Duarte & Morse (No 2)
[2022] FedCFamC1A 121
•4 August 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Duarte & Morse (No 2) [2022] FedCFamC1A 121
Appeal from: Morse & Duarte [2022] FedCFamC1F 152 Appeal number(s): NAA 63 of 2022 File number(s): SYC 737 of 2014 Judgment of: AUSTIN, WILLIAMS & RIETHMULLER JJ Date of judgment: 4 August 2022 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Property – Where the wife seeks leave to appeal from the dismissal of her application to summarily dismiss the husband’s application for property settlement orders – Apprehended bias – Where the transcript and reasons for judgment demonstrate the primary judge’s considerable care and patience to understand and address the substantive arguments of the wife – Estoppel – Where there can be no res judicata or other form of estoppel where no final judgment exists – Reasonable prospects of success – Where there is no question the husband has an arguable case – Offer to settle – Where the argument that the offer was not capable of acceptance is rejected – Abuse of process – Where onerous and distressing litigation does not mean it is vexatious or an abuse of process – Where none of the grounds relied upon by the wife warrant a grant of leave to appeal – Where there could be no substantial injustice in refusing leave to appeal – Leave to appeal refused – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) Pt VIIIA, ss 79, 80, 114
Federal Circuit and Family Court of Australia Act2021 (Cth) s 28
Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) reg 4.02
Cases cited: Charisteas v Charisteas (2021) 64 Fam LR 94; [2021] HCA 29
Duarte and Anor & Morse (2019) FLC 93-902; [2019] FamCAFC 93
Ebner & Pappas (2014) FLC 93-619; [2014] FamCAFC 299
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Frost (Deceased) & Whooten (2018) FLC 93-860; [2018] FamCAFC 177
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Morse & Duarte (2017) 58 Fam LR 131; [2017] FamCA 1039
Morse & Duarte [2022] FedCFamC1F 152
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; [1981] HCA 7
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Sykes & Sykes (1979) FLC 90-652; [1978] FamCA 61
Number of paragraphs: 46 Date of hearing: 1 July 2022 Place: Heard in Sydney, delivered in Newcastle The Applicant: Litigant in person Solicitor for the First Respondent: Marrickville Legal Centre The Second Respondent: Did not participate ORDERS
NAA 63 of 2022
SYC 737 of 2014FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS DUARTE
Applicant
AND: MR MORSE
First Respondent
MR TOLMAN
Second Respondent
ORDER MADE BY:
AUSTIN, WILLIAMS & RIETHMULLER JJ
DATE OF ORDER:
4 AUGUST 2022
THE COURT ORDERS THAT:
1.The applicant’s oral application for leave to appeal is refused.
2.Notice of Appeal No. NAA 63 of 2022 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Duarte & Morse (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, WILLIAMS & RIETHMULLER JJ:
INTRODUCTION
The applicant wife and the first respondent husband were married in 2004. During the marriage they had three children, all of whom now live with the husband. The husband and wife separated in 2013, and were divorced in 2015. In 2013 the wife commenced a relationship with the second respondent, with whom she has two children.
The proceedings between the husband and wife commenced in 2014. The parenting and property disputes between the parties were the subject of the first trial judgment: Morse & Duarte (2017) 58 Fam LR 131. The wife appealed, and the Full Court dismissed the appeal with respect to the parenting orders, however, set aside the property settlement orders and remitted the property settlement proceedings for a new hearing: Duarte and Anor & Morse (2019) FLC 93-902.
A central issue in the property settlement proceedings is the extent of the wife’s beneficial interest in a property at B Street, Suburb C (“the Suburb C property”) which was purchased by the wife and the second respondent. It is not contentious that the second respondent contributed no funds towards the purchase (and the wife does not dispute that she is beneficially entitled to the share in the property registered in the name of the second respondent).
