Gludau & Gludau (No. 2)
[2013] FamCAFC 181
FAMILY COURT OF AUSTRALIA
| GLUDAU & GLUDAU (NO 2) | [2013] FamCAFC 181 |
| FAMILY LAW – APPEAL – Application in an appeal – where the appellant husband succeeded in an appeal against property settlement orders – where the matter was remitted for rehearing – where the orders successfully appealed from required, inter alia, that a cash payment be made to the respondent wife – where that cash payment was made – where the husband has applied for an order that the wife repay the cash sum, together with interest – where the husband’s application is based on the principle of restitutio in integrum – whether that principle is applicable in the instant case – where the matter has been remitted – where, as a result, neither party has any greater entitlement to the funds than the other – where any such entitlement depends upon the outcome of the rehearing – where the principle is inapplicable in the present case – application in an appeal dismissed – husband ordered to pay the wife’s costs of the application in an appeal. FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Slip rule – where the appellant claimed that the repayment could be ordered by way of amendment to the initial orders pursuant to the slip rule – consideration of the nature of the slip rule – where the extent of the Family Court’s power to amend orders pursuant to the slip rule is confined to the terms of the rule set out in the Family Law Rules 2004 (Cth) – where the slip rule does not permit making substantive amendments to the initial orders – where that would be the effect of the orders sought in the application in a case – where, even if the orders could be made, they could not be made pursuant to the slip rule. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) Federal Court Rules 2011 (Cth) |
| Burrell v The Queen (2008) 238 CLR 218 |
REPRESENTATION
|
Orders (As Made on 23 October 2013):
The Application in an Appeal filed 23 September 2013, as amended by the draft orders incorporated in the amended outline of submissions filed by leave on 23 October 2013, is dismissed.
The appellant pay the respondent’s costs of and incidental to the Application in an Appeal as agreed or, failing agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gludau & Gludau (No. 2) 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 BRISBANE |
Appeal Number: NA 58 of 2012
File Number: BRC 7170 of 2011
| Mr Gludau |
Appellant/Applicant
And
| Ms Gludau |
Respondent
REASONS FOR JUDGMENT
May J
I have had the benefit of reading the judgment of Murphy J with which I agree.
Murphy J
On 1 August 2013, orders made by this court allowed the husband’s appeal against orders for settlement of property made after a trial heard by Howard FM (as his Honour then was). His Honour’s orders were set aside and the application for settlement of property was remitted for rehearing by a Judge of the Federal Circuit Court other than Judge Howard.
Relevant to the current application, the orders of Howard FM which were set aside required the husband to pay to the respondent wife a cash sum and effected a superannuation splitting order. Howard FM had refused an application by the husband for stay of such part of the orders as required the payment of the cash sum, but ordered a stay of the superannuation split. Prior to the hearing of the appeal, the husband had, properly, acted upon the order and paid the cash sum. Unknown to the husband at that time, the trustees of the superannuation fund had acted to effect the superannuation split prior to being served with the order for stay.
At the hearing of the appeal, this court was appraised of the former fact. The husband’s legal practitioners contend that they inadvertently omitted to seek an order for the return of the cash sum at the hearing of the appeal. By the current application in an appeal filed on 23 September 2013, the husband seeks orders that the wife repay the cash sum ordered to be paid by Howard FM together with interest. In addition, an order is sought, in terms apparently acceptable to the superannuation fund trustees, “reversing” the superannuation split effected pursuant to the trial judge’s original orders.
On 23 October 2013, this court dismissed the husband’s application and ordered the husband to pay the wife’s costs. These reasons relate to those orders.
The Basis of the Husband’s Application
The argument in favour of the outcomes contended for on behalf of the husband has two bases.
First, it is said that the husband is entitled to the orders sought in the application “as of right” as a consequence of the order of this court allowing the appeal. Secondly, it is said that the “slip rule” (in this court, r 17.02 of the Family Law Rules 2004 (Cth) (“the Rules”)) can be availed of by the husband so as to correct an omission – in this case, the failure to seek the relevant orders in the event of success in the appeal.
