Garcia and Watson

[2014] FCCA 1469

FEDERAL CIRCUIT COURT OF AUSTRALIA

GARCIA & WATSON [2014] FCCA 1469

Catchwords:
FAMILY LAW – Enforcement applications – significant delay – role of principles of res judicata and issue estoppel in circumstances where appeals abandoned – attempts to re-determine matters in this Court when there remains extant judgments by another Judge of the same Court that dealt with the same issues.

Legislation:

Family Law Act 1975, ss.79, 81

Blair v Curran (1939) 62 CLR 464
Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630
Jackson v Goldsmith (1950) 81 CLR 446
Miller & Caddy (1986) 10 Fam LR 858; (1986) FLC ¶91-720

J.D. Heydon, Cross on Evidence (Ninth Australian Edition) (Sydney: LexisNexis Butterworths, 2013)

Applicant: MS GARCIA

Respondent: MR WATSON

File Number: CAC 1703 of 2007

Judgment of: Judge Neville

Hearing date: 17 February 2014

Date of Last Submission: 1 May 2014

Delivered at: Canberra

Delivered on: 10 July 2014

REPRESENTATION

Solicitors for the Applicant: Phelps Reid

Solicitors for the Respondent: Self-represented

ORDERS

By way of enforcement of Orders made on 9 December 2009 and 16 June 2010:

1. The solicitors McNamara & Associates of Suite 6, 3 Schofield Lane, Nowra in the State of New South Wales are directed to pay the monies held in their trust account, namely the sum of $493,251.40 as follows:

   (a)The sum of $140,084.70 to the Wife;

   (b)The sum of $253,166.70 to the Husband;

2. The Husband pay the Wife’s costs of and incidental to each of the Husband’s Applications pursuant to the Schedule to the Rules of this Court in the sum of $7,974.00, and that such amount be deducted from the amount the Husband is to receive pursuant to Order (1) from the trust account of McNamara & Associates;

3. From the amount the Husband is to be paid pursuant to Order (1), an amount equal to interest accrued on the $140,084.70 from 31 October 2013 to the date of payment in accordance with the Family Law scale, be paid to the Wife.

4. All outstanding applications filed by the Husband be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Garcia & Watson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1703 of 2007

MS GARCIA

Applicant

And

MR WATSON

Respondent

REASONS FOR JUDGMENT

Introduction

1. There is quite some history to this matter, which began with an Application filed by the Wife in October 2007.  It is sufficient to note the following for current purposes.

2. After a contested hearing in June 2009, Judge Brewster (as his Honour now is) pronounced final orders in relation to property matters between the parties and published reasons on 9^th December 2009.

3. Then on 16^th June 2010, his Honour published further reasons and made orders in relation to costs, which he awarded in the Respondent Wife’s favour.

4. The Husband lodged two appeals in relation to the decisions of his Honour (EA 2 of 2010 and EA 92 of 2010).  Both appeals were later deemed to have been abandoned.  There have been no applications to reinstate the appeals.

5. On 17^th February 2014, the Court noted, among other things, the following matters in making procedural orders for the resolution of the current disputes “on the papers” following the filing of written submissions:

   §The Husband has filed Applications in a Case on 23 October 2012 (this was partly discontinued pursuant to Notice of Discontinuance filed 15 February 2013), 21 November 2013, and 14 February 2014.  The last filed Application seeks to set aside the judgment of his Honour dated 9 December 2009, and all “subsequent judgments.”

   §The Wife filed an Application in a Case on 7 February 2014, which seeks to enforce the orders made in December 2009 and June 2010.

   §At the mention/directions hearing today, a time-table was fixed for the filing of submissions to determine, on the papers, the outstanding applications, with both parties being told that, in effect, the ultimate determination was for the Husband to ‘show cause’ why the orders sought by the Wife (to enforce the orders of December 2009 and June 2010) should not be made.

6. For the reasons that follow, the Husband’s outstanding Applications must be dismissed, and the orders sought in the Wife’s Application, filed on 7^th February 2014, should be made.

The Husband’s Application(s)

1. Mr Watson’s Application filed on 23^rd October 2012 actually contained no orders sought.  It referred simply to his accompanying affidavit.  That affidavit is a litany of complaints about, among others, (a) the Wife, (b) various NSW police officers, (c) the Wife’s Solicitor (and sometimes Counsel retained by the Wife), (d) his former legal representatives, (e) Judge Brewster, and (f) the conduct of the trial before his Honour.  Many of his complaints or criticisms, which are, by and large, bare assertions, are scurrilous.

