. When the matter was called on for hearing Mrs L expressed concern that Carmody J was the trial judge.  She told his Honour that she had been informed by the court that it would be listed before Barry J and then when she checked on the court list on the internet she found it was listed in front of Bell J, but when she got to court she found it was in front of Carmody J.  His Honour explained that Barry J was part-heard and unavailable to hear the case.  He explained further that Bell J was the list judge, who had noticed that Carmody J had previously been in the matter and so he had sent the matter out for hearing before him.  His Honour said:

   Presumably the preference was expressed for me because I have already dealt with the matter, I understand it, and I have already rejected the same application you are making today. 

   MRS L:          No, it’s not the same application, your Honour. 

   HIS HONOUR:          It might – it is arguably the same.

   MRS L:          No, well, I disagree.

   HIS HONOUR:          Well, I think Mr Twohill alleges it is the same.

3. His Honour then invited Mrs Lto indicate whether she would prefer to have another judge deal with the matter.  However, after making enquiries, he indicated that nobody else was available to do the matter that day.  His Honour then said:

   …what I have decided to do, which I think is the most practicable pragmatic and just way to proceed, is to decide the question whether the matters you raise in your application have already been decided, or whether it is a new matter.  And that is the question I will decide.  If I decide it is a new matter, then I will say so, I will tell you what my decision is.  Or I will tell you that I think it is the same matter.

   And if it is the same matter, I will then go on to decide whether it has been previously decided in such a way that you are barred from pursuing it, and then I will make orders accordingly.  If I come to the conclusion that despite what Mr Twohill says it is not the same matter reframed in different language, but in fact raises a new independent and fresh course of action, then I will decide, if I come to that conclusion, how I should proceed from there, all right.

4. His Honour dealt with the bias issue by reciting the passage of the High Court in Johnson v Johnson (2000)CLR 488 at 492 where their Honours said that the relevant test depended upon:

   [W]hether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question [the judge] is required to decide.”

5. His Honour went on to say:

   10.The grounds of disqualification must be firmly established, either directly or by inference.  Mrs [L] has failed to do so here.  There is no evidence that I have formed a conclusion about the issue involved in this enquiry.  Nothing I have said or done could reasonably lead to such a conclusion.  Nor is there any reasonable basis for a fictitious observer to suspect that my mind is so prejudiced in favour of a conclusion already formed that I would not alter my position irrespective of the weight of evidence or the merit of arguments presented to me favouring the opposing view. 

   11.Being aware of the strong professional pressures on judges (reinforced by appeal and review procedures) to uphold traditions of integrity, fairness and impartiality, no reasonable observer of these proceedings could properly draw any rational inference of bias or pre-judgment.  Such a conclusion would in my opinion be overly suspicious or unduly sensitive.

6. Having dispensed with the bias issue his Honour then turned to the merits of the application that was before him.  He set out at some length the history of the proceedings, citing extensively from his own judgment on 29 January 2004.  In the course of presenting the history his Honour dealt with an objection that the wife had raised to

   14.…the tender of the various judgments…to prove the decision or a finding of fact made in them in support of the application to have proceedings dismissed or stayed as frivolous or vexatious.

7. His Honour said:

   17.The decisions of the appellate division, McGill DCJ and my own earlier reasons are relevant here for the purpose of establishing what facts have already been decided so that they can be compared with the grounds relied upon in this application by the wife to see if they are the same or not.  Accordingly, I admitted the judgments and have used them only for that purpose.

8. Carmody J then identified the complaints of the wife as to the shortcomings of the judgment made by the Judicial Registrar in 1994 and the manner in which it was handled by those representing her. The complaints of the wife that might have been said to be capable of supporting an application under s 79A of the Family Law Act were asserted by her to be:

   The husband’s failure or refusal to produce documents supporting his financial and other contributions to the family home and the marriage. 

   The husband misrepresented the wife’s direct financial contribution to the marriage in exhibit J, which is a table of taxable income of the husband and wife from 1982 to 1990.

9. Carmody J then drew attention to the limited circumstances in which it might be possible to reopen the proceedings, stating (citations omitted):

   22.The right to re-open a case to admit new evidence exists when the material interests of justice require it and the new evidence would probably produce a different result and could not reasonably have been discovered before the trial.