The contentions are each said to be founded in authority. In respect of the first contention, reliance is placed upon Commonwealth v McCormack (1984) 155 CLR 273; National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386; Idemitsu Queensland Pty Ltd v Agipcoal Australia Pty Ltd [1996] 1 Qd R 26; and, a decision of this Court in JEL v DDF (No 2) (2001) 28 Fam LR 119.
In respect of the contention that there is an omission which can be cured under the “slip rule”, reliance is placed upon McCormack and the earlier decision of the High Court in L Shaddock & Associates Proprietary Limited and Anor v Parramatta City Council [No 2] (1982) 151 CLR 590.
The Applicant’s Arguments
(a) “Restitution” After an Appeal
The principle enunciated in the decisions earlier cited (and other authorities to similar effect) is traced to what Lord Cairns held in Rodger v The Comptoir D’Escompte de Paris (1871) LR 3 PC 465 at 475:
…one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the Suitors, and when the expression ‘the act of the Court’ is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter to the highest Court which finally disposes of the case.
That principle has been applied by the High Court (Heavener v Loomes (1924) 34 CLR 306; McCormack). It can be seen summarised more recently by Brooking J in National Australia Bank Ltd v Bond Brewing Holdings Ltd. After a lengthy review of the authorities, his Honour said (at 597-8):
This survey [of relevant authority] shows that the principle on which the courts have for centuries acted is that when an erroneous judgment or order is overturned, whether by means of appeal or by any other procedure, the court will achieve a just result by requiring anything that has been taken from him by the other party by virtue of the wrong decision to be restored. Interest is for this purpose treated as the fruit of money and he who has had the use of money will not be heard to say that there were no fruits. The principle is, as it was in the reign of the first Elizabeth (Eyre v. Woodfine Cro. Eliz. 278; 78 E.R 533), one of restitution or restoration. The court is seeking to restore to one party what it has wrongly taken from him and given to the other … Why is it that no application has ever been made, after a successful appeal in a case of this kind, to have the injury done to the suitor by the act of the court redressed on the principle of Rodger’s Case by an award of damages? The reason is clear. No right of the party ultimately successful has been infringed and the principle of Rodger’s Case allows no more than the passing back to that party of what has been taken from him.
So, too, for example, in Production Spray Painting & Panel Beating Pty Ltd and Ors v Newnham and Ors (No 2) (1992) 27 NSWLR 659, it was held (per Handley JA at 661) that: “[i]t is well-established that the reversal of a judgment on appeal entitles the successful appellant to recover any moneys paid under the reversed judgment.” Statements to similar effect can be seen in the other authorities referred to earlier. Specifically in this jurisdiction, this court said in JEL v DDF at [26]:
In our view, it is appropriate that the money overpaid by the husband including the money paid by way of interest be repaid to him with interest. The husband seeks that interest be paid as from the date of overpayment by him, that being 5 July 2000. We agree with the submission that a finding that interest should run from the date of overpayment is consistent with authority.
In its modern formulation, the principle has been expressed as founded in “restitution”. As an example, in Heydon v NRMA Ltd (No 2) (2001) 53 NSWLR 600, Mason P held (at 603-4):
The basis of restitution with interest of moneys paid under a judgment later set aside
[12] A party’s right to restitution with respect to moneys paid under a judgment later set aside, together with interest thereon, is well established …
[14] Some have looked to statutes and rules as the source of the power to award restitution with interest. In my opinion, the right exists at common law and is not based upon some discretionary invocation of statutes or rules relating to appeals. It is based on the “unifying legal concept” of unjust enrichment identified by Deane J in Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 at 256–257. My views are developed in detail in Restitution Law in Australia, especially ch 7 (Judgments Reversed or Set Aside) and ch 28 (Interest). In brief, restitution is available regardless of the means whereby the judgment is discharged; and restitution with interest is the right of the ultimately successful party (see esp Rodger v Comptoir d’Escompte de Paris (1871) LR 3 PC 465; Commonwealth v McCormack (1984) 155 CLR 273; TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381).
