Giacobetti & Giacobetti (No 5)

Case [2024] FedCFamC1F 379

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Giacobetti & Giacobetti (No 5) [2024] FedCFamC1F 379

File number(s): SYC 5998 of 2021
Judgment of: CURRAN J
Date of judgment: 4 June 2024
Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Application in a Proceeding – Application to vary final orders under the slip rule – Where orders are not able to be varied under slip rule – Where order sought not considered at final hearing or in final judgment – Application refused
Legislation:

Family Law Act 1975 (Cth) ss 75, 79, 90AE, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13

Cases cited:

Bailey & Bailey (1990) FLC 92-145

Burrell v The Queen (2008) 238 CLR 218

Giacobetti & Giacobetti(No 3) [2023] FedCFamC1F 1126

Giacobetti & Giacobetti (No 4) [2024] FedCFamC1F 43

Gludau & Gludau (No 2) (2013) FLC 93-562

Gould v Vaggelas (1985) 157 CLR 215

Newmont Yandal Operations Pty Ltd v The J Aron Co and The Goldman Sachs Group Inc and Ors (2007) 70 NSWLR 411

Owston Nominees No. 2 Pty Ltd and Anor v Branir Pty Ltd and Ors (2003) 129 FCR 558
Division: Division 1 First Instance
Number of paragraphs: 87
Date of hearing: 29 May 2024
Place: Sydney
Counsel for the Applicant: Mr Harper
Solicitor for the Applicant: Uther Webster & Evans
Counsel for the Respondent: Mr Othen
Solicitor for the Respondent: Newnhams Solicitors

ORDERS

SYC 5998 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS GIACOBETTI

Applicant
AND:

MR GIACOBETTI

Respondent

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

4 JUNE 2024

THE COURT ORDERS THAT:

1.The application to amend the orders pursuant to the slip rule as set out in paragraph 3(a) is refused.

2.The application to amend the orders pursuant to the slip rule as set out in paragraph 3(d) is refused.

3.The balance of the orders sought were withdrawn and are dismissed.

4.The costs application made by counsel for L Holdings is refused.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Giacobetti & Giacobetti has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

CURRAN J:

  1. The primary proceedings sought the alteration of property interests under the Family Law Act 1975 (Cth) (“the Act”) following…

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Details
AGLC
Giacobetti & Giacobetti (No 5) [2024] FedCFamC1F 379
Case
[2024] FedCFamC1F 379
Decision Date

CaseChat Overview and Summary

The case of Giacobetti & Giacobetti (No 5) involved an application by the applicant, Ms Giacobetti, to vary final orders made in a family law proceeding. The primary dispute centred around the allocation of liabilities attached to shares in B Pty Ltd and the apportionment of the debt in relation to these shares. The wife sought a transfer of the shares to her and an apportionment of the debt in the same proportions as the allocation of the shares, while the husband argued that the shares had little, if any, value and that the liability should remain with the shares. The husband further contended that the shares, the liability, and the loan account should not be valued but considered as a factor under s 75(2)(o). The application to amend the final orders was made under the slip rule, which allows for the correction of orders that do not reflect the court's intention or contain accidental slips or omissions.

The central legal issue before the court was whether the final orders could be varied under the slip rule to address the allocation of liabilities and the apportionment of debt in relation to the shares of B Pty Ltd. The court had to determine whether the orders sought were considered at the final hearing or in the final judgment and whether they fell within the scope of the slip rule. The court had to examine the surrounding circumstances, including the reasons for judgment, the applications made, and the evidence presented to ascertain the judicial intention at the time the orders were made.

The court held that the application to vary the final orders was not permissible under the slip rule. It found that the orders sought by the applicant were not considered at the final hearing or in the final judgment. Additionally, the court noted that the power to correct orders under the slip rule does not extend to supplementing the orders made by a further order on a point which was not argued, considered, or decided at the hearing. The court emphasised that the slip rule is intended to avoid injustice to litigants and should not be used to reopen proceedings that are contemplated by a perfected order. Therefore, the application to amend the final orders was refused.

The court made several orders in relation to the application. Firstly, it refused the application to amend the orders pursuant to the slip rule as set out in paragraph 3(a). Secondly, it refused the application to amend the orders pursuant to the slip rule as set out in paragraph 3(d). Thirdly, the balance of the orders sought were withdrawn and dismissed. Lastly, the costs application made by counsel for L Holdings was refused. The form of the order is subject to review and potential variation as per the relevant rules.

