Debrossard and Carey and Ors
[2014] FCCA 2915
•1 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEBROSSARD & CAREY & ORS | [2014] FCCA 2915 |
| Catchwords: PRACTICE AND PROCEDURE – Summary judgment – summary dismissal – where applicant has no reasonable prospect of successfully prosecuting the application. PRACTICE AND PROCEDURE – Prosecution – consent of the Director of Public Prosecutions required for proceedings for breach of Family Law Act 1975, s.121 – Federal Circuit Court has no prosecutorial power. |
| Legislation: Bankruptcy Act 1966 (Cth), ss.58, 116 Family Law Act 1975 (Cth), ss.112AA, 121 Federal Circuit Court of Australia Act 1999 (Cth), s.17A |
| Cases cited: Debrossard & Official Trustee in Bankruptcy [2011] FamCA 648 Prentice & Bellas [2012] FamCA 108; (2012) 47 Fam LR 262 – followed |
| Applicant: | MS DEBROSSARD |
| First Respondents: | MS CAREY & MR MERRIL |
| Second Respondent: | MS NORMAN |
| File Number: | WOC 799 of 2007 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 1 December 2014 |
| Date of Last Submission: | 1 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 1 December 2014 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the First Respondent: | Mr Metlej |
| Solicitors for the First Respondent: | Craddock Murray Neumann Lawyers |
| Solicitor for the Second Respondent: | [name omitted] |
| Solicitors for the Second Respondent: | Ms Norman & Co |
ORDERS
The Application – contravention filed on 8 September 2014 is dismissed as incompetent.
The Respondents must file and serve affidavits setting out the amount of costs which they seek and the basis upon which those costs are claimed within twenty-one (21) days.
The Applicant is to file and serve any affidavit in reply within a further period of twenty-one (21) days.
IT IS NOTED that publication of this judgment under the pseudonym Debrossard & Carey & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
WOC 799 of 2007
| MS DEBROSSARD |
Applicant
And
| MS CAREY & MR MERRIL |
First Respondents
| MS NORMAN |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an Application to deal with the Respondents for a Contravention of Section 121 of the Family Law Act 1975 (Cth). The Application is entirely misconceived and will be summarily dismissed as incompetent.
The First Respondents, Ms Carey and Mr Merril, have filed an Application in a Case seeking orders that:
a)the Application be dismissed for want of jurisdiction;
b)the Application be dismissed as having no reasonable likelihood of success and must fail;
c)the Application be declared to be frivolous and vexatious; and
d)that the Applicant should pay their costs.
Their Application in a Case is supported by an affidavit of their solicitor, Khaled Metlej, sworn on 28th November 2014.
The Second Respondent, Ms Norman, has filed an Application in a Case seeking orders that:
a)the proceedings be summarily dismissed as having no reasonable prospects of success;
b)the proceedings be summarily dismissed on the grounds that they are hopeless and/or bound to fail and have no reasonable prospects of success; and
c)that the Applicant should pay the Second Respondent’s costs.
Ms Norman’s Application in a Case is supported by an affidavit of
Ms Norman sworn or affirmed on 18th November 2014.
Background
The substantive Applicant relies on the Orders made by the Honourable Justice Johnston on 19th August 2011 in proceedings between the Applicant and the Official Trustee in Bankruptcy (Debrossard & Official Trustee in Bankruptcy[1]).
[1] [2011] FamCA 648
The proceedings before his Honour were property proceedings. The facts are succinctly stated by his Honour in paragraphs [2] to [6] of his Honour’s judgment:
2. On 12 July 2007 the wife filed an Application for Final Orders in this Court.
3. On 7 December 2007 consent orders were made between the husband and the wife by a Registrar of this Court in relation to the parties’ property. The effect of the orders was that the husband was to transfer his interest in the former matrimonial home at [omitted] to the wife.
4. But earlier that year, namely on 12 April 2007, the husband had been declared bankrupt.
5. In March 2010 the Official trustee filed an application in this Court seeking to have the consent orders set aside. The wife filed a response. Those proceedings came before me and on 10 May 2010 I made orders to the effect that the consent orders be set aside.