   23.However, as a general rule, once a proceeding is concluded by the regular entry of the judgment, the judicial role of the court is at an end. 

   24.If a party is dissatisfied, the only remedy is to appeal to a higher court…

   …

   29Thus, there are limited circumstances where a party is allowed to commence a new proceeding to set aside a judgment.  These are a judgment procured by fraud or when new evidence is found  after the trial. 

   30.Kirby P summarised the principles that apply in setting aside a judgment for fraud or the discovery of new evidence in Wentworth v Rogers (No 5).

   ”… the (challenging party) must establish that the case is based on newly discovered facts;  the facts are material and such as to make it reasonably probable that the case will succeed;  that they go beyond mere allegations of perjury . . . ;  and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment.”

   31.Suspicion of fraud is insufficient. There must be evidence of the new facts and they must be so material that the claim to set aside a judgment will probably succeed.  Perjury of a witness at the trial is usually insufficient to warrant a judgment being set aside in a new proceeding :  a fortiori, an error in agreed facts or a failure by counsel to present relevant existing information or make appropriate submissions.

   32.There is no new discovery of something material here. There are no fresh facts recently discovered capable of providing a reason to set aside the Judicial Registrar’s orders : Wentworth v Rogers (No 5).  The only potentially fresh evidence relied on are tax assessments for the financial years 1990 to 1994 (ex. H to the wife's affidavit filed 19 July 2005) which prove that she had total taxable earnings in that four year period of $106,421 but they or their equivalent were available at the date of hearing and there is no convincing proof that the facts they established were not put before the Judicial Registrar in 1994.

10. His Honour then turned to an examination of the cases involving the application of s 79A of the Family Law Act . That section provides in so far as is relevant that where, on application by a person affected by an order made by a court under s 79 in property settlement proceedings, the court is satisfied :

    (1)(a)   there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance:

    …

    the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under s 79 in substitution for the order so set aside.

11. It has not been submitted to us that any of the statements of law set out by the trial judge in pars 33 to 59 of his Honour’s judgment that describe the proper application of s 79A are in error.

12. Having set out the principles applicable in the proper interpretation of s 79A, his Honour then turned to the power of the court to summarily dismiss an application saying:

    60. The court has power under Pts 10.3 and 10.4 of the 2004 Rules to dismiss an application which is frivolous, vexatious or an abuse of process, or has no reasonable likelihood of success: see rules 10.12, 11.01 and 11.04.  These powers extend to the summary dismissal of proceedings which disclose no reasonable cause of action, are without merit, or otherwise "doomed to fail".

13. In addition to the powers contained in the rules, his Honour also identified
    s 118(1) of the Family Law Act and an implied or inherent power of the court to regulate proceedings and prevent process abuse.  His Honour said (citations omitted):

    75Whatever its source, the discretion to dismiss in a summary way must be exercised conservatively and only in the clearest of cases because it impedes the fundamental common law right of litigants to access justice through the courts.  The right to petition the court is one of the safeguards of a just society.  It is a reflection of the rule of law.  However, the right is not unlimited.  A balance has to be struck between bending over backwards to meet the public interest in upholding that right and ensuring that the court is able to effectively protect itself against process abuse and other litigants from harassment, delay and costs of repeated or futile proceedings : KS and DS  ;  Re P  and DVH.

    76.The pre-emptory power should only ever be used where it is clear that there is no real question to be tried.  Denying a litigant his or her right to litigate a grievance can only be justified where it is apparent that it must fail because, for example, there is no reasonable cause of action or the issues raised have already been heard and determined elsewhere within jurisdiction, or its purpose of effect is to harass, annoy or oppress another litigant or misuse court procedures for illegitimate or inappropriate ends. 

    …

    79.Even a weak case is entitled to the time of the court.  However, litigants in this jurisdiction, perhaps more than in others, are individuals with finite resources.  Every application requires a response.  The freedom of one to litigate must be balanced against the freedom of the other not to be oppressed or harassed.

14. After a further discussion of the various principles involved in the case law surrounding summary dismissal applications, his Honour said:

    91.In my opinion, this is a text-book case for the exercise of the summary dismissal power.

