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Dunnett and Dunnett

Dunnett and Dunnett

Case [2013] FamCA 529 15 July 2013

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FAMILY COURT OF AUSTRALIA

DUNNETT & DUNNETT

[2013] FamCA 529

FAMILY LAW – PRACTICE AND PROCEDURE – Summary Dismissal – Res Judicata – Where issues are identical to those dealt with in a prior proceeding – Where there is no reasonable prospect of success – Frivolous or vexatious proceedings – Where the wife is restrained from bringing further application pursuant to s 79A without leave of the Court – PROPERTY – Section 79A Application – Where the application is summarily dismissed – COSTS – Where the wife is ordered to pay costs.

Family Law Act 1975 (Cth) s79A, s117, s118.
Family Law Rules 2004 (Cth) r10.12.

Barton v Armstrong (1973) 2 NSWLR 589.
Beck & Beck (2004) 31 Fam LR 467.
Bigg & Suzi (1998) 22 Fam LR 700.
Blair v Curren (1939) 62 CLR 464.
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720.
C & C [2001] FamCA 1279.
Caddy & Miller (1989) FLC 91-720
Kemeny & Kemeny (1998) 23 Fam LR 105.
Kokl (1981) FLC 91-078.
Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541.
Pelerman & Pelerman (2000) 26 Fam LR 505.
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
Ricci & Jones [2011] FamCAFC 222.
RJ & AJ [2005] FamCA 1075.
Webster v Lampard (1993) 177 CLR 598.

APPLICANT:

Mr Dunnett by his Case Guardian the Public Trustee of Queensland

RESPONDENT:

Ms Dunnett

FILE NUMBER:

BRC

3450

2007

DATE DELIVERED:

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

27 May 2013

REPRESENTATION

FOR THE APPLICANT:

Ms Dunnett in person

SOLICITOR FOR THE RESPONDENT:

Mr Peter Sheehy

Orders

That the Application filed 21 November 2011 is dismissed.
That pursuant to s 118 of the Family Law Act (1975) (Cth) (“the Act”) Ms Dunnett is restrained from filing any further application in which she seeks an order pursuant to s 79A of the Act without first obtaining the leave of the court.
That the Applicant pay the Respondent’s costs fixed in the amount of $1,000.00 by payment to the Trust Account of Peter J Sheehy Solicitor on behalf of the Respondent with such payment to be made by no later than 16 August 2013.

IT IS NOTED that publication of this judgment by this Court under the Dunnett & Dunnett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3450 of 2007

Mr Dunnett

Applicant

And

Ms Dunnett

Respondent

REASONS FOR JUDGMENT

I am asked to determine the Husband’s Application for summary dismissal of the Wife’s Application, filed 21 November 2011 (“the Current Application”), by which she seeks, pursuant to s 79A of the Family Law Act (1975)(Cth) (“the Act”), to vary parts of an Order made, by consent, on 27 November 2006 (“the Consent Order”). The Consent Order disposed of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dunnett and Dunnett

Details

AGLC: Dunnett and Dunnett [2013] FamCA 529
Case: [2013] FamCA 529
Decision Date: 15 July 2013

CaseChat Overview and Summary

In *Dunnett and Dunnett*, Hogan J of the Federal Circuit Court of Australia considered an application by Ms Dunnett seeking to set aside final property orders made in 2008. The application was brought pursuant to section 79A of the *Family Law Act 1975* (Cth). Mr Dunnett opposed the application.

The central legal issue before the court was whether Ms Dunnett had established sufficient grounds to justify setting aside the existing final property orders under section 79A of the Act. This section permits the court to vary or set aside orders where there has been a miscarriage of justice due to fraud, duress, suppression of evidence, or failure to disclose material matters, or by reason of other circumstances.

Hogan J found that Ms Dunnett had failed to demonstrate any of the grounds required by section 79A. The court was not satisfied that there had been fraud, duress, or any other vitiating factor that would lead to a miscarriage of justice. Consequently, the court dismissed Ms Dunnett's application.

In light of the repeated nature of Ms Dunnett's applications and the lack of merit in the present one, Hogan J made orders restraining Ms Dunnett from filing any further applications seeking orders under section 79A without first obtaining leave of the court, pursuant to section 118 of the *Family Law Act 1975* (Cth). Ms Dunnett was also ordered to pay Mr Dunnett's costs fixed at $1,000.00.

