FEDERAL COURT OF AUSTRALIA
DOQ17 v Australian Financial Security Authority [2018] FCA 561
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Details
- Case
- [2018] FCA 561
- Decision Date
CaseChat Overview and Summary
In the case of DOQ17 v Australian Financial Security Authority, the Federal Court addressed the applicant's application for leave to further amend her pleadings and to join additional respondents. The applicant, referred to by a pseudonym due to the sensitive nature of her claims, sought to further amend her Statement of Claim to include additional causes of action against new respondents, namely a solicitor and a former solicitor involved in earlier proceedings. The case had been ongoing for nearly three years and was at an advanced stage of preparation for trial, which influenced the Court's decision.
The central issue before the Court was whether the applicant should be granted leave to further amend her pleadings, considering the advanced stage of the proceedings and the lack of a reasonable explanation for the delay in seeking these amendments. Additionally, the Court had to determine whether it was appropriate to join two further respondents, considering the potential for further delay and the absence of an arguable case against the proposed new respondents.
The Court dismissed the application to further amend the pleadings, emphasizing the advanced stage of the case and the lack of reasonable justification for the delay in proposing these amendments. The Court noted that the proposed pleadings were embarrassing and did not identify any reasonable cause of action. Furthermore, the Court found that the application for joinder of the new respondents was also inappropriate, as it would likely cause further delay and there was no arguable case against the proposed respondents.
In conclusion, the Court ruled that the application to further amend the pleadings was refused, except for the insertion of a specific paragraph. The application to join the new respondents was also dismissed. The Court ordered the applicant to pay the respondents' costs associated with the applications to amend and for joinder. This decision reflects the Court's adherence to case management principles, particularly in ensuring that proceedings do not unduly delay and that amendments are sought in a timely and justifiable manner.
The central issue before the Court was whether the applicant should be granted leave to further amend her pleadings, considering the advanced stage of the proceedings and the lack of a reasonable explanation for the delay in seeking these amendments. Additionally, the Court had to determine whether it was appropriate to join two further respondents, considering the potential for further delay and the absence of an arguable case against the proposed new respondents.
The Court dismissed the application to further amend the pleadings, emphasizing the advanced stage of the case and the lack of reasonable justification for the delay in proposing these amendments. The Court noted that the proposed pleadings were embarrassing and did not identify any reasonable cause of action. Furthermore, the Court found that the application for joinder of the new respondents was also inappropriate, as it would likely cause further delay and there was no arguable case against the proposed respondents.
In conclusion, the Court ruled that the application to further amend the pleadings was refused, except for the insertion of a specific paragraph. The application to join the new respondents was also dismissed. The Court ordered the applicant to pay the respondents' costs associated with the applications to amend and for joinder. This decision reflects the Court's adherence to case management principles, particularly in ensuring that proceedings do not unduly delay and that amendments are sought in a timely and justifiable manner.
Orders
Orders of the court
1. Subject to Order 2, the application to further amend the Further Amended Statement of Claim is refused.
2. Leave to further amend the Further Amended Statement of Claim is allowed insofar as leave is sought to insert paragraph 21 of the proposed Second Further Amended Statement of Claim.
