Dmitrieff and Shaw and Ors
[2008] FamCA 881
•15 October 2008
FAMILY COURT OF AUSTRALIA
| DMITRIEFF & SHAW AND ORS | [2008] FamCA 881 |
| FAMILY LAW – ORDERS – Stay application |
| APPLICANT: | Ms Dmitrieff |
| FIRST RESPONDENT: | Mr Shaw |
| SECOND RESPONDENT: | Mr P |
| THIRD RESPONDENT: | L Pty Ltd |
| FOURTH RESPONDENT: | D Pty Ltd |
| FIFTH RESPONDENT: | Ms E |
| SIXTH RESPONDENT: | Mr G |
| SEVENTH RESPONDENT: | Mr A |
| EIGHTH RESPONDENT: | Ms J |
| NINTH RESPONDENT: | Ms S |
| TENTH RESPONDENT: | Ms T |
| FILE NUMBER: | SYF | 5191 | of | 1993 |
| DATE DELIVERED: | 15 October 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 15 October 2008 |
REPRESENTATION
| ADVOCATE FOR THE APPLICANT: | Ms Dmitrieff In Person |
| SOLICITOR FOR THE 1ST RESPONDENT: | Mrs Ford |
Orders
That pursuant to the slip rule order 1 of the orders made 3 September 2008 is varied by deleting the words “and for rehearing of the review application heard by Cohen J and remitted from the Full Court of this Court”.
That paragraph 1 of the wife’s application filed 8 September 2008 is dismissed.
That the orders made on 3 September 2008 be varied as follows:
(i)by deleting from Orders 2, 4, 5 6 and 12 the date 15 October 2008 and substituting in lieu 15 November 2008.
(ii)by deleting from Orders 7, 8, 9, 10 and 13 the date 5 November 2008 and substituting in lieu 5 December 2008.
That the wife pay the husband’s costs of and incidental to the application of 8 September 2008 as agreed and failing agreement as assessed pursuant to Chapter 19 of the Family Law Rules 2004.
That the costs order (Order 4) be stayed pending determination of the proceedings under Section 79 between the husband and wife and the other parties.
IT IS NOTED that at the request of the wife for all future publication purposes this matter be reported as Dmitrieff.
IT IS NOTED that publication of this judgment under the pseudonym Dmitrieff v Shaw & Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 5191 of 1993
| Ms Dmitrieff |
Applicant
And
| Mr Shaw |
First Respondent
| Mr P |
Second Respondent
| L Pty Ltd |
Third Respondent
| D Pty Ltd |
Fourth Respondent
| Ms E |
Fifth Respondent
| Mr G |
Sixth Respondent
| Mr A |
Seventh Respondent
| Ms J |
Eighth Respondent
| Ms S |
Ninth Respondent
| Ms T |
Tenth Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
The application before me is an application in the case filed on 8 September 2008 by Ms Dmitrieff who, for convenience only and without wishing to cause any offence, I will refer to as “the wife”. In her application the wife seeks the following orders:
1.To stand over Justice Boland’s Orders of 3 September 2008 until the applicant’s wife [sic] appeal is heard in the Federal Court of Australia, Matter No.NSD […] regarding the Bankruptcy and the return of the marital property of the [Shaw/Dmitrieff] marriage/relationship from the possession of Mr [P], the Second Respondent in this matter, and/or his companies, [SL] Pty Ltd, the Third Respondent, and [D] Pty Ltd, the Fourth Respondent. As the matter now stands, the Second Respondent, Mr [P], still has the [Shaw/Dmitrieff] marital assets in his possession.
2.To set aside Justice Boland’s Order 1 and 14 as there is no active current Review Form of [Ms Dmitrieff] in the Family Court matter SYF5191/93.
3.Costs be costs of the proceedings.
4.Leave to be heard on short notice on a Wednesday.
The wife relies on her affidavit, also filed on 8 September 2008 in support of the application. The application is opposed by Mr Shaw (“the husband”). Mr P, the second respondent, has written to the Court advising he is unable to attend today’s hearing. I have marked his letter as Exhibit “A” in this application and I have marked as Exhibit “B” a letter from his former solicitors and those of the third and fourth respondents, which refers to filing a Notice of Ceasing to Act.
It is apparent from Mr P’s letter that he does not seek the application be adjourned. There is no appearance by or on behalf of any other respondent, although I note in this case the wife has, unusually, not named to the present application as respondents the remaining respondents to the proceedings.
Background
On 3 September 2008 I made a number of procedural orders to enable the wife’s application under s 79 of the Family Law Act 1975 (“the Act”) to, in due course, be listed for hearing. The orders made are as follows:
1.That the wife’s application for settlement of property and for rehearing of the review application heard by Cohen J and remitted from the Full Court of this Court be referred to the Court Services Manager for allocation to a Judge’s docket other than Cohen J for hearing.
2.That the wife file and serve on or before 4.00 pm, 15 October 2008 any amended application for property settlement and/or spousal maintenance or other relief.
3.In the event the wife seeks a splitting order in respect of any superannuation entitlement she shall give notice to the trustee of such superannuation fund in accordance with the Family Law Rules 2004.
4.The wife shall file and serve one affidavit of evidence in chief to be relied on by her at the trial on or before 4.00 pm, 15 October 2008.
5.The wife shall file and serve an affidavit of any witness on or before 4.00 pm, 15 October 2008.
6.The wife shall file and serve a financial statement on or before 4.00 pm, 15 October 2008.
7.The husband shall file and serve an amended response on or before 4.00 pm, 5 November 2008.
8.The husband shall file and serve one affidavit of his evidence in chief on or before 4.00 pm, 5 November 2008.
9.The husband shall file and serve an affidavit of any witness on or before 4.00 pm, 5 November 2008.
10.The husband shall file and serve a financial statement on or before 4.00 pm, 5 November 2008.
11.That the husband and wife shall within two days of filing all documents required by these orders provide a copy of such documents to the wife’s trustee in bankruptcy.
12.The wife shall file and serve on or before 4.00 pm, 15 October 2008 a document entitled “Balance Sheet” setting out the assets, liabilities and financial resources of the parties as at that date.
13.In the event that the husband does not agree the Balance Sheet to be filed by the wife accurately sets out the parties’ assets, liabilities and financial resources he shall file and serve on or before 4.00 pm, 5 November 2008 a document entitled “Balance Sheet” setting out the assets, liabilities and financial resources of the parties for which he contends as at 15 October 2008.
14.In the event that any named second to tenth respondent to the proceedings seeks to be removed as a party such party shall file an application in a case, together with an affidavit in support on or before 4.00 pm, 1 December 2008, and such application may be dealt with by the trial judge as a discrete issue at a time and date to be notified to the parties or at the commencement of the hearing.
I also delivered reasons for judgment on that day which dealt, inter alia, with my rejection of the wife’s application that the proceedings under s 79 be further adjourned pending, inter alia, the wife’s proposed appeal against orders made by Flick J, on … July 2008 in the Federal Court of Australia.
In my reasons delivered on 3 September 2008 I referred briefly to the history of the litigation in this Court and I incorporated into my reasons my earlier judgment delivered on 17 August 2008 in which I set out in some particularity, details of the history of the husband and wife and the chronology of the proceedings in this Court. For convenience, I annex as Annexure A and B to these reasons my earlier reasons dated respectively 17 August 2007 and 3 September 2008.
No application by the wife for leave to appeal my interlocutory orders made on 3 September 2008 has been filed in the time provided in the Family Law Rules 2004.
The wife’s affidavit in support of the application
I turn now to consider the wife's affidavit in support of the application. In her affidavit the wife deposes that she has presently instituted an appeal in the Federal Court of Australia, having been granted an extension of time by Cowdroy J to appeal (presumably the orders made by Flick J on … July 2008). She further deposes to an application for leave to appeal filed in the Supreme Court of New South Wales and stood over to a call over on … February 2009.
In paragraph five of her affidavit the wife says:
On 27 March 2002 Justice Chisholm had struck out my Review Form 44 Application filed on 31 August 1999 and my Form 44 Application filed on 17 December 2001, and removed the same from the Active Pending Cases list - attached hereto and marked as Annexure “A” behind Tab No.3 is a copy of Justice Chisholm’s Orders of 27 March 2002. This was done with my consent. [original emphasis]
In the balance of the affidavit, save for paragraph 10, (which I will refer to shortly) the wife asserts her entitlement to assets which were the subject of Supreme Court proceedings (which save for the wife's present application for leave to appeal) are concluded in that Court.
Discussion
It is convenient for me first to deal with the wife’s application that Order 2 of my orders on 3 September 2008 be vacated. The wife’s assertions in respect of this application are correct, and I apologise to her for my error in listing this matter which it appears, because of the many applications filed in this matter, has not been shown as finalised in the Court’s computer records. But it is clear from my judgment at 17 August 2007 (paragraphs 40, 43 and paragraph 77) that the application for review of the orders of Cohen J was dismissed. Accordingly, I propose to vary Order 1 of my orders made on 3 September 2008 pursuant to the slip rule, that is, r 17.05 of the Family Law Rules 2004, to delete the words “and for the re-hearing of the review application heard by Cohen J and remitted from the Full Court of this Court”.
The balance of the wife’s application seeks that my orders be stayed pending the outcome of her appeal and applications respectively in the Federal Court of Australia and the Supreme Court of New South Wales.
I have already noted that no application for leave to appeal my orders has been filed by the wife. There is no doubt that as part of its inherent or more correctly, its implied powers, the Court may grant a stay of its orders. Rule 22.12 of the rules deals with a stay of the operation or enforcement of an order. It provides as follows:
(1) The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.
(2) If an appeal has been started, or a party has applied for permission to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
(3) An application for a stay must be made to the Judge, Federal Magistrate or Magistrate who made the order under appeal.
Note 1 Under subsection 55 (3) of the Act, a divorce order is stayed until after an appeal against it is determined or discontinued.
Note 2 An application for a stay may be listed before another judicial officer if the judicial officer who made the order under appeal is unavailable (see rule 1.13).
As there is no application for leave to appeal, r 22.12 has no application.
It appears to me, in this application, the wife is seeking to re-agitate matters which I determined in my reasons for judgment of 3 September 2008. At that time the wife sought an indefinite adjournment of the s 79 proceedings because of the pending application in the Supreme Court and the Federal Court appeal (see paragraph 11 of my reasons). I considered those pending proceedings but determined, in the exercise of my discretion, that the s 79 proceedings should, notwithstanding those applications, be subject to orders and directions to ensure the matter was ready for hearing before a trial Judge and not lose any further priority in obtaining hearing dates. Nothing of any further substance has occurred which requires re-agitation of the wife’s application for an indefinite adjournment pending completion of the proceedings in the Supreme Court of New South Wales and the Federal Court. Accordingly, I propose to dismiss the balance of the wife's application for relief sought in paragraph two of her application.
It is not clear from the file whether the wife has complied with the timetable provided in the orders. However, today the wife advised me she had not complied with my orders to file an amended application. I accept that the orders made would preclude compliance by the husband if the wife had not complied with my orders and Mrs Ford today indicated she would not object to a variation of the dates in the timetable.