2. In any event, because of a Notice of Discontinuance, filed on 15^th February 2013, only a small number of his complaints formally remained.  I leave to one side that, strictly speaking, because his Application in a Case contained no orders sought, and because his affidavit is so rambling it is difficult to distil much in the way of anything that could be framed as an order of the Court, it would be possible or permissible simply to dismiss this Application without more ado.

3. Because of the Notice of Discontinuance, Mr Watson sought some form of redress only in relation to “enforcement of [property] orders for sale of [D].”  The third order there sought stated (emphasis added): “That $300,000 of proceeds [of sale] be paid to [Mr Watson] immediately, and the balance of funds be held in trust by Ray White [omitted] until outcome of Appeal.”  Given that ‘the Appeal’ was discontinued, such an order would be useless and of no effect.

4. On 21^st November 2013, Mr Watson filed a further Application in a Case, and later, on 5^th December 2013, a supporting affidavit.  The Application was initially rejected by the Registry of the Court because there was, at the time, no supporting affidavit.  An affidavit was filed some weeks later.  It repeated many of the accusations and allegations set out in his affidavit filed on 23^rd October 2012 against the persons to whom I have already referred.

5. Orders 1-4 of that Application sought to correct, under the slip rule, various orders made by Judge Brewster, to order that certain allegedly outstanding valuation fees be paid by the Wife, and (Order 2) that a certain sum be paid to Mr Watson and the balance held in a nominated trust account “pending outcome of Appeal EA2/2010 or pending agreement otherwise resolved between the parties.”

6. Order 5, as sought, stated: “FM Brewster is asked to make/revise decisions on 2 events which have occurred subsequent to 9/12/09 Judgment, and which have impact on values used in 9/12/09 Judgment.”

7. I simply observe here that final property orders are meant to be precisely that – final.  Mr Watson was advised by the Registry of the Court that Judge Brewster ‘does not propose to re-open your case or finalise any further judgment.’  This is recorded in Mr Watson’s affidavit filed on 5^th December 2013 (p.2).  I have already noted that the allegations in this affidavit repeat those detailed in his 2012 affidavit.  They remain either (a) irrelevant to the current Application(s), (b) discursive, opaque and in many respects unintelligible, and (c) generally scurrilous.  His attacks on Judge Brewster and on the Wife’s solicitor are particularly insulting; they should never have been made.

8. On 14^th February 2014, Mr Watson filed a further Application in a Case, with a much briefer supporting affidavit.  The orders sought in this Application state:

   i.That the judgment dated 9 December 2009 include the undisclosed real property of Ms Garcia;

   ii.That the value of the overall property be reassessed;

   iii.That subsequent judgments relating to this matter also be set aside.

9. The supporting affidavit of Mr Watson essentially attaches certain documentation which, he says, evidences that the Wife had certain property that was not disclosed at the hearing in June 2009.  He also contends that a table of assets to which his Honour referred at the hearing, which was provided by Counsel for the Wife, was only provided to him by the Wife’s solicitor on the evening prior to the hearing, but for technological reasons, he could not access his email during the trial.

The Wife’s Application

1. On 7^th February 2014, the Wife filed an Application in a Case (and supporting affidavit) in which she sought the following orders:

   By way of enforcement of Orders made on 9 December 2009 and 16 June 2010:

   i.That the solicitors McNamara & Associates of Suite 6, 3 Schofield Lane, Nowra in the State of New South Wales be directed to pay the monies held in their trust account, namely the sum of $493,251.40 as follows:

   a.   The sum of $140,084.70 to the Wife;

   b.   The sum of $253,166.70 to the Husband;

   ii.That the Husband pay the Wife’s costs of and incidental to this Application and that such amount be deducted from the amount the Husband is to receive pursuant to Order I from the trust account of McNamara & Associates;

   iii.That further from the amount the Husband is to be paid pursuant to Order I, an amount equal to interest accrued on the $140,084.70 from 31 October 2013 to the date of payment in accordance with the Family Law scale, to be paid to the Wife.

2. In her affidavit, the Wife said that, pursuant to the orders of the Court of 9^th December 2009, the property known as “[D]” was sold and settled on 30^th October 2013.  A copy of the settlement statement was attached to her affidavit.  Written confirmation from the solicitors holding the funds was also provided.

3. Annexure C to the Wife’s affidavit is a letter from her solicitors, dated 27^th November 2013, to the Husband setting out the division of funds pursuant to the orders of the Court from December 2009.