    92.I have no doubt that the wife’s attempts to displace the 1994 property orders amount to a persistent refusal to accept the decisions of the Court without cause. The application is frivolous and vexatious within the meaning of s 118(1)(a). I am satisfied, for reasons that are obvious from what I have already said, that any application by the wife to set aside or vary the 1994 final property orders is groundless, futile, and initiated much too late. It is doomed to fail and constitutes an abuse of the court’s process. There is nothing in the material to suggest any irregularity, failure or deficiency likely to have affected the outcome or resulted in economic injustice. Despite her genuineness, its only purpose or effect is to cause trouble and annoyance to the husband and waste the time and limited resources of the court.

    93.The hearing before the Judicial Registrar was conducted in the usual way on affidavit material including financial statements.  There was no cross-examination presumably because there were no facts in dispute that required that procedure to be adopted to enable the Judicial Registrar to make a just and equitable property distribution.  Both parties were legally represented

    94.Mrs [L] was present at the proceedings and raised no complaint or grievance at the time.

    …

    100.It seems to me that those elements are present here.  Even though the grounds have changed, the present proceedings are based on essentially the same complaints, perhaps with minor variations and elaboration, as those that have been previously dismissed by both McGill DCJ and/or myself.  The merits of the wife’s attempt to set aside the 1994 property orders made by the Judicial Registrar have been judicially considered, more than once, against the wife. She has previously failed to establish the existence of any ground for setting aside the 1994 orders. It is not open to her now to simply renew the same application asserting essentially the same facts and grievances.

    101.Quite apart from the problems that (sic) res judicata facing the wife, I am satisfied that she has not established any of the five factors in par 1 (a) of s 79A. There is nothing in her material which demonstrates that either she or the Judicial Registrar were relevantly misled by any conduct of the husband or her former lawyers in failing to disclose any information that ought to have been relevant to the s.79 proceedings.

    102.There is no reason to believe that his Honour did not know about or take into account the wife's earnings after 1990.  In fact there is every reason to think that he was well aware of them having regard to par 15(i) and (j) above.  Nor is there any basis for finding that proper account was not taken of the wife’s indirect contribution i.e. nursing her elderly parents-in-law.

    …

    106.The wife, in my opinion, is a woman who is desperately seeking to redress what she perceives as a wrong resulting from the 1994 property orders.  She has a sincere but misplaced belief in the moral justice of her cause.  She does not feel that she is being heard by the courts and has a genuine (but unjustified) sense of grievance with, what she regards as, a faulty legal system operated by exasperatingly inept people.  She wants no more than her due.  She has no ulterior motive or collateral purpose.  In her mind justice (or her version of it) has failed her. She refuses to surrender in the face of mounting obstacles.  Like Don Quixote, she will neither be deterred nor denied.  She is, however, tilting at windmills and has to realise that the time has come to lay down her arms and for hostilities to cease.

    107.Her s 79A application failed in 2004. It is frivolous to persist with it now even as reformulated because it is futile, as well as being oppressive to the husband. Any remote prospect of success is disproportionate to the trouble, expense and prejudice to the husband which outweighs any conceivable gain to the wife after such a lengthy delay.

1. Having determined to dismiss the wife’s application his Honour then turned to give consideration to restraining the wife from bringing similar proceedings in the future concluding that it was clear that the wife was “likely to continue to press the hopeless cause despite her lack of success in the past”.  His Honour concluded that it was time to stop and move on.  Accordingly his Honour determined it was appropriate to grant the relief sought by the husband and restrain the wife from commencing any further property proceedings without leave of the court.

The appeal

1. In her Notice of Appeal and Outline of Submissions filed in these proceedings the wife sought to rely on five grounds:

   1.        Denial of natural justice.

   2.The trial judge was biased and prejudiced in favour of the legally represented party.

   3.The trial judge’s reasons for judgment discriminate against the applicant wife.

   4.There was a miscarriage of justice.

   5.There was a denial of justice.

