Fabrizi v Grasso (Jnr) as the Legal Personal Representative of Mr Grasso (deceased) [No 2]

[2022] WASCA 27

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   FABRIZI -v- GRASSO (JNR) as the Legal Personal Representative of MR GRASSO (DECEASED) [No 2] [2022] WASCA 27

CORAM:   QUINLAN CJ

BEECH JA

PRITCHARD JA

HEARD:   19 OCTOBER 2021

DELIVERED          :   3 MARCH 2022

FILE NO/S:   CACV 108 of 2020

BETWEEN:   MS FABRIZI

Appellant

AND

MR GRASSO (JNR) as the Legal Personal Representative of MR GRASSO (DECEASED)

Respondent

ON APPEAL FROM:

Jurisdiction              :   FAMILY COURT OF WESTERN AUSTRALIA

Coram:   DUNCANSON J

Citation: FABRIZI and GRASSO (Deceased) by his legal personal representative GRASSO (JNR) [2019] FCWA 176; [2020] FCWA 164

File Number            :   PTW 1820 of 2018

Catchwords:

Family law - Application for de facto property settlement - Death of one party before appellant's application determined - Whether appellant denied procedural fairness by summary dismissal of proceedings - Primary judge summarily dismissed appellant's application for property settlement orders - Submission by respondent that Court should dismiss on basis that Court would not make property settlement orders under s 205ZG of Family Court Act 1997 (WA) - Respondent's submission dealt with as preliminary issue - Whether breach of procedural fairness resulted from change in procedure - Whether primary judge erred in dealing with an issue as a preliminary issue - Whether breach of procedural fairness was material breach - Whether primary judge erred in law by misdirecting herself as to proper test to be applied to deal with respondent's submission

Practice and procedure - Whether additional evidence should be admitted on appeal - Whether in interests of justice to admit additional evidence

Legislation:

Family Court Act 1997 (WA), s 205U(1), s 205U(2), s 205Z, s 205ZG, s 205ZG(8)(b)(i), s 205ZI(1), s 205ZJ, s 205X, s 205Y, s 211(3)
Family Court Rules 1998 (WA), r 13
Family Provision Act 1972 (WA)
Family Law Rules 2004 (Cth), r 1.09(b), r 1.12(2), r 5.08(b), r 5.08(c), r 5.09, r 5.10, r 10.13, r 10.14
Supreme Court (Court of Appeal) Rules 2005 (WA), r 25, r 47(3)(d)

Result:

Appeal allowed

Category:    B

Representation:

Counsel:

Appellant	:	Mr S Penglis SC
Respondent	:	Mr M R Berry SC & Mr F A Robertson

Solicitors:

Appellant	:	Butlers Lawyers & Notaries
Respondent	:	Murcia Pestell Hillard

Case(s) referred to in decision(s):

Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38

AVS Australian Venue Security Services Pty Ltd v Criminale [2006] NSWCA 368

Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571

Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383

Defendi v Szigligeti [2019] WASCA 115

Fabrizi and Grasso (Deceased) by his personal legal representative Grasso (Jnr) [2019] FCWA 176

Fabrizi v Grasso (Deceased) [2021] WASCA 9

Fabrizi v Grasso [2020] FCWA 164

Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425

International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319

J v Lieschke [1987] HCA 4; (1987) 162 CLR 447

Kioa v West (1985) 159 CLR 550

Lunt v New Resources Holdings Pty Ltd [No 3] [2011] WASCA 45

Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149

Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180

Minister for Immigration and Border Protection v WZARH and Anor [2015] HCA 40; (2015) 256 CLR 326

Nobarani v Mariconte [2018] HCA 36; (2018) 359 ALR 31

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1

Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116

Saunders v The Public Trustee [2015] WASCA 203

Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301

Stanford v Stanford (2012) 247 CLR 108

Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

Woodley v Woodley [2018] WASCA 149

Wreford v Lyle [2019] WASCA 57

JUDGMENT OF THE COURT:

1. On 19 February 2018, Ms Fabrizi filed an initiating application in the Family Court of Western Australia (Family Court) against Mr Grasso (Initiating Application).[1]  In the Initiating Application, Ms Fabrizi sought that property settlement orders be made, on the basis that she had been in a de facto relationship with Mr Grasso since 1997.

   [1] These reasons adopt the same pseudonyms as were used in the published reasons of the Court below.

2. At the time of filing the Initiating Application, Ms Fabrizi remained in a de facto relationship with Mr Grasso.  Mr Grasso was then gravely unwell.  He passed away on 15 March 2018.  Ms Fabrizi filed the Initiating Application because she had become concerned that she may not receive appropriate financial provision following Mr Grasso's death.

3. Mr Grasso's estate is substantial.  It is not in dispute that the estate is worth at least $40 million. 

4. Following Mr Grasso's death, the Family Court ordered that Mr Grasso be substituted in the proceedings by his son (respondent), as Mr Grasso's legal personal representative.

5. On 7 November 2018, the respondent filed a response to the Initiating Application (Response) in which he sought an order that the Initiating Application be dismissed for want of jurisdiction, on the basis that the de facto relationship between the parties had not ended.  On 16 August 2019, Justice Duncanson dismissed that response, on the basis that there was no requirement in the Family Court Act 1997 (WA) (Act) for a de facto relationship to have ended before a party could commence proceedings in the Family Court.[2] 

   [2] Fabrizi and Grasso (Deceased) by his personal legal representative Grasso (Jnr) [2019] FCWA 176.

6. The respondent subsequently filed an Amended Response, and later a Further Amended Response to the Initiating Application (Further Amended Response), in which he sought an order that the proceedings be dismissed on the ground that:[3]

   pursuant to s 205ZG(8)(b)(i) of the [Act], the Court would not have made an order with respect to property in favour of the Applicant if the deceased party, [Mr Grasso], had not died. As a consequence, the Court cannot make an order with respect to property in favour of the Applicant under s 205ZG now.

   That issue was referred to by the respondent's counsel and solicitors in the proceedings below as the 'jurisdictional issue'.  While that characterisation was not apt, for convenience we will continue to use the nomenclature.

   [3] Blue Appeal Book (BAB) 53.

7. Ms Fabrizi filed a number of interim applications in the proceedings.  They were ultimately listed for a hearing on 7 July 2020 (Hearing).  Prior to the Hearing, and at the commencement of the Hearing, counsel for the respondent indicated that he was 'pressing the objection to jurisdiction'.  In the course of the Hearing, the learned primary judge decided that the 'jurisdictional issue' should be dealt with in advance of the interim applications.  Counsel for Ms Fabrizi did not object to that course.  Argument on the 'jurisdictional issue' proceeded and her Honour reserved her decision.

8. On 24 September 2020, the learned primary judge made an order that the proceedings be dismissed (Order).[4]  In her reasons for decision,[5] the learned primary judge concluded that the Family Court would not have made a property settlement order if Mr Grasso had not died and therefore concluded that after his death, it could not be found to still be appropriate to make such an order.

   [4] BAB 1.

   [5] Fabrizi v Grasso (Deceased) [2020] FCWA 164.

9. Ms Fabrizi appeals against the Order.  She advances four grounds of appeal.  They include ground 2, in which Ms Fabrizi contends that she was denied procedural fairness because the learned primary judge substantively determined the Initiating Application, and dismissed it, without a trial, and without giving Ms Fabrizi the opportunity to place all of the evidence on which she would wish to rely in that application before the Family Court.  In ground 3, Ms Fabrizi contends that the learned primary judge misdirected herself as to the proper test to be applied in determining the 'jurisdictional issue'.

10. Ms Fabrizi filed an application in the appeal,[6] namely an application to adduce, as additional evidence on the appeal, an affidavit of John David Lawley affirmed 3 December 2020 (Lawley affidavit).[7]  That application was referred to the hearing of the appeal.[8]  In the course of the appeal, counsel for the appellant also sought to hand up a further document, namely a copy of a letter dated 27 March 2020 from the respondent's solicitors to the Principal Registrar of the Family Court (27 March 2020 letter).  Counsel for the respondent did not object to the admission of the 27 March 2020 letter, or to the Lawley affidavit, other than for paragraph 9 thereof, by which Mr Lawley annexed a copy of an affidavit sworn by Ms Fabrizi (Annexure JDL8), which he deposed was the affidavit which he would have prepared, filed and served, had it been disclosed that the Hearing would result in a final determination of the Interim Application.

    [6] Yellow Appeal Book (YAB) 2.

    [7] YAB 3.

    [8] Order of Murphy and Vaughan JJA made 13 January 2021, YAB 1; Fabrizi v Grasso (Deceased) [2021] WASCA 9.

11. For the reasons which follow:

    (a)we would allow the application to admit the Lawley affidavit, in its entirety, and including Annexure JDL8, as additional evidence in the appeal;

    (b)we would admit the 27 March 2020 letter as additional evidence in the appeal;

    (c)we would uphold grounds 2 and 3 of the grounds of appeal, and that is sufficient to dispose of the appeal; and

    (d)the appeal should be allowed.

