FINDLAY & DANIELS
[2012] FamCAFC 88
•25 June 2012
FAMILY COURT OF AUSTRALIA
| FINDLAY & DANIELS | [2012] FamCAFC 88 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO ADDUCE FURTHER EVIDENCE – where the Regional Appeals Registrar refused to accept for filing the wife’s application in an appeal seeking leave to adduce further evidence and affidavit in support as the wife had omitted to sign the application – where at the hearing on 8 March 2012 the Full Court determined to accept the documents and treat them as having been filed that day – where the husband’s counsel did not oppose the Full Court receiving the application and looking at the documentation – where the affidavit and the annexures referred to therein comprise complaints about alleged issues that arose almost entirely prior to the making of the final orders and are not matters that the wife can now pursue – where the material provided by the wife in the affidavit and the annexures referred to therein do not satisfy the relevant tests and do not demonstrate that the trial judge made an error – application in an appeal dismissed. FAMILY LAW – APPEAL – LEAVE TO APPEAL – where the facts presented in support of the application for leave do not establish an error of principle by the trial judge and/or that the decision sought to be appealed against caused the wife a substantial injustice – where even if leave to appeal was granted the grounds of appeal as framed are such that the appeal would not have any chance of success – application for leave dismissed. FAMILY LAW – APPEAL – COSTS – where the husband sought an order for costs against the wife if her application was unsuccessful – where the wife’s application was wholly unsuccessful – costs ordered in favour of the husband. |
| Family Law Act (1975) (Cth) |
| CDJ v VAJ (1998) 197 CLR 172 Rutherford and Rutherford (1991) FLC 92-255 |
| APPLICANT: | Ms Findlay |
| RESPONDENT: | Mr Daniels |
| FILE NUMBER: | SOA | 19 | of | 2011 |
| APPEAL NUMBER: | MLC | 1996 | of | 2008 |
| DATE DELIVERED: | 25 June 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Finn, Strickland and Forrest JJ |
| HEARING DATE: | 8 March 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 January 2011 & 17 February 2011 |
| LOWER COURT MNC: | [2011] FamCA 88 & [2011] FamCA 89 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Combes |
| SOLICITOR FOR THE RESPONDENT: | Holt & Macdonald Pty Ltd |
Orders
The Application in an Appeal filed by the wife on 8 March 2012 be dismissed.
The Application for Leave to Appeal filed by the wife on 16 February 2011 be dismissed.
The wife pay the husband’s costs of and incidental to the Application for Leave to Appeal, such costs to be assessed on a party/party basis in default of agreement between the parties as to the amount of costs to be paid.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Findlay & Daniels has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: MLC 1996 of 2008
File Number: SOA 19 of 2011
| Ms Findlay |
Applicant
And
| Mr Daniels |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 16 February 2011 Ms Findlay (“the wife”) seeks leave to appeal against orders made by Dessau J on 21 January 2011. The respondent to the appeal is Mr Daniels (“the husband”).
In summary, the orders sought to be appealed against dismissed the wife’s applications filed 17 December 2010, 21 December 2010 and 21 January 2011. The orders further provided for a Registrar of the Family Court to sign all documents on behalf of the wife to remove her as a director of the parties’ three companies and to effect the withdrawal of any bank funds held in the parties’ joint names or by their three companies. The wife was also restrained from taking any action on behalf of the companies and from instituting proceedings under the Family Law Act 1975 (Cth) (“the Act”) without leave of the Court. Lastly, the wife was ordered to pay the husband’s costs in the amount of $5,000.
The application for leave to appeal is opposed by the husband as is the appeal if leave is granted.