I have also been advised that the first return date before the docket Judge, Fowler J, is 16 December 2008.
In order to ensure my orders of 3 September are relevant I propose to amend those orders. In so doing I wish to make it clear there must be strict compliance with these orders, and if the wife fails to do so, an application may be made to the docket Judge for the matter to be heard on an undefended basis.
The publication pseudonym
I note that the wife in her affidavit refers to her distress by reason of the notation contained in the judgment that for publication and reporting purposes the proceedings should be referred to as Shaw & Ors & Samuels. Section 121 of the Act provides privacy for parties in litigation and is in the following terms:
(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;
is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
(2) A person who, except as permitted by the applicable Rules of Court, publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means (otherwise than by the display of a notice in the premises of the court), a list of proceedings under this Act, identified by reference to the names of the parties to the proceedings, that are to be dealt with by a court is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
(3) Without limiting the generality of subsection (1), an account of proceedings, or of any part of proceedings, referred to in that subsection shall be taken to identify a person if:
(a) it contains any particulars of:
(i) the name, title, pseudonym or alias of the person;
(ii) the address of any premises at which the person resides or works, or the locality in which any such premises are situated;
(iii) the physical description or the style of dress of the person;
(iv) any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;
(v) the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;
(vi) the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or
(vii) any real or personal property in which the person has an interest or with which the person is otherwise associated;
being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires;
(b) in the case of a written or televised account or an account by other electronic means--it is accompanied by a picture of the person; or
(c) in the case of a broadcast or televised account or an account by other electronic means--it is spoken in whole or in part by the person and the person's voice is sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires.
(4) A reference in subsection (1) or (2) to proceedings shall be construed as including a reference to proceedings commenced before the commencement of section 72 of the Family Law Amendment Act 1983 .
(5) An offence against this section is an indictable offence.
(8) Proceedings for an offence against this section shall not be commenced except by, or with the written consent of, the Director of Public Prosecutions.
(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
(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.
(10) Applicable Rules of Court made for the purposes of subsection (2) may be of general or specially limited application or may differ according to differences in time, locality, place or circumstance.
Note: Powers to make Rules of Court are also contained in sections 26B, 37A, 109A and 123.
(11) In this section:
“court” includes:
(a) an officer of a court investigating or dealing with a matter in accordance with this Act, the regulations or the Rules of Court; and
(b) a tribunal established by or under a law of the Commonwealth, of a State or of a Territory.
“electronic means” includes:
(a) in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or
(b) in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system.
In order to ensure the privacy of parties to litigation under the Act, judgments of this Court and the Federal Magistrates Court of Australia made pursuant to the Act are published on the Court’s website under a pseudonym. I express my regret to the wife on behalf of the Court if the pseudonym chosen to protect her privacy and that of the other parties to these proceedings has caused her offence. I have asked her to nominate a pseudonym by which she would be content for the judgments to be published in future and she has nominated the name, “Dmitrieff”. I will make a notation to that effect in the orders which I make today.
Costs
An oral application has been made to me by Mrs Ford on behalf of the husband for the costs of this application. The application for costs is opposed by the wife and she refers to the fact that I have acknowledged an error in Order 1 of the orders made on 3 September 2008 and which requires amendment pursuant to the slip rule and she says in these circumstances no order for costs should be made against her.
The relevant provision of the Act dealing with costs is s 117. Section 117 provides as follows:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
(3) To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.
(4) However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
(5) In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children's lawyer has been appointed, the court must disregard the fact that the independent children's lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney‑General.
Section 117(1) provides that each party to proceedings under the Act shall bear his or her own costs. However sub-section (2) provides if, in the opinion of the Court, there are circumstances that justify it so doing the Court may, subject to sub-section (2A), (4) and (5) and the applicable rules of Court, make such order as to costs and security for costs whether by way of interlocutory order or otherwise as the Court considers just.
Considering the matters in s 117(2A) the first matter I must take into account is the financial circumstances of each of the parties to the proceedings. I am acutely aware from these proceedings that Ms Dmitrieff is currently an undischarged bankrupt and that prima facie the husband’s financial circumstances are superior to hers.
The second matter I must consider is whether either party is in receipt of assistance by way of legal aid and if so the terms of the grant of that aid. I am satisfied that neither party before me today is in receipt of legal aid.
The next matter I must deal with is the conduct of the parties to the proceedings. This sub-section deals with, among other matters, matters such as pleadings, particulars, discovery inspection, directions, answer to questions, admission of facts, production of documents and similar matters. I note that I made orders on 3 September 2008 and the wife has candidly admitted today she has not complied with those orders, and no application for leave to appeal the orders was made in the time provided in the rules.
The next matter I consider is whether the proceedings were necessitated by a failure of a party to proceedings to comply with the previous order of the Court and again I note non-compliance with my orders of 3 September 2008.
The next matter is whether or not any party to the proceedings has been wholly unsuccessful in the proceedings. I accept that Order 1 of the orders made 3 September 2008 required amendment pursuant to the slip rule. That amendment however was of no real significance, it simply required deletion of the listing of a review application for hearing before the docket Judge and the error could have been pointed out to the docket Judge when listed before him.
The main thrust of the application agitated before me was that a further adjournment of this matter should be granted notwithstanding that that issue, on exactly the same terms, was sought and rejected on 3 September 2008. I am satisfied, whilst not wholly unsuccessful in the proceedings, the wife has been substantially unsuccessful in the proceedings.
Sub-paragraph (f) deals with offers which is not relevant to this application and sub-paragraph (g) deals with any other matters the Court considers relevant. In this case I find it is appropriate that the wife ought to be ordered to pay the husband’s costs of this application. I propose however to defer the payment and make such an order for costs but stay the order pending the completion of the s 79 proceedings when the costs order may then be adjusted out of the parties’ entitlements, and I propose to so order.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland.
Associate:
Date: 15 October 2008
FAMILY COURT OF AUSTRALIA
| DMITRIEFF & SHAW AND ORS | [2007] FamCA 833 |
| APPLICATION TO DISCHARGE INTERIM INJUNCTION - Whether appropriate to discharge interim injunction pending determination of final hearing - Whether appropriate to make interim or partial property settlement order - Whether appropriate to appoint wife to have responsibility for sale of properties - Properties registered in name of third party and subject to proceedings in Equity Division of Supreme Court of NSW - Consideration of release of parties from proceedings - Whether appropriate to make order releasing party other than on party's application - Whether proceedings should be transferred to the Supreme Court of NSW - Whether final hearing should be deferred pending investigations of allegations of fraud and domestic violence |
| Conveyancing Act 1919 (NSW) Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) Property Relationships Act 1984 (NSW) |
| Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd [2006] NSWSC 341 A.S.I.C. v Edensor Nominees Pty Ltd (2001) 204 CLR 559 Chambers v Jones [1902] 2 SR NSW 177 Johnstone v Johnstone [1902] SR NSW 90 Harris & Harris (1993) FLC 92-378 Miller v Cameron & Ors (1936) 54 CLR 572 Port of Melbourne Authority v Anshun (1981) 147 CLR 589 Re Wakim; Ex Parte McNally & Anor (1999) 198 CLR 155 Warby v Warby (2002) FLC 93-091 |
| APPLICANT: | Ms Dmitrieff |
| FIRST RESPONDENT: | Mr Shaw |
| SECOND RESPONDENT: | Mr P |
| THIRD RESPONDENT: | L Pty Ltd |
| FOURTH RESPONDENT: | D Pty Ltd |
| FIFTH RESPONDENT: | Ms E |
| SIXTH RESPONDENT: | Mr G |
| SEVENTH RESPONDENT: | Mr A |
| EIGHTH RESPONDENT: | Ms J |
| NINTH RESPONDENT: | Ms S |
| TENTH RESPONDENT: | Ms T |
| FILE NUMBER: | SYF | 5191 | of | 1993 |
| DATE DELIVERED: | 17 August 2007 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATES: | 26 July 2007, 8 August 2007 |
REPRESENTATION
| ADVOCATE FOR APPLICANT: | Ms Dmitrieff |
| ADVOCATE FOR 1ST RESPONDENT: | Mr Shaw |
| ADVOCATE FOR 2ND RESPONDENT: | Mr P |
Orders
The orders made by Judicial Registrar Knibbs on 21 April 1999 are discharged.
Order 1 of the orders made by the Rose J on 20 December 2006 is discharged.
The husband provide to the wife in writing before 3 September 2007 details of any superannuation fund of which he is currently a member.
That paragraphs 1 to 15, and 17 of the wife’s Application in a Case filed 10 July 2007 are dismissed.
The wife’s Application in a Case filed 17 July 2007 is dismissed.
The wife’s Application in a Case filed 26 July 2007 is dismissed.
Costs of the Application in a Case filed 10 July 2007, Further Application in a Case filed 17 July 2007, Response to an Application in a Case filed 26 July 2007 by the third respondent and Response to an Application in a Case filed 26 July 2007 by the husband be reserved to the final hearing.
AND THE COURT NOTES the undertaking of the Second Respondent, Mr P as follows:
A.I [Mr P], of [B1 Property], Director of [L] Pty Ltd, undertake to the Court pending further order of the Court, not to increase the mortgage held over properties [B1 and B2 Properties], identified as […] and […], or to refinance the mortgage.
B.I also undertake to give 21 days notice of any exchange of contracts in respect of either or both [B1 and B2 Properties].
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Boland delivered this day will for all publication and reporting purposes be referred to as Shaw & Ors v Dmitrieff
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 5191 of 1993
| Ms Dmitrieff |
Applicant
And
| Mr Shaw |
First Respondent
| Mr P |
Second Respondent
| L Pty Ltd |
Third Respondent
| D Pty Ltd |
Fourth Respondent
| Ms E |
Fifth Respondent
| Mr G |
Sixth Respondent
| Mr A |
Seventh Respondent
| Ms J |
Eighth Respondent
| Ms S |
Ninth Respondent
| Ms T |
Tenth Respondent
REASONS FOR JUDGMENT
Introduction
Ms Dmitrieff brought three separate applications before the Court on 26 July 2007. Ms Dmitrieff was married to Mr Shaw. They were divorced in 1993. For convenience, and without wishing to cause any offence, I will refer to them in these reasons as “the wife” and “the husband”.
The substantive proceedings in this Court, which commenced in 1998, are yet to be determined. The orders now sought in the substantive proceedings are contained in amended application filed by the wife on 22 March 2005. The wife seeks, inter alia, orders by way of settlement of property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). In the amended application the husband is named as first respondent. Other parties named in the proceedings include Mr P (“Mr [P]”) as second respondent, and two companies, SL Pty Ltd (now known as L Pty Ltd) (“[L]”) and D Pty Ltd. (“[D]”) as third and fourth respondents respectively. I will return to discuss in more detail the parties named, and the orders sought in the substantive proceedings, later in these reasons.