6. At the time that the Court made the consent orders the husband owned no property. This was because by way of operation of ss. 58(1) and 116 of the Bankruptcy Act 1966 all property of the husband had vested in the Official Trustee as at 26 September 2006. That date was the date of the first act of bankruptcy by the husband. The Official Trustee was given no notice of the application which the husband and wife proposed to make which culminated in the making of the consent orders.
His Honour appointed Ms Carey and Mr Merril as employees of the Insolvency Trustee Service Australia (ITSA) as trustees for the sale of the former matrimonial home.
The Respondent Ms Norman is the solicitor who acted for the Official Trustee.
When the written reasons for judgment were released, the names of the parties were removed and a pseudonym was assigned for the purpose of publication of the judgment. The copy of the judgment bore wording in the usual form as follows:
IT IS NOTED that publication of this judgment under the pseudonym DEBROSSARD & OFFICIAL TRUSTEE IN BANKRUPTCY is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
The Application - Contravention
The Applicant filed an Application on 8 September 2014 in which she claimed two contraventions of the order, which she described as:
Page 3, bottom paragraph regarding Publication Order S 121(9)(g) FLA.
The first count relates to all three of the Respondents and claims that on an unspecified date in April 2012:
The respondents attached a copy of the Family Court Orders to a Contract for Sale disclosing parties and file number of Family Court proceedings.
The second count relates only to Ms Norman and claims that on 23 March 2012 at [omitted], Sydney:
Ms Norman, Solicitor, prepared a paper for a conference at [omitted] Annual Conference and subsequently published this paper online – available at http;// which is accessible to the public.
The Respondents seek summary dismissal of the Application.
Summary Judgment
The Court’s power of summary dismissal of an application is to be found in s.17A of the Federal Circuit Court of Australia Act 1999 (Cth).
Rule 13.10 sets out the Court’s power of summary dismissal:
The Court may order that a proceeding be stayed, dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
Conclusions
The Applicant has brought an Application claiming contravention of an order of the Family Court made on 19th August 2011. Part XIIIA of the Family Law Act 1975 provides sanctions for failure to comply with orders, and other obligations, that do not affect children.
Subsection 112AA(1) defines the term order under this Act as:
a)an order (however described) made by the court under the Act;
b)an injunction granted under ss.90SS or 114;
c)an undertaking given to and accepted by the court;
d)a subpoena issued under the applicable Rules of Court;
e)a court enforceable agreement; or
f)a bond; and
g)includes an order, injunction, agreement or bond made by another court and registered in this court.
Section 121 of the Family Law Act is none of those items. The Applicant is relying on the statement attached to the judgment referred to in paragraph [10] above assigning a pseudonym to the judgement so that it could be published under s.121(9)(g). Subsection 121(9) provides at paragraph (g) that:
The preceding provisions of this section do not apply to or in relation to:
(g)publication of accounts of proceedings, where those accounts have been approved by the court.
Quite clearly, the wording attached to the judgment is not an order of the Family court and cannot be enforced by way of contravention proceedings.
Section 121 of the Act provides at subsection 121(5) that:
An offence against this section is an indictable offence.
Subsection 121(8) provides that:
Proceedings for an offence against this section shall not be commenced except by, or with the written consent of, the Director of Public Prosecutions.
There is nothing to show that the Applicant has obtained the written consent of the Commonwealth Director of Public Prosecutions to bring a prosecution against the Respondents for an offence against s.121 of the Family Law Act.
In any event, I note that in Prentice & Bellas[2], Murphy J observed at [44] that the Family Court did not have the power to give consideration to the prosecution of individuals alleged by an applicant to have breached s.121 of the Act, saying:
[2] [2012] FamCA 108; (2012) 47 Fam LR 262
This court has itself no prosecutorial power in the sense spoken of.
The same comment could be made of this Court.
For the above reasons, it is abundantly clear that the Applicant has no reasonable prospect of successfully prosecuting her contravention application against the Respondents. The Application is incompetent and will be summarily dismissed.
Costs
The Respondents, unsurprisingly, seek orders for their costs. I will direct that the Respondents should file and serve within 21 days affidavits setting out the amount of costs that they seek and the basis upon which those costs are sought.
The Applicant will have a further period of 21 days to file and serve an affidavit in reply.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 1 December 2014
4
2
5