4. Annexure D to this affidavit is correspondence between the Appeals Registry of the Family Court of Australia and Mr Watson, which the Wife says confirms that the appeals he had lodged have been deemed to be abandoned.

The Husband’s Submissions

1. The Husband had solicitors prepare submissions, which the Husband later “supplemented” by further email correspondence.

2. The substance of the Husband’s ‘primary submissions’ were that the Rules of Court and relevant case law require full and frank disclosure of all assets held by the parties.  However, post the trial before Judge Brewster in 2009, the Husband became aware of further property, which had not been disclosed by the Wife.  The property later discovered by the Husband should, it was submitted, be included in the asset pool.

3. The Husband also submitted that, during the trial, (a) he did not have access to a document that listed the assets of the parties, and (b) when he saw it, ‘many of the values of personalty previously agreed’ had been revised.  He contended also that during the hearing he was subject to “undue stress” which raised – unfortunately unidentified - issues of procedural fairness.

4. The Husband also submitted that the value attributed to the property “[T]” in the judgment of December 2009 was not in accordance with the document handed up at the trial.  The orders should, it was said, be amended to reflect the discrepancy.

5. The Husband finally submitted that he was denied procedural fairness during the hearing.  In what way this occurred was not detailed.

6. Further ‘submissions’ were sent by Mr Watson on 12^th and 24^th March, and again on 1^st May.  Because they deal with the Husband’s contentions on essentially factual matters, it is not appropriate for the Court to comment further, save that Mr Watson contended that he has legal advice indicating “(with optimism) the possibility of re-instating Appeals.”  No other detail is provided.

The Wife’s Submissions

1. In relation to the Husband’s 21^st November 2013 Application, the Wife said that the orders sought in relation to the transfer of certain [N] shares had already taken place.  Annexed to the submissions is the correspondence to confirm this.

2. Further, the Wife says that there is nothing further she can do to effect the transfer of shares.  She indicated that she is prepared to consent to an order that the Registrar of the Court sign any further documents on the Wife’s behalf in relation to the said transfer of shares.

3. In relation to the Husband’s Application filed on 14^th February 2014, the Wife said (in summary) that:

   a.   The disclosure application is made 4½ years after the hearing in 2009;

   b.   No explanation is given for the Husband’s delay in bringing the Applications at the current time which, in the Wife’s view, suggests that the bona fides of the Application(s) should be questioned.  Indeed, the Wife later submitted that the Husband’s Application(s) should be taken to have been filed mala fides;

   c.   The Wife gave full disclosure at all times in the course of the proceedings;

   d.   The Husband purports to rely upon (and impugn) property acquired by the Wife post separation, pursuant to her receipt of an inheritance from her Mother;

   e.   In particular, the [W] property was referred to in the Husband’s affidavit of 17^th June 2009 (para.93) and in the Wife’s affidavit of 10^th June 2009 (para.166);

   f.   The Wife disclosed her post-separation inheritance; it was noted in the Chronology dated 22^nd June 2009, and in her 10^th June 2009 affidavit (par.82).

4. More generally, the Wife submitted that the Husband’s Applications are, in reality, more of the same procrastination and delay, designed to foil and frustrate the orders made in 2009 and 2010.  She submitted that she has waited long enough, and with the appeals having been abandoned, the orders made by the Court, now many years ago, should be enforced.

5. Finally, the Wife submitted that she should have her costs of defending/ responding to the Husband’s Applications and for bringing her own Application for the enforcement of the 2009 orders.  The amount claimed, pursuant to the Schedule to this Court’s Rules, is $7,974.00.

Disposition and Conclusion

1. There are many obstacles to the success of the Husband’s Applications, whatever and in addition to their many formal imperfections.

2. First, as already pointed out, the appeals he lodged have been abandoned.  Absent any appeal being on foot, a party (or parties) who have the benefit of final orders, are entitled to have them enforced.  The relevant judgment, and its enforcement, has been outstanding (some might even say, languishing) since 2009.

3. Secondly, there is no relevant (or in my view, acceptable) explanation by the Husband for the very significant delay between the pronouncement of final orders by the Court in 2009 and 2010 and the present time.  His various affidavits are prolix, replete with historical matters that are irrelevant to the current Applications, and they make multiple claims against a wide range of persons, including the Mother’s legal representatives, which are little short of scandalous.  He seeks to rehearse or re-agitate matters that were dealt with by his Honour (Judge Brewster) many years ago.  Procedurally, his proper course was to appeal.  He attempted that course, but later abandoned it.  It is not appropriate to seek to have this Court re-hear the same matter by a different Judge, absent any order by the Full Court of the Family Court for the matter to be re-heard.