During the course of the protracted proceedings in this Court, including five appeals or applications for leave to appeal to the Full Court, the wife has pursued litigation in the Supreme Court of New South Wales (“the Supreme Court”) and in others courts. The impending finalisation of the Supreme Court proceedings has been the catalyst for the present applications. The parties to the Supreme Court proceedings consented to orders being made in that Court on 17 July 2007 (later amended on 30 July 2007) to approach this Court for the discharge of an injunction granted on 21 April 1999.
The wife was formerly a party to the proceedings in the Supreme Court, but as she is currently an undischarged bankrupt, she was removed as plaintiff from the proceedings and the Official Trustee in Bankruptcy (“the trustee”) substituted in lieu. The trustee determined not to intervene in the proceedings in this Court to save costs, with the effect the wife, notwithstanding her bankruptcy, continues as a party to these proceedings.
Brief background facts
The husband was born on … September 1948 in New Zealand. He is engaged in full-time employment as a teacher.
The wife was born on … April 1943 in Australia. The wife is currently in receipt of social security benefits.
The husband and wife were married on … January 1971 at Sydney, NSW.
There were three children of the marriage. The children B and M are over the age of 18 years. The child Z is deceased.
The proceedings first commenced in this Court in June 1993 when the wife filed an application for divorce (dissolution of marriage). At the time of filing of that application the husband and wife were living separately and apart under the one roof. A decree nisi of dissolution of the marriage was pronounced on 9 July 1993. No proceedings were filed by either party until 7 May 1998 when the wife filed, out of time, an application for final orders.
On 8 July 1998 the wife filed an application for leave to commence out of time proceedings for spousal maintenance. On the same day she filed an application for urgent maintenance.
On 10 July 1998, by consent, the wife was granted leave to commence proceedings for property settlement and spousal maintenance out of time.
Notwithstanding the orders of 10 July 1998, on 18 September 1998 the husband, who was legally represented, filed a response in which he opposed the wife’s applications for leave to commence proceedings out of time and sought that the proceedings for property settlement be stood over generally.
On 2 November 1998 the wife filed an amended application for final orders in which she named Mr P as second respondent.
On 12 March 1999 Brian Muir & Company, solicitors, filed a notice of address for service on behalf of Mr P. Mr Muir of that firm acted on behalf of Mr P, L Pty Ltd and D Pty Ltd until recently. Mr P and the companies are now self-represented.
On 21 April 1999 the wife filed an interim application in which she sought an injunction restraining the sale or disposal of the properties, B1 and B2. For convenience, when I refer to B2 Property I will refer to “[B2]”, and “[B1]” in respect of B1 Property. When referring to both properties I will refer to them as “the properties”.
On 21 April 1999 an order was made by Judicial Registrar Knibbs on an ex parte basis. The order is in the following terms:
1.That the respondents [MR P] and [MR SHAW] and each of them be restrained from doing any act or thing or signing any document that has effect either of a personal or in their capacities as directors of transferring, disposing, selling, mortgaging or encumbering or purchasing the properties known as [B1] and/or [B2].
2.That the Company known as [SL] Pty Ltd be restrained from doing any act or thing that has effect of transferring, selling, disposing of or purchasing or encumbering the interest of the Company in the properties known as [B1] and/or [B2].
3.That these orders are until further order.
4.That the respondents and the company [SL] [sic] Pty Ltd be granted leave to apply to vary, suspend or discharge all or any of the orders made today on written notice to the applicant.
5.That a copy of these orders issue forthwith.
6.That a copy of the Applications, supporting affidavit and the orders made today be served on each of the respondents and the said company as soon as possible.
7.That the Application Form 8 filed 21 April 1999 be stood over to the Judicial Duty List at 10:00 am on Wednesday, 28 April 1999.
8.I note that the matter is urgent and for that reason these orders are made ex parte.
9.I note that the applicant gives the usual Undertaking as to Damages.
The present applications
On 10 July 2007 the wife filed an application in which she seeks orders that she, the husband, Mr P and L Pty Ltd do all acts and things to cause the properties to be sold, and that she have authority to conduct the sale on behalf of the husband, Mr P and L Pty Ltd.
The wife’s second application is an application filed on 17 July 2007. In that application she seeks orders for the discharge of the injunction made by Judicial Registrar Knibbs on 21 April 1999, “[p]ursuant to the order for the sale of [B1 and B2] as per my application filed on 10 July 2007”.
The wife filed a further application in Court on 27 July 2007 in which she seeks orders that her application for an order for sale of the properties be stood over until the final hearing of the matter. She also seeks the injunction granted on 21 April 1999 be continued until an order for sale of the properties. In addition, she seeks orders that the date to be set for the final hearing of the case be deferred until the New South Wales Police Fraud have finalised their investigation of a “fraud” incident and a “domestic violence” incident. In addition, she seeks orders concerning a sum of $55,000.00 and an order that Mr P provide to her various documents of proof of payment of the mortgage in respect of the properties.
On 26 July 2007 the husband filed a response in which he seeks the discharge of the injunction. Similar orders are sought by Mr P and L Pty Ltd. In his response filed 26 July 2007 Mr P asserted he agreed with the orders sought by the wife as follows:
Application in a Case filed 17 July 2007, agree in full.
Application in a Case filed 10 July 2007, paragraph 1, 8, 12 and 19.
However, before me, Mr P amended that part of the response to say that he agreed with orders 8 and 9 of the application filed on 10 July 2007. Orders sought by him were in the following terms:
1.That the Family Court dismiss [Mr P], [L] Pty Ltd and [D] Pty Ltd from the Family Court immediately the injunctions are lifted.
2.That respondents 5, 6, 7, 8, 9, 10 be also dismissed from the Family Court, having no part in any application before the Court.
3.That the Family Court have no part in the sale or disposal of or refinancing of the properties known as [B1 and B2].
4.That costs of today, and all costs which have been reserved be given to the respondents.
No affidavit in support of either response was filed by the husband or Mr P.
The wife relied on her affidavits filed 18 July 2007 and 26 July 2007. Subsequently she filed in Court, unopposed, an affidavit sworn on 7 August 2007.
Before me on 26 July 2007, the wife initially sought that her applications filed on 10 July 2007 and 17 July 2007 be withdrawn and dismissed. However, the wife then sought the reinstatement of those applications, and made oral submissions in which she submitted the Court should make orders for the immediate sale of the properties, and that she should be responsible for the conduct of the sale.
Because of the apparent inconsistencies in the relief sought by the wife, which she confirmed was not sought in the alternate, I granted leave to the husband and Mr P to make an oral application before me for the discharge of the injunction granted on 21 April 1999. The husband and Mr P each opposed the wife having the conduct of the sale of the properties.
The husband however supported the sale of the properties by public auction and suggested this would occur by reason of orders to be made in the Supreme Court.
The husband and Mr P were cross examined by the wife and gave sworn evidence before me. The wife was also briefly cross examined.
Mr P’s sworn evidence was that he proposed the properties should be sold, but that the mode of sale should be determined by him on advice from local real estate agents.
During the proceedings Mr Miles, instructed on behalf of ITSA as trustee for Mrs Dmitrieff’s bankrupt estate, was, without objection, permitted to sit at the bar table and to provide assistance to the Court.
There were two exhibits in the proceedings, Exhibit “A” being Short Minutes of Order signed by the parties and made by Hammerschlag J in the Supreme Court on 17 July 2007 and amended on 30 July 2007 and Exhibit “B” being an undertaking of Mr P in the following terms:
26.7.07
I [Mr P], of [B1 Property], Director of [L] Pty Ltd, undertake to the Court pending further order of the Court, not to increase the mortgage held over properties [B1 and B2], identified as f … and f …, or to refinance the mortgage.
I also undertake to give 21 days notice of any exchange of contracts in respect of either or both [B1 and B2 properties].
[signature]
[Mr P]
After the hearing of the current applications, the wife forwarded correspondence to my associate, and it appears to the husband and Mr P. Mr P also communicated with my associate by email. Accordingly I re-listed the matter before me on 8 August 2007 when I added to Exhibit “A” amendments made to the Short Minutes of Order on 30 July 2007. I permitted the wife to rely on correspondence sent to my associate as her written submissions in support of her applications. Likewise I permitted Mr P to rely on his email communication as his written submissions in support of his oral application and response. I directed that the wife could file by 4.00 pm on 10 August 2007 a copy of her affidavits relied on in the Supreme Court relevant to her claim of a debt of $55,000.00 allegedly owed by Mr P which she still seeks to pursue in this Court. The parties also agreed that I could read the reasons for judgment of Palmer J in the Supreme Court proceedings.
Subsequently on 10 August 2007 the wife caused to be forwarded to my associate detailed written submissions and other documents. No orders were made by me for the filing of written submissions.
It is apparent from the chronology which I set out below, that during the course of the litigation in this Court many applications seeking, in effect, the same relief have been sought in this Court, voluminous documentation has been filed by the wife, and significant amounts of Court time involved in interlocutory applications. It appears to me that, having regard to the main purpose of the Family Law Rules 2004, which is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case, and to afford natural justice to all parties, that I should determine the matters in issue without taking into account the unauthorised submissions and documents forwarded to my associate by the wife by letter dated 10 August, 2007. In so determining I take into account that I permitted the wife to file her further application and affidavit in Court on 26 July 2007, allowed cross examination of the parties, allowed time for extensive oral submissions, and re-opened the matter and accepted correspondence provided by the wife and Mr P could be treated as written submissions.
Issues
The present applications before me raise the following issues:
1.Is it appropriate the injunction granted by Judicial Registrar Knibbs on 21 April 1999 remain in place pending further order or should it be discharged forthwith.
2.Should orders be made in this Court for the sale of the properties pending determination of final proceedings under s 79 of the Act.
3.Whether the wife should have the care and conduct of the sale of the properties.
4.Is it appropriate to make an order discharging respondents to the proceedings, other than on the application by the particular respondent and/or discharge Mr P, L Pty Ltd, D Pty Ltd as respondents to the proceedings.
5.Should the whole of the proceedings be transferred to the Supreme Court pursuant to the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth).
6.What steps can be taken to conclude this litigation.
7.Should the final hearing be deferred pending the “Fraud” and “Domestic Violence” matters referred to by the wife.
In order to properly deal with these issues, it is appropriate that I set out a chronology of litigation in this Court in addition to those matters referred to under the heading “Brief Background Facts”. Whilst such chronology is lengthy, it provides context to the present applications.
Chronology
On 9 May 1999 the wife obtained from the then Australian Securities & Investment Commission a company extract for SL Pty Ltd. (“[SL]”) That search discloses the wife was appointed as a director of SL on 5 March 1998 and ceased being a director on 5 May 1998. The husband was appointed a director on 6 November 1997 and ceased his directorship on 14 March 1998. Mr P was appointed a director on 6 November 1997.
On 10 June 1999 the wife filed an amended application for property settlement in which she named seven additional parties as respondents to the proceedings:
·Respondent 3 – SL Pty Ltd;
·Respondent 4 – Ms T;
·Respondent 5 – MS E;
·Respondent 6 – Ms J;
·Respondent 7 – Mr G;
·Respondent 8 – Mr A;
·Respondent 9 – Ms S.