Following the Full Court’s decision to order a new trial, the husband filed a Fifth Amended Initiating Application on 24 December 2019 (“Initiating Application”). Various directions orders have been made, including an order for the parties to each make offers to settle the proceedings. The wife then sought orders to summarily dismiss the husband’s Initiating Application, which the primary judge refused: Morse & Duarte [2022] FedCFamC1F 152. It is from this judgment that the wife seeks to appeal. The second respondent did not participate in the appeal.
As the appeal concerns an interlocutory decree, the wife requires leave to appeal: s 28(3)(e)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), and reg 4.02 of the Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) (an order dismissing an application for summary dismissal is an interlocutory decree: see Ebner & Pappas (2014) FLC 93-619). To obtain leave to appeal the wife must demonstrate that the decision of the primary judge was “attended by sufficient doubt to warrant it being reconsidered by the Full Court and [that] substantial injustice would result if leave were refused, supposing the decision to be wrong”: Medlow & Medlow (2016) FLC 93-692 at [57] (emphasis in original).
The wife did not file an application seeking leave to appeal, even though the issue was brought to her attention by the appeal registrar. Rather than dismissing the appeal as a result of this error by the wife, the Court permitted her to make an oral application for leave at the commencement of the appeal hearing, on the basis that she is unrepresented, it appeared to be a genuine error on her part, and there did not appear to be any prejudice to the husband.
GROUNDS OF APPEAL
The wife’s Notice of Appeal filed 7 April 2022 contains 29 grounds (some of which contain sub-paragraphs); however, the wife has helpfully grouped the grounds under appropriate headings in her Summary of Argument filed 26 May 2022 which identify the five substantive issues that she raises in the appeal. It is appropriate to address the wife’s arguments under these five headings, albeit in a more convenient order.
APPREHENDED BIAS GROUNDS
Grounds 22–29 address the wife’s complaint of a reasonable apprehension of bias on the part of the primary judge. When making submissions on the appeal, the wife explained that her argument under this heading was based upon the reasons given by the primary judge, not the conduct of the primary judge at the hearing.
The test for apprehended bias is whether “a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 at [6]–[7]; Charisteas v Charisteas (2021) 64 Fam LR 94. The wife, despite acknowledging the existing state of the law (as stated in Johnson v Johnson (2000) 201 CLR 488 at [11], which she cited), argued that:
35. … Any skerric [sic] of misrepresentation or prejudice creates the impression of bias to the fair-minded lay observer, as justice cannot be seen to be done. As a matter of public policy, it cannot be tolerated.
(Wife’s Summary of Argument filed 26 May 2022)
The wife’s argument in this respect must be rejected as it is contrary to well established binding authority from the High Court of Australia.
Grounds 22–29 set out the particular matters that the wife relies upon in support of her argument with respect to apprehended bias.
Ground 22
His Honour demonstrated ostensible bias by falsely representing that the [wife] had made submissions (at written subs [27]) ‘about what an appropriate property adjustment would be at a rehearing’, which implied that the [wife] had conceded that a property adjustment in favour of the husband might be just and equitable, and further implied that a finding of 'reasonable prospects of success' would be undisputed (reasons [47]).
The wife, in paragraphs 27–28 of her Written Submissions dated 14 September 2020, sets out numerous factors that would potentially weigh in her favour in the exercise of the discretion pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). At paragraph 28 of her Written Submissions, the wife argues that any adjustment would be so small as to result in no order being made (relying upon Stanford v Stanford (2012) 247 CLR 108), however, she goes on to argue that the outcome could not be a settlement of property in favour of the husband nearly as large as he seeks. This submission was made by the wife to the primary judge. There is nothing inappropriate or unusual in recording the submission as one of the matters to be considered. Nothing raised in this ground would give rise to a reasonable apprehension of bias on the part of the primary judge.
Ground 23
His Honour demonstrated ostensible bias in holding that the husband’s [Initiating Application] had reasonable prospects of success with respect to the Court's putative s 79 powers, in circumstances where His Honour simultaneously held that the application would need further amendment to make it enliven the s 79 discretion (reasons [53]).