Orders

Orders of the court

SYC 5998 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS GIACOBETTI

Applicant

AND:

MR GIACOBETTI

Respondent

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

4 JUNE 2024

THE COURT ORDERS THAT:

1. The application to amend the orders pursuant to the slip rule as set out in paragraph 3(a) is refused.

2. The application to amend the orders pursuant to the slip rule as set out in paragraph 3(d) is refused.

3. The balance of the orders sought were withdrawn and are dismissed.

4. The costs application made by counsel for L Holdings is refused.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

In Bailey & Bailey (1990) FLC 92-145 (“Bailey & Bailey”), Mullane J states, in relation to varying orders, at 78,009: “But that power does not extend to supplementing the orders made by a further order on a point which was not argued, considered or decided at the hearing…”. The facts of this case It was an agreed fact that a liability attached to the B Pty Ltd shares. There was a dispute as to the extent of the liability. In the joint balance sheet, the husband contended that the liability was nil. The wife contended that the liability was $45,000. The single expert opined that the liability could have been as much as up to $461,667, however it was contingent on various matters which were unknown. The parties agreed there was a loan account with an agreed value of $131,249, although incorrectly described, it was an asset and treated as such. It was the wife’s case that an order should be made transferring the shares to the wife and that the liability should be borne in the same proportions. The proportion she sought was 65 per cent. The orders sought included the apportionment of the debt in the same proportions as the allocation of the shares and that such an order should be made pursuant to s 90AE(1)(a). It was the husband’s case that the shares had little, if any, value and that the liability should remain with the shares. It was his case that the shares, the liability and the loan account should not have a value placed on them but should be taken into account as a s 75(2)(o) factor. When asked what proportion of the shares should be transferred if it was determined that a transfer of shares was to be ordered, although opposed, it was contended that no more than 10 per cent of the shares should be transferred. The husband's submissions at page 224 of the transcript were:if you decide to do something with those shares and transfer them to the wife, then , in my respectful submission, whatever you do with them, it ceases to be a matter of section 75(2)..In terms of the justice and equity of any transfer…why it wouldn't be just and equitable to give the wife a massive proportion of the company …if your honour determines a transfer of shares is just and equitable the number we would put on it is 10 per cent… No submission was made by the husband as to the treatment of the liability to L Holdings in the case of a share transfer. No submission was made by the husband as to the treatment of the loan account other than the shares and liability, together with the loan account, should be assigned no value. It was contended that, if I came to a conclusion not to ascribe a value to the shares, it was submitted that I should “remove item 17. You would have to remove item 18 as well because that's the husband's loan account in the company. And you would remove item 27.” It was further contended that no value would be assigned to those entries, despite the loan account having an agreed value of $131,249. This submission effectively grouped together the assets and liabilities associated with the shares and the company. This grouping of items 17, 18 and 27 from the joint balance sheet became pool one.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

As a general rule, once a judge has made an order, that judge is functus officio and cannot add to, amend or detract from it. In Burrell v The Queen (2008) 238 CLR 218, Gummow A-CJ; Hayne, Heydon, Crennan and Kiefel JJ said:The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order [L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1982) 151 CLR 590 at 594-595] provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.(emphasis added) The Court has implied jurisdiction to correct orders which do not reflect the Court's intention at the time the order was made or, in some circumstances, what the Court would have decided apart from an accidental slip or omission. This jurisdiction is encapsulated in r 10.13(1)(e) and (h) of the Rules which are as follows:(1) The court may at any time vary or set aside an order , if: …(e) it does not reflect the intention of the court; or …(h) there is an error arising in the order from an accidental slip or omission. The overall purpose of the slip rule is to avoid injustice to litigants (Gould v Vaggelas (1985) 157 CLR 215 at 274-276). The most common application of the slip rule involves an amendment to an order where it is plain that it does not reflect the judicial intention at the time the order was made. When assessing that judicial intention, it is necessary to look at the surrounding circumstances including the reasons for judgment, the applications made and, if necessary, the evidence and how the case was conducted (Owston Nominees No. 2 Pty Ltd and Anor v Branir Pty Ltd and Ors (2003) 129 FCR 558 at [27]). A retrospective recollection by a primary judge of the order the primary judge intended to make is not conclusive. In Newmont Yandal Operations Pty Ltd v The J Aron Co and The Goldman Sachs Group Inc and Ors (2007) 70 NSWLR 411 Spigelman CJ said at [95]:... the relevant question is what the Court intended to do and/or what the Court would have done, if the issue had arisen at the time the orders were made. Anything a judge, even the same judge, says about what s/he would do to correct the original orders is no more than evidentiary and may not even be admissible over objection... The Full Court of the Family Court canvassed the issue in the matter of Gludau & Gludau (No 2) (2013) FLC 93-562. Murphy J (with the agreement of May and Hogan JJ) at [21]: The current rule might, then, be argued to be reflective of the concern that the Rules must embody the fact that this court is a creature of statute within a constitutional framework and its powers on appeal derive from statute. In particular, while the 'slip rule' might be used to correct obvious errors (perhaps what Kirby J referred to in DJL as 'accidental mistakes or omissions of no substantive significance' or an 'accidental slip or omission' as the plurality in Burrell referred to), care must be taken when the nature of the asserted error is substantive, as that may in fact involve the exercise of a power to reopen proceedings that are contemplated by a perfected order and that is a power which the court does not have (see DJL v The Central Authority (2000) FLC 93-015).