On 5 August 1999 Judicial Registrar Johnston dismissed the wife’s application against Ms T and released her as a party from the proceedings. He also released Ms E, Mr G and Mr A. On the same day Judicial Registrar Johnston made orders restraining the trustee of the State Authority Superannuation Scheme, the Hesta Super Fund and the Australian Retirement Fund from paying out to the husband or any person on his behalf any amounts pursuant to any benefits he has in any such scheme or fund.
On 31 August 1999 the wife filed an application to review the orders of Judicial Registrar Johnston.
On 21 September 1999 Cohen J, who was hearing the wife’s review application, delivered ex tempore reasons for judgment, and made orders that a next friend (as then described in then Family Law Rules) be appointed to represent the wife in the proceedings and “the question of dismissal of the application against all respondents other than the husband be stood over until 9.30 am on 12 October 1999”. The wife appealed against these orders to the Full Court by notice of appeal filed on 7 December 1999.
On 9 November 1999 Cohen J delivered further ex tempore reasons. His Honour noted the matter had not been before the Supreme Court. Cohen J refused to further adjourn the proceedings.
On 14 January 2000 the wife sought an extension of time in which to file an appeal against the orders made by Cohen J on 21 September 1999 and 9 November 1999.
On 6 November 2000 the wife’s appeal was heard by the Full Court. The Full Court allowed the wife’s appeal and ordered that the matter be remitted for rehearing by a judge other than Cohen J.
On 7 November 2000 the wife filed an application seeking to restrain Mr P entering onto B2 Property.
On 22 November 2000 Judicial Registrar Loughnan made an order in the following terms:
1.That until further order of the court Mr [P] be restrained from entering the property at [B2] [sic] harassing the wife and from dealing with the wife directly except through his solicitor Mr Brian Muir.
2.That liberty be granted to Mr [P] or any party to restore the matter to the list on 48 hours notice to the court and to the other parties.
On 6 December 2000 Judicial Registrar Loughnan discharged the order restraining Mr P entering onto B2 Property.
In the meantime, on 1 December 2000, Moore J had made directions in relation to the rehearing of the wife’s review application in accordance with orders of the Full Court. On 1 December 2000 Moore J consolidated all outstanding applications for final orders for property settlement, spousal maintenance and adult child maintenance and ordered they be listed for hearing as a special fixture on 30 April 2001.
The final hearing was listed before Rose J for hearing on 30 April 2001.
On 11 December 2000 the wife filed an application seeking to restrain Mr P from entering B2 Property and from coming into personal contact with her. The wife also sought an order that Mr P forward documents to her post office box number or via facsimile in the event of an urgent application.
On 11 December 2000 Mr P filed an application seeking the wife be declared vexatious, the eviction of the wife from B2 Property, the dismissal of the injunction made by Judicial Registrar Knibbs, and that he not have any further part in the proceedings.
On 15 December 2000 Rose J dismissed both applications save and except he made an order that Mr P direct all correspondence and other documents to the wife at her post office box.
On 8 January 2001 the wife filed an application in which she sought exclusive occupancy of B2 Property until the completion of the substantive proceedings. An application in similar terms was made by the wife on 22 January 2001.
On 12 January 2001 Chisholm J struck out the wife’s application filed on 8 January 2001. On 25 January 2001 his Honour made orders in chambers striking out a number of subpoenae issued at the request of the wife.
On 5 February 2001 Judicial Registrar Johnston dismissed the wife’s application filed on 22 January 2001.
In February 2001 the wife sought to issue various subpoenae. The matter was listed before Rose J on 7 March 2001 when the wife sought that his Honour should disqualify himself. Rose J refused the wife’s application for disqualification.
On 14 February 2001 Senior Registrar Gersbach made orders that an application to inspect documents be stood over to the first day of the hearing (2 April 2001) and reserved costs.
On 22 February 2001 the wife filed an application seeking a stay of all orders made from 1 December 2000 until the rehearing ordered by the Full Court, save and except the order made by Rose J for service of documents on her.
On 15 March 2001 the wife filed an application to review Senior Registrar Gersbach’s orders. On the same day the wife filed an application seeking leave to view and photocopy subpoenaed documents, and to reinstate her daughter, M, as an applicant to the substantive application.
On 21 March 2001 the wife’s application for leave to appeal Chisholm J’s orders of 25 January 2001 came before Ellis J. His Honour vacated the hearing date of the applications filed by the wife on 15 March 2001 and listed them for hearing before a Judge on 27 April 2001. Orders were made that the wife pay the husband’s and Mr P’s costs.
The wife’s application for leave to appeal the orders made by Chisholm J on 25 January 2001 was heard by the Full Court on 30 March 2001 (Finn, Coleman & Mushin JJ) and reasons for judgment were delivered on that day. The Full Court upheld the wife’s appeal on the basis that the trial Judge’s orders had been made in chambers without the opportunity for any party to be heard in respect of the dismissal of the subpoena.
On 2 April 2001 the matter was listed before Rose J for case management purposes. A further application was made by the wife that Rose J disqualify himself.
It appears that by this time the wife had commenced proceedings as a plaintiff in the Equity Division of the Supreme Court. On 2 April 2001 Rose J noted “that the parties will be in a position to inform Rose J of precisely the orders and directions made by the Supreme Court of New South Wales in its Equity Division on […] April 2001”. Rose J adjourned the review application before him until 17 April 2001. On that date the review application was stood over before Rose J to ascertain readiness for hearing on 24 April 2001.
On 24 April 2001 the wife filed an application in which she sought orders adjourning the final hearing of the property and spousal maintenance proceedings pending completion of the proceedings in the Supreme Court. On that day Rose J made orders by consent as follows:
1.That the hearing of the property settlement proceedings fixed to commence on 30 April 2001 is vacated.
2.That the property settlement proceedings are stood over for mention before Rose J at 9.30am on 4 June 2001 for the purpose of hearing any application for transfer of those proceedings to the Supreme Court of New South Wales and for further directions.
3.That the hearing of the wife’s pending Application for Leave to Appeal fixed for 23 April 2001 is vacated.
4.That the wife’s Application for Review filed 31 August 1999 be listed for mention before Rose J at 9.30am on 4 June 2001 for further directions.
5.That the wife’s Application Form 8 filed 24 April 2001 be listed for mention before Rose J at 9.30am on 4 June 2001 for further mention.
On 17 May 2001 the wife filed an application in which she again sought reinstatement of her daughter as an applicant and orders for production of various documents. She also sought an order that all named respondents be included on the front sheet of Court Orders. An application in similar terms was filed by the wife on 5 June 2001.
On 18 June 2001 the wife’s applications were listed before me for a procedural hearing. On that occasion I made the following notation:
It is noted that the applicant wife wishes to have the Supreme Court proceedings finalised before re-hearing of the application in relation to orders by Cohen J remitted from the Full Court of this Court for rehearing as well as the substantive proceedings, being her application for property settlement.
I stood the matter over until 27 August 2001 for further procedural directions.
On 25 June 2001 the wife filed an application seeking orders to photocopy subpoenaed material. That application was listed before Senior Registrar Gersbach on 25 June 2001. A number of orders were made in respect of subpoena by the Senior Registrar who struck out a subpoena to the Colonial Bank as being deficient in form.
On 19 July 2001 the wife filed an application to review orders made by Senior Registrar Gersbach on 25 July 2001.
On 26 July 2001 the wife filed an application in which she sought to reinstate as respondents to the proceedings the third to tenth respondents inclusive.
On 28 August 2001 Senior Registrar Gersbach refused to make orders reinstating those respondents on the basis they had not been removed from the proceedings.
The matter again came before me on a procedural hearing on 27 August 2001. The matter was stood over for mention only before me on 4 February 2002. Leave was granted to the parties to restore the matter to the list earlier in the event the Supreme Court proceedings had been determined before 4 February 2002.
On 31 August 2001 the wife’s application for review filed 19 July 2001 of Senior Registrar Gersbach’s orders of 25 June 2001 was listed for mention, and on 7 September 2001, the wife’s application for review was listed by me for hearing before a Judge on 5 October 2001.
On 5 October 2001 Steele J dismissed the wife’s application for review.
On 19 November 2001 the wife filed an application in which she sought an extension of time to review orders made by Registrar Gersbach on 23 August 2001. It appears the wife was seeking to review the orders of 28 August 2001.
On 19 December 2001 Senior Registrar Henderson granted the wife leave to review Senior Registrar Gersbach’s orders out of time and ordered that such review be filed no later than 21 December 2001. The wife filed her application for review on 17 December 2001, which application was listed for hearing on 4 March 2002.
On 22 February 2002 the wife filed an application for leave to extend time to appeal orders made by Steele J on 5 October 2001. On 7 March 2002 Coleman J granted leave to the wife to extend time to appeal Steele J’s orders.
On 27 March 2002 the matter was listed before Chisholm J who made the following orders:
1.That the Form 44 Application filed on 31 August 1999 and the Form 44 Application filed on 17 December 2001 be struck out and removed from the Acting Pending Cases List.
2.That the Applicant, Mrs [Dmitrieff] have leave to have the proceedings listed before Justice Boland after the completion of the Supreme Court proceedings for the purpose of issuing a trial notice and setting a date for the Pre Trial Conference in relation to the Form 7 Application filed on 6 March 2002.
3.That the Applicant Mrs [Dmitrieff] serve on the respondents named in the Form 7 Application field [sic] 6 March 2002 a copy of that application and a copy of these orders.
4.I direct the Registry Manager to forward a copy of these orders to the Associate to Justice Palmer in the Supreme Court of New South Wales.
Notation:
5.That the Form 7 Application filed 6 March 2002 is intended to name the 10 respondents identified in it and that the apparent crossing out of the names of the respondents 5, 6, 9 and 10 should be disregarded.
6.That Justice Boland is the Judge who has overall responsibility for this case and where practicable all matter [sic] should be referred to her in the first instance.
The transcript of the hearing before Chisholm J reveals that his Honour took the view that the wife’s application, in which she sought to review the orders made by Judicial Registrar Johnston on 9 August 1999 discharging the respondents referred to in paragraph 37 from the proceedings, was rendered moot by the wife having filed an amended application for property settlement on 2 March 2002 in which she sought different orders against some of the respondents named in the earlier proceedings, but named all previous respondents. Thus the parties to the proceedings remain the wife, husband, Mr P, and the parties named as respondents five to nine.
On 31 March 2003 Mr P, L Pty Ltd and D Pty Ltd filed an application seeking interim orders amending the injunction made on 21 April 1999, the removal of the caveat over the properties, and that the wife be restrained from filing any caveat in respect of those properties.
On 6 April 2003 the wife filed a response seeking dismissal of the application. The application was listed before Judicial Registrar Johnston on 16 April 2003 and adjourned to 13 May 2003. The Court noted orders were sought in terms of a document entitled “Short Minutes of Order” and the matter was adjourned to the Judicial Registrar’s duty list on 27 May 2003.