The primary judge did not find that the husband’s Initiating Application would require amendment to “enliven the s 79 discretion”, rather that, “the husband may need to give consideration to how such relief relates to a fresh exercise of the s 79 discretion” (at [53]). It is apparent that the primary judge was alerting the husband to the need to consider whether an alternative form of property settlement order may need to be sought in the event that he was unsuccessful in obtaining orders for the wife to transfer the whole of her interest in the property to him. There is nothing inappropriate about such a comment.
Ground 24
His Honour demonstrated ostensible bias by holding that the [husband’s] self-represented status rendered (a) the terms of his purported offer, and (b) his failure to provide an updated financial statement, an issue of lacking legal refinement rather than abuse and disenginuity [sic] (reasons [65], [67]).
(Emphasis in original)
There will always be a tension between the importance of ensuring that litigants can access the courts for determination of their substantive issues and demanding strict compliance with rules and directions. A common problem facing courts in all jurisdictions, particularly in family law, is that litigants are often unrepresented and lack the skills necessary to fully comply with the requirements of court rules and directions orders. That a person is unrepresented is a significant factor when a judge is determining whether to require strict compliance with procedural matters, so as to ensure that an unrepresented litigant is not denied access to justice as a result of technical defects whilst balancing the need to ensure procedural fairness to the other parties. It was entirely appropriate that the primary judge had regard to the fact that the husband was unrepresented.
Ground 25
His Honour demonstrated ostensible bias in drawing irrelevant observations about the ‘delay’ occasioned by the summary dismissal application (which directed some blame on the [wife]) into his decision on whether the onerousness of a trial would be unduly prejudicial to [the husband] (reasons [57]-[59]).
In this part of the judgment the primary judge was addressing the argument by the wife that the proceedings should effectively be stayed as they had continued for over six years. As delay in the proceedings was a factor relied upon by the wife in support of her claims that the proceedings were an abuse of process, it was not irrelevant to take into account that the wife’s unsuccessful summary judgment application had also contributed to the delay.
Ground 26
His Honour demonstrated ostensible bias in denigrating the [wife’s] intellectual capacity and/or character by falsely implying that she had submitted that the Court's entire jurisdiction including its summary dismissal powers amounted to 'indeterminate junk' (reasons [60]).
(Emphasis in original)
This ground misstates both the primary judge’s reasons and the submissions the wife made at the hearing. His Honour’s reasons at [60] record “the wife also argued the ‘whole framework’ of this Court is ‘indeterminate junk’”, accurately recounting the wife’s oral submission: “the whole framework of your court is indeterminate junk, in my view” (Transcript 16 November 2021, p.29 lines 2–3). The reference to those submissions by the primary judge was not inappropriate in the context of the decision, and is not a basis for an argument of apprehended bias in this case.
Ground 27
His Honour demonstrated ostensible bias by (a) irrelevantly asserting that the husband deposed that the [wife] had not made a counter-offer; and/or (b) by denigrating the [wife] by implying in that assertion that she has acted the hypocrite in respect of her procedural demands, or has not brought her application with clean hands (reasons [66]).
The parties were each ordered to make offers to settle the proceedings. Both the husband and wife made offers to settle. The primary judge (at [66]) noted that, “[t]he husband deposes that [his] offer was not accepted and that no counter offer was made by the wife or the second respondent”. That the wife made no counter-offer is a relevant factor in considering her arguments concerning the husband’s conduct of the litigation; had the husband’s offer been acceptable to her, save for the clause relating to her parents, it was open to her to make a counter-offer. At no point did the primary judge say that the wife was a “hypocrite”. This ground has no merit.
Ground 28
His Honour demonstrated ostensible bias by (a) claiming that he could 'not see' how the inclusion of an impossible condition in the husband's purported offer would support the contention that the husband failed to make any genuine offer; and/or (b) denigrating the [wife] by implying that her argument to that effect was obscure, non-understandable, or non-arguable (reasons [68]).