Expressed in the manner in which it is in those (and other) authorities, the principle can be argued, as the husband contends, to be applicable to the instant situation. However, as will be addressed in greater detail below, the fact that this Court has ordered a remittal represents a very significant point of distinction between the instant proceedings and the authorities just referred to.
(b) Correction Under the “Slip Rule”
The High Court in McCormack following the earlier decision of that court in L Shaddock held (at 277) that:
…there is jurisdiction to make an appropriate order under [the slip rule] to remedy the situation which has arisen as a result of oversight by a party’s legal representative notwithstanding the fact that the formal orders have been taken out…
In SMK Pty Ltd v Milan Kramer [1995] FCA 1616 the Full Court of the Federal Court held that:
4.The defendant, the successful appellant in the Full Court, seeks an order pursuant to O.35, r.7(3), the slip rule, which provides that a clerical mistake or any error from an accidental slip or omission in an order or judgment may be corrected by the Court. It has been held that counsel’s inadvertence falls within the equivalent rule in the High Court rules: see L Shaddock and Associates Pty Ltd v Parramatta City Council No. 2 (1982) 151 CLR 590 which decision was followed in the Commonwealth of Australia v McCormack (1984) 155 CLR 273 where the Court pointed out (276), that ordinarily a successful appellant would be entitled to orders for repayment…
5.…There seems little doubt that the Full Court, had it been apprised of the payment of moneys, would have ordered repayment of them. The defendant also seeks an order for interest from the date they were paid to the plaintiff which is to be taken as 11 July 1994 to today’s date. In McCormack the Court considered that the slip rule was the appropriate rule to apply to such circumstances and it appears clear from that decision that the Court considered that the question of the quantum of the repayment ought to be approached on restitutionary principles….
Within the context of finding that this court had no power to reopen an appeal to correct an error of law once orders in the appeal had been perfected, the majority in DJL v The Central Authority (2000) 201 CLR 226 held, at [28]:
Order 31 of the Family Law Rules is headed “decrees”. The term “decree” is defined in s 4(1) of the Family Law Act as meaning “decree, judgment or order” and as including “a decree nisi and an order dismissing an application or refusing to make a decree or order”. Order 31, r 5 states:
“Except where the court or a Registrar otherwise directs, all decrees, warrants and recognizances made under the [Family Law] Act, the [Family Law] Regulations or these Rules shall be drawn up and signed by the Registrar of the filing registry.”
Rule 6 provides for the rectification by the registrar of any error “that appears on the face of a decree” and for the rectification of the formal record of a decree where it contains an error appearing to arise “from an accidental slip or omission” (O 31, r 6(3)). This “slip rule” includes a power to “make or give such consequential orders or directions as may be necessary to ensure that justice is done between the parties” (O 31, r 6(4)(b)). However, it is not suggested that O 31 confers a power of the nature necessary to set aside a decree after entry for error of law in the reasons for judgment founding the decree. Nor was this court referred to any other provision of the legislation directly and expressly conferring such a power.
As the Court there refers to, the “slip rule” as it then appeared in the Family Law Rules 1984 (Cth) was contained within Order 31 and provided for correction of error by a Registrar and, “…in a case of doubt or where it appears that the error arises from an accidental slip or omission…”, reference to, relevantly, a Judge upon notice. The then rule went on to provide, as the High Court refers to:
(4) Where a decree is referred under sub-rule (3), the Judge…to whom it is referred-
(a) may rectify the decree, without an appeal; and
(b) may make or give such consequential orders or directions as may be necessary to ensure that justice is done between the parties.