3. The application for joinder of the proposed eighth and ninth respondents is refused.
4. The applicant is to pay the respondents’ costs of the applications to amend and for joinder as agreed or taxed.
5. The applicant is to pay the proposed eighth and ninth respondents’ costs of the application for joinder as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The fourth respondent, Ms Nash, and proposed eighth respondent, Ms Adams, rely upon the affidavit of Katie Thompson, solicitor, sworn on 2 March 2018. No further affidavit material was filed by the other respondents or the proposed ninth defendant, Mr Metlej. 3. BACKGROUND3.1 The Family Court proceedings for an alleged contravention of s 121, Family Law Act As I have indicated at [1] above, the central claim in these proceedings relates to the disclosure of the applicant’s identity in April 2012. However, there is also a subset of claims arising from conduct and defamatory statements said to have taken place in certain FCC proceedings commenced in 2014. It is these FCC claims which are the genesis of the allegations now made against the proposed eighth and ninth respondents. On 8 September 2014, the applicant filed an “Application–Contravention” in the FCC alleging that Ms Czinner and Mr Madden, as trustees for the AFSA, and Ms Nash as their solicitor at the relevant times, contravened by the means earlier explained a pseudonym direction made in the Family Court proceedings on 19 August 2011 in Debrossard & Official Trustee in Bankruptcy [2011] FamCA 648 (Family Court judgment). The so-called “direction” or “order” was in the following terms: IT IS NOTED that publication of this judgment under… [a] pseudonym… is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)(emphasis original) As earlier mentioned, Ms Czinner and Mr Madden were employees of AFSA and had been appointed trustees for the sale of the property.: order 1 of the Family Court Orders. In November 2014, Ms Czinner and Mr Madden applied for an order summarily dismissing the FCC proceedings. They were represented by Mr Metlej, solicitor, who is the proposed ninth respondent. The proposed eighth respondent, Ms Adams, was the solicitor retained by the fourth respondent, Ms Nash, to represent her in the FCC proceedings. Ms Nash also sought summary dismissal of the proceedings in November 2014. On 1 December 2014, the FCC summarily dismissed the application as incompetent. The FCC’s reasons for judgment are published under the pseudonym Debrossard v Carey & Ors [2014] FCCA 2915 (FCC judgment). Specifically, Scarlett J held that the notation of the approval of a pseudonym for publication under s 121(9)(g) in the Family Court judgment did not constitute an “order” and therefore could not be enforced by way of contravention proceedings. Furthermore, Scarlett J held that there was nothing establishing that the applicant had the written consent of the Commonwealth Director of Public Prosecutions to prosecute the respondents for an offence against s 121 of the Family Law Act 1975 (Cth), as required by s 121(8). Nor did the FCC have power to give consideration to the prosecution of individuals alleged by an applicant to have breached s 121: Prentice v Bellas [2012] FamCA 108; (2012) 47 Fam LR 262. For those reasons, Scarlett J held that “it is abundantly clear that the Applicant has no reasonable prospect of successfully prosecuting her contravention application against the Respondents” and the application was incompetent: FCC judgment at [26].
Evidence
Evidence Before The Court
Finally, I note that the applicant is referred to by a pseudonym in this proceeding given that her substantive complaint relates to her identification in public documents as a party to the Family Court proceedings. For this reason, potentially identifying information has been removed from this judgment. 2. EVIDENCE In support of her application to amend and for joinder of the additional parties, the applicant relies upon her affidavit sworn on 5 February 2018 which annexes the draft FASC-2. The fourth respondent, Ms Nash, and proposed eighth respondent, Ms Adams, rely upon the affidavit of Katie Thompson, solicitor, sworn on 2 March 2018. No further affidavit material was filed by the other respondents or the proposed ninth defendant, Mr Metlej. 3. BACKGROUND3.1 The Family Court proceedings for an alleged contravention of s 121, Family Law Act As I have indicated at [1] above, the central claim in these proceedings relates to the disclosure of the applicant’s identity in April 2012. However, there is also a subset of claims arising from conduct and defamatory statements said to have taken place in certain FCC proceedings commenced in 2014. It is these FCC claims which are the genesis of the allegations now made against the proposed eighth and ninth respondents. On 8 September 2014, the applicant filed an “Application–Contravention” in the FCC alleging that Ms Czinner and Mr Madden, as trustees for the AFSA, and Ms Nash as their solicitor at the relevant times, contravened by the means earlier explained a pseudonym direction made in the Family Court proceedings on 19 August 2011 in Debrossard & Official Trustee in Bankruptcy [2011] FamCA 648 (Family Court judgment). The so-called “direction” or “order” was in the following terms: IT IS NOTED that publication of this judgment under… [a] pseudonym… is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)(emphasis original) As earlier mentioned, Ms Czinner and Mr Madden were employees of AFSA and had been appointed trustees for the sale of the property.: order 1 of the Family Court Orders. In November 2014, Ms Czinner and Mr Madden applied for an order summarily dismissing the FCC proceedings. They were represented by Mr Metlej, solicitor, who is the proposed ninth respondent. The proposed eighth respondent, Ms Adams, was the solicitor retained by the fourth respondent, Ms Nash, to represent her in the FCC proceedings. Ms Nash also sought summary dismissal of the proceedings in November 2014. On 1 December 2014, the FCC summarily dismissed the application as incompetent. The FCC’s reasons for judgment are published under the pseudonym Debrossard v Carey & Ors [2014] FCCA 2915 (FCC judgment). Specifically, Scarlett J held that the notation of the approval of a pseudonym for publication under s 121(9)(g) in the Family Court judgment did not constitute an “order” and therefore could not be enforced by way of contravention proceedings. Furthermore, Scarlett J held that there was nothing establishing that the applicant had the written consent of the Commonwealth Director of Public Prosecutions to prosecute the respondents for an offence against s 121 of the Family Law Act 1975 (Cth), as required by s 121(8). Nor did the FCC have power to give consideration to the prosecution of individuals alleged by an applicant to have breached s 121: Prentice v Bellas [2012] FamCA 108; (2012) 47 Fam LR 262. For those reasons, Scarlett J held that “it is abundantly clear that the Applicant has no reasonable prospect of successfully prosecuting her contravention application against the Respondents” and the application was incompetent: FCC judgment at [26].