Paragraph [68] of the judgment recorded the various arguments of the wife (in neutral terms) before concluding that, “[a]ccepting all these contentions for the purposes of the argument, I cannot see how it supports the contention the husband failed to make any genuine offer”. The fact that a judge rejects an argument is not a basis for a claim of apprehended bias. The inferences the wife seeks to draw from this part of the reasons are not reasonably open on a fair reading of the terms of the paragraph.
Ground 29
The conduct described at grounds [22]-[28], above, collectively amount to ostensible bias by giving the impression, however subtle, of a prejudiced mindset permeating the entire judgment.
The wife has not made out any of the allegations in Grounds 22–28. We are not persuaded that the matters referred in those grounds, taken collectively, give rise to any reasonable apprehension of bias on the part of the primary judge. Rather, the transcript and reasons for judgment demonstrate the primary judge’s considerable care and patience to demonstrate that his Honour understood and addressed the substantive arguments of the wife. These grounds are without merit.
ESTOPPEL GROUNDS
Grounds 20 and 21
Grounds 20–21 (when read with the wife’s Summary of Argument filed 26 May 2022) allege that the primary judge ought to have dismissed the husband’s claim as a result of the principles of res judicata (the heading used with respect to these grounds of appeal) or the extended form of estoppel (more commonly known as Anshun estoppel: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589). The relevant grounds state:
20.His Honour failed to take into account the materially relevant consideration that the husband's [Initiating Application] (which he is attempting to prosecute on a re-trial) is in all significant respects materially different from the Application prosecuted at trial, and that the prayers brought now could and should have been brought at first instance if the claim was genuine.
21.His Honour erred at law by failing to find the husband estopped from prosecuting his [Initiating Application] in whole or part.
The controversy between the wife and the husband is whether there should be a property settlement order under the provisions of the Act, and if so the terms of such an order. The controversy with respect to the second respondent is whether his legal title to 50 per cent of the Suburb C property should be treated (in whole or in part) as being held on trust for the benefit of the wife or the husband, and thus forms part of the property of the wife and husband for the purpose of determining the property settlement controversy. These controversies were the subject of the first trial judgment (Morse & Duarte (2017) 58 Fam LR 131) which was overturned on appeal (Duarte and Anor & Morse (2019) FLC 93-902). The matter has been remitted for a new hearing so that these controversies may be determined. Each of the forms of estoppel argued by the wife rely upon the existence of a final judgment. As there is not yet a final judgment in this matter with respect to these controversies, there can be no res judicata or other form of estoppel that may arise following the rendering of a final judgment.
These grounds cannot be sustained.
NO REASONABLE PROSPECTS OF SUCCESS GROUNDS
Grounds 1 to 6
The wife argues that the husband’s application has “no reasonable prospects of success”, relying upon Grounds 1–6. Those grounds provide as follows:
No reasonable prospects of success issue
1.(a) His Honour failed to take into account the materially relevant consideration that the husband's [Initiating Application] is in all significant respects materially different from the Application prosecuted at trial.
(b)His Honour impermissibly deferred his reasoning and/or discretion to the Full Court's decision to order a re-trial (reasons [48]).
2.His Honour failed to address the [wife’s] argument that the husband's central prayer in his [Initiating Application] - that the [wife] transfer her home to the husband with vacant possession - is entirely unsustainable (written subs [21], [25], [28]; oral).
3.His Honour erred at law in hinging his finding of reasonable prospects of success in part on the feasibility of the husband's prayers for trusts as between the wife and the second respondent (reasons [49]-[50]), in circumstances where His Honour found that the husband had not explicitly attached his prayers to the Court's putative s 79 powers (reasons [28], [53]);
4.His Honour erred at law in holding that the husband's [Initiating Application] had reasonable prospects of success with respect to the Court's putative s 79 powers in circumstances where His Honour simultaneously held that the application would need further amendment to make it enliven the s 79 discretion (reasons [53]).
5.His Honour erred at law in holding that the relevant fact of the parties' conduct in having divided their assets in 2014 was not amendable to summary determination within the context of the extant application (reasons [50]).
6.His Honour erred in finding that the husband's [Initiating Application] had reasonable prospect of success, and in failing to summarily dismiss it.