The “slip rule” in its current form (r 17.02) provides, like its predecessor, for reference to a Registrar but only so as to “…rectify an error that appears obvious on reading the order.” Like its predecessor the Rule provides for referral to a “judicial officer” upon notice but, when that occurs, the Rule goes on to provide the power that the judicial officer may exercise:
(5) A judicial officer may, after giving each party a reasonable opportunity to be heard, rectify a suspected error referred to the judicial officer.
Note: An amendment of an order may be made under this rule only if it is an error obvious when reading the order. Any other amendment must be remedied by appeal or consent.
The rule in its current form, particularly when regard is given to its accompanying note, is arguably significantly more restrictive of the “slip rule” powers exercisable by a judge of this court than those to which the High Court referred in DJL. Indeed, as the High Court said more recently in Burrell v The Queen (2008) 238 CLR 218, at 224 – 225 per Gummow A-CJ; Hayne, Heydon, Crennan and Kiefel JJ:
20.Identifying the formal recording of the order of a superior court of record as the point at which that court’s power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.
21.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.
(Bold emphasis added).
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 completed by a perfected order and that is a power which this court does not have (see, DJL).
The Principles and The Current Circumstances?
(a) The Current Circumstances
As referred to at the outset of these reasons, the court was advised that, at the hearing of the appeal, the husband had paid the money ordered to be paid by the trial orders of Howard FM. A stay of the order for that cash payment had previously been refused. This court found error in the refusal to order a stay of that order but the fact of the payment made any order in that respect otiose.
A stay had been ordered of the superannuation splitting order. However, apparently unknown to those representing the husband at the hearing of the appeal, the trustees of the superannuation fund had moved expeditiously to give effect to the order and had done so prior to the stay being ordered.
At the hearing of the appeal, no order was sought on behalf of the husband for the return of the cash sum. The solicitor for the husband deposes that this was due to his “oversight”. Prior to the hearing no application to expedite the appeal in respect of the refusal of the stay had been made. The solicitor for the husband wrote to the then solicitors for the wife inviting her consent to the proposed orders for repayment of the cash sum. That did not occur.
The application in an appeal filed by the husband on 23 September 2013 did not seek orders in respect of the superannuation split. Detailed orders were, however, sought in that respect in the written outline filed by leave at the hearing of the application. No issue arises from those circumstances. The orders as ultimately sought in that document provide for a “reversal” of the superannuation split and for repayment of the cash sum of $133,236.71 paid to the wife by the husband pursuant to the trial orders. Interest in respect of two specified periods is also sought in respect of that sum.
Paragraph 9 of the mooted orders seeks an order that the payment of the cash sum and the payment of interest “…be stayed pending delivery of judgment on the re-trial before Judge Baumann on 13 November.” On its face, this would appear to render the application, in so far as it pertains to the repayment of the cash sum, otiose. That issue is dealt with later in these reasons.
The material before this court indicates, then, that in so far as there has been a material change in the circumstances from those pertaining at the trial, the cash sum of $133,236.71 has been paid to the wife and spent (or, at the least, overwhelmingly spent) and the parties’ pre-trial superannuation interests have been altered by the ordered split.
Importantly, on 3 October 2013, as part of the orders giving effect to the rehearing, Judge Baumann made orders (by consent) restraining the wife from dealing with her superannuation interests and the husband was restrained from dealing with other property that will be the subject of the trial.
The practical effect of this court’s orders is, otherwise, that the proceedings for settlement of property between the parties remain on foot, that no order for settlement of property affects the existing interests of the parties as altered by compliance with Howard FM’s orders, and that the question of whether any such order might do so, and if so its terms, will be heard at a trial commencing on 13 November 2013.
(b) Application of the “Restitution” Principles?
In each of the authorities illustrative of the principle relied upon by the husband to which reference has been made above, the decision of the appeal court resulted in that court determining the entitlement of the successful party to the appeal. That is, there was no remitter. Thus, subject to further appeal, the ultimate entitlement to, relevantly, the property or cash in question in each of those cases was finally determined by the order of the appeal court.