12. In these reasons for decision, we deal with the following:

    (a)the application to adduce the Lawley Affidavit, and the 27 March 2020 letter;

    (b)the Family Court's power to make property settlement orders;

    (c)chronology of the proceedings prior to the hearing on 7 July 2020;

    (d)the reasons for decision;

    (e)the grounds of appeal;

    (f)why ground 2 succeeds;

    (g)why ground 3 succeeds; and

    (h)the orders which should be made.

(a)     The application to adduce the Lawley Affidavit, and the 27 March 2020 letter

The nature of the additional evidence

1. Leaving to one side paragraph 9 and Annexure JDL8, the Lawley affidavit supplements the evidence before this Court in relation to the chronology of the proceedings in the Family Court, and annexes correspondence passing between the parties' solicitors relevant to the various procedural steps taken prior to the Hearing.

2. In paragraph 9 of the Lawley affidavit, Mr Lawley deposed that Annexure DJL8 was an affidavit sworn by Ms Fabrizi on 18 November 2020, which contained the evidence she would have submitted to the Family Court in relation to namely a trust deed executed by Ms Fabrizi on 14 December 2018 (Trust Deed).  The execution and effect of the Trust Deed were matters raised by the respondent in relation to the 'jurisdictional issue'.

3. The respondent opposed the admission of paragraph 9 and annexure DJL8 to the Lawley affidavit on the basis that that evidence was not new evidence, and could have been filed prior to the Hearing. 

4. Counsel for Ms Fabrizi submitted that Annexure JDL8 was intended to identify additional evidence which would have been adduced by Ms Fabrizi had she appreciated that the Initiating Application would be finally determined at the Hearing.  In other words, it was evidence designed to illustrate the materiality of the denial of procedural fairness that Ms Fabrizi alleges occurred. 

5. As for the 27 March 2020 letter, in that letter the respondent's solicitors told the Family Court, and Ms Fabrizi's solicitors, when and how the 'jurisdictional issue' would be raised with the Family Court. 

Disposition

1. The right of appeal to this Court against the Order is conferred by s 211(3) of the Act. By r 25 of the Supreme Court (Court of Appeal) Rules 2005 (WA) (CA Rules), appeals to this Court are by way of a rehearing unless another written law provides otherwise.  No written law provides otherwise in relation to appeals of the present kind. 

2. In an appeal by way of a rehearing, the appeal is usually conducted by reference to the evidence given at first instance, but the court can receive further evidence and its powers are not restricted to making the decision which should have been made at first instance.[9] 

   [9] Saunders v The Public Trustee [2015] WASCA 203 [84] (Mitchell J, Buss JA and Beech J agreeing).

3. This Court has power to admit additional evidence on a civil appeal. The source of that power lies in r 47(3)(d) of the CA Rules, which has been construed as conferring a statutory discretion on this Court (whether or not constituted by a single judge) to make an order admitting additional evidence.[10] Alternatively, the power to admit additional evidence on an appeal may be inherent in the provision in r 25 of the CA Rules for appeals to this Court to be by way of rehearing.[11]  Either way, the discretion to admit additional evidence must be exercised judicially.[12] 

   [10] Saunders v The Public Trustee [2015] WASCA 203 [85] (Mitchell J, Buss JA and Beech J agreeing); Lunt v New Resources Holdings Pty Ltd [No 3] [2011] WASCA 45 [35].

   [11] Saunders v The Public Trustee [2015] WASCA 203 [86] (Mitchell J, Buss JA and Beech J agreeing).

   [12] Saunders v The Public Trustee [2015] WASCA 203 [85] (Mitchell J, Buss JA and Beech J agreeing); Lunt v New Resources Holdings Pty Ltd [No 3] [2011] WASCA 45 [35].

4. The overriding question relevant to the exercise of that discretion is whether it is in the interests of justice to admit the additional evidence.  The answer to that question, at least in respect of a final decision after trial, will be informed by considering the following factors:[13]

   (a)The strong public interest in the finality of litigation.  That public interest warrants a strictly confined approach to the circumstances in which a party will be allowed to adduce additional evidence in an appeal.

   (b)Whether the additional evidence is properly characterised as fresh evidence which either did not exist at the time of the trial or could not have been discovered with reasonable diligence at the time.  Generally, the discretion will be exercised against admitting evidence which is not fresh in this sense.

   (c)Whether the evidence was deliberately withheld at the trial.  If so, the failure to call it will weigh heavily against its admission on appeal.

   (d)The strength of the evidence, whether it is contested and whether there is a significant possibility that its admission would lead to a different result.  If the evidence is contested and a new trial will be required to resolve factual disputes if that evidence is admitted, that will be a factor counting against its admission in the appeal.

   [13] Saunders v The Public Trustee [2015] WASCA 203 [87] ‑ [90] (Mitchell J, Buss JA and Beech J agreeing); Wreford v Lyle [2019] WASCA 57, [30] ‑ [31].

5. In our view, it is in the interests of justice to admit the entirety of the Lawley affidavit, and the 27 March 2020 letter, for the following reasons:

   (a)The public interest in the finality of litigation cannot weigh heavily in the balance in circumstances where, as we explain below, there was little clarity, prior to the Hearing, as to the procedure for dealing with the 'jurisdictional issue', and the appellant clearly did not appreciate that the learned primary judge intended to deal with that issue in a way which may finally determine the Initiating Application.

   (b)The contents of the Lawley affidavit (apart from paragraph 9 and Annexure JDL8), and the 27 March 2020 letter, flesh out important steps in the chronology of events leading to the Hearing, and it is essential that this Court have an accurate picture of what transpired prior to the Hearing.

   (c)The failure to adduce evidence from Ms Fabrizi in the terms set out in Annexure JDL8 is explained in the Lawley affidavit.  This was not a case of a deliberate or strategic decision to withhold evidence. Rather, the evidence was not led because of confusion over what was to be determined at the Hearing.

   (d)The evidence in Annexure JDL8 is sought to be adduced on the appeal not to show that the learned primary judge erred in her decision to dismiss the proceedings, but rather to demonstrate why the alleged denial of procedural fairness at the Hearing was material, so as to justify the grant of relief. 

(b)     The Family Court's power to make property settlement orders

1. In order to understand the 'jurisdictional issue' the respondent sought to raise at the Hearing, it is helpful to bear in mind the power of the Family Court to make property settlement orders.

2. Under pt 5A of the Act, the Family Court is given jurisdiction to make maintenance orders and property adjustment orders in relation to parties, or to the property of parties, who have been in a de facto relationship,[14] or who were in a de facto relationship after the commencement of pt 5A,[15] provided that a connection with the State (specified in the Act[16]) exists. 

   [14] Family Court Act 1997 (WA) s 205U(1), see also s 205Z.

   [15] cf Family Court Act 1997 (WA) s 205U(2).

   [16] Family Court Act 1997 (WA) s 205X and s 205Y.

3. The Family Court has power to make orders altering the interests of the parties in property, pursuant to s 205ZG. That section relevantly provides:

   (1)In proceedings with respect to the property of de facto partners, or either of them, the court may make such order as it considers appropriate altering the interests of the parties in the property, including an order for a settlement of property in substitution for any interest in the property and including an order requiring either or both of the partners to make, for the benefit of either or both of the partners or a child of the de facto relationship, such settlement or transfer of property as the court determines.

   (2)An order made under subsection (1) in proceedings with respect to the property of de facto partners, or either of them may, after the death of a partner to the proceedings, be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

   (3)The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

   (4)In considering what order (if any) should be made under this section in proceedings with respect to any property of de facto partners, or either of them, the court must take into account —

   (a)the financial contribution made directly or indirectly by or on behalf of a de facto partner … to the acquisition, conservation or improvement of any of the property of the de facto partners, or either of them …; and

   (b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a de facto partner … to the acquisition, conservation or improvement of any of the property of the de facto partners or either of them …; and

   (c)the contribution made by a de facto partner to the welfare of the family constituted by the de facto partners and any children of the de facto partners, including any contribution made in the capacity of homemaker or parent; and

   (d)the effect of any proposed order upon the earning capacity of either de facto partner; and

   (e)the matters referred to in section 205ZD(3) so far as they are relevant; and

   (f)any other order made under this Act affecting a de facto partner or a child of the de facto relationship; and

   (g)any child support under the Child Support (Assessment) Act that a de facto partner has provided … .