2. In support of the first ground, that there was a denial of natural justice, the wife sought firstly to raise issues concerning pre-trial procedures that had occurred well before the matter appeared in Carmody J’s list on 7 October 2005.  None of the matters raised in her Outline of Argument appear to be relevant to the issues as to whether or not Carmody J was in error in the manner in which he dealt with the application.

3. In relation to her assertion that the trial judge was biased, Mrs L asserted to us that the trial judge had indicated on the morning of the hearing that he would find another judge but that he failed to do so.  The mere fact that he indicated that he would search for another judge, she said, indicated that Carmody J felt that it was appropriate that some other judge hear the matter.

4. She further argued that because Carmody J had previously dismissed the earlier application it was quite inappropriate for him to hear the subsequent applications.  Finally she argued that the conclusion of Carmody J as to his observations in par 106 of the judgment set out above were demonstrative that he was clearly biased against her.

5. The test to be applied to determine whether it is appropriate or not that a judge should disqualify him or herself on the ground of an appearance of bias is well settled.  The trial judge cited appropriately the passage from the majority judgment in Johnson v Johnson (2000) 201 CLR 488 at 492 where Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said that the test was:

   [W]hether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

6. Their Honours went on to say, at 494:

   No doubt some statements, or some behaviour, may produce an ineradicable apprehension of pre-judgment.  On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement.  It depends upon the circumstances of the particular case…

7. In a separate judgment Callinan J drew attention, at 518, to a statement of Mason J in Re JRL exparte CJL (1986) 161 CLR 342 at page 352 (1986) FLC ¶91-738 at 75,379; (1986) 10 Fam LR 917 at 923 where his Honour said:

   It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.  There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties.  But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.

8. Although the trial judge’s introductory comments included the phrase “I have already rejected the same application you are making today”, as soon as Mrs L asserted that it was not the same application his Honour immediately corrected himself, stating that it was “arguably the same”.  Apparently conscious of the wife’s discomfit in having the issue dealt with by a judge who had already rejected a similar application, his Honour made an endeavour to find out if another judge was available but when it became clear that there was no other judge available that day to hear the matter, his Honour, in our view, correctly stated the position that he should hear and determine the question as to whether the matters that were raised in the application had already been decided or whether they raised any new matters and to that extent he heard argument and submissions from the parties and then reserved to consider the matter before delivering a considered judgment some two months later.

9. In the course of the judgment his Honour made the remarks that we have already set out in par 106 summarising what he perceived was the conduct and motivation of the applicant wife.  We see nothing in the remarks that were made by him that would indicate that at the commencement of the proceedings he brought anything other than an unbiased and unprejudiced mind to the task that confronted him, namely to determine whether the wife’s application should be allowed to proceed any further in light of the previous history of the matter and the matters raised in it.  We see no appealable error demonstrated by the trial judge in his failure to disqualify himself from hearing the application.

10. In support of her argument that the trial judge’s reasons for judgment discriminate against her the wife asserts in her submissions that there was insufficient evidence before Carmody J to support the finding that the application was without merit and vexatious. Given the stringent requirements of s 79A, the passage of time since the original orders were made, the basis upon which it was asserted that the orders were flawed, and the history of the litigation extending into three attempts in 11 years to re-open the 1994 proceedings, we see no error in the conduct of the trial judge in concluding that the application was without merit. Nor, in light of the extraordinary history of proceedings against the husband and her own former solicitors could it properly be said that it was not open to Carmody J to reach a conclusion that without further restriction the wife would be likely to continue to press a hopeless cause. No appealable error in reaching that conclusion has been demonstrated by the appellant.

11. As to the assertion that there had been a miscarriage of justice, we invited the wife to address us upon what it was that she was submitting had gone wrong at the first hearing before the Judicial Registrar that she was asserting ought to have led Carmody J to allow her to continue with her s 79A application. What were the areas where there had been fraud or a suppression of evidence that she was asserting would lead the court to re-open the issues that were before the Judicial Registrar? In particular she drew our attention to two matters, firstly her assertion that the Judicial Registrar had failed to pay attention to the monies that she had earned from 1990 to 1994 and, secondly, that the Judicial Registrar had not had drawn to his attention the husband’s use of the sale proceeds of 13 trees from the family property at 8/10 S Street, N. When dealing with the wife’s assertions relating to her earnings, Carmody J said:

    102.There is no reason to believe that his Honour did not know about or take into account the wife’s earnings after 1990.  In fact there is every reason to think that he was well aware of them having regard to par 15(i) and (j) above…

12. Those paragraphs are in fact a reference to par 13 and read as follows:

    (i)When assessing contribution, the Judicial Registrar referred to the husband's substantial (compared to the wife's modest) initial capital contribution but reduced its significance due to the duration of the marriage and the wife's offsetting marital efforts.  He noted that the wife "worked throughout the marriage" in more than one position (including during her pregnancy and shortly after the birth of the daughter) because of a need to supplement the family income.  She was also given credit for caring for the children and the husband's parents. 

    (j)The husband was found to have applied himself to earning income for the benefit of the family throughout the marriage and " . . . at least until 1990 earned more than the wife".  The husband's second occupation as an insurance agent and the wife's correspondingly more significant welfare contribution were also referred to.

13. As the wife acknowledged in oral argument before us she was represented at the proceedings before Jordan JR. There was nothing submitted by her to suggest that the issues that she sought to raise relating to her income to the date of trial or the potential disposition by the husband of assets belonging to the parties were peculiarly within the knowledge of the husband and were matters that he had failed to draw to the attention of the Court. There was nothing to indicate that she was unable to give her solicitors instructions about these matters, nor was there anything to indicate that she had failed to give them instructions about the matters. Whether her solicitors emphasised those matters in the course of the proceedings before Jordan JR is not a matter that would enliven the jurisdiction under s 79A. It could not be said that their failure to do so would amount to a suppression of evidence that would make it appropriate that the Court reopen the property settlement.

14. In any event, nothing that the wife had put before Carmody J relating to the trees would indicate when they were sold or for how much they were sold or whether or not the proceeds that came from them were applied otherwise than for the benefit of the family as a whole. The mere assertion of the wife that there were matters that may well have assisted her property case does not create a basis upon which s 79A application could possibly succeed.

15. In support of the final grounds sought to be argued, that there was a denial of justice, the wife asserted in her written submissions that

    ·The trial judge was unreasonable in that he chose to deal with the wife’s previous application as a s 79A application for variation of property orders rather than the wife’s intended filed application for special leave to proceed for final property orders made by Judicial Registrar Jordan on 12 April 1994.

    ·The trial judge erred in that he failed to adequately address the issue that the property order of 12 April 1994 was not made in accordance with the provisions of s 79 Family Law Act.

    ·The trial judge denied the wife her fundamental right to dispute and/or challenge the Judicial Registrar’s property order of 12 April 1994.

    ·The trial judge was unreasonable in that he failed to exercise his discretionary power to set the property order aside pursuant to s 79A Family Law Act.

    ·The trial judge’s orders are unreasonable and unconscionable in the circumstances.

16. Doing the best we can to understand the gravamen of the wife’s complaints it needs to be understood that the application that was before Carmody J in October 2005 was an application to set aside a previous order based upon the limited grounds available under s 79A(1)(a). Any power to revisit the orders made by the Judicial Registrar to determine whether or not they were appropriately made would not be enlivened until the court was satisfied of the existence of a ground to reopen the matter in accordance with s79A. The period in which a review of the Judicial Registrar’s order could be held had long passed. Carmody J’s function was not to conduct such a review but to determine whether the s 79A application had any merit. Having properly concluded in our view that there was no merit in it, we see no appealable error in the trial judge having dismissed the application on a summary basis. Nor do we detect any error in the imposition of the limited restraint on the institution of further property proceedings without leave. Accordingly the appeal must fail.

Costs

1. The respondent has sought an order for costs in the sum of $5000.  Each of the parties is described as being a disability pensioner.  There is no evidence to suggest that the husband was in receipt of legal aid.  We think there are circumstances in which it is appropriate that an order be made for costs which we fix in the sum of $3500.

Orders

1. The orders of the court will be

   (1)      That the appeal be dismissed.

   (2)      That the appellant pay the respondent’s costs in the sum of $3,500.

I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Full Court.

Associate: 

Date:  30 November 2006