The wife clarified at the appeal hearing that her argument that the husband’s case has no reasonable prospects of success is based upon her claim that the extent of the property settlement sought by the husband is unrealistic, not that he has no arguable case for property settlement orders pursuant to s 79 of the Act. This was articulated in paragraph 17 of her Summary of Argument filed 26 May 2022 as:
17.The real issue for the 'no reasonable prospect of success' argument is whether the complete transfer of the wife's house to the husband with a writ of vacant possession is legally supportable even assuming that [the second respondent] didn't own half of it.
The husband is entitled to amend his application, particularly in circumstances where the facts and circumstances he relies upon are the same as those relied upon at the first trial. Ultimately, the trial judge is not limited by the terms of the orders sought by the parties and will make such orders as are appropriate (provided the trial judge gives the parties an opportunity to be heard on the terms of any proposed orders that are in terms that substantially differ from the orders sought in the application or response). Thus, Ground 1(a) cannot succeed.
At the hearing of the appeal, the wife accepted that the husband has an arguable case pursuant to s 79 of the Act. Of course, the matter would not have been remitted for a new trial had the Full Court been of the view that the husband had no reasonable prospects of success, and the primary judge was required to follow the determination of the Full Court when dealing with this matter after it was remitted for a new trial. Thus, Ground 1(b) cannot succeed.
In substance, the wife argues that the husband’s Initiating Application is an ambit claim that is unachievable (Grounds 2, 4 and 6) and should be dismissed for this reason. The form of relief that may ultimately be granted is a question for the trial judge, as the primary judge identified at [50] with respect to the claim for the sale of the Suburb C property. This is not a basis for summarily dismissing the application. Therefore, Grounds 2, 4 and 6 are not sustainable.
Ground 3 alleges that the relief sought by the husband “is not hinged on an explicit substantive power”. This argument must be rejected as s 79 of the Act provides an explicit power to settle the property interests of the parties and s 80 and s 114 of the Act provide a range of express powers to effect any determination pursuant to s 79 of the Act.
The complaint that the husband does not expressly nominate s 79 of the Act as the relevant statutory provision he relies upon must be rejected for two reasons. First, on the face of his Initiating Application, the husband identifies (at paragraph 1) that he seeks financial property orders which is sufficient to invoke the jurisdiction of the court: see Frost (Deceased) & Whooten (2018) FLC 93-860. Secondly, it is not necessary to nominate the statutory power or cause of action that provides for the relief sought if such relief is open on the facts alleged: see Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 472–473. Importantly, in this case there can be no suggestion that the wife is unaware that the husband’s claim ultimately rests upon a claim for property settlement orders pursuant to s 79 of the Act.
The wife accepted that the husband’s “new trust arguments are legally supportable and correct” (that is, the claim that the second respondent holds his legal title to a half share of the Suburb C property on trust for the wife), arguing that these trust claims “accomplish nothing for the husband directly. That is, the husband is not the direct legal beneficiary of the cause of action in trust; the wife is” (wife’s Summary of Argument filed 26 May 2022, paragraph 16). This argument overlooks the effect of s 79 of the Act, which allows the court to settle property of either party on the other. Thus, the wife’s equitable interest in the property (as a result of the trusts arguments) can be settled upon the husband pursuant to s 79 of the Act. As a result, it is sufficient for the husband’s case pursuant to s 79 of the Act if the wife holds the beneficial interest in the property to which the second respondent has legal title. This was clearly identified by the primary judge when his Honour said (at [49]):
49.In his fifth application, the husband seeks relief specifically under s 78 for declarations about the interests of [the second respondent] in the Suburb C property, to the effect that he holds his legal interest on trust for the wife. This is consistent with some of the views expressed by the Full Court. If the husband succeeds in obtaining such a declaration, this would mean the wife owns the entire Suburb C property beneficially, and this would then have a material impact on the nature and size of the pool of assets as between the husband and the wife, and thus the appropriate form of property adjustment.