   …

   (8)Where, before proceedings with respect to the property of de facto partners, or either of them are completed, either party to the proceedings dies —

   (a)the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party …; and

   (b)if the court is of the opinion -

   (i)that it would have made an order with respect to property if the deceased party had not died; and

   (ii)that it is still appropriate to make an order with respect to property,

   the court may make such order as it considers appropriate with respect to any of the property of the de facto partners, or either of them; and

   (c)an order made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

1. The matters referred to in s 205ZD(3), which the Family Court must take into account, so far as they are relevant, under s 205ZG(4)(e), include;

   •the age and state of health of each of the de facto partners;

   •their income, property and financial resources and their capacity for gainful employment;

   •whether they have care of a child under 18 years of age;

   •any commitments of either partner that are necessary to enable the partner to support themselves or any child they have a duty to maintain;

   •         the responsibilities of either partner to support any other person;

   •the eligibility of either party for a pension, allowance, benefit or superannuation, and the rate thereof;

   •the standard of living that in all the circumstances is reasonable;

   •the extent to which the payment of maintenance to a party would increase the earning capacity of that party by enabling them to undertaking training or education;

   •the extent to which the party whose maintenance is under consideration has made a contribution to the income, earning capacity, property and financial resources of the other party;

   •the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

   •the need to protect a party who wishes to continue a parenting role;

   •if either party is cohabiting with another person, the financial circumstances relating to that cohabitation;

   •the terms of any property settlement order made or proposed under s 205ZG in relation to the property of the parties;

   •any child support that a de facto partner has provided or might be liable to provide in the future, for a child of the relationship;

   •any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

   •the terms of any financial agreement or former financial agreement that is binding on the parties.

2. In considering whether to make an order altering the property interests of parties to a de facto relationship, the Family Court must, as far as practicable, make such orders as will finally determine the financial relationships between de facto partners who are no longer in a de facto relationship and avoid further proceedings between them.[17]

   [17] Family Court Act 1997 (WA) s 205ZJ.

3. In exercising any of its powers under div 2 of pt 5A, the Family Court may make a variety of orders, including orders for the payment of lump sums; permanent orders or orders pending the disposal of proceedings, or orders for a fixed term or until further order.[18]

   [18] Family Court Act 1997 (WA) s 205ZI(1).

(c)     Chronology of the proceedings prior to the Hearing

1. In order to understand what occurred at the Hearing, and what the parties understood, or ought to have understood, would be determined at the Hearing, it is necessary to set out, in some detail, the chronology of the proceedings prior to the Hearing.

2. On 19 February 2018, Ms Fabrizi filed the Initiating Application in the Family Court, in which she sought final orders 'as and by way of property settlement, and/or lump sum or periodic spousal maintenance'.[19]

   [19] Blue Appeal Book (BAB) 45-46.

3. On the same day, Ms Fabrizi filed an affidavit.[20]  She deposed to facts relevant to the existence of a de facto relationship with Mr Grasso, her belief as to the value of their net asset pool, most of which was in companies or trusts, and to her concern that when Mr Grasso passed away, she may not receive appropriate financial provision.

   [20] Green Appeal Book (GAB) 20.

4. On 7 November 2018, the respondent filed the Response.[21]  The final orders he sought in that Response were that 'the matter be dismissed for want of jurisdiction on the basis that the de facto relationship had not ended' and an order that Ms Fabrizi pay his costs in the matter.  In addition, he also sought interim orders that the matter be referred to a duty judge for programming on the issue of jurisdiction.[22]

   [21] BAB 51.

   [22] BAB 53. 

5. That jurisdictional objection by the respondent was dealt with as an interim application for the dismissal of the proceedings for want of jurisdiction. That interim application was heard by Duncanson J on 21 May 2019. Her Honour dismissed that interim application on 16 August 2019,[23] and the matter was listed for a directions hearing on 2 September 2019. On that date, programming orders were made which, amongst other things, required the respondent to provide information as to the financial circumstances of Mr Grasso's estate.[24]

   [23] Fabrizi and Grasso (Deceased) by his personal legal representative Grasso (Jnr) [2019] FCWA 176, BAB 25.

   [24] See par [3] of the affidavit of the respondent affirmed 7 November 2019 and filed in the proceedings: GAB 24 at 26.

6. On 7 November 2019, the respondent filed an affidavit in the Family Court in which he deposed to the composition, value, income and expenses of Mr Grasso's estate.  He deposed that at the time of his death, Mr Grasso had a net asset pool of approximately $40 million in Australia, plus real property overseas with an approximate net value of $1.3 million (Foreign Property).   He deposed that two pieces of real estate were registered in Mr Grasso's name, namely the home where he and Ms Fabrizi had resided (Property), and a house under construction on an adjacent block (House).  The House and the Property were held by Mr Grasso, and by a corporate trustee for a family trust, as tenants in common in equal shares.  The respondent also deposed that on 14 February 2018 (about a month before Mr Grasso's death, and very shortly before Ms Fabrizi filed the Initiating Application), Mr Grasso, the trustee of the family trust, Ms Fabrizi, and Mr Grasso's children, executed the Trust Deed.  Under the Trust Deed, Mr Grasso and the trustee of the family trust gifted to Ms Fabrizi a life interest in the House and the Property, with the remainder to Mr Grasso's children upon her death. 

7. On 10 December 2019, Ms Fabrizi filed an Amended Initiating Application.[25]  The Final Orders sought were amended to include specific orders concerning certain items of real and personal property, including the Property, the House and the Foreign Property, and further orders for the transfer of property or payment of a lump sum in cash to achieve an equal percentage division of the parties' assets. 

   [25] BAB 56.

8. On 12 December 2019, Ms Fabrizi filed another affidavit in the Family Court.  In the affidavit, she referred to the construction of the House, and deposed to the fact that Mr Grasso had executed the Trust Deed to establish a trust to ensure that the construction of the House was completed, and that the House was intended to be her home. 

9. On 20 February 2020, the respondent filed an Amended Response to Initiating Application (Amended Response).[26]  In the Amended Response, the respondent sought final orders, namely that the Amended Initiating Application 'be dismissed for want of power and/or jurisdiction' and an order that Ms Fabrizi pay the respondent's costs on an indemnity basis.  In the event that those orders were not made, the respondent sought, in the alternative, specific final property settlement orders for the payment of various lump sums to Ms Fabrizi, for the transfer of real and personal property, and for the performance of any obligations under the contract for the construction of the House.  The respondent also sought various miscellaneous orders concerned with giving effect to any property settlement orders made by the Family Court. 

   [26] BAB 68.

10. On 27 March 2020, the respondent filed his Further Amended Response.[27] In that document the respondent sought final orders, including 'principal final orders sought', which comprised a final order encompassing the 'jurisdictional issue' (set out at [6] above), and the alternative final property settlement orders (described in [37] above).

    [27] BAB 80.

11. In contrast to the Response filed in November 2018, the Further Amended Response did not seek any interim or procedural orders, nor did it seek that any programming orders be made to deal with how the 'jurisdictional issue' was to be determined by the Family Court.  Instead, the Further Amended Response was simply listed to the next court date for the proceedings, which was on 17 April 2020.

Interim Applications and correspondence

1. Meanwhile, on 2 January 2020, Ms Fabrizi filed an Amended Application in a Case (First Interim Application).  In it, Ms Fabrizi sought orders, including that the respondent do all things necessary to ensure that the construction work on the House proceed, and an order that the respondent pay her a lump sum by way of a partial property settlement.[28] 

   [28] BAB 64.

2. On 2 January 2020, Ms Fabrizi filed an affidavit in support of the First Interim Application.[29]  She addressed the history of her relationship with Mr Grasso, their domestic arrangements and her care for him, their financial arrangements including her contribution to their finances, her work in a company owned by Mr Grasso, the construction of the House, her understanding of the assets and liabilities of Mr Grasso's estate, and her reasons for seeking a lump sum interim payment.  In addition, Ms Fabrizi deposed to the circumstances in which she became aware of Mr Grasso's wills (one which pertained to his Australian property (Will) and one which pertained to the Foreign Property), in so far as they pertained to her.  She deposed to feeling gutted about the extent of his provision for her, and to the fact that while she was disappointed about the Will, she loved Mr Grasso and was not prepared to let the contents of the Will affect their remaining time together.  She also explained that she had filed the proceedings in the Family Court to ensure that her contributions to the relationship were sufficiently recognised, and her future needs considered, in the context of her long relationship with Mr Grasso.

   [29] GAB 41.

3. The First Interim Application was listed for a hearing on 25 February 2020.  The hearing of that Application was subsequently adjourned until 17 April 2020, and later to the Hearing on 7 July 2020.

4. On 13 February 2020, the respondent filed an affidavit in support of the Response and in opposition to the First Interim Application.[30]  In that affidavit he deposed to the ownership of the Property and the House, to the execution of the Trust Deed, to the building contract governing construction of the House, to his opposition to any order compelling him to take action to ensure that construction of the House continued, and to his opposition to a partial property settlement.

   [30] GAB 60.