The application for leave to appeal was initially listed for hearing on
13 February 2012. However, the wife did not attend and ultimately we made an order adjourning the hearing of the application to 8 March 2012. We did so because of concerns about the wife’s state of health, and we refer to our reasons for judgment delivered in support of the orders that we made. Apart from adjourning the hearing of the application we made a further order as follows:
…
2.In the event that the appellant wife does not appear in person or by legal representative on Thursday 8 March 2012 at 9am, then the Court will proceed to determine the appeal on the basis of the summary of argument already filed by the appellant wife on
2 September 2011 and the respondent husband’s summary of argument filed on 23 September 2011.…
Following the making of the said orders on 6 March 2012 the wife informed the Regional Appeals Registrar that she would be unable to physically attend the hearing listed for 8 March 2012. However, at her request she was given leave to attend that hearing by way of a telephone link. At the time the wife was in hospital recovering from surgery. On the same date the wife forwarded to the Court an affidavit of her treating medical practitioner which confirmed that as a result of injuries suffered in an accident in January 2012 and her subsequent hospitalisation and surgery the wife was unable to physically attend at the hearing on 8 March 2012. The treating doctor also advised that the wife had been on a number of medications and “that may have affected her cognitive functions”. In any event, at the hearing before us Ms Findlay attended by way of telephone link and she indicated that although she was then on medication she had prepared her written summary of argument when she was not taking medication and she was therefore comfortable to rely on her written summary of argument and not say anything further.
On 27 January 2012 the wife sent to the Court an Application in an Appeal seeking in effect leave to adduce further evidence, and an affidavit in support to which there were a number of annexures, with both the affidavit and those annexures identified therein comprising the further evidence. There were two difficulties with these documents though. First, not all of the annexures were received by the Court, and secondly the wife omitted to sign the application. For the latter reason the Regional Appeals Registrar correctly refused to accept the same for filing and referred the matter to us. At the hearing of the application for leave to appeal we determined to treat the application as having been filed on that day, and as to the missing annexures we were told by the wife that they were “on the court file anyway” and we could access them there.
In these circumstances we indicated that we would look at the documents, and if we needed to we would call on the parties subsequently to make submissions about the further evidence. On that basis the husband’s counsel did not oppose us receiving the application and looking at the documentation.
We have determined that we do not need submissions from the parties about this further evidence, and we address this evidence later in these reasons.
Relevant Background
The substantive property settlement proceedings were heard by Dessau J in November and December 2009, and on 22 December 2009 her Honour delivered her reasons for judgment. However, her Honour was not able to make the final orders at that time because of the need for further evidence and submissions as to how the orders should be expressed, and she then delivered further reasons and made the final orders on 9 March 2010. In summary, the orders provided for a 50 per cent/50 per cent division of the assets, with the husband to receive a cash payment equivalent to the value of the real estate and shares to be retained by the wife. The forensic accounting firm, N, was ordered to effect the winding up of the parties’ entities under the instruction of the husband.
Between March 2010 and January 2011 there were a further four appearances before Dessau J to deal with the husband’s enforcement applications, the wife’s application for a stay of orders pending her application to appeal out of time (the latter of which was dismissed by Strickland J with costs ordered against the wife on 24 September 2010), and the wife’s contempt application filed on 21 December 2010 that she ultimately withdrew on 21 January 2011.
When the matter again came before Dessau J on 21 January 2011,
her Honour made the orders referred to below and delivered brief ex tempore reasons for judgment, followed later by further reasons for judgment on
17 February 2011. We explain in a moment why her Honour did this.
Orders made 21 January 2011
Dessau J made the following orders:
1.That the wife shall have leave to withdraw her Application for Contravention filed on 21 December 2010.
2.That the applications otherwise filed by the wife on 17 December 2010, 21 December 2010 and today shall be and are hereby dismissed.
3.That pursuant to s 106A of the Family Law Act a Registrar of this Court shall be appointed to sign all documents on behalf of the wife upon the request of the husband’s solicitor:
(a)To effect her removal as a director of:
(i) [A Pty Ltd]
(ii) [P Pty Ltd]; and
(iii) [P Global Pty Ltd]
and until her removal has been effected, the wife is by herself, her servants and/or agents restrained from doing any act or signing any document, or attempting to do so, on behalf of those companies, including but not limited to instructing [Mr Z] to undertake or continue audit work or other work in relation to [A Pty Ltd] and/or the other companies and/or the [A Superannuation Fund]; and
(b) To effect a withdrawal of any bank funds held in the parties’ joint names or the following companies:
(i) [A Pty Ltd]
(ii) [P Pty Ltd]; and
(iii) [P Global Pty Ltd]
4.That the husband’s solicitor is requested to serve a copy of these orders on [Mr Z] as soon as practicable to draw to his attention that he no longer has instructions to continue any audit activities in relation to [A Pty Ltd], the [A Superannuation Fund], [P Global Pty Ltd] and/or [P Pty Ltd].