Decision
Reasons for decision
On 1 December 2014, the FCC summarily dismissed the application as incompetent. The FCC’s reasons for judgment are published under the pseudonym Debrossard v Carey & Ors [2014] FCCA 2915 (FCC judgment). Specifically, Scarlett J held that the notation of the approval of a pseudonym for publication under s 121(9)(g) in the Family Court judgment did not constitute an “order” and therefore could not be enforced by way of contravention proceedings. Furthermore, Scarlett J held that there was nothing establishing that the applicant had the written consent of the Commonwealth Director of Public Prosecutions to prosecute the respondents for an offence against s 121 of the Family Law Act 1975 (Cth), as required by s 121(8). Nor did the FCC have power to give consideration to the prosecution of individuals alleged by an applicant to have breached s 121: Prentice v Bellas [2012] FamCA 108; (2012) 47 Fam LR 262. For those reasons, Scarlett J held that “it is abundantly clear that the Applicant has no reasonable prospect of successfully prosecuting her contravention application against the Respondents” and the application was incompetent: FCC judgment at [26]. There was no application for leave to appeal the FCC decision. As I later explain, the new causes of action alleged against the proposed ninth respondent, Mr Metlej, rely upon the following matters:(a)Mr Metlej accepted a retainer from AFSA, Ms Czinner and Mr Madden to act for Ms Czinner and Mr Madden in the FCC proceedings;(b)in the course of performing that retainer, Mr Metlej became aware of an affidavit by Ms Nash either sworn or affirmed on 18 November 2014 and filed in the FCC Proceedings (18 November 2014 affidavit) (about which various allegations are made by the applicant); and(c)on 19 December 2014, Mr Metlej swore an affidavit in his capacity as the solicitor for Ms Czinner and Mr Madden, which was filed in the FCC proceedings on 22 December 2014 in support of an order that the applicant pay AFSA’s costs of the contravention proceedings on an indemnity basis in the sum of $2079.90. See paragraphs 20A(n) and 20C of the draft FASC-2 at pp. 24-25. The application for indemnity costs in the FCC referred to above was successful on the ground that the case brought by the applicant was “clearly a hopeless case as the Court had no jurisdiction to make the orders sought” and that the applicant had persisted with “such a meritless case” until its “inevitable” summary dismissal: FCC judgment at [20]-[22] (Scarlett J). 3.2 Institution of these proceedings in the District Court of New South Wales and the application for summary dismissal The present proceedings were commenced on 27 April 2015 in the District Court of New South Wales. The proceedings as originally pleaded are conveniently summarised by Ward JA and Sackville AJA on an application for leave to appeal by the applicant in D v Australian Financial Security Authority [2017] NSWCA 50 (D v AFS (NSWCA)) as follows: 6. The District Court proceedings arise out of the circumstances in which, following the applicant’s divorce and the bankruptcy of her former husband, the applicant’s former matrimonial home was sold pursuant to a statutory trust for sale.7. The applicant’s complaint is that a copy of Family Court orders (made on 19 August 2011), setting aside earlier consent orders by which her former husband’s interest in the matrimonial home had been transferred in its entirety to her and vesting the property in the second and third respondents on a statutory trust for sale, was attached to the contract for sale of the property and distributed to prospective purchasers without the redaction of her name and other identifying information (including the file number of the Family Court proceedings).8. The applicant initially brought proceedings only against AFSA (the first respondent in the current proceedings) the two trustees employed by it (the second and third respondents) and the solicitor who acted for AFSA on the sale (the fourth respondent).9. The causes of action raised against those parties were identified by Taylor SC DCJ, when ruling in May 2016 on a summary dismissal application brought by them (see [14] below), as being for: breach of publication order; breach of s 121 of the Family Law Act1975 (Cth); breach of the Privacy Act1988 (Cth) (the Privacy Act); negligence; breach of confidence; breach of privacy; defamation; and breach of statutory duty arising from a breach of s 121 of the Family Law Act (see [11] of his Honour’s reasons).
Ratio Decidendi
Legal Principle Established
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