5. On 18 February 2020, the respondent filed a Response to an Application in a Case (Response to First Interim Application) in which he sought orders that the First Interim Application be dismissed with costs.[31]

   [31] BAB 66.

6. On 16 March 2020,[32] Ms Fabrizi's solicitors wrote to the respondent's solicitors inviting the respondent to give an undertaking that, in essence, he would not deal in the assets of Mr Grasso's estate.  In addition, Ms Fabrizi's solicitors sought clarification of the basis for the objection to jurisdiction alluded to in the Amended Response.  The letter said:

   Your client now seeks that our client's [Amended Application] be dismissed due to 'want of power and/or jurisdiction'.  Your client has not filed any documentation to support that Order being made and, with respect, we see no basis for that Order being made.  We appreciate this was briefly canvassed during Mediation.  To avoid any confusion, we would be grateful to receive a summary from you particularising the basis the Order is sought to be made to include the following:

   1.The power or jurisdiction to which your client is referring?

   …

   4.The facts upon which your client relies in support of this Order.

   [32] Annexure JDL1 to the Lawley Affidavit, YAB 6.

7. On 26 March 2020,[33] the respondent's solicitors responded by letter to advise that they

   intend[ed] to file further documents in relation to our client's jurisdiction challenge well in advance of the next hearing on 17 April 2020. We can indicate at this stage that our client is not seeking to differentiate between the Family Law Act and the Family Court Act.

   [33] Annexure JDL2 to the Lawley Affidavit, YAB 8.

8. On 26 March 2020, Ms Fabrizi filed a further Application in a Case (Second Interim Application).[34]  In the Second Interim Application, Ms Fabrizi sought orders, including an injunction against the respondent, to restrain him from selling, disposing of, encumbering, or dealing in, the assets and financial resources of any entity controlled by or on behalf of himself, or the estate of Mr Grasso, and restraining the respondent from taking any action to alter the control, interest or benefit of any entity controlled by him or by the estate of Mr Grasso. 

   [34] BAB 74.

9. On 26 March 2020, Ms Fabrizi's solicitors filed an affidavit in support of the Second Interim Application.[35]  That affidavit set out the steps taken by Ms Fabrizi to request that the respondent not alter Mr Grasso's asset pool, and the reasons why an interim lump sum payment was sought. 

   [35] GAB 74.

10. The Second Interim Application was listed for hearing on 17 April 2020.[36]  It was subsequently adjourned to the Hearing on 7 July 2020.

    [36] BAB 76.

11. On 27 March 2020, the respondent's solicitors sent the 27 March 2020 letter to the Principal Registrar of the Family Court in relation to the next hearing, which at that stage was listed on 17 April 2020.  Relevantly for present purposes, the respondent's solicitors advised:

    Separately, we have filed via the Portal a [Further Amended Response] a copy of which is enclosed herewith.  Counsel for the Respondent seeks to address the Court during the [hearing on 17 April 2020] on the [jurisdictional] issue raised in paragraph 1 of the final orders sought … .  The Respondent will file submissions and an updated list of authorities in advance of the Hearing.

12. Despite the foreshadowed filing of submissions by the respondent, no programming directions were at that stage made by the Family Court in relation to the 'jurisdictional issue', and no directions were made for the filing of affidavits with respect to the 'jurisdictional issue'.[37] 

    [37] Lawley affidavit at [6], YAB 4.

13. Although the 'jurisdictional issue' was referred to in the Further Amended Response, no interim application was filed in the Family Court in relation to the 'jurisdictional issue'.  No order was made by the Family Court in relation to how that 'jurisdictional issue' would be heard and resolved.  In particular, no order was made by the Family Court to hear and determine that issue (or any issue) on a final basis in advance of any trial of the Initiating Application on its merits.[38]

    [38] Lawley Affidavit [7], YAB 4.

14. On 2 April 2020, Ms Fabrizi's solicitors wrote to the respondent's solicitors, referring to the 27 March 2020 letter, and again seeking clarification of the basis for the respondent's objection to jurisdiction.[39]  They said:

    In respect of your client's [Amended Response], and your letters of 26 March 2020, while you have identified the Section of the Family Court Act, and confirmed that you do not seek to differentiate between the Family Law Act and the Family Court Act, we simply do not understand the basis for your client's second attempt to oust the jurisdiction of the Family Court. We note your intention to file documents setting out the basis of his revised position. Please urgently indicate when these documents will become available, to enable us to appropriately formulate our response.

    …

    To assist both Senior Counsel, and the Court, we propose to file an agreed Bundle of documents to be relied on at the hearing.

    [39] Annexure JDL 3 to the Lawley Affidavit, YAB 10.

15. On 8 April 2020, the respondent's solicitors responded and advised that they anticipated filing a written outline of submissions 'relating to our client's [Amended Response] by the end of this week and look forward to receiving an index for the agreed bundle of documents'.[40]

    [40] Annexure JDL4 to the Lawley Affidavit, YAB 11.

16. On 5 May 2020, Ms Fabrizi filed a further affidavit in support of the First Interim Application.[41]  In that affidavit she elaborated upon the circumstances in which she became aware of the contents of the Will, and to the reasons why she commenced proceedings in the Family Court.  She also provided a further explanation for seeking an interim lump sum payment.

    [41] GAB 83.

17. The respondent filed an affidavit in response on 29 June 2020.[42]  In that affidavit he deposed to the fact that Ms Fabrizi had signed the Trust Deed and transfers of land which recorded her life interest in the Property and the House, and referred to the fact that Ms Fabrizi had made a claim against Mr Grasso's estate in the Supreme Court, pursuant to the Family Provision Act 1972 (WA). He also deposed to the potential impediments to making an interim lump sum payment to Ms Fabrizi, and to there being no justification for him to be required to provide an undertaking, or to be injuncted, from dealing in the assets of Mr Grasso's estate.

    [42] GAB 95.

18. The respondent's written submissions on the 'jurisdictional issue' were forwarded to Ms Fabrizi's solicitors on 9 April 2020.[43]  Further submissions were filed on the respondent's behalf on 6 July 2020.[44]  Those submissions set out the basis for the respondent's opposition to Ms Fabrizi's First Interim Application and Second Interim Application.[45] 

    [43] Annexure JDL 5 to the Lawley Affidavit, YAB 12.

    [44] Annexure JDL 7 to the Lawley Affidavit, YAB 14.

    [45] BAB 102 – 108.

19. The respondent's submissions filed on 9 April 2020 in relation to the 'jurisdictional issue' contended, in summary, that:

    •Ms Fabrizi's claim for an alteration of property interests could not succeed because of s 205ZG(8)(b)(i) of the Act. That provision established a precondition for the Court to make an order under s 205ZG, namely that the court would have made an order with respect to property if the deceased party had not died.

    •The court was required to consider the facts and circumstances that existed prior to the death of the deceased.

    •Ms Fabrizi's affidavit of 2 January 2020 established that in the lead up to his death, she and Mr Grasso were still cohabiting, they were still committed to a shared life together, she was still performing personal services for Mr Grasso, Mr Grasso looked after her financially, and she still loved Mr Grasso.

    •In Stanford v Stanford[46] a majority of the High Court held that whether it is 'just and equitable' to make a property settlement order was not to be answered by assuming that the parties' rights to, or interests in, marital property are or should be different from those that then exist, and that the court must have a principled reason for interfering with the existing legal and equitable interests of the parties.

    •As the High Court recognised in Stanford, competent parties are capable of adjusting their property interests consensually, and that is what occurred in this case when Ms Fabrizi and Mr Grasso executed the Trust Deed, by which Ms Fabrizi acquired a life interest in their existing house (that is, the Property), and their new house which was then under construction (that is, the House).

    [46] Stanford v Stanford (2012) 247 CLR 108. That decision concerned s 79 of the Family Law Act 1975 (Cth), which applies to property settlement orders in relation to the property of a marriage, and is in similar terms to s 205ZG of the Act.

20. Ms Fabrizi's submissions were filed on 3 July 2020.  They addressed Ms Fabrizi's First and Second Interim Applications.  Those submissions also responded to the 'jurisdictional issue' raised by the respondent, and contended, in summary, that:

    •In her decision of 1 August 2019, Duncanson J had found that the Family Court had jurisdiction in these proceedings.

    •That decision was not appealed.  Instead, the respondent simply filed the Amended Response and later the Further Amended Response raising another 'jurisdictional issue'.

    •The respondent's submissions, in summary, advanced two arguments. The first was that the Court would not make an order if Mr Grasso were still alive, and the second was that as Mr Grasso was not alive, the appropriate course was for Ms Fabrizi to make an application to the Supreme Court under the Family Provision Act. Ms Fabrizi submitted that these arguments should be rejected because the Family Court would have made property settlement orders had Mr Grasso not died, and that recourse under the Family Provision Act was not adequate because the House and the Property did not form part of Mr Grasso's deceased estate (as title to them was held by a family trust). Ms Fabrizi submitted that she had commenced the proceedings to ensure that her contributions to their relationship were taken into account in the context of the entirety of what they had built together, rather than those assets that he held in his sole name.