5.That pursuant to s 118 of the Family Law Act the wife shall not, without leave of a Court having jurisdiction under this Act, institute proceedings under this Act save that her rights of appeal are not affected by this order.
6.That the wife shall pay the husband’s solicitors a sum of $5,000 costs in relation to these proceedings, such sum to be deducted from the wife’s share of the Holt & McDonald [sic] Trust Account monies referred to in paragraph 2(d) of the orders of 9 March 2010.
7.That the preparation of these orders shall be expedited.
The wife seeks leave to appeal against all of these orders but clearly there can be no issue about Order 7, and with Order 1 that was made at the request of the wife herself. Indeed at the hearing before us the wife indicated that it was an “oversight” to have included Order 1 in the orders sought to be appealed against.
Ex tempore reasons for judgment delivered 21 January 2011
The trial judge commenced her reasons for judgment by outlining the applications and evidence before the Court. In summary, the wife had filed an Application in a Case and two supporting affidavits on 17 December 2010, and an Application in a Case and an Application for Contravention on 21 December 2010, both of which were supported by an affidavit filed on the same date. On
14 January 2011 the husband filed a response to the wife’s application, his affidavit, an affidavit of his solicitor Mr Ryan, an affidavit of the accountant
Mr I , and on 18 January 2011 an affidavit of the wife’s neighbour Mr Y. In his response the husband sought orders that the wife’s earlier applications be dismissed, that the wife be declared a vexatious litigant and be restrained from filing any further applications without leave of the Court, and that she pay the husband’s costs on an indemnity basis. At the hearing on 21 January 2011 the wife withdrew her contravention application, the husband made an oral application for the wife’s later applications to be dismissed, and the trial judge granted leave for the wife to file an Application in a Case in relation to the affidavit by Mr I.
The trial judge noted that whilst the husband was not properly served with most of the applications, no issue was taken with service.
Her Honour determined there was no merit in the wife’s applications and proposed to make orders dismissing all of the wife’s applications, noting that “the need for finality and certainty prevails over the desirability for parties to immediately understand the full reasoning contemporaneously with orders” because “[i]f these orders are left undone then there is a strong probability that the final orders of 9 March 2010 cannot be brought to conclusion”. The trial judge also determined that the husband’s application for the wife to be declared vexatious and restrained from commencing proceedings without leave was reasonable, given the wife’s past conduct in filing various applications pending a reserved decision or adjourned proceedings.
Turning to the issue of costs, the trial judge proposed to order costs on the basis that the wife had been unsuccessful in her applications (which had put the husband to expense), and that the husband had been successful in the orders he sought. Whilst the husband sought indemnity costs, the trial judge considered party/party costs to be more appropriate when taking into account the wife’s personal circumstances, namely her “apparent current frailty”, the number of outstanding and substantial costs orders against her, and the fact that the orders her Honour proposed to make should ameliorate the problem of the husband having to return to court. Her Honour determined the “cheapest course” was to fix costs in the amount of $5,000, to be deduced from the wife’s share of the monies held on trust by the husband’s solicitors.
Reasons for judgment delivered 17 February 2011
The trial judge commenced her reasons for judgment by recording the orders made on 21 January 2011 and her reasons for pronouncing those orders without initially providing reasons for judgment.
Her Honour considered that the complexities of the matter arose mainly because the final property orders had not been fully executed as a result of the wife’s conduct in failing to sign documents and provide accurate information, and issuing various applications. The trial judge noted that details of the wife’s attitude and conduct were “woven through” both her substantive and subsequent reasons for judgment, and in addition, her Honour referred to the wife’s “appalling conduct” in the January 2011 proceedings included taking documents from counsel for the husband’s papers in Court, and sending a “barrage of unproductive mischievous and/or threatening emails” to the husband, his solicitors, N Firm, the Court and others.