Orders

Orders of the court

1. That the Application filed 21 November 2011 is dismissed.

2. That pursuant to s 118 of the Family Law Act (1975) (Cth) (“the Act”) Ms Dunnett is restrained from filing any further application in which she seeks an order pursuant to s 79A of the Act without first obtaining the leave of the court.

3. That the Applicant pay the Respondent’s costs fixed in the amount of $1,000.00 by payment to the Trust Account of Peter J Sheehy Solicitor on behalf of the Respondent with such payment to be made by no later than 16 August 2013.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Dunnett and Dunnett [2013] FamCA 529

Most Recent Citation

Selkirk and Caporn and Anor [2016] FCWA 26

Cases citing this decision · 2 of 2 shown

KNIGHT & ELLINGTON
[2018] FamCA 892 Para 10

…Counsel for the wife further referred to two decision of Hogan J, being Finch & Finch [2013] FamCA 567 at [13], and Dunnett & Dunnett [2013] FamCA 529 at [24]. True it is that there her Honour was dealing with applications for summary dismissal, and did refer to both Boston Commercial Services and Ricci & Jones , h…
Selkirk and Caporn and Anor
[2016] FCWA 26

…o 2) (1994) FLC 92-469 DJL v Central Authority (2000) 201 CLR 226 DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16 Dunnett v Dunnett [2013] FamCA 529 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 Harris v Caladine (1991) 172 CLR 84 Herridge & Handerson and Ors [20…

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Cases cited in this decision · 11 of 11 shown

Ricci & Jones
[2011] FamCAFC 222 Para 24

…Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 at [45] as referred to in Ricci & Jones [2011] FamCAFC 222.…
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd
[2006] FCA 1352 Para 24

…o as to enable one side or the other to succeed”.[13] [13] Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 at [45] as referred to in Ricci & Jones [2011] FamCAFC 222.…
RJ & AJ
[2005] FamCA 1075 Para 8

…C & C [2001] FamCA 1279 at [110] per Lindenmayer, Holden and Watt JJ [18] See: C & C [2001] FamCA 1279; Kemeny & Kemeny (1998) 23 Fam LR 105; RJ & AJ [2005] FamCA 1075.…
Caska & Caska
[2001] FamCA 1279 Para 8

…In C & C [2001] FamCA 1279, the Full Court noted that a party promoting res judicata as a defence must show that: [17] a)the decision was judicial and pronounced; b)the court had jurisdiction over the parties and the subject matter; c) the decision was final and made on the merits; d)the decision determined the same…
Re Attorney-General (Cth); Ex parte Skyring
[1996] HCA 4 Para 2

…erson from access to the courts.[25] [24] DJC v SJS & Anor (2005) 24 Fam LR 329, 338 & 339. [25] Re Attorney-General (Commonwealth); ex parte Skyring (1996) 135 ALR 29, 31-32 per Kirby J.…
Webster v Lampard
[1993] HCA 57

…n (2000) 26 Fam LR 505. Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. Ricci & Jones [2011] FamCAFC 222. RJ & AJ [2005] FamCA 1075. Webster v Lampard (1993) 177 CLR 598.…
Port of Melbourne Authority v Anshun Pty Ltd
[1981] HCA 45 Para 6

…In Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589: a)Gibbs C.J., Mason and Aickin JJ said, at p.597, “….The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding.” b)Murphy J. sa…
Blair v Curran
[1939] HCA 23 Para 5

…In Blair v Curran (1939) 62 CLR 464, Dixon J said, at p 531: A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, de…
Lindon v Commonwealth (No 2)
[1996] HCA 14 Para 25

…It is also clearly established[14] that, in determining the application for summary dismissal of the Current Application: a)I must have regard only to the Wife’s material and material relied upon by her; and b)I must proceed on the basis that the Wife’s ‘version of the facts’ is that which would ult…
Pelerman and Pelerman
[1999] FAMCA 786 Para 14

…The concept of duress insofar as that term is used in section 79A(1)(a) was the subject of discussion by Jerrard J in Pelerman and Pelerman [1999] FamCA 786 delivered 30 April 1999. On appeal on a point other than his Honour’s dealing with the duress argument, the Full Court stated its agreement with his Honour’s f…
Barton v Armstrong
(1976) AC 104 Para 15

…sense in which it appears in s 79A meant “the compulsion of a person by physical or mental harm”, and to a broader view of duress as described in Barton v Armstrong (1973) 2 NSWLR 589 at 631 and 634 as recognised and developed in equity and as requiring an applicant to show that some illegitimate means of persuasion had bee…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
79A 2 mentions
Family Law Rules 2004 (Cth)
10.12 2 mentions (from Para 2)