On 27 May 2003 Mr P’s and the companies’ application was dismissed.
The matter was listed before me on 30 October 2003 when I made the following orders:
1.That Mr Muir file and serve any Form 8 Application and affidavit in support on which he seeks to rely by 4 pm on 13 November 2003.
2.It is noted that as presently constituted and set out in the formal orders of Chisholm J on 27 March 2002 there are 10 Respondents and the Form 8 Application and affidavit are to be served on all 10 Respondents.
3.That Mrs [Dmitrieff] file and serve a Form 8A Response and affidavit in support on which she seeks to rely by 12 December 2003 and such Response and affidavit are to be served on all 10 Respondents.
4.I grant leave to all parties to approach the Listing Coordinator to have the Form 8 Application to be filed by Mr Muir set down for hearing in the first short causes list after 12 December 2003.
5.That all parties costs of today are reserved.
6.It is noted that all parties would consent to a judicial settlement conference taking place if available.
On 15 December 2003 the wife filed an application seeking ex-parte orders restraining the trustees of the estate of the late Mrs Shaw (the husband’s mother) in dealing with specified assets of her estate.
On 16 February 2004 Mr P filed an application seeking orders that the injunction be set aside and that he be permitted to sell the properties. On 2 March 2004 the wife filed a response opposing the orders sought by Mr P.
The applications to discharge the injunction made on 21 April 1999 were eventually listed before Rose J on 24 March 2004. His Honour delivered ex tempore reasons that day. At that time, Mr P submitted that he was suffering financial hardship and that the mortgage debt in respect of the mortgage secured over the properties was increasing. Rose J referred to the judgment of Palmer J in the Supreme Court and said, “I was attracted to making the order as sought by the applicant”. His Honour further noted however that the wife gave an undertaking to the Court that she would pay one half of the monthly mortgage payment in respect of the properties in the amount of $930.00 per month. Noting that an appeal to the New South Wales Court of Appeal was listed to be heard in approximately two month’s time, His Honour made the following orders:
1.That upon the Undertaking provided to the Court today by [Ms Dmitrieff], the Application of [Mr P] and [L] Pty Ltd filed 16 February 2004 is stood over generally with liberty to restore to the List for hearing upon 7 days written notice being given by that party.
2.That [Ms Dmitrieff] pay the applicant’s costs of the Application filed 16 February 2004 as assessed and agreed upon or otherwise as taxed.
On 2 February 2004 Rowlands J made the following orders:
1.The solicitor for the second, third and further respondents be granted leave to file such application as he is minded to within fourteen days of today’s date.
2.The solicitor for the second, third and fourth respondents give the wife 14 days notice of such application or such further notice as the rules for such applications require.
3.The proceedings before the Court today be adjourned to the return date granted for the application made pursuant to Order 1.
4.The solicitor for the second, third and fourth respondents advise the husband in writing as to the outcome of today’s proceedings.
On 22 October 2004 Mr P and L Pty Ltdagain filed an application seeking orders that they and D Pty Ltd be discharged as parties to the proceedings, and that the injunction dated 21 April 1999 be discharged.
The wife filed an application on 25 October 2004 seeking, inter alia, production of a number of documents to the Court by the other respondents, and on 11 November 2004, she filed a response to the application of Mr P and the companies opposing the dissolving of the injunction made on 21 April 1999.
On 18 November 2004 all pending applications were listed before me. I made procedural directions consolidating the applications for hearing before a trial Judge.
The wife sought leave to appeal Rose J’s orders of 24 March 2004. Her application was unsuccessful and dismissed by the Full Court on 4 February 2005.
The matter came on for hearing before Rowlands J on 11 March 2005 when his Honour made the following orders:
1.That written submissions with supporting evidentiary material by Mr Muir be filed and served on or before 4th April 2005.
2.That written submissions in response with supporting evidentiary material by Ms [Dmitrieff] be filed and served on or before 28th April 2005.
3.That written submissions in reply by Mr Muir with supporting evidentiary material be filed and served on or before 9th May 2005.
4.That the mater be adjourned for a two hour (or less) hearing at 10.00 am on Tuesday 24th May 2005 to determine what, if any, further oral or written evidentiary material or submissions were required.
As no written submissions with supporting evidence were filed in accordance with his Honour’s directions, the matter was not relisted before his Honour. It appears his Honour considered the application of 22 October 2004 was deemed abandoned.
On 16 August 2005 the wife filed an application in which she sought to join as parties to the proceedings Ms GW and Mr AH. The wife also sought to restrain Ms GW and Mr AH from commencing bankruptcy proceedings against her in the Federal Magistrates Court.
On 29 August 2005 the wife filed a further application seeking orders that the husband pay one half of the monthly mortgage payments in respect of the properties, and sought orders that monthly bank statements be supplied to her.
On 5 September 2005 I made orders dismissing the application filed 16 August 2005 in which the wife sought to join Ms GW and Mr AH and obtain injunctive relief against them. I ordered the wife pay the costs of Ms GW and Mr AH as agreed, and failing agreement within 28 days, as assessed. I also noted that the wife’s application filed 29 August 2005 was withdrawn and dismissed with each party to pay their own costs.
At the time of hearing the wife’s application, Ms GW and Mr AH had caused a Bankruptcy Notice to be issued against the wife and the wife had filed an application to set aside the Bankruptcy Notice in the Federal Magistrates Court.
The wife sought leave to appeal my orders of 5 September 2005. On 3 May 2006 the Full Court dismissed the wife’s application.
On 27 October 2005 to limit costs pending determination of the proceedings in the Supreme Court, the parties, by consent, agreed to the following orders:
1.That the matter [sic] stood over for case management purposes for mention only to 9.30 am on 23 November 2006.
2.Liberty to any party to restore before Justice Boland (or if she is not reasonably available the List Judge) on seven (7) days written notice to the Associate to Justice Boland and to the other parties.
3.That pending further order, the wife; husband; second, third, fourth and tenth respondents shall not file any application in a case until:
a.the matter is first listed before Justice Boland (or if she is not reasonably available the List Judge), and
b.the proposed relief sought is outlined to Justice Boland or the List Judge.
Notwithstanding those orders, and prior to the determination of the proceedings in the Supreme Court, further applications were filed in the matter.
On 22 March 2005 the wife filed an amended application for final orders in the proceedings under s 79. The orders the wife now seeks, by way of final relief, are in the following terms:
1.Lump sum allocation of funds for the monies that I have paid out for [M’s] education. [M] is the 1st Respondent’s and my daughter. I paid for [M’s] tertiary education at the University […] for a period of 5.1/2 years. [M] has obtained a double degree […]. The cost to me has been estimated at $50,000.00.
2.Orders are sought for the 1st Respondent’s superannuation benefits. I be allocated a sum which is half of his superannuation at the current pay out figures.
3.Future spousal maintenance be allocated for review.
4.Once the accounting procedure is finalised in the Equity Division, Supreme Court, Matter No. 1973/01, that the matter be remitted to the Family Court of Australia Pty Ltd [sic], as per Justice Chisholm’s orders of 27.3.02.
5.If the appeal is unsuccessful in the High Court of Australia, concerning the outcome of the Equity Division, Supreme Court, Matter No. 1973/01; then an Application for Order for sale will be submitted by me, the applicant wife, for the two properties, [B1 and B2].
6.The 2nd Respondent, Mr [P], pay back the debt of $47,598.00 into the pool of assets of the [Shaw/Dmitrieff] marriage.
7.Monies that the 2nd, 3rd and 4th Respondents, i.e. Mr [P], [L] Pty Ltd and [D] Pty Ltd, received in any form whatsoever, be recovered and placed into the pool of the assets of the [Shaw/Dmitrieff] marriage.
8.That the 1st Respondent is only paid $20,000.00 from the pool of the [Shaw/Dmitrieff] marital assets as per his written and signed contract agreement in a form of a letter to his solicitor in August 1998.
9.Orders are sought for all the furniture and household goods that I have in my possession.
10.Monies that [Ms E], the 5th Respondent, received from Mr [Shaw] as a result of the sale of [Z] as an illegal organ donor, be recovered and placed into the pool of the assets of the [Shaw/Dmitrieff] marriage.
11.Orders are sought that an amount of $8,000.00 be deducted from the respondent husband’s pool of assets for my benefit. In 1998, Mr [Shaw] said he signed this cheque over to [Ms E] for her baby stuff. I had got this money from selling a market stall that I had owned.
12.Monies that Mr [G], the 6th Respondent, received from Mr [Shaw] as a result of the sale of [Z] as an illegal organ donor, for the purchase of the business, [NSC], be recovered and placed into the pool of the assets of the [Shaw/Dmitrieff] marriage.
13.Monies that M/s [S], the 8th Respondent, received as a result of the sale of [Z] as an illegal organ donor, be recovered and placed into the pool of the assets of the [Shaw/Dmitrieff].
14.Monies that Mr [A], the 7th Respondent, received as a result of the sale of [Z] as an illegal organ donor, be recovered and placed into the pool of the assets of the [Shaw/Dmitrieff] marriage.
15.Monies that Mrs [J], the 9th Respondent, received as a result of the sale of [Z] as an illegal organ donor, be recovered and placed into the pool of the assets of the [Shaw/Dmitrieff] marriage.
16.Monies that Mrs [T], the 10th Respondent, received from Mr [Shaw] as a result of the sale of [Z] as an illegal organ donor, be recovered and placed into the pool of the assets of the [Shaw/Dmitrieff] marriage.
17.Monies that any person, still unknown at the present time, who has received monies as a result of the sale of [Z] as an illegal organ donor, be recovered and placed into the pool of the assets of the [Shaw/Dmitrieff] marriage.
18.All parties pay for their own costs.
On 4 January 2006 the wife filed an application for interim orders wherein she sought injunctive orders against W Council. W Council had commenced winding-up proceedings against L Pty Ltd for failing to pay council rates in respect of the properties.
On 25 January 2006 I made orders which provided that the husband, Mr P, L Pty Ltd and D Pty Ltd could file any application relevant to outstanding rates, the mortgage secured over the properties, and in respect of the discharge of the injunction made on 21 April 1999.
On 20 February 2006 the wife filed an application in which she sought “[t]hat the Second Respondent be debited the amount of $47,598.00 as monies owing to the Shaw/Dmitrieff family property under Section 79 of the Family Law Act 1975. This amount includes interest calculated from the dates as follows – a) 14.11.97 - $17,598.00; and b) 1.12.97 - $35,000.00.” She also sought orders that the husband pay half of the mortgage payments in respect of the properties and that the husband, Mr P, L Pty Ltd and D Pty Ltd make application to the St George Bank to borrow further funds to pay monies owing to W Council.
On 20 March 2006 the wife filed a further application in which she sought orders that Mr P, L Pty Ltd and D Pty Ltd pay the costs of the solicitor for W Council. The wife had sought orders that I disqualify myself from further hearing matters, but withdrew that application.
On 24 April 2006 the wife filed an application in which she sought to strike out the application filed by Mr P, L Pty Ltd and D Pty Ltd on 22 November 2004.