The trial judge went on to outline the four applications filed by the wife and the husband’s response to those applications, including the supporting affidavit evidence referred to above. Her Honour noted that the three Applications in a Case sought a total of 45 orders including orders against various non-parties, many of which were “traversing old ground” and some of which were “not easily understood or in a viable form”.
Her Honour firstly addressed the wife’s Application in a Case filed on
17 December 2010 and outlined the “saga” in obtaining properly completed shares transfers, which was ultimately finalised at the hearing before Dessau J on 21 January 2011.
In this application the wife sought an order that the husband’s solicitors “desist from being uncooperative, forceful and ‘bullying’ in their communications with [Ms Findlay]”. Her Honour found that there was no basis or need for such an order. The wife also purported to withdraw her consent to N Firm continuing as the jointly appointed accountants. However, her Honour noted that this was not something that the wife could do, given that their appointment was the subject of the final orders made in March 2010.
In her application the wife also sought to appoint chartered accountant and auditor, Mr Z, to audit A Pty Ltd as trustee for the A Superannuation Fund. The application was accompanied by an affidavit of Mr Z, however, the trial judge did not accept that affidavit as “truly objective or independent”. That was immaterial though because the final orders were “absolutely clear” as to how the winding up was to proceed.
Her Honour then set out a number of the wife’s complaints against Holt & Macdonald, and Mr Ryan of that firm, including the misuse of trust monies, bullying and perjury. However, the trial judge found no evidence to support these complaints beyond the wife’s bald assertions, and there was no basis for any order to be made.
Lastly, the wife sought an order that Holt & Macdonald establish an interest-bearing trust account in the sum of $450,000 for monies received by the husband pursuant to Order 5(b) of the final property orders. However, again the trial judge found no basis for an order that any sum be paid into a trust account. Her Honour did note though that some monies had been released to the husband in late 2010 as Mr Ryan “had every reason to believe” that the wife had received share transfers in the proper registrable form, although unbeknownst to him some were in fact not in registrable form.
The trial judge then turned to consider the wife’s Application in a Case filed
21 December 2010, and found that many of the 18 orders sought were “not in a coherent form”.
The wife firstly sought orders that Auscript provide “verbatim transcript of proceedings” and a copy of “the claimed agreement” between Auscript and the Family Court authorising Auscript to edit transcripts, and in the event that such an agreement did not exist the wife be compensated in the amount of $6,365 (being the total of the payments made by her to Auscript).
The wife had been provided with CDs of the transcript of evidence from the property settlement trial, and was alleging that “the tapes were ‘edited’”. She claimed that Auscript conceded to her that there had been editing and she annexed to her affidavit correspondence between herself and Auscript. However, what Auscript were saying was that audio tapes are edited to remove any judgment or order and any audio not part of official proceedings before they are made available to litigants. Thus her Honour found there was no basis to make the orders sought.
Her Honour then described the balance of the orders sought by the wife in this application as falling into three categories. First, there were orders sought relating back to matters already dealt with in the final orders, and of course nothing further could be done about that. Secondly, an order was sought to compel the husband to complete an earlier offer of settlement, but as
her Honour said there was no power to make such an order. Thirdly, there were a number of orders sought relating to the wife’s allegations of perjury against the husband, his solicitor, Mr I of N Firm, and the husband’s senior counsel, some of which were incoherent. Again her Honour found that there was no basis for any of these orders to be made.
Her Honour went on and found that there was no basis to grant the wife a stay of the final orders, and her Honour described the complaint by the wife as to the method by which documents were sent to her by the Court as an absurd waste of the Court’s time.
Her Honour then turned to consider the wife’s application filed in Court on
21 January 2011, noting that it “overlapped with her other applications and affidavits” as it effectively disputed N Firm’s version of their efforts in winding-up the entities. The trial judge again indicated the wife’s “incapacity to accept the final orders”, and noted the orders already in place restraining the wife from signing any documents or taking any action on behalf of the entities, including appointing Mr Z to audit accounts. Her Honour considered that that order was essential to ensure that the wife could no longer manipulate director’s powers to circumvent the final orders.