1. Having regard to the evidence before this Court on the appeal, the following conclusions can be drawn:

   (a)The 'jurisdictional issue' identified in the Further Amended Response was not the subject of any interim application to the Family Court.

   (b)No programming directions were sought, or made, by the Family Court in relation to the 'jurisdictional issue' prior to the Hearing.

   (c)In the 27 March 2020 letter, the respondent foreshadowed that the 'jurisdictional issue' (at that stage not particularised) would be raised by counsel at the hearing on 17 April 2020.  That was a hearing date which had been listed for the determination of the First Interim Application and the Second Interim Application.

   (d)The hearing on 17 April 2020 was adjourned to the Hearing on 7 July 2020.

   (e)No order was made by the Court for the 'jurisdictional issue' to be considered at the Hearing.

   (f)The only applications listed to be heard at the Hearing were the First Interim Application and the Second Interim Application.

   (g)The affidavit evidence filed by Ms Fabrizi and the respondent prior to the Hearing was largely directed to the issues raised by the First Interim Application and the Second Interim Application.

   (h)The parties' submissions filed prior to the Hearing addressed the First and Second Interim Applications.

   (i)The parties clearly anticipated that the 'jurisdictional issue' would be raised in some manner at the Hearing, and they addressed that issue in their written submissions, albeit in relatively brief terms.

   (j)Neither the respondent nor Ms Fabrizi filed any evidence specifically in relation to the 'jurisdictional issue'.

   (k)Neither party filed any minute of proposed orders indicating what orders should be made if the 'jurisdictional issue' was raised at the Hearing.

What occurred at the Hearing?

1. At the commencement of the Hearing, counsel for Ms Fabrizi confirmed that mediation attempts had been exhausted 'so we will be proceeding on all issues'.[47]  That appears to have been a reference to the issues raised in the First Interim Application and the Second Interim Application. 

   [47] ts 2, GAB 2.

2. The evidence relied upon by the parties at the Hearing was not formally tendered. The learned primary judge enquired about the use which would be made of a 436‑page folder of documents which had been filed by Ms Fabrizi. Counsel advised that 'the intention and the purpose of that was to assist' but that it was not necessary to read every page in that folder,[48] and the material was received on that basis.[49]  There was no evidence before this Court as to the content of that folder of documents.  The most likely explanation is that that folder of documents comprised at least the First Interim Application and the Second Interim Application, the affidavits filed in relation to each Application, and the parties' submissions.  The only documents received as exhibits at the Hearing were letters as to costs.[50]

   [48] ts 3, GAB 3.

   [49] ts 2 - 3, GAB 2 - 3.

   [50] ts 4, GAB 4.

3. Before counsel for Ms Fabrizi - the applicant in respect of the First and Second Interim Applications - was able to commence his oral submissions on those Applications, counsel for the respondent intervened to inquire 'whether it isn't best for me to get first on … because I am pressing the objection to jurisdiction'.[51]  The learned primary judge observed that 'that wasn't mentioned in your submissions' and that she 'wasn't sure if that was being pressed'.[52]  Counsel for the respondent confirmed that the 'jurisdictional issue' was being pressed. 

   [51] ts 4, GAB 4.

   [52] ts 4, GAB 4.

4. The learned primary judge observed that 'the jurisdiction submission would seem to me a preliminary issue'.[53] 

   [53] ts 5, GAB 5.

5. Counsel for Ms Fabrizi noted that a jurisdictional argument had previously been raised in response to the Initiating Application.[54]  He confirmed that he had no objection to the 'jurisdictional issue' being heard first[55] and that he was in a position to respond to it.[56]  However, he expressed concern that if that occurred, there would be no time for submissions on the remaining matters (that is, the First and Second Interim Applications), and that Ms Fabrizi's application for a lump sum by way of a partial property settlement was pressing.[57] 

   [54] ts 6, GAB 6.

   [55] ts 5, GAB 5.

   [56] ts 7, GAB 7.

   [57] ts 7, GAB 7.

6. The learned primary judge then indicated that she would deal first with the 'jurisdictional issue', and that she would deal with the other issues if time permitted.[58]

   [58] ts 7, GAB 7.

7. Counsel for the respondent then proceeded to briefly develop his written submissions on the 'jurisdictional issue'.[59] He did not direct the Court to any evidence. He submitted that under s 205ZG(8)(b)(i), the Court was required to look at the facts and circumstances which existed just prior to the death of the deceased.[60]  The thrust of his argument was that, as the High Court in Stanford contemplated, the parties in this case made consensual adjustments to their property interests when, a month before Mr Grasso's death, they entered into the Trust Deed, under which Ms Fabrizi obtained a life interest in the Property and the House.  He submitted that there was no evidence that Ms Fabrizi was coerced into entering into that document.  He submitted that it was quite clear that Ms Fabrizi did not want to leave the relationship and would not in any circumstance have done so. 

   [59] ts 7, GAB 7. 

   [60] ts 7, GAB 7.

8. He submitted that the High Court had made it clear that there should be no property division except on a principled basis, and Ms Fabrizi's concern that she would get more money in the Family Court than in the Supreme Court on a Family Provision Act claim was not a sufficient basis for a property settlement order to be made in this case.[61]

   [61] ts 11, GAB 11.

1. Counsel for Ms Fabrizi submitted, in summary, that at the end of a long relationship, when Mr Grasso had been diagnosed with a terminal illness, and when he had an enormous asset pool, Ms Fabrizi found out what Mr Grasso intended to provide for her in his wills was limited to a small lump sum and a life interest in the House, the Property and the Foreign Property.  He submitted that in circumstances where Ms Fabrizi had done what she perceived to be the right thing, and remained with her dying partner, rather than separating from him, and in circumstances where her assets were worth approximately $1.5 million and a life interest in two properties, as compared with Mr Grasso's substantial assets, the Family Court would clearly have made property settlement orders had Mr Grasso not died.[62]

   [62] ts 16, GAB 14, 16.

2. Counsel for Ms Fabrizi highlighted the lack of evidence as to the circumstances surrounding the execution of the Trust Deed, submitting that, on the evidence then before the court, too many matters of potential significance were unknown to permit a conclusion that Ms Fabrizi voluntarily signed it.[63]

   [63] ts 14, 15, GAB 14, 15.

3. Counsel for Ms Fabrizi also submitted that the 'jurisdictional issue' raised on the respondent's behalf was not in fact an issue going to the Family Court's jurisdiction in this case, but was 'rather a matter of discretion'. He submitted that the Court had determined that it had jurisdiction pursuant to s 205ZG of the Act and that the respondent could not now argue to the contrary.[64] He submitted that the properties in which Ms Fabrizi had been given life interests were not properties which the Supreme Court could take into account in a Family Provision Act proceeding, but were properties that the Family Court could order be transferred to Ms Fabrizi, and that was why she had made an application to the Family Court.[65] He submitted that the Act, and the Family Provision Act, dealt with separate issues and were not mutually exclusive.[66]

   [64] ts 15, GAB 15.

   [65] ts 16, GAB 16.

   [66] ts 17, GAB 17.

4. In reply, counsel for the respondent conceded that the 'jurisdictional issue' did not in fact go to the jurisdiction of the Family Court, but concerned the question of its power to make a property settlement order in this case.  He submitted:[67]

   I'm often uncertain as to what the difference between jurisdiction and power is.  I think in this case it has to be power rather than jurisdiction.  Otherwise the court simply has jurisdiction to make property orders, but not power to make an order in these circumstances.

   [67] ts 17, GAB 17.

5. With the greatest respect to counsel for the respondent who appeared at the Hearing, having made that concession, counsel then failed to assist the learned primary judge by addressing the basis on which it would be open to her to determine that issue separately from a determination of the Initiating Application itself, on its merits, following a trial. 

6. At the conclusion of the Hearing, the learned primary judge concluded that she should determine the 'preliminary issue' before hearing any other arguments, and consequently she reserved her decision.

(d)     The reasons for decision

1. The learned primary judge began by referring to a consolidated minute of the orders sought by Ms Fabrizi, which reflected the orders sought in the First and Second Interim Applications.  Her Honour noted that the respondent opposed those orders, and that in his Further Amended Response, 'the respondent seeks a final order' in the terms set out in [6] above. She noted that the respondent's position was that if the Court declined to make that order, then he sought various orders (namely those set out in the alternative in the Further Amended Response, and described above at [37]). 

2. After briefly summarising the facts, and the parties' submissions, her Honour turned to consider the operation of s 205ZG of the Act. The learned primary judge referred to the reasons given by the plurality in Stanford v Stanford.[68]  The learned primary judge identified the existing legal and equitable interests of the parties in their property, by reference to a schedule of assets and liabilities annexed to Ms Fabrizi's affidavit of 5 May 2020.[69] 

   [68] Stanford v Stanford (2012) 247 CLR 108.