In those circumstances, a principle that seeks to avoid injustice and which has “restitution” as its foundation, can be seen to apply readily; it has been determined that the successful party is entitled to the relevant property or cash in question and, all else being equal, justice demands that the property or cash be returned to that party.
Here, the foundation of the claim by the husband for restitution of the cash sum ordered at trial lies in his argument that, because that trial order has been set aside by this court, the property the subject of it should be returned to him. By way of corollary, the husband argues that the absence of an order of the type sought has the effect that the wife is entitled to the cash sum. Doing so, the argument proceeds, fails to recognise the order of this court setting aside the trial order.
None of the decisions cited by counsel involved an order for remitter by the appeal court. Counsel for the husband informed the court that he had been unable to find any authority in which the principle had been applied, or discussed, in circumstances where remitter had been ordered. Statements in the authorities to which reference has been made suggest that the difference is important.
For example, in Heavener v Loomes, in the judgment of Isaacs and Rich JJ (a judgment which the High Court in McCormack said “espoused the principle”) it was said (at 323-4):
On the facts before the Court on this interlocutory application, the appellants were, at the time the motion was dealt with, entitled to an injunction to restrain the respondent from receiving the money sued for. She has, it appears, since received it, and the protection should be moulded accordingly, for actus curiae nemini facit injuriam. This maxim is no mere form of words. Nor is it limited in its application to the primary tribunal. Twice have the Privy Council emphasized the importance of observing it. In Jai Berham v. Kedar Nath Marwari [(1922) LR 49 Ind App 351, at 355-356], Lord Carson, for the Judicial Committee, speaking of the duty of an appellate Court, when varying or reversing a decree, to place the parties in the position they would have occupied but for the decree or the part varied, said:—“It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved … [Their Honours then quoted Lord Cairns’s statement in Rodger] … The respondent, then, should be ordered to bring into Court the money she received from Dennis, or so much thereof as the appellants are willing to consider their indemnification, to abide the result of the suit or further order. The appellants should also, in our opinion, have their costs here and below.
(Bold emphasis added).
In a similar vein, the High Court in McCormack held (at 277) that:
…If the matter had been raised on the hearing of the appeals, such an order would have been made as of course for the reason that, without a repayment order made by one of the courts having jurisdiction to make it, the appeals to the Federal Court and to this Court would be nugatory. The Commonwealth would remain deprived of the money which it had paid in obedience to the judgment of the Supreme Court which the Federal Court and this Court have held to be erroneous.
(Emphasis added).
The appeal here is not rendered nugatory if no repayment order is made; what amount of money, will be received by either party, if any, is yet to be determined in proceedings that remain on foot and will be determined by reference to the order for remittal and rehearing made by this court.
The principle earlier discussed and relied upon centrally by the husband in this application depends, in my view, on the premise that the successful appellant has an immediate entitlement to the relevant sum. That occurs, relevantly, when the appellate court has “reverse[d] or var[ied] [a] decree or decision … and … ma[d]e such decree or decision as, in the opinion of the court, ought to have been made in the first instance…” (Family Law Act 1975 (Cth) (“the Act”), s 94(2)). Here, this court adopted the alternative course provided for in s 94(2); that is, we ordered “…a re-hearing on such terms and conditions, if any, as it considers appropriate” (s 94(2)).
When that alternative course is adopted, this court has not made any decision as to which party is entitled, relevantly, to the cash sum or any part of the cash sum; that is a matter to be determined by the lower court upon the rehearing. Put another way, as a result of this court’s order, neither party has any more or less entitlement to the sum than the other; each makes legitimate claims to it and the question of respective entitlement is yet to be determined by the lower court.
In my view, the premise for the relief sought by the applicant – that is, a determined present entitlement to the cash sum – is absent. Put in terms familiar to restitution, until determination by the lower court upon the retrial, it has not yet been determined that the retention of the cash sum by the wife is unjust. The determination of that question awaits a trial which, it should be noted, is due to take place very shortly.