Finally, the trial judge turned to consider the husband’s response filed
14 January 2011, determining on the evidence that she had “no hesitation in granting [the husband’s] application for an order that a Registrar sign documents necessary to give effect to the final orders”, as it was impossible to be confident that the wife would “respond in a co-operative or timely manner”. Similarly, the trial judge found that the husband’s application for the wife to be declared vexatious and restrained from bringing further proceedings without leave of the Court was “easily substantiated on all of the material”.
Her Honour then recorded her observations of the wife’s declining mental health and urged her to seek and accept whatever medical assistance she could.
Her Honour then turned to further consider the application pursuant to s 118 of the Act made by the husband and concluded that the wife’s applications were “frivolous and/or vexatious”. Her Honour acknowledged that it was a serious matter to preclude a party from freely commencing proceedings, but
her Honour found as follows:
63.[Ms Findlay] has abused the court system with applications fixated upon her unhappiness with final orders, and directed towards obstructing their being given effect. She has made numerous and repetitive applications, some directed towards people who are not parties to the proceedings, some simply ill-founded, and some plain mischievous as illustrated above in relation to when she received the final orders.
Leave to appeal
The facts put by the wife in support of her application for leave to appeal are as follows:
1.That [N Firm] (or a person employed by that firm) should not be appointed as AUDITOR of [A Superannuation Fund] or any of the companies because [Mr U] prepared the accounts and there is a conflict of interest because he is a partner of the firm. [Mr I], an employee of [N Firm], has lied on oath and this has been proven by correspondence from [Mr U] provided to the Honourable Court.
2.Her Honour has said that [N Firm] were appointed as the ‘single expert witness’. This is not correct. Orders of 6th November 2008 state clearly that [Mr U] was appointed, by consent of [Ms Findlay], to prepare accounts and income tax returns. The appointment of an INDEPENDENT Auditor has been made by the TRUSTEE of [A Superannuation Fund], in accordance with the SIS Act 1995 and Corporations Law 2001.
3.The Appellant, has been denied access to money by deliberate delays by [Mr I] in providing correctly completed share transfer forms to her (from 9th March 2010 until 21st January 2011). The lack of money has restrained the Appellant from obtaining legal advice. The APPELLANT provided CORRECTLY prepared share transfer forms for [Mr Daniels] to sign at the hearing of 21st January 2011. [Mr Daniels and N Firm] caused unreasonable delays.
4.There is a long standing business relationship between the Respondent’s Lawyers and [N Firm] and the Appellant alleges that this taints the independence of [N Firm].
5.[N Firm] have exploited their appointment by the Honourable Court and have raised invoices in excess of $65,000 and have refused, by omission, to provide detail of the charges by entity to the Appellant or to provide any costing details of the charges.
6.[Mr Z] (a registered company auditor who was unknown to the appellant prior to his appointment by the board of directors of the entities) was legitimately appointed as AUDITOR of the entities by the Board of Directors.
7.Holt and MacDonald have mixed [A Superannuation] Trust monies in an account which is NOT held as a TRUST ACCOUNT but as a CONTROLLED MONEYS (sic) account for [Mr Daniels] and [Ms Findlay] and monies have been invested and dispensed by Holt and MacDonald without reference to [Ms Findlay], including the payment of monies to [N Firm] without any breakdown of the expenses per entity and ignoring the quotes provided to [Ms Findlay] by [N Firm].
8.The Trustee of [A Superannuation Fund] ([A Pty Ltd]) is a company controlled by [Ms Findlay] and she is a director of the Trustee and a member of the FUND The proposed removal of [Ms Findlay] as a director of the Trustee removes her rights to be a member of the Fund.
9.The outright dismissal of the Appellant’s applications with NO reasons yet given is unacceptable, particularly where Auscript has edited transcripts which should be provided as VERBATIM records.