   [69] RFD [55].

3. Her Honour accepted that when Ms Fabrizi filed her application, the parties were not separated, that Ms Fabrizi cared for Mr Grasso, that she loved him and that he provided for her financially.  Her Honour observed that when Ms Fabrizi learned of the contents of the Will, she told Mr Grasso she was not happy with it, and that she was shocked and horrified that he did not intend to adequately provide for her.[70]

   [70] RFD [58] ‑ [59].

4. The learned primary judge found that during their relationship, Ms Fabrizi and Mr Grasso had, by choice, conducted their financial arrangements in such a way that significant assets were retained in Mr Grasso's name, but that he looked after Ms Fabrizi and if she wanted something she could buy it.  Those arrangements were sufficient for their purposes at the time.[71]  She found that the Trust Deed was executed by the parties during their relationship and made specific arrangements with respect to their property.  Her Honour found that the Trust Deed could be 'assumed to be a necessary or desirable adjustment made by the parties to their property interests consensually'.[72]

   [71] RFD [62].

   [72] RFD [63].

5. The learned primary judge observed that the principles established in the judgment of the plurality in Stanford required the court to have a principled reason for interfering with the existing interests of the parties in their property and what may be their stated or unstated assumptions about their property.  The learned primary judge accepted that the reason Ms Fabrizi brought her application in the Family Court was her concern that when Mr Grasso passed away she may not receive appropriate financial provision.[73]  Her Honour's understanding was that 'it is not [Ms Fabrizi's] case that the arrangements made by the parties with respect to their property during their relationship were not sufficient or appropriate'.[74]  Rather, she understood Ms Fabrizi's case to be that the limited provision made for her in the Will meant that upon the death of Mr Grasso, those arrangements may not be sufficient or appropriate.[75] 

   [73] RFD [65].

   [74] RFD [67].

   [75] RFD [67].

6. The learned primary judge held that if Mr Grasso had not died, the Court 'would not have had a principled reason to interfere with their chosen arrangements.  It would not have been just and equitable to make an order with respect to their property.'[76]  Her Honour held that the Court would not have made an order with respect to property if Mr Grasso had not died and consequently after his death it would not be found to still be appropriate to make an order.[77] 

   [76] RFD [68].

   [77] RFD [68] ‑ [69].

7. The learned primary judge observed that while she had previously determined that an application could be made for property settlement orders even though the parties had not separated, it did not follow that the Court would make such an order. The requirements of s 205ZG(1), (2), (8) and (9) had to be satisfied.[78]  She concluded that those requirements were not satisfied in this case[79] and on that basis concluded that the proceedings should be dismissed.

   [78] RFD [70].

   [79] RFD [70].

(e)     The grounds of appeal

1. Ms Fabrizi advances four grounds of appeal. 

2. In summary, ground 1 contends that the learned primary judge erred in law by providing inadequate reasons for decision.

3. Ground 2 contends that Ms Fabrizi was denied procedural fairness in that the learned primary judge dismissed the proceedings below by reference to the merits of the case without there having been any affidavits filed by the parties, specifically Ms Fabrizi, on that issue.

4. Ground 3 contends that the learned primary judge erred in law by misdirecting herself as to the proper test to be applied, namely whether Ms Fabrizi's contention (that it would have been just and equitable to make an order with respect to their property had Mr Grasso not died) was one which had a 'reasonable likelihood of success' at trial.

5. Ground 4 contends that the learned primary judge erred in making a positive finding that, had Mr Grasso not died, 'it would not have been just and equitable to make an order with respect to their property', namely, the property of Ms Fabrizi and Mr Grasso. The learned primary judge should have found that the evidence established that it was 'just and equitable' to do so, alternatively that Ms Fabrizi had a 'reasonable likelihood of success' of establishing at trial that it was 'just and equitable' to do so.

6. It is convenient to deal with ground 2 first.

(f)     Why ground 2 succeeds

1. Counsel for Ms Fabrizi submitted that the reasons given by the learned primary judge disclose that in fact her Honour determined the matter on the merits, but without holding a trial.[80]  Counsel for Ms Fabrizi submitted that Ms Fabrizi was thereby denied procedural fairness because what started out as an argument about jurisdiction morphed into an application to dismiss the matter on its merits without there having been any affidavits filed by the parties, and specifically Ms Fabrizi, on the merits.[81]  He submitted that by determining the matter on a final basis without a trial, Ms Fabrizi's Initiating Application had been substantively determined without all of the evidence that she would wish to place before the Court in relation to the merits of that Application having been placed before the Court.[82] 

Principles in relation to the requirement to afford procedural fairness

[80] Appellant's submissions [29], White Appeal Book (WAB) WAB 9.

[81] Appellant's submissions [32], WAB 10.

[82] Appellant's submissions [37], WAB 11.

1. It is axiomatic that a court is required to afford procedural fairness to a litigant.[83]  Failure by a court to afford procedural fairness may constitute an error of law.

   [83] Defendi v Szigligeti [2019] WASCA 115, [45] citing Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589; Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383, 396; J v Lieschke [1987] HCA 4; (1987) 162 CLR 447, 456; International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54]; Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [194]; Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301 [37].

2. In any case where procedural fairness is required to be afforded, the critical issue is the content of the requirement.[84] 

   [84] Kioa v West (1985) 159 CLR 550, 585 (Mason CJ).

3. At the heart of the requirement to afford procedural fairness is that the party whose interests are liable to be affected by a decision must be put on notice of the case against them, and given an opportunity to respond.  Relevantly for present purposes, procedural fairness required that Ms Fabrizi be put on notice of what was to be determined by the learned primary judge at the Hearing, and then to be given a reasonable opportunity to be heard, by presenting her case by evidence, information and submissions.[85] 

   [85] Defendi v Szigligeti [47], citing Cameron v Cole (589); Commissioner of Police v Tanos (395 ‑ 396); J v Lieschke (456); SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 [32]; International Finance Trust Co Ltd [54], [141] ‑ [144]; Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 [82]; Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591 ‑ 592, which has been cited with approval in many cases; see Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 [100] and footnote 91 thereof; Shrestha [38].

4. The requirements of procedural fairness are not fixed or immutable.[86]  Procedural fairness is directed to avoiding practical injustice.  What will constitute a practical injustice in a particular case will depend on all of the facts and circumstances of that case.[87]  The application of the requirements of procedural fairness to a court requires analysis of the procedures of the court, and the legislation and rules which govern them.[88]

Why there was a breach of the requirements of procedural fairness

[86] Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [194]; Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116 [51].

[87] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37]; Pompano [156]; Defendi v Szigligeti [48]; Rowe v Stoltze [51]; Woodley v Woodley [2018] WASCA 149 [77].

[88] Defendi v Szigligeti [48], citing J v Lieschke (456); Pompano [156]; Shrestha [45]; see also AVS Australian Venue Security Services Pty Ltd v Criminale [2006] NSWCA 368 [23].

1. In our respectful view, the procedure adopted by the learned primary judge to deal with the 'jurisdictional issue', which culminated in her dismissal of the proceedings (that is, the Initiating Application), resulted in a denial of procedural fairness to Ms Fabrizi.  We have reached that view having regard to the following matters.

2. First, the Hearing was listed to deal with the First and Second Interim Applications.  Those Applications sought that the Court make interim orders in the proceedings – that is, orders in advance of the final hearing to determine the Initiating Application on its merits.  In contrast to the final determination of a case, which would occur after a trial of the issues,[89] the Interim Applications fell to be determined on the basis of affidavit evidence (cross‑examination on an interim application would be permitted only in exceptional circumstances[90]).  In determining whether to make the interim orders sought, the Family Court would take into account whether there were reasonable grounds for making the orders, and whether the orders were necessary, for reasons such as hardship or prejudice to the parties.[91] 

   [89] See, generally, pt 16.3 of the Family Law Rules 2004 (Cth). Pursuant to r 13 of the Family Court Rules 1998 (WA), which were in force at the relevant time, the Family Law Rules 2004 (Cth) were applied in the Family Court in the exercise of its non-federal jurisdiction.

   [90] Family Law Rules 2004 (Cth) r 5.10, as applied by r 13 of the Family Court Rules 1998 (WA).

   [91] Family Law Rules 2004 (Cth) r 5.08(b) and (c), as applied by r 13 of the Family Court Rules 1998 (WA).

1. In dealing with the 'jurisdictional issue' as a preliminary issue, the learned primary judge adopted a different procedure than that which would otherwise have applied at the Hearing.  Consequently, the Hearing took on an entirely different complexion from that for which it had been listed.  In our respectful view, before adopting that procedure, it was incumbent on the learned primary judge to ensure that Ms Fabrizi and her counsel understood what was to be decided in that preliminary issue, the questions that would be considered in dealing with that preliminary issue, the nature and content of the information that the learned primary judge would take into account in making her determination, and the legal principles that would be relevant to the determination of that preliminary issue. 