On 28 April 2006 the application of the wife filed on 20 March 2006 was withdrawn and dismissed.
On 20 December 2006 an urgent application, brought by the wife after Mr P listed the properties for sale, was heard by Rose J who made the following orders:
1.That until further order the second, third and fourth respondents their servants and agents forthwith do all things necessary to cause the cessation of listing for sale of the properties [B1 and B2].
2.That the second and third respondents by their servants and agents remove the “For Sale” sign outside the properties [B1 and B2] within 24 hours from today.
3.That the application for orders otherwise set forth in the Application in a Case filed 18 September 2006 is dismissed.
4.That the application of the respondents [Mr P] [L] Pty Limited and [D] Pty Ltd filed 22 October 2004 is dismissed.
On 22 March 2007 I heard the wife’s application filed on 21 February 2007 in which she sought the annulment of her bankruptcy and made the following orders and directions:
1.That the further amended application in a case filed on 21 February 2007, Form 21 Bankruptcy Application dated 21 February 2007 and Form 27 Notice to Creditors of Annulment Application dated 21 February 2007 is withdrawn by the applicant wife.
2.The applicant wife file and serve a Notice of Discontinuance on all parties named as respondents to the applications referred to in order 1 on or before 28 March 2007.
3.That orders 1 to 4 inclusive of the orders made 1 March 2007 are discharged.
4.That the respondents formerly represented by Mr Brian Muir shall file and serve a Notice of Address for Service by 28 March 2007.
5.The matter be listed before Boland J at 10.00 am on 30 November 2007. This date may be vacated on written application to the Associate to Boland J by any party in the event the matter requires an earlier listing.
Is it appropriate the injunction granted by Judicial Registrar Knibbs on 21 April 1999 remain in place pending further order or should it be discharged forthwith
It is useful at the commencement of my discussion of this issue to set out some of the terms of the amended Short Minutes of Order made in the Supreme Court:
1.ORDERS, pursuant to Part 6 Rule 30, the Official Trustee in Bankruptcy be substituted as the Plaintiff in these proceedings.
2.ORDERS that [Ms Dmitrieff] be removed as the Plaintiff in these proceedings.
3.NOTES that [Ms Dmitrieff] remains as Cross Defendant to the Cross-Claim.
4.ORDERS, further to the orders made on 28 June 2004, that there be an enquiry into and taking of accounts between the Plaintiff and the First and Third Defendants as to what amounts have been paid in respect of council rates, water rates and other imposts in respect of properties which are properly to be taken into account in ascertaining the liabilities and entitlements of the parties referred to in paragraph 5(g) of those orders.
5.DECLARES that the Third Defendant holds the properties known as [B1 and B2 Properties] (the Properties) being No [B1] in Folio Identifier […] and No [B2] in Folio Identifier […] upon trust for the Plaintiff, the First Defendant and itself in the following proportions:
(i)Plaintiff as to 15.2%
(ii)First Defendant as to 15.2%
(iii)Third Defendant 69.6%
…
8.DECLARES the amounts to be allowed by each of the Plaintiff, the First Defendant and the Third Defendant to the co-owners in accordance with these orders is charged upon their respective interests in the Properties.
9.DECLARES each of the Plaintiff, the First Defendant and the Third Defendant liable to contribute for water rates, Council rates in the same proportions as are described in Order 5 hereof, any amount unpaid on account of this ongoing obligation shall be a debt due to the other co-owners, to be charged upon their interest in the properties.
9ANOTES the agreement between the Plaintiff, the First and Third Defendant that any amount payable in respect of land tax be borne in the following proportions:
(i)each is to contribute to any such debt, excluding any amounts charged for late interest and penalties, in the same proportion as are described in order 5 hereof, and
(ii)any amount charged for late interest and penalties to the [sic] borne
onas to 15.2% by the First Defendant and 84.8% by the Third Defendant.9BThe amounts payable by the parties in accordance with the agreement noted in 9A is to be charged to their respective interests in the Properties.
10.DECLARES each of the Plaintiff, the First Defendant and the Third Defendant liable to contribute as and from 16 July 2007 to future repayments of the mortgage debt to St George Bank Ltd on account number […] as well as any future capital improvements on either of the Properties in the same proportions as are described in Order 5 hereof, any amount unpaid on account of this ongoing obligation shall be a debt due to the other co-owners, to be charged upon their interest in the properties.
…
12.ORDERS the Plaintiff to file a Withdrawal of Caveat for Caveat no […] within 7 days, failing which the Registrar of the Equity Division shall be able to sign such Withdrawal of Caveat and deliver it to the Third Defendant for registration.
ON THE CROSS CLAIM
13.DECLARES the Second Cross-Claimant is entitled to possession of the property known as [B2 Property] being No [B2] in Folio Identifier […].
14.GRANTS leave to the Second Cross Claimant [sic] issue a writ for possession of the said property.
15.Upon the giving of the undertaking by the Cross Defendant which is noted in Paragraph 15A hereof and for so long as the Cross Defendant complies with the terms of that undertaking, the writ is to lie in the Registry of the Court until further order of this Court or the discharge of the injunction granted on 21 April 1999 by the Family Court of Australia (‘the injunction”) whichever is the earlier.
15AThe Cross Defendant undertakes to the Court, which undertaking the Court accepts, that for so long as the writ of possession lies in the Registry in accordance with Paragraph 15 hereof, she will make and continue to make the following payments
(i)the sum of $930 per month into the St George Bank mortgage account number […]
(ii)all Council rates levied from 17 July 2007 in respect of the property at [B2 Property] forthwith upon presentation to her by the Cross Claimants of statements of account from the Council, and
(iii)all water rates, electricity rates and gas rates levied on the said property as and when those amounts fall due for payment.
16.DIRECT the parties to the Cross-Claim within 7 days to apply to the Family Court of Australia to relist proceedings SY5191 of 1993, subject to the exigencies of that Court, for the hearing of the injunction discharge application at the earliest possible date, and accepts the undertakings of all those parties to co-operate in order to have that hearing accelerated.
… (original emphasis)
That order was signed by the husband, Mr P in his own capacity and on behalf of SL Pty Ltd (“[L Pty Ltd]”) and the solicitor for the trustee, the latter having intervened in the Supreme Court. Exhibit “A” unfortunately only names the plaintiff and first defendant and does not name the parties to the cross claim. It is clear however that the wife is the cross defendant. No transcript of the recent proceedings in the Supreme Court has been made available to me.
The wife’s affidavit material contains a mixture of evidence, much of which is inadmissible, and submissions. At the hearing I indicated rather than deal with formal objections to the affidavits filed, that I would disregard any inadmissible material. I have done so.
The nub of the wife’s submissions as to why the injunction should remain in place is that without such protection Mr P may cause L Pty Ltd to refinance the mortgage or to otherwise deal with the properties contrary to her interests, or in a manner which may prejudice her obtaining her (or her trustee’s) entitlements as defined by the Supreme Court at the conclusion of the accounting proceedings.
Mr P, on behalf of L Pty Ltd, seeks that all parties to the proceedings, other than the husband, be discharged as parties to the proceedings.
Rule 6.02(1) provides:
(1) A person whose rights may be directly affected by an issue in a case, and whose participation as a party is necessary for the court to determine all issues in dispute in the case, must be included as a party to the case.
Example
If a party seeks an order of a kind mentioned in section 90AE or 90AF of the Act, a third party who will be bound by the order must be joined as a respondent to the case.
…
Rule 6.03 provides that:
(1) A party may include another person as a respondent by naming the person in the application.
(2) A party may add another party after a case has started by:
(a) amending the application or response, as the case may be, to add the name of the person; and
(b) by serving on the new party a copy of the application or response, and any other relevant document filed in the case.
Note 1 For amendment of an application, see Division 11.2.2.
Note 2 If a Form is amended after the first court date, the Registry Manager will set a date for a further procedural hearing (see subrule 11.10 (3)).
Note 3 A reference to "application" includes a reference to "cross-application (see the dictionary).
Rule 6.04 provides that:
A party may apply to be removed as a party to a case.
Note Rule 5.01 sets out the procedure for making an Application in a Case.
The Rules also contain provisions for the continuation of a case after the bankruptcy of a party. Those rules are not relevant in this case as the trustee, after notice, has declined to participate in these proceedings.
Part 1.2 of the Rules sets out the main purpose of the Rules and r 1.9 and r 1.10 provide:
Rule 1.09
If the court is satisfied that:
(a) a legislative provision does not provide a practice or procedure; or
(b) a difficulty arises, or doubt exists, in relation to a matter of practice or procedure;
it may make such orders as it considers necessary.
Rule 1.10 (1)
(1) Unless a legislative provision states otherwise, the court may make an order, on application or on its own initiative, in relation to any matter mentioned in these Rules.
…
In order to consider whether Mr P should be discharged as a party from these proceedings it is necessary to further consider the relief sought by the wife against him, and the jurisdiction of the Court to make orders affecting Mr P. I have already noted my view that the equitable claims do not require determination as part of the s 79 proceedings, those claims being determined by the Supreme Court.
I deal firstly with the wife’s claim about the sum of $55,000.00. The wife relies on paragraphs 30 to 44 of her affidavit filed in Court on 26 July 2007. The gravamen of the wife’s complaint appears to be that on settlement the sum to be paid the vendor, Mr K, was $265,583.70 and the amount received by him on settlement was $55,000.00 less than that sum. Prima facie, it appears this is a matter which could or should have been, and likely was, determined by the Supreme Court in the taking of accounts between the parties. If that issue has been determined it would appear the matter is res judicata and cannot be litigated in this Court. In the alternate, if the wife could have raised this as an issue in the Supreme Court, but failed to do so, on the principles of anshun estoppel the wife is now precluded from bringing such a claim in this Court (see Port of Melbourne Authority v Anshun (1981) 147 CLR 589).
I have, in my discussion of a partial property settlement order, discussed the third party provisions of the Act. I have noted that Division 2 of Part VIII of the Act has potential relevance. Section 90AE(2) provides that a court may, in proceedings under s 79, make an order that directs a third party to do a thing in relation to the property of a party to the marriage, or alters the rights, liabilities of property interests of a third party in relation to the marriage.
I am satisfied that until the sums due to the husband and the trustee following the taking of accounts in the Supreme Court are actually paid to them, which appears likely to necessitate the sale of the properties, it would be premature to remove Mr P and the companies as parties to these proceedings. I further consider that I have taken into account the enforceability of the undertaking given by Mr P to the Court in the exercise of my discretion to dissolve the inunction granted on 21 April 1999.
I turn then to the question of the other respondents remaining as parties. The wife’s affidavit material filed in support of this application does not support the orders sought in her final application against the fifth to ninth respondents. She has not yet been required to file her affidavit evidence in chief to support her present claims. It is difficult to see any connection between the orders sought by the wife against the fifth to ninth respondents and the determination of a claim under s 79. To date the wife has not established that the fifth to ninth respondents, or any of them, are creditors of the husband and wife.