10.Further detail to be provided
The principles as to what is required to obtain leave to appeal are well settled. The applicant has to demonstrate an error of principle or that the decision appealed from caused her a substantial injustice (Rutherford and Rutherford (1991) FLC 92-255). Unfortunately for the applicant, who does not have legal representation, it is not readily apparent that the facts that she has outlined satisfy those tests. We are also not assisted in this regard by the written submissions presented by the applicant, and we are certainly not assisted by the grounds of appeal relied on in the event that leave is granted.
Grounds of appeal and orders sought
The grounds of appeal as contained in the Notice of Appeal filed by the wife on 16 February 2011 were very general and not readily understandable. They were expressed as follows:
1.Apprehended Bias application to be filed
2.Orders contrary to Law
3.Other grounds to be detailed
No “apprehended bias application” was filed and there was no detailing of any other grounds. Thus, we must say that the facts put in support of the application for leave, although difficult to follow, provide a more fulsome exposition of the complaints that the wife makes in relation to the orders made by the trial judge than do these grounds of appeal.
In her Notice of Appeal the wife seeks orders that Mr Z be appointed as auditor, that the A Superannuation Fund deposits be held by State Trustees Ltd and only released by Court order, that N Firm provide details of their contract with Holt & Macdonald and account for all charges, and that the wife be allowed to subpoena Auscript to provide unedited transcripts and attend Court to explain the edited transcripts provided to the wife. Furthermore, the wife seeks orders that “all orders not yet dealt with” be stayed pending appeal, and that the wife be granted leave to file an Application in a Case in relation to apprehended bias. Of course, no such leave is required.
The application in an appeal filed by the wife on 8 March 2012 and the further evidence sought to be adduced by her
First, as to the application itself, we note that apart from in effect seeking leave to adduce further evidence in paragraph 1 the wife sought a number of other orders. We do not propose to set out those orders because the simple fact is that they are not orders that we can or indeed would make. Thus we propose to dismiss paragraphs 2 to 9 and 11 and 12. With paragraph 10, that seeks an order that “[Mr U’s] Report to the Honourable Court be included as ADDUCED EVIDENCE.” This is presumably referring to Mr U’s expert report provided to the Court pursuant to the orders made on 6 November 2008, and it is plain that has no relevance whatsoever to the orders that are the subject of the current application. Thus we propose to dismiss that paragraph as well.
Turning to the affidavit in support of the application, it comprises principally a litany of complaints by reference to the annexures about alleged issues that arose almost entirely prior to the making of the final orders, and as such are not matters that the wife can now pursue. Further, they have no relevance to the orders that are the subject of the current application, save and except that they are either a repeat, or a continuation of the issues raised before the trial judge. We will elaborate on this later in these reasons when addressing the facts relied on by the wife in support of the current application.
The annexures to the affidavit, as described in the affidavit itself, are as follows:
1.Emails relating to the affidavit of Mr U exhibiting his valuation report (as the court appointed single expert) and filed on 17 November 2009.
2.Copies of the accounts rendered by N Firm from 19 January 2009 to 9 December 2010.
3.Order made on 6 November 2008 appointing the single expert.
4.Order made on 9 March 2010 in relation to the wife’s Application in a Case filed on 4 February 2010.
5.Mr U’s valuation report dated 5 June 2009.
6.The refusal by Mr U to provide copies of the husband’s 2007 and 2008 income tax return.
7.Analysis of expenditure by the husband compared with disclosed income and assets pre 30 November 2009 and the husband’s declared expenditure plus other expenditure discovered after the trial.
8.Allegations made by Mr I that the wife had contravened court orders.
9.Email correspondence in February 2010 where Mr U denies the allegation about Mr I and apologises for any misunderstanding.
10.Email correspondence in February 2010 in relation to the wife’s requests that consolidated accounts be prepared.
11.Email correspondence in February 2010 in relation to the provision of consolidated balance sheets.
12.Email correspondence as to the inadequacy of consolidated balance sheets.
13, 14, 15.Affidavit of Mr I containing “untruthful allegations”.