2. Counsel for the respondent submitted that Ms Fabrizi was fully aware of the grounds on which the respondent sought to have her Initiating Application dismissed for want of power and/or jurisdiction.  He submitted that Ms Fabrizi's solicitors sought particulars of the respondent's claim for dismissal for want of power or jurisdiction, and that in response the respondent filed his Further Amended Response to Initiating Application in which he expanded on his grounds for seeking dismissal of the Initiating Application.  In addition, counsel for the respondent submitted that the respondent's submissions on jurisdiction provided full details of the basis for the application for dismissal.[92]  Counsel for the respondent submitted that there can be no doubt whatsoever that Ms Fabrizi was fully aware of the respondent's grounds for seeking dismissal because in written submissions, her counsel sought to respond to those arguments.[93]  We are unable to accept these submissions.  Neither the Further Amended Response, any correspondence passing between the parties, or the respondent's submissions on the 'jurisdictional issue' made clear how the Family Court could determine the 'jurisdictional issue' as a preliminary issue, or what principles should be applied in that determination.

   [92] Respondent's submissions [15] ‑ [16].

   [93] Respondent's submissions [17], WAB 27.

3. While the respondent had, in the 27 March 2020 letter, put the Family Court and Ms Fabrizi on notice that he wished to raise the 'jurisdictional issue' at the same hearing as that listed for the First and Second Interim Applications, it was far from clear, either at that time, or at any time prior to the Hearing, that the respondent intended to ask the Court to finally determine that 'jurisdictional issue' at the Hearing, or how the respondent proposed that the learned primary judge could do so. 

4. Counsel for the respondent on the appeal acknowledged that there was nothing in the correspondence passing between the parties prior to the Hearing which expressly indicated that they had agreed that that Hearing would be for the purposes of a final determination of the ’jurisdictional issue’.[94]  However, he submitted that what passed between the parties was sufficient to establish with clarity what was to be resolved at the Hearing.[95]  Having regard to the relevant content of the correspondence, which we have summarised above, that submission is without merit. 

   [94] ts 26.

   [95] ts 26.

5. Further, counsel for the respondent submitted that a reader of the written submissions filed by the respondent in relation to the 'jurisdictional issue' would have appreciated that the respondent's contention was that at the Hearing, the court should dismiss the Initiating Application in its entirety having regard to the 'jurisdictional issue'.[96]  We are unable to agree.  The respondent's written submissions failed to make clear how the respondent proposed that the 'jurisdictional issue' could or should be determined at the Hearing.

   [96] ts 39 - 40.

6. In short, the nature and source of the power said to be invoked by the respondent in raising, for determination at the Hearing, the jurisdiction/power contention was and at all times remained obscure.

7. Secondly, when counsel for the respondent indicated at the Hearing that he wished to press the 'jurisdictional issue' the learned primary judge decided to deal with that issue as a preliminary issue to be finally determined at the Hearing.  Counsel for the respondent submitted that, in effect, the learned primary judge decided to

   determin[e] a separate issue which may dispose of all or part of a case, as expressly contemplated by Rule 10.13 of the Family [Law] Rules (Cth) even if in substance, rather than form.  That conclusion is reinforced by reference to the issue as being 'preliminary'.[97]

   [97] Respondent's submissions [7], WAB 24 – 25.

8. Counsel for the respondent submitted that while no application under r 10.13 of the Family Law Rules 2004 (Cth) (Rules)[98] was in fact made, the circumstances entitled the learned primary judge to proceed as if such an application had been made.[99] In any event, r 1.10 of the Rules permitted the Family Court to make an order on application or on its own motion.[100]  Further, counsel for the respondent submitted that if a court concludes that it does not have power to make an order for any reason, it must have inherent power to dismiss an application for such an order, without reference to any related rule of court.[101] If doubt existed as to the procedure which should be adopted to deal with the ‘jurisdictional issue’, it was open to her Honour to make such orders as she considered necessary, or to dispense with any requirement of the Rules.[102]  Whatever procedure was adopted, however, it remained incumbent upon the Court to afford procedural fairness to the parties.

   [98] As previously noted, r 13 of the Family Court Rules 1998 (WA), which was in force at the relevant time, applied the Family Law Rules 2004 (Cth) in the Family Court in the exercise of its non-federal jurisdiction.

   [99] ts 50. Rule 10.13 of the Rules provided that a party may apply for a decision on any issue, if the decision may dispose of all or part of the case, make a trial unnecessary, make a trial substantially shorter or save substantial costs. Rule 10.14 provides that on an application made under pt 10.3 (which includes r 10.13) the court may, amongst other things, decide an issue or make a final order on any issue.

   [100] ts 50.

   [101] Respondent's submissions [9], WAB 25.

   [102] Family Law Rules 2004 (Cth) r 1.09(b), r 1.12(2), as applied by r 13 of the Family Court Rules 1998 (WA).

9. It is telling that none of these steps were articulated at the Hearing. Had they been, Ms Fabrizi and her counsel would have had materially different notice as to what was to be decided in the preliminary issue, the questions that would be considered in dealing with that preliminary issue, the nature and content of the information that the learned primary judge would take into account in making her determination, and the legal principles that would be relevant to the determination of that preliminary issue. In the circumstances and for the reasons already outlined, Ms Fabrizi and her counsel had no reasonable notice as to any of those matters.  Procedural fairness required that they be given that notice.

10. Thirdly, the 'jurisdictional issue' was in fact a submission that the Family Court would not exercise its discretion to make a property settlement order of the kind sought in the Initiating Application because Ms Fabrizi would not be able to satisfy the requirements of s 205ZG(8)(b). Satisfaction of the requirements of that provision would require the Court:

    (i)to form an opinion that it would have made an order with respect to property if Mr Grasso had not died; and

    (ii)to form an opinion that it was still appropriate to make an order with respect to property (at the date of its determination, and notwithstanding that Mr Grasso had died).

11. In any case where the Family Court has jurisdiction to deal with an initiating application for property settlement orders filed by a party to a de facto relationship, we are unable to see how the Court could make any determination as to the opinions in s 205ZG(8)(b) without applying all of the criteria for the making of a property settlement order to the facts and circumstances in existence immediately prior to other party's death, and at the date of its determination.

12. In the present case, in determining whether to make a property settlement order under s 205ZG(1), the Family Court clearly had a wide discretion to make such orders as it considered 'appropriate'. However, in the exercise of that discretion, the Court would be required to take into account the matters set out in s205ZG(4) (as at the time immediately prior to Mr Grasso's death). In turn that would require the Court to consider the many and varied matters in 205ZD(3), at the time immediately prior to Mr Grasso's death, so far as they were relevant. Having taken into account all of those matters, in order to identify the order or orders which might be made, the Family Court would then have been required to determine whether it was satisfied that in all of the circumstances (applicable immediately prior to Mr Grasso's death) it was just and equitable to make a property settlement order. Only if the Court was so satisfied could it be regarded as 'appropriate' to make a property settlement order under s 205ZG(1), so that it could form the opinion under s 205ZG(8)(b)(i) that it would have made an order with respect to property if Mr Grasso had not died. If the Court was satisfied that it would have formed that opinion, then it would be necessary for it to repeat the same exercise, having regard to the facts and circumstances in existence at the date of its determination (and thus after Mr Grasso's death), in order to determine if it was still appropriate to make a property settlement order under s 205ZG(1).

13. In our view, given the number of factual matters required to be considered under s 205ZG(4) (including such matters in s 205ZD(3) as may be relevant), and having regard to the evaluative exercise required by the 'just and equitable' test in s 205ZG(3), satisfaction of the requirement in s 205ZG(8)(b) could not properly be determined as a preliminary issue, and separately from the final determination of an application for property settlement orders. In our respectful view, the question whether the requirements of s 205ZG(8)(b) would be met in this case could only be answered on the basis of findings of fact made by the Family Court after a trial at which the parties adduced all of the evidence on which they wished to rely in respect of the Initiating Application, and were given the opportunity to test the evidence of the other party's witnesses through cross‑examination.

14. However, as counsel for the respondent on the appeal acknowledged,[103] the evidence before the Family Court at the Hearing would necessarily have been the affidavit evidence filed in support of, or opposition to, the First and Second Interim Applications.[104] No evidence had been filed by either party in relation to the 'jurisdictional issue', and nor is there any suggestion that the parties had filed evidence, or that that evidence was before the Court at the Hearing, in relation to the range of matters in s 205ZG(4). While Ms Fabrizi's evidence in support of the First and Second Interim Applications did address some of the issues to which the Family Court's attention would be directed under s 205ZG(4) (including those under s 205ZG(3)), that evidence does not appear to comprehensively deal with those issues. Counsel for Ms Fabrizi pointed to the incompleteness of the evidence in the hearing before the primary judge.[105] 

    [103] ts 39.