4. He has had more than ample time either or both to prosecute or to seek to reinstate any appeal.  He has not done so.

5. Thirdly, and in addition to the above, there are two basic legal principles that prevent the success of the Husband’s Applications: the first principle is that it is for the common good that there should be an end to litigation;[1] the second principle is that no one should be harassed twice for the same cause.[2]

   [1] The importance of ‘finality’ in ending the financial relationship between parties is recognised in s.81 Family Law Act1975.

   [2] Generally, see J.D. Heydon, Cross on Evidence (Ninth Australian Edition) (Sydney: LexisNexis Butterworths, 2013) Chapter Three, “Estoppels.”

6. Among many relevant authorities, in Jackson v Goldsmith, Fullager J said:[3]

   Those rules are not, I think, in doubt, and they are not likely often to give rise to serious difficulty so long as it is recognized that there are two quite distinct and different principles. The distinction has been sometimes obscured by the absence of a generally accepted terminology. But it was clearly understood and appreciated by all the learned judges of the Full Court in the present case.  On the whole I think myself that the two best terms to use are “res judicata” and “issue estoppel.” The latter term seems to have been first used by Higgins J. in Hoysted v. Federal Commissioner of Taxation (1921) 29 CLR, at p 561.  It has often been used since, and it was adopted by Dixon J. in Blair v. Curran (1939) 62 CLR, at pp 531, 532.  It has the great advantage of being quite unambiguous. The term “estoppel by record” is an alternative to “issue estoppel” and it is a term which has been in use for a very long time.  But while it is not open to any prima-facie objection, it has become ancipitis usus, being used sometimes as equivalent to issue estoppel, sometimes as equivalent to res judicata and sometimes as describing a supposed common principle from which both the rule as to res judicata and the rule as to issue estoppel are derived.

   The rule as to res judicata can be stated sufficiently for present purposes by saying that, where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action.  This rule is not, to my mind, correctly classified under the heading of estoppel at all.  It is a broad rule of public policy based on the principles expressed in the maxims “interest reipublicae ut sit finis litium” and “nemo debet bis vexari pro eadem causa.”

   The rule as to issue estoppel is generally stated in the words of Lord Ellenborough in Outram v. Morewood (1803) 3 East, at p 355 (102 ER, at p 633).  His Lordship said that parties and privies are " precluded from contending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them . . . has been, on such issue joined, solemnly found against them.  “This is, I think, a true case of estoppel, analogous to estoppel by deed and estoppel by representation. The same rule was concisely stated by Dixon J. in Blair v. Curran (1939) 62 CLR, at p 531 where his Honour said: - “A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.”

   [3] Jackson v Goldsmith (1950) 81 CLR 446 at p.466.

7. In short, as stated by Lord Denning MR in Fidelitas Shipping Co Ltd v V/O Exportchleb:[4]

   If one party brings an action against another for a particular cause and judgment is given upon it, there is a strict rule of law that he cannot bring another action against the same party for the same cause.

   [4] Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 at p.640.

8. Further, and in the alternative to the doctrine of res judicata to which the above discussion and authorities directly relate, in my view it is also the case that the principle of issue estoppel arises on the facts of this case.  That principle, as described by Dixon J (noted earlier in the comments by Fullager J in Jackson v Goldsmith), is as follows:[5]

   A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.

   [5] Blair v Curran (1939) 62 CLR 464 at p.531.

9. In some very discrete areas, it is sometimes the case that principles of general law and equity are not applied in the same way in family law matters, for example, in the granting of injunctions, or in matters of perceived conflict of interest.  This is not the place to discuss the merits of such approaches.  However, lest it be thought that the principles of estoppel and such things have no application in family law proceedings, I note that the Full Court has recognised the doctrine of res judicata in property proceedings. 

1. Thus in Miller & Caddy, which involved an application under s.79 of the Family Law Act1975, the Full Court held that the doctrines/ principles of res judicata and cause of action estoppel can and would be applied in the matter before it.[6]

   [6] Miller & Caddy (1986) 10 Fam LR 858; (1986) FLC ¶91-720.

2. In my view, for the submissions given by the Wife, which I accept, and because of the application of the principle of res judicata, and/or in the alternative because of the application of issue estoppel, the Husband’s Applications should be dismissed, and the orders sought by the Wife in the Application filed on 7^th February 2014 should be granted.

3. The Court so orders.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Neville

Associate: 

Date:       10 July 2014