We observe that although the only annexures physically received by the Court were those numbered 1 to 4, we have managed to locate most of the other annexures up to number 15 in either the Court file or in the appeal books. As to annexures 16 to 20, although they are not identified in the affidavit itself, we proceed on the basis that paragraphs 11 to 13 of the affidavit cover the material in those annexures.
Section 93A(2) of the Act provides that in an appeal the Full Court can, in its discretion, receive further evidence upon questions of fact. In CDJ v VAJ (1998) 197 CLR 172, the High Court discussed the circumstances in which an appellate court may exercise its discretion to admit further evidence. Relevantly, McHugh, Gummow and Callinan JJ said this:
104In the exercise of the discretion conferred by a power such as
s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely affect on the orders made are usually relevant to the exercise of the discretion. In an application at common law to admit further evidence, the court applies principles, bordering on fixed rules. In an application under s 93A(2) and similar provisions, the Full Court or Court of Appeal weighs factors, although it may of course develop guidelines for weighing those factors and exercising the discretion.…
109One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
…
111… The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
[Footnotes omitted]
Having reviewed the wife’s affidavit and the annexures that are referred to therein, it is readily apparent that this material does not satisfy the relevant tests. In other words, it does not demonstrate that the trial judge made an error, and we repeat what we have said in paragraph 41 above. As we will elaborate later in these reasons the wife is attempting to use these proceedings to complain about alleged issues which arose prior to the making of the final orders and which course is simply not open to her now.
In these circumstances we propose to also dismiss paragraph 1 of the Application in an Appeal. Thus the entire application will be dismissed.
Discussion – leave to appeal
We are not persuaded that the “facts” presented in support of the application for leave demonstrate an error of principle by the trial judge and/or that the decision sought to be appealed against caused the wife a substantial injustice (Rutherford and Rutherford (1991) FLC 92-255).
Addressing seriatim the “facts” supporting the application:
1.As clearly identified by her Honour, although Mr U was appointed by consent as the single expert on 6 November 2008, the appointment of N Firm to wind up the companies was the subject of the final orders made on 9 March 2010, and it was not open to the wife on the basis of withdrawing her consent to subsequently seek an order appointing another accountant, namely Mr Z “to audit” any of the companies including A Pty Ltd as Trustee for the A Superannuation Fund. Indeed, as her Honour observed the wife had unilaterally “appointed” Mr Z to conduct the audit before she brought the application seeking the order.
In any event, neither before her Honour, nor before us on appeal has the wife established any alleged “conflict of interest” in appointing N Firm or that any employee of N Firm, Mr I included, has “lied on oath”.
That disposes of this complaint, but at this point it is pertinent to point out that by far the majority of the submissions set out in the wife’s written summary of argument which she relied on for the purposes of this application raise and address matters which arose following the orders of 6 November 2008 and before the final orders made on 9 March 2010, and as such, as we have said already they have no relevance to the application that is before us which of course relates to the orders made by her Honour on 21 January 2011.
Plainly, what the wife is doing in these proceedings now is attempting to challenge the final orders made by her Honour and her reasons for making those orders. However, it is simply not open to the wife to do this. There is no appeal against those orders, and although the wife did seek to have the time to appeal extended, an order dismissing that application was made on 26 August 2010.
We also note that in this exercise the wife has roamed far and wide and attempted in her written summary of argument to raise many more matters than are set out in the facts relied on in her application for leave to appeal. For example, she complains of the trial judge failing “to apply principles of justice and equity” in her reasons, but again the reasons referred to are those given by her Honour in relation to the final orders and not the orders the subject of this application, and of the trial judge’s “abuse of process”, but significantly during the trial leading to the final orders and not during the hearing of the applications the subject of the orders sought to be appealed against, of alleged failings in the work undertaken by Mr U pursuant to the orders of 6 November 2008, of alleged lack of disclosure by the husband for the purposes of the trial that led to the final orders being made, of alleged failure by firstly the trial judge “to apply the corporation laws”, but again in relation only to matters prior to the final orders being made and thus not relevant to the current application, and secondly by Strickland J who heard the wife’s application to extend the time to appeal, and which can also have nothing whatsoever to do with the current application. Further, there were allegations of “complicity to commit fraud on [the wife]” by Mr I of N Firm, Mr Ryan, the husband’s solicitor, the husband and others, something which again relates only to pre-trial issues before the final orders were made and which has no relevance to the current application.