    [104] Rule 5.09 of the Family Law Rules 2004 (Cth), as applied by r 13 of the Family Court Rules 1998 (WA), permitted affidavit evidence to be filed in support of an application for an interim order.

    [105] ts 14, 15, GAB 14, 15.

15. In our respectful view, by determining to deal with the 'jurisdictional issue' first, as a 'preliminary issue', and thus solely on the basis of the affidavit evidence filed in respect of the First and Second Interim Applications, the learned primary judge denied Ms Fabrizi the opportunity to adduce all of the evidence on which she wished to rely in support of her Initiating Application for property settlement orders, including evidence dealing with the facts and circumstances in existence both immediately prior to Mr Grasso's death, and at the date of the Hearing, and to cross‑examine the respondent on the evidence he gave.  The evidence in Annexure JDL8 is an example of the evidence that Ms Fabrizi would have put before the Family Court in respect of the Initiating Application.  As for cross‑examination, Ms Fabrizi was not given an opportunity to cross‑examine the respondent in relation to his evidence as to how the Trust Deed came to be executed.

16. Moreover, for the reasons in [104] ‑ [107], the question arising under s 205ZG(8) was inapt for determination by way of a preliminary issue. All the more so, that question was inapt for determination on a summary basis.

17. Fourthly, counsel for the respondent submitted that there was no unfairness in the procedure adopted, because this was not a case in which the learned primary judge dismissed the proceedings on their merits.  He submitted that the learned primary judge instead dismissed the proceedings on the ground that Ms Fabrizi had not disclosed any 'principled reason' for making a property settlement order after Mr Grasso's death.  The reasons of the plurality in Stanford v Stanford[106] made the point that the Family Court will not depart from property arrangements entered into consensually by competent parties, without some principled reason for doing so. Considerations of that kind may clearly be relevant in relation to the evaluation of what is 'just and equitable', but do not usurp the statutory criteria in s 205ZG for making property settlement orders. Furthermore, and in any event, in order to assess whether there is a principled reason for departing from the parties' consensual arrangements by making a property settlement order, the Family Court will necessarily have to consider all of the facts relevant to the parties' entry into those consensual arrangements. Nothing in Stanford v Stanford suggests otherwise.

    [106] Stanford v Stanford [41] - [44].

18. Fifthly, counsel for the respondent submitted that the approach taken by the learned primary judge to determining the 'jurisdictional issue' was adopted with Ms Fabrizi's imprimatur.[107]  He also submitted that by agreeing to proceed with the 'jurisdictional issue' argument at the Hearing, Ms Fabrizi acquiesced in the procedure which the learned primary judge undertook, namely to determine the 'jurisdictional issue' by reference to the material that was then before the court.[108]  In support of these submissions, counsel for the respondent pointed to the fact that Ms Fabrizi's counsel 'made detailed submissions' (in writing, in addition to the submissions advanced orally) as to why the 'jurisdictional issue' should be resolved in her favour.  Further, he pointed to the fact that counsel for Ms Fabrizi did not seek an adjournment,[109] nor did he raise any objection to the respondent proceeding to argue the question of power or jurisdiction as a preliminary issue.  He submitted that Ms Fabrizi was now bound by the way she conducted her case.[110] 

    [107] Respondent's submissions [8], WAB 25.

    [108] ts 40 - 41.

    [109] Respondent's submissions [18], WAB 27.

    [110] Respondent's submissions [10], WAB 25.

19. It is true that during the Hearing the learned primary judge heard from counsel for Ms Fabrizi as to the proposed preliminary issue, and that counsel confirmed that he had no objection to dealing with that issue first.  However, having examined the transcript of the Hearing (summarised above) there is no basis to suppose that counsel for Ms Fabrizi understood what procedure the learned primary judge proposed to adopt, and what its implications would be.  Counsel for Ms Fabrizi noted that a jurisdictional argument had previously been raised and rejected.  He submitted that as the Court had previously found that it had jurisdiction to make a property settlement order, the respondent could not now argue to the contrary.  He clearly anticipated that the Family Court would swiftly reject the argument, and was concerned that the Court have time, within the limited hearing time available on that day, to deal with the First and Second Interim Applications, which were pressing. 

20. Further, the oral submissions made by counsel for Ms Fabrizi as to the merits of the 'jurisdictional issue' were extremely brief. To us, that bespeaks an assumption that to demonstrate that a property settlement order would ultimately be made, so as to overcome the 'jurisdictional issue', required the Court to reach what was (from Ms Fabrizi's perspective) only a very low threshold of satisfaction - that it could not be determined, on a summary basis, that s 205ZG(8)(b) would be not met in this case. For the reasons already given, such an assumption was an entirely reasonable one.

21. Furthermore, any competent counsel who understood that the learned primary judge was proposing to finally determine the 'jurisdictional issue' as a preliminary issue, and on the basis of the affidavit evidence filed in support of the First and Second Interim Applications alone, would undoubtedly have made submissions seeking to dissuade the Court from that course, and would have sought an adjournment to have the opportunity to file such further evidence as their client would wish to adduce in relation to the application for property settlement orders.  The failure by counsel for Ms Fabrizi to pursue either course reinforces the conclusions in [113] and [114] above.

22. Counsel for the respondent conceded that Ms Fabrizi 'may have failed to appreciate the consequences of so agreeing to the procedure'.  That being the case, and in light of the conclusions in [113] and [114] above, the failure by counsel for Ms Fabrizi to object cannot be regarded as acquiescence in, much less an imprimatur for, the procedure adopted by the learned primary judge. Given the nature and source of the power invoked by the respondent, and that the evidence relied upon by him was never communicated with clarity, it cannot be said that there was any acquiescence on the part of Ms Fabrizi.   

23. For the above reasons, in determining the 'jurisdiction issue'  adversely to Ms Fabrizi on a summary basis, the primary judge failed to afford procedural fairness to Ms Fabrizi and erred in principle in the manner stated in [110] above.

Was the breach of the requirement for procedural fairness a material one?

1. Not every departure from the requirement to afford procedural fairness will entitle the aggrieved party to a rehearing.  Ordinarily, in order to ground relief, a failure to comply with the requirement to afford procedural fairness must have been material, in the sense that it operated to deprive the party of the possibility of a successful outcome.[111] 

   [111] Defendi v Szigligeti [59] citing Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145, 147; Nobarani v Mariconte [2018] HCA 36; (2018) 359 ALR 31[38]; Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [15], [73], [250].

2. In some cases, a change in procedure can, of itself, be shown to have resulted in unfairness, and thus to have denied a person a fair opportunity to be heard.[112]  In such cases, practical injustice will arise simply in the denial of an opportunity which, in fairness, ought to have been given.[113] 

   [112] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [14], [34] (Gleeson CJ).  For examples of such cases see also the analysis in Minister for Immigration and Border Protection v WZARH and Anor [2015] HCA 40; (2015) 256 CLR 326 [64] ‑ [69] (Gageler and Gordon JJ).

   [113] See, for example, Minister for Immigration and Border Protection v WZARH and Anor [2015] HCA 40; (2015) 256 CLR 326 [60] (Gageler and Gordon JJ).

1. In our view, this is a case where the change in procedure – from the determination of the First and Second Interim Applications, in the usual manner for determination of interim orders, to the final determination of the 'jurisdictional issue' on the basis of the evidence adduced for the purposes of the Interim Applications – resulted in a practical injustice. There is no doubt that the breach of procedural fairness was material in that Ms Fabrizi was denied the opportunity to put before the Family Court evidence dealing with the factors required to be considered under s 205ZG(4). The evidence in Annexure DJL8 is an example of some of the evidence that Ms Fabrizi would have put before the Court, if given the opportunity to do so. In our view, the admission of evidence of that kind would be significant in Ms Fabrizi establishing that a property settlement order would be appropriate, in the circumstances identified in s 205ZG.

2. Ground 2 has been made out.   

(g)     Why ground 3 succeeds

1. For the reasons set out in [104] ‑ [110] above, in our view the learned primary judge misdirected herself as to the proper test to be applied – both in dealing with the 'jurisdictional issue' as a preliminary issue, and in determining that issue summarily.

2. As grounds 2 and 3 have been made out, it is unnecessary to deal with grounds 1 and 4 of the grounds of appeal.

(h)     The orders which should be made.

1. The following orders should be made:

   1.The appeal is allowed.

   2.The order of the learned primary judge made on 24 September 2020 is set aside.

   3.The matter is remitted to the Family Court of Western Australia for determination, according to law, of the appellant's Initiating Application for orders under s 205ZG of the Family Court Act 1997 (WA).

1. We will hear from the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

EN

Associate to the Honourable Justice Pritchard

3 MARCH 2022