When the wife files her affidavit material for the final hearing it will be clear the basis on which she asserts this Court has jurisdiction to hear and determine claims between herself and the husband and the fifth to ninth respondents. The present orders sought do not suggest a single justiciable controversy which requires determination (see Warby v Warby (2002) FLC 93-091).
If the wife’s affidavit material discloses no jurisdiction in the Court then I am satisfied that the applications against the fifth to ninth respondents should be dismissed, either on their application, or by the Court itself in its implied power to control its own processes.
Should the whole of the proceedings be transferred to the Supreme Court pursuant to the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth)
It has been the common understanding of the parties that on completion of the proceedings in Equity Division of the Supreme Court that the wife’s application for final orders for property settlement and spousal maintenance should be listed in this Court for hearing.
Mr P seeks the transfer of the proceedings in this Court to the Supreme Court. I decline to make such an order on a number of bases. First, proceedings under s 79 are proceedings regularly dealt with in this Court and subject of considerable experience by trial Judges who are appointed to this Court by “reason of their training, experience and personality …….to deal with matters of family law” (s 22(2)). Secondly, the wife is not only seeking property orders dealing with physical property, she also seeks splitting orders, under Part VIIIB of the Act, of the husband’s superannuation interests. This Court, through its rules and superannuation information form approved by the Principal Registrar, is in a unique position to have before it all the relevant information concerning the husband’s superannuation interests, and to make appropriate flagging or splitting orders. Finally, the wife seeks spousal maintenance, again an application regularly dealt with in this Court and generally not the subject of proceedings in the Supreme Court even under the Property Relationships Act1984 (NSW) where different criteria for the awarding of spousal maintenance are relevant to those applicable under the Act.
What steps can be taken to conclude this litigation
There has been a significant time elapse since the commencement of the proceedings with the result that this case has been awaiting a final hearing for many years. Multiple affidavits have been filed by all parties. Whilst I am loath to incur the parties in additional costs, it appears to me sensible that the parties should file one final consolidated affidavit of evidence in chief in accordance with the Rules and an updated financial statement, including full and complete disclosure of superannuation entitlements in the case of the husband and wife. Both the husband and wife should set out in full their day to day income and living expenses in view of the wife’s spousal maintenance claim as it appears she intends to pursue that claim.
The parties’ costs at the final hearing will be minimised if the properties have been sold and the adjustments as determined pursuant to the orders of the Supreme Court actually paid. Absent such payment or prior sale of the properties, it will be necessary for a single expert to be appointed to value the properties and based on that single expert’s report, the husband and the trustee’s entitlements ascertained. It may be necessary to address the question of trustees for sale of the properties under s 80(i)(c) of the Act.
I do not find it is appropriate to make directions for the filing of final material and/or the appointment of a single real estate expert until I am satisfied the Supreme Court proceedings have been finalised.
Should the final hearing be deferred pending the “Fraud” and “Domestic Violence” matters referred to by the wife
In the wife’s affidavit filed in Court on 26 July 2007 she deposes to a complaint to the New South Wales Police Fraud Squad. She has attached to her affidavit a statement made by her on 13 July 2007. That statement raises identical issues to the claims litigated and determined in the Supreme Court.
Given the history of this matter, I am not satisfied it would be appropriate to delay the s 79 proceedings for any police investigation. The wife would have remedies under the Act if the police established fraud perpetrated by any respondent. It would be open to the wife, after final property orders, to pursue claims under s 79A if fraud was established.
There is no evidence in the wife’s affidavit material in relation to her asserted domestic violence claim which would support the further delay of these proceedings.
Conclusions
For the reasons set out above, I am satisfied, in light of the undertaking by Mr P, that no prejudice will be caused to the wife by the injunction granted by Judicial Registrar Knibbs on 21 April 1999 being discharged. Whilst the sale of the properties appears inevitable, I am not satisfied that it is appropriate that the wife have the care and conduct of the sale of such properties on behalf of the husband, Mr. P and L Pty Ltd. Unfortunately, until the proceedings in the Supreme Court are concluded it is premature to determine whether Mr P, L Pty Ltd and D Pty Ltd can be removed from the proceedings, or to set this matter down for a final hearing.
I am satisfied once the wife’s consolidated final affidavit of evidence in chief is filed, it would be appropriate to have determined as a preliminary issue whether or not the claims against the fifth to ninth respondents are justiciable in this Court.
It is not appropriate that final directions be made at this stage for the filing of consolidated affidavits of evidence in chief and updated financial statements, including superannuation interests. Such directions will be made by me immediately the Supreme Court proceedings are finalised and the matter will then be allocated the first available hearing date.
However, as the husband is required to make a full and frank disclosure of his financial position to the wife, and such obligation is ongoing throughout the proceedings, and because the wife seeks a superannuation splitting order, the husband will be required to provide details of his present superannuation entitlements. The wife can then obtain herself from the husband’s trustee the prescribed information set out in the form approved by the Principal Registrar.
If the matter can be listed for final hearing before the end of this year it is unlikely there will be any substantial variation in the husband’s entitlements requiring updating.
The long-running emotionally distressing and expensive litigation in this Court should be determined as soon as possible. The matter has been allocated a mention date before me on 30 November 2007 or at such earlier time the parties re-list the matter if the Supreme Court proceedings are earlier determined.
Costs
I am satisfied the costs of the present applications should be reserved, and be determined by the trial Judge at the final hearing.
I certify that the preceding one hundred and sixty nine (169) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland
Associate:
Date: 17 August 2007
FAMILY COURT OF AUSTRALIA
| DMITRIEFF & SHAW AND ORS | [2008] FamCA 880 |
| APPLICANT: | Ms Dmitrieff |
| FIRST RESPONDENT: | Mr Shaw |
| SECOND RESPONDENT: | Mr P |
| THIRD RESPONDENT: | L Pty Ltd |
| FOURTH RESPONDENT: | D Pty Ltd |
| FIFTH RESPONDENT: | Ms E |
| SIXTH RESPONDENT: | Mr G |
| SEVENTH RESPONDENT: | Mr A |
| EIGHTH RESPONDENT: | Ms J |
| NINTH RESPONDENT: | Ms S |
| TENTH RESPONDENT: | Ms T |
| FILE NUMBER: | SYF | 5191 | of | 1993 |
| DATE DELIVERED: | 3 September 2008 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 20 August 2008 |
REPRESENTATION
| ADVOCATE FOR APPLICANT: | Ms Dmitrieff in person |
| SOLICITOR FOR THE 1ST RESPONDENT: | Mrs Ford |
| ADVOCATE FOR 2ND, 3RD & 4TH RESPONDENTS: | Mr P in person |
Orders
IT IS ORDERED:
That the wife’s application for settlement of property and for rehearing of the review application heard by Cohen J and remitted from the Full Court of this Court be referred to the Court Services Manager for allocation to a Judge’s docket other than Cohen J for hearing.
That the wife file and serve on or before 4.00 pm, 15 October 2008 any amended application for property settlement and/or spousal maintenance or other relief.
In the event the wife seeks a splitting order in respect of any superannuation entitlement she shall give notice to the trustee of such superannuation fund in accordance with the Family Law Rules 2004.
The wife shall file and serve one affidavit of evidence in chief to be relied on by her at the trial on or before 4.00 pm, 15 October 2008.
The wife shall file and serve an affidavit of any witness on or before 4.00 pm, 15 October 2008.
The wife shall file and serve a financial statement on or before 4.00 pm, 15 October 2008.
The husband shall file and serve an amended response on or before 4.00 pm, 5 November 2008.
The husband shall file and serve one affidavit of his evidence in chief on or before 4.00 pm, 5 November 2008.
The husband shall file and serve an affidavit of any witness on or before 4.00 pm, 5 November 2008.
The husband shall file and serve a financial statement on or before 4.00 pm, 5 November 2008.
That the husband and wife shall within two days of filing all documents required by these orders provide a copy of such documents to the wife’s trustee in bankruptcy.
The wife shall file and serve on or before 4.00 pm, 15 October 2008 a document entitled “Balance Sheet” setting out the assets, liabilities and financial resources of the parties as at that date.
In the event that the husband does not agree the Balance Sheet to be filed by the wife accurately sets out the parties’ assets, liabilities and financial resources he shall file and serve on or before 4.00 pm, 5 November 2008 a document entitled “Balance Sheet” setting out the assets, liabilities and financial resources of the parties for which he contends as at 15 October 2008.
In the event that any named second to tenth respondent to the proceedings seeks to be removed as a party such party shall file an application in a case, together with an affidavit in support on or before 4.00 pm, 1 December 2008, and such application may be dealt with by the trial judge as a discrete issue at a time and date to be notified to the parties or at the commencement of the hearing.
AND THE COURT NOTES:
(a)The wife is currently an undischarged bankrupt.
(b)The wife’s trustee in bankruptcy has declined to intervene in these proceedings, but did intervene in proceedings in the Supreme Court of New South Wales.
(c)That other than Mr P and L Pty Ltd (the 2nd and 3rd respondents) the remaining named respondents have not taken any steps or filed any material in the proceedings for several years.
(d)It is further noted that a summary of the proceedings in this Court and the issue of jurisdiction and power of the Court to deal with the purported claims against the fifth to ninth respondents is referred to in the judgment of the Honourable Justice Boland of 17 August 2007.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Boland delivered this day will for all publication and reporting purposes be referred to as Dmitrieff & Shaw & Ors (Adjournment Application)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 5191 of 1993
| Ms Dmitrieff |
Applicant
And
| Mr Shaw |
First Respondent
| Mr P |
Second Respondent
| L Pty Ltd |
Third Respondent
| D Pty Ltd |
Fourth Respondent
| Ms E |
Fifth Respondent
| Mr G |
Sixth Respondent
| Mr A |
Seventh Respondent
| Ms J |
Eighth Respondent
| Ms S |
Ninth Respondent
| Ms T |
Tenth Respondent
REASONS FOR JUDGMENT
Introduction
The substantive proceedings in this Court, being an application for adjustment of property interests under s 79 of the Family Law Act1975 (Cth) (“the Act”) were commenced by Ms Dmitrieff (“the wife”) in July 1998 when, by consent, the wife was granted leave to commence proceedings for property settlement and spousal maintenance out of time.
The litigation between the parties has had a convoluted history in this and other courts. I incorporate into these reasons my reasons for judgment delivered on 17 August 2007 and, in particular, the background facts set out in those reasons. This matter has been before me for case management purposes since 18 June 2001.
On 18 June 2001 I recorded:
It is noted that the applicant wife wishes to have the Supreme Court proceedings finalised before re-hearing of the application in relation to orders by Cohen J remitted from the Full Court of this Court for rehearing as well as the substantive proceedings, being her application for property settlement.
During the course of the matter being case managed by me I have heard and determined a number of interlocutory applications. A brief history of those applications is recorded in my reasons for judgment delivered on 17 August 2007.
When the matter was before me on 30 April 2008 Mrs Ford appeared on behalf of the husband who had previously been unrepresented in the proceedings. There was no appearance by or on behalf of any other party other than the wife.