Her Honour commented in her reasons for judgment, correctly in our view, that the applications before her were borne from the failure by the wife to accept the final orders. We again refer to paragraph 63 of
her Honour’s reasons set out in paragraph 34 above.
2.The matters raised here are of the same ilk as those set out in paragraph 1. It is of no consequence whatsoever whether the trial judge described N Firm as being appointed as the “single expert witness”. The fact of the matter is that Mr U who was appointed as the single expert is an accountant with N Firm.
The wife also seems to have operated under the mistaken belief that she as a director of the trustee company of the superannuation fund can circumvent the orders made by her Honour. Indeed, her Honour described the wife’s actions in this regard as “manipulat[ing] [her] director’s powers” to achieve that result and, correctly and justifiably in our view, restrained the wife from signing any documents or taking any actions on behalf of the entities, including appointing Mr Z to audit accounts. We can find no error by her Honour in making these orders.
3.There was no evidence before the trial judge in support of these claims. However, even if we were to accept the accuracy of the wife’s allegations, her complaint does not raise or demonstrate any error by
her Honour in the orders that she has made, and provides no basis for granting leave to appeal against those orders.
4.This allegation appears to be directed to whether N Firm should have been appointed by her Honour because of a lack of independence. Apart from making the same comment here as we did when addressing the first paragraph above, namely, final orders have been made, and it is not open to the wife to challenge those orders in the way that she has attempted to do, there is no evidence that we have been taken to that establishes that the independence of N Firm is tainted by any relationship with the husband’s lawyers.
5.Again, even if the wife is correct in the allegations made here, her complaint fails to demonstrate any error on the part of the trial judge and provides no basis for leave to appeal being granted.
6.This appears to repeat the same issue that is raised in the second paragraph addressed above, and invites the same comment from us. It is not open to the wife to “manipulate” her position as a director to attempt to circumvent the legitimate orders made by her Honour. Further, by suggesting that the appointment of Mr Z had legitimacy the wife fails to demonstrate any error by her Honour.
7.This is plainly a complaint about process, apart from whether it is accurate or not. It is not a complaint that suggests any error on the part of her Honour in making the orders that she did. As such it provides no justification for granting leave to appeal.
8.Doing the best we can in attempting to understand the issue raised here, the wife seems to be suggesting that her Honour erred in restraining her as a director because that has the effect, she claims, of removing “her rights to be a member of the fund”.
This is an extraordinary proposition and one that we fail to accept. There is no basis and indeed no evidence to satisfy us that that is the result of her Honour’s orders.
9.This is simply not an accurate statement by the wife. When her Honour made the orders she explained why she was unable to deliver her reasons at that time and she promptly followed that up and delivered her complete reasons on 17 February 2011.
As to the allegations that Auscript has edited transcripts, the wife misunderstands that Auscript are obliged to remove from a transcript any ex-tempore reasons for judgment on the basis that they will be subsequently settled by the judicial officer and provided to the parties by the Court.
Again, there is no basis here for granting leave to appeal.
Thus, to repeat, we find that there is no error of principle established and/or no substantial injustice demonstrated, and the wife’s application for leave to appeal must be dismissed.
However, before completing these reasons, we also need to make the point, that even if leave to appeal was granted, the grounds of appeal as framed by the wife are such that the appeal would not have any chance of success. There is no evidence of “apprehended bias” by the trial judge, there is no basis for us to find that her Honour’s orders were “contrary to law”, and there are no “other grounds” detailed.
Costs
At the conclusion of the hearing we took submissions from the parties as to the issue of costs.
In the event that the application was unsuccessful the husband sought an order for costs against the wife.
In the circumstances of the wife’s application being wholly unsuccessful we consider that there are ample circumstances justifying an order for costs in favour of the husband, and we will so order.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland and Forrest JJ) delivered on 25 June 2012.
Associate:
Date: 25 June 2012
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