In my view, the principle relied upon by the applicant has no application to the circumstances here, specifically where this court has set aside the order of the trial court and ordered remittal to the court below for rehearing.
(c) Application of the “Slip Rule” Principle?
The written submissions on behalf of the husband place reliance upon McCormack in submitting that the omission by the legal practitioners to seek an order for repayment of the cash sum being paid ought result in an order to that effect from this court by reference to the “slip rule” (i.e. r 17.02 of the Rules).
As has been seen, the Full Court of the Federal Court in SMK has, in reliance upon McCormack, applied that court’s “slip rule” to make an order in circumstances where “…had it been appraised of the payment of moneys, would have ordered repayment of them.” It is, in my view, important that in that case not only was the appeal court’s decision determinative of the ultimate entitlement to the relevant sum of money, but, in addition, the relevant rule of that court was then, and is now (r 39.05, Federal Court Rules 2011 (Cth)), in broader terms than the relevant rule in this court. In particular in the latter respect, the “slip rule” component of the relevant rule (O35, R7(3) when SMK was decided; r 39.05(h) now) is contained within a rule that permits the “varying or setting aside [of the] judgment or order after it has been entered” (“at any time” when SMK was decided).
The principle in Burrell set out earlier can be seen to be potentially more restrictive in the case of this court because this court’s sole source of power in respect of appeals derives from statute (see, DJL). In the earlier decision of the High Court in DJL, the court referred to the then broader Order 31, r 6(3) and (4)(b) of the Family Court Rules 1984 (Cth). The rule as it then stood included a power to make “…consequential orders and directions … necessary to ensure that justice is done between the parties.” Despite the then broader context, the majority in DJL pointed out that this power did not extend to this court making orders which had the effect of setting aside (and, inferentially, varying) orders after entry of those orders. That principle can be seen to be reinforced in Burrell, as is the narrow ambit of the “slip rule” more broadly.
In this court, orders can be amended to reflect slips or omissions but only within the powers conferred on the court to do so. Specifically, r 17.02 can be seen to underscore the principle emanating from the decisions in both DJL and Burrell.
The slip rule, when availed of in the authorities to which this court has been referred by counsel for the husband, is used to achieve an outcome which would have been the subject of orders of the appeal court but for the inadvertent slip or omission. That is, those authorities can be seen to be consistent with what was said (later) by the High Court in Burrell. If the same principle is to apply here, the contention must be that this court would have made an order requiring repayment of the money when the appeal was heard and it is because of the oversight in not asking for the order that it was not made. That premise is, in my view, not correct.
This court could only have made an order for repayment of the money if it had decided that the husband was entitled to the money in the context of s 79 proceedings which remained on foot. It did not. The order for remittal and rehearing is the antithesis of such an order; it is precisely because this court did not decide (among other issues related to the s 79 proceedings) the ultimate entitlement to the money that the matter was remitted to the court below for rehearing. The order for remittal and rehearing is “the end result” in this court and constitutes the exercise of the statutory power given to the court pursuant to s 94(2). That power has been spent; it concluded on the order for remitter and rehearing made without conditions.
In my view, to seek an order of that type now is not to seek correction for slip or omission, but, rather, to agitate for new orders in respect of a power already spent. This court has no power to do so (see, DJL; Burrell).
This court is given the specific power to attach to an order for rehearing “…such terms and conditions, if any, as it considers appropriate” (s 94(2)). Thus, had the husband at the time of the hearing of the appeal sought an order in the event of its success (for example for injunction or an order that the wife pay the money into court or the like) this court may have granted such an order. He did not do so and the court made no such order in the exercise of its statutory power.
For those reasons, the application of the husband made purportedly pursuant to the ‘slip rule’ was dismissed.
(d) Injustice in the Absence of an Order?
If a premise for not making the order sought by the husband is that no finding has been made by this court of the ultimate entitlement to the cash sum, it follows that, until orders are made by the court below on a rehearing, the wife, too, is not entitled to the money; neither party is more or less entitled than the other. If the husband is not entitled to the return of the money, the wife is no more entitled to keep the money.
That position would appear to lead inexorably to the conclusion that the effect of any order, or absence of order, should not be to accord an entitlement or a “de facto entitlement” to the wife in respect of the money. So much may point to the need for an order of some type, but it says nothing of which court should make the order or the power pursuant to which any such order is made.
Had the money not been spent by the wife, orders of the type earlier referred to (or, perhaps, other orders) might have been made by this court at the time of the hearing of the appeal. If, as I consider is the case, this court’s power has been spent by the making of orders for remittal and rehearing, orders of those (or perhaps other) types can be applied for in the court below which, by reason of this court’s orders, is now seized of the matter.
In light of the accepted fact that all, or a significant proportion of, the money has been spent by the wife, other actions may lie, or other remedies may commend themselves, either within the ordered rehearing or ahead of it. But, in my view, no such considerations, including what might be said to be potential injustice to either party, can be the subject of orders by this court of the type sought in this application.
The Superannuation Splitting Order
As referred to earlier in these reasons, the trustees of the superannuation fund, in apparent ignorance of the stay order made by the trial judge, effected the splitting order made by his Honour.
In my view, all of the considerations earlier discussed apply equally to the fact of the superannuation split despite the fact that it apparently came to the knowledge of the legal practitioners for the husband only after the hearing of this appeal.
When making orders on 3 October 2013 setting the rehearing down for trial, Judge Baumann made, by consent, orders restraining the wife from dealing with her superannuation interests (including the amount split to her by the orders originally made by Howard FM) and restraining the husband from dealing with other property.
The judge of the Federal Circuit Court who will hear the retrial in less than three weeks will address the then legal and equitable interests of the parties in property and the existing superannuation interests of the parties in addressing each of the requirements of s 79. Again, in my view, per force of the reasoning earlier outlined, no question of restitution arises to be applied by this court; the respective entitlements of the parties in superannuation interests arise to be determined at the rehearing and, if it is considered just and equitable, are liable to be then adjusted in a manner according to the dictates of s 79(4).
In addition, per force of the same reasoning, this court does not have the power to effect the order sought pursuant to the “slip rule”.
Is the Application Otiose In Any Event?
As referred to at the outset of these reasons, paragraph 9 of the orders sought by the husband seeks a stay of any orders for repayment of the cash sum and interest. In response to a question from the Bench, counsel for the husband indicated that this order was sought to allay any “apprehension on the wife’s part that [the husband] would [seek to] enforce” the repayment – that is, it was explained, it was intended to make it clear to the wife that execution would not be attempted ahead of the rehearing.
It was suggested to counsel that the position thus advocated for made the application otiose. Counsel’s argument in response appeared to centre on an assertion that it was necessary to have such an order despite the fact that the money had been spent because, as I understood the argument, it was intended to argue on the rehearing that it was not just and equitable to adjust the legal and equitable interests of the parties in property as they stood prior to the orders made by Howard FM.
I am not persuaded that, even if, contrary to the views expressed earlier, orders of the type sought by the husband could be made by this court, there is any utility in any such orders. In my view, each and all of the arguments sought to be made by the husband are available to him upon the rehearing and I am not persuaded that the absence of orders of the type sought alters that position at all.
I would dismiss the application on the basis of its lack of utility alone.
Conclusion
The application in an appeal has been dismissed.
Costs
The husband’s application, as argued, has its genesis in what is accepted as inadvertence by his legal practitioners at the hearing of the appeal. The husband has been “wholly unsuccessful” on this application within the meaning of s 117(2A) of the Act. For those reasons, the husband has been ordered to pay the wife’s costs of the application in an appeal as agreed, or failing agreement, as assessed.
Hogan J
I have had the benefit of reading the judgment of Murphy J with which I agree.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Murphy and Hogan JJ) delivered on 19 November 2013.
Associate:
Date: 19 November 2013
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