Even a claim by the husband directly against the second respondent remains arguable, as identified by the Full Court in Duarte and Anor & Morse (2019) FLC 93-902 at [528]–[540]. As a result, Ground 3 cannot succeed.
Ground 5 alleges that there was a previous agreement between the parties in 2014, and as such no orders should be made pursuant to s 79 of the Act. Agreements between spouses, whilst relevant, cannot preclude recourse to s 79 of the Act (Sykes & Sykes (1979) FLC 90-652) unless they are effected in the manner set out in Pt VIIIA of the Act (binding financial agreements). It is not alleged that any agreement between the parties is within the terms of Pt VIIIA of the Act and as such this Ground cannot succeed.
There is no question that the husband has an arguable case against the wife and second respondent, and that the wife is well aware of the facts and circumstances that the husband relies upon to support his case. The arguments with respect to these grounds of appeal are not sustainable.
NON-COMPLIANCE WITH PROCEDURAL REQUIREMENTS
Grounds 12 to 19
The grounds of appeal under this heading (Grounds 12–19) relate to whether the alleged failure by the husband to comply with rules or directions orders should result in the dismissal of the husband’s application. At the hearing of the appeal the wife limited her arguments to her complaint that the husband had not made a “genuine offer”, as required by the court rules referred to in the orders made by the Deputy Chief Justice (Grounds 15–19). To the extent the grounds go beyond this argument (Grounds 12–14 and 15(b)) we treat them as having been abandoned by the wife.
Grounds 15–19 were framed as follows:
15.His Honour erred at law by holding that the [husband’s] self-represented status rendered (a) the terms of his purported offer, … an issue of lacking 'legal refinement' rather than an issue of abuse and disingenuity [sic] (reasons [65], [67]).
16.His Honour failed to provide sufficiently dispositive reasoning in relation to the [wife’s] arguments said to be summarised at paragraphs [68]-[69] of the reasons.
17.(a) His Honour either completely failed to address, or at least demonstrated insufficiently dispositive reasoning in relation to, the [wife’s] written submissions at paragraphs [10]-[15].
(b)His Honour erred at law in failing to uphold those arguments in whole or part.
18.His Honour erred at law in failing to find that the husband's purported offer was either not an offer or not a genuine offer (reasons [67]-[69]).
19.His Honour erred at law by failing to find that the husband failed to properly comply with pre-trial procedures and/or procedural orders, and in failing to summarily dismiss his [Initiating Application] accordingly.
These grounds relate to an offer made by the husband to the wife, as required by interlocutory orders of the Deputy Chief Justice. The offer included a term requiring “a letter from your parents … that [the children of the spouses] are still part of the family and haven’t been removed from there [sic] wills” (at [65]). The wife argued that the husband’s offer was not a “genuine offer” (Grounds 16–18) as it was not capable of acceptance as it contained a condition that the wife could not fulfil without the cooperation of her parents.
Ground 15 cannot succeed for the reasons set out above at [13].
Fulfilment of the disputed condition in the husband’s offer, which merely required a letter from the wife’s parents confirming that their grandchildren in the husband’s care would be treated equally with the other grandchildren, was not an objectively impossible task. Nor, was it fanciful to contemplate that the wife could persuade her parents to provide such a letter. It is not uncommon that settlement offers in family law matters require the agreement of others (often extended family members) to be carried out. The argument that the offer was not capable of acceptance must therefore be rejected.
Whilst not raised by the wife, we note that the offer to settle was in terms that could not be ordered at the trial. Whether an offer in terms that could not be ordered at the trial is within the meaning of the phrase “genuine offer” (as used in the rules) is attended by some doubt. However, no substantial injustice could be said to flow from the decision not to summarily dismiss the husband’s case in circumstances where the primary judge found that the offer was neither insincere nor disingenuous on the part of the husband (at [67]), no counter-offer was made by the wife (if the wife wished to otherwise accept the offer, a counter-offer could have been made with the disputed condition removed), the husband has an arguable claim for property settlement orders pursuant to s 79 of the Act, and the husband was unrepresented at the relevant time. As a result the wife should not be granted leave to appeal with respect to these grounds.