At that mention I was informed that an application had been made to the Supreme Court of New South Wales by Mr P, the second respondent, that he be permitted to purchase the property known as B1 Property rather than that property being sold, to effect earlier orders made in the Supreme Court of New South Wales.
I pause here to note that the Supreme Court proceedings were proceedings initially commenced by the wife to resolve issues of entitlement of the parties to those proceedings in two properties at B1 and B2. During the course of the Supreme Court proceedings the wife was declared bankrupt and her trustee in bankruptcy intervened in the Supreme Court proceedings on behalf of the creditors of her estate. The trustee has declined to take part in proceedings in this Court.
Because of the uncertainty as to whether or not the property B1 would be sold or acquired by Mr P I further adjourned the proceedings before me until 20 August 2008. I foreshadowed to the wife and Mrs Ford the orders I would propose making to enable the matter to be prepared for hearing and listed in a trial judge’s docket on that date.
On 20 August 2008 Mrs Ford appeared for the husband and Mr P appeared in person. There was no appearance by or on behalf of any other respondent.
Mrs Ford and Mr P sought that I make orders as foreshadowed on 30 April 2008.
The wife opposed directions being made for hearing of her application and allocation to a trial Judge’s docket. The wife sought that the matter be further adjourned indefinitely on two bases. First, she submitted that the proceedings should be further adjourned as she was appealing against orders made by Hammerschlag J in the Supreme Court of New South Wales and she had filed a Notice of Motion seeking leave to appeal orders made by Flick J in the Federal Court of Australia on … July 2008. As Mr P was unable to provide evidence to me on 20 August 2008 of finalisation of his application to the Supreme Court, I made orders that he provide to my associate a copy of the relevant Supreme Court order. I also afforded the wife the opportunity to provide me with evidence of her proceedings in the Supreme Court of New South Wales and the Federal Court of Australia.
Concurrent proceedings in other courts
Mr P has provided me with a copy of an order made in the Supreme Court of New South Wales on 20 June 2008. The order is in the following terms:
The Court orders that:
1.The costs of the valuation report are chargeable to the trust estate.
2.Liberty to apply is granted to both the Official Trustee and [L] Pty Ltd.
3.The costs of this application are to be paid from the trust estate.
The Court directs that:
4.[L] Pty Ltd or [Mr P] is authorised to purchase part of the trust estate, being the property at [B1 Property] at a price to be determined as follows:
i)a registered valuer be appointed, upon the joint instructions of [L] [sic] Pty Ltd and the Official Trustee, to produce a valuation of that property,
ii)the valuer is to be instructed to express an opinion as to the present market value of the property prepared on 2 separate basis [sic]:
a)taking into account the fact that the property was passed in at an auction held on 10 November 2007,and alternatively,
b)Ignoring that circumstance.
iii)[L] Pty Ltd and [Mr P] are entitled to purchase the property at the average of the 2 valuation figures. That entitlement is to be exercised within 7 days of the receipt by the parties of the valuation report.
The wife has provided me with a copy of an order made in proceedings No … of 2007 in the Supreme Court of New South Wales Court of Appeal in which she is the claimant. The order is in the following terms:
1.Adjourned to 16 February 2009 at 2.30pm call-over of leave with liberty to apply on 14 days notice.
The wife has also provided me with a copy of her Notice of Motion filed in the Federal Court of Australia. Attached to the Notice of Motion is a copy of the reasons for judgment of Flick J of … July 2008.
In his reasons for judgment Flick J traces the history of proceedings in the Federal Court and Supreme Court of New South Wales. His Honour’s summary of the litigation is relevant to my consideration of the wife’s present application for an adjournment. At paragraphs 13-15 of his reasons Flick J said:
13 The Applicant and her ex-husband owned a matrimonial property at [M]. That property was apparently sold and the proceeds of sale used in the purchase of two properties: [B1 and B2 Properties]. The proceedings in the Supreme Court apparently sought orders that the purchase of those properties be set aside. Those proceedings were initially resolved by Palmer J: […]. The hearing occupied seven days. In refusing relief, his Honour observed at the outset of his judgment:
[1] This is a tragic case for all who have been involved in it. The Plaintiff, Ms [Dmitrieff], has developed a fixation that she has been a victim of a fraudulent conspiracy between her ex-husband, the First Defendant (“Mr [Shaw]”), and the Second Defendant (“Mr [P]”) whereby she has been cheated out of her home. She has commenced proceedings in the Family Court, in this Court and in the Federal Court, all of which she has conducted herself without legal assistance.
[2] The reality is that, while Ms [Dmitrieff’s] share of the net proceeds of sale of her jointly owned former matrimonial property was invested in the properties the subject of these proceedings and her name did not appear on the title to those properties, Mr [Shaw] and Mr [P] have never denied that Ms [Dmitrieff] had a beneficial interest in the properties commensurate with the proportion of her contribution to the parties’ equity in the properties. Indeed, at Ms [Dmitrieff’s] request Mr [Shaw] and Mr [P] signed an acknowledgement to that effect in July 1998, well before Ms [Dmitrieff] commenced these proceedings.
[3] As far as I am able to determine, these proceedings and the proceedings in the Family Court were never necessary in order to establish Ms [Dmitrieff’s] interest in the properties because that interest was not in contest.
[4] Nevertheless, the Defendants have not been able to disentangle themselves from a nightmarish web of litigation in which Ms {Dmitrieff] has enveloped them since 1998, not only in the Family Court and in this Court, but in the Local Court, the District Court and the Federal Court. There has been at least one application by Ms [Dmitrieff] to the High Court and numerous applications by her to the Full Court of the Family Court and to the Court of Appeal.
[5] The costs of this litigation to the present Defendants and others whom Ms [Dmitrieff] has sought to join must be very substantial. A large number of costs orders have been made against Ms [Dmitrieff] in the interlocutory proceedings in the various Courts. They are said to amount to about $150,000 and a final costs order will be made against her in these proceedings. Whether those costs can actually be recovered from Ms [Dmitrieff] must be extremely doubtful.
His Honour noted that the “reality” was that the Applicant was entitled to a share of the net proceeds of sale of her former matrimonial property, but that such a share had not been denied. On 27 August 2003 costs of Ms [GW] and Mr [AH] were awarded against Ms [Dmitrieff] by Palmer J. Those costs were assessed and judgment entered in the sum of $155,522.69.
14 On 3 June 2004 the decision of Palmer J came before the Court of Appeal. Leave to appeal was granted but limited to the form of the orders as made by the trial judge: […]. In doing so, Handley JA, with whom Sheller and Ipp JJA agreed, said:
[14] The Court has heard Ms [Dmitrieff] on her application for leave to appeal generally, and at greater length than would be allowed to a party who was legally represented. Despite her submissions, there is no reason to doubt the substantial correctness of the judgment of Palmer J of 1 August 2003, nor is there any reason to think that there has been any miscarriage of justice as a result of his Honour's rulings on evidence and procedure during the trial.
[15] I would, therefore, refuse general leave to appeal and grant leave to appeal limited to the formal orders made by Palmer J on 29 September 2003.
15 Ms [Dmitrieff] has pursued her claims beyond the Court of Appeal and has proceeded to the High Court on a number of occasions. One of those occasions was when she sought a stay of orders made by Giles J in respect to costs: […]. That application came before McHugh J. During an exchange between Ms [Dmitrieff] and the Court, McHugh J made the following observations:
Let me just give you this piece of advice. I am sure you will not accept it, but please give serious thought to the cost that you are incurring and the costs that are being ordered against you. The other side in this case are asking that you pay not only costs, but costs on what is called an indemnity basis, which means you have to pay all the costs that they incur.
The High Court has also refused an application for special leave in respect to the decision of the Court of Appeal dismissing an application for leave to appeal to that Court against the orders made by Palmer J: […]. In doing so, Hayne J observed that there was no “reason to doubt the correctness of the decisions in the courts below”.
His Honour then turned to and recorded a history of the bankruptcy proceedings and other proceedings in the Federal Court before turning to the application which was before him.
His Honour found that the applications which the wife sought to agitate were based on submissions made by the wife:
… that she has been improperly deprived of monies owing to her and the belief that, if she obtained those monies, she would be able to pay her debts. A belief repeated a number of times during the hearing was that monies to which she was entitled were still being retained by Mr [P] and that the Official Trustee was failing in its duty to recover those monies. But this very belief was previously advanced by Ms [Dmitrieff] before Palmer J and again before a Federal Magistrate – on at least one occasion […]. It is that belief which Palmer J characterised as “a fixation that she has been a victim of a fraudulent conspiracy between her ex-husband … and the second defendant (‘Mr [P]’)”.
At paragraph 43 of his Honour’s reasons he said:
The annulment of the bankruptcy was acknowledged by Ms [Dmitrieff] as a primary claim for relief. But, and as was pointed out to her during the proceeding, the issues which she now wishes to pursue have previously been the subject of judicial determination. The observation as made by Palmer J in 2003 is equally as apposite today as it was in 2003. The tortuous path of litigation which has been pursued by Ms [Dmitrieff], involving both herself and others, is truly “tragic”. But at the end of the day there is a need for finality in litigation, and the issues presently sought to be pursued have either previously been resolved, or are so closely aligned with issues previously resolved that Ms [Dmitrieff] should not now be permitted to relitigate afresh the issues encompassed by her Amended Application: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
Discussion
The proceedings in this Court have been on foot for an inordinate length of time. The wife has had the opportunity to pursue litigation against third parties, including Mr P, in the Supreme Court of New South Wales and has exercised her appeal rights. A determination of the various parties’ equities in B1 and B2 Properties has been the subject of judgment which has quantified the monies due to each of the husband, wife and Mr P. I am satisfied that the issues in dispute about identification of the parties’ assets and liabilities insofar as the properties B1 and B2 are concerned, have been the subject of proper adjudication and that a trial Judge should now be in a position to determine the assets of the husband and wife and, if appropriate, make such adjustment under s 79 as is just and equitable.
I note that the wife’s trustee in bankruptcy has declined to take part in the proceedings in this Court, notwithstanding that the trustee intervened in the proceedings in the Supreme Court of New South Wales. Thus I do not specifically in this application take into account any adverse impact on the trustee in bankruptcy in further delay in proceedings in this Court, although I have regard to the goal of achieving finality to litigation in a timely manner.
On balance I am satisfied, weighing up any possible prejudice to either party, that the prejudice to the husband and Mr P in failing to make directions for this matter to be heard and determined now in a timely way outweighs any prejudice to the wife. In making this determination I take into account the history of the litigation in this and other courts and, in particular, the findings of Flick J in his reasons for judgment of … July 2008.
Orders to be made
The wife, the husband’s solicitor and Mr P were each informed of the orders I proposed to make in relation to the further conduct of the matter. Other than the wife’s assertion the matter should be further adjourned, no issues were raised in respect of the proposed orders and I accordingly intend to make orders in terms of the orders foreshadowed to the parties.
I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland.
Associate:
Date: 3 September 2008
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