Gong & Zao

Case [2021] FamCAFC 110

FAMILY COURT OF AUSTRALIA

Gong & Zao [2021] FamCAFC 110

Appeal from: Zao & Gong