ABUSE OF PROCESS GROUNDS
Grounds 7 to 11
The remaining grounds of appeal, Grounds 7–11, were relied upon to support an abuse of process argument. They are framed as follows:
Vexatious, harassing or abuse of process issue
7.(a) His Honour demonstrated insufficiently dispositive reasoning in relation to the [wife’s] chain of argument that:
i.'The orders sought by the [husband] are so cold-hearted and narcissi[sti]c as to amount to vexatiousness and an abuse of process to a significant degree, easily warranting summary dismissal' (written subs [18]-[19]);
ii.'A distribution of the nature proposed by the [husband] would leave the parties in such a disparity of provision as to be patently unjust to such a gross and depraved degree that it ... amounts to an abuse of process so grave as to warrant summary dismissal' (written subs [25]); and
iii.'The Court under Stanford would probably be completely crippled from making a s79 order of any magnitude, however small [but in any event the outcome of a s79 order could not possibly be anything close to transfer of title and vacant possession of the [wife’s] house [such an idea being] certainly frivolous to a degree warranting summary dismissal' (written subs [28]).
(b)His Honour erred at law in failing to uphold that chain of argument in whole or part (reasons [56], [59]).
8.(a) His Honour either completely failed to address, or at least demonstrated insufficiently dispositive reasoning in relation to, the [wife’s] 'double-dipping' argument (written subs [26]).
(b)His Honour erred at law in failing to uphold that argument (reasons [56], [59]).
9.(a) His Honour either completely failed to address, or at least demonstrated insufficiently dispositive reasoning in relation to, the [wife’s] argument that the husband's successively aggrandised claims show that there was no genuine dispute for which a legal salve was required' (written subs [29]).
(b)His Honour erred at law in failing to uphold that argument (reasons [56], [59]).
10.(a) His Honour erred at law in holding that 'authorities drawn from criminal law belong in a totally different area of legal discourse, they have no place here and do not assist the wife' (reasons [57]-[59]).
(b)His Honour either completely failed to address, or at least demonstrated insufficiently dispositive reasoning in relation to, the [wife’s] submissions about the onerousness of proceedings and prejudicial effect on her, including but not limited to seeing that issue in light of the criminal law authority that she argued (written subs [30]-[34]).
(c)is Honour erred in law in failing to uphold the [wife’s] submissions about the onerousness of proceedings and prejudicial effect on her.
11.His Honour erred at law by failing to find that the husband's [Initiating Application] was vexatious, harassing or an abuse of process; and in failing to summarily dismiss that application accordingly.
The issues raised in Grounds 7–9 are matters for the trial judge to consider in the new trial when determining what orders, if any, should be made pursuant to s 79 of the Act. In circumstances were the husband has an arguable case and is awaiting a new trial, it cannot be said that his claim is either vexatious or an abuse of process.
In Ground 10, the wife argues for the dismissal of the husband’s claims by reference to criminal law authorities addressing the limits upon the number of times a person may be prosecuted for a criminal offence. The principles relied upon by the wife have no application to the present family law litigation. Litigation is onerous and distressing for most litigants, however this is not a basis for concluding that the litigation is vexatious or an abuse of process. This argument must be rejected.
Ground 11 adds nothing to the earlier grounds.
The wife’s grounds of appeal relating to claims of abuse of process have no merit.
CONCLUSION
None of the grounds relied upon by the wife warrant a grant of leave to appeal from interlocutory orders. The wife has not established that there would be any substantial injustice in refusing leave to appeal, even if the findings of the primary judge were in error with respect to the offer made by the husband. None of the matters raised would justify summarily dismissing the husband’s application for property settlement orders which has been remitted by the Full Court for a new trial.
Leave to appeal must therefore be refused and the appeal dismissed.
As neither party has incurred any costs in the appeal, neither sought a costs order.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Williams & Riethmuller. Associate:
Dated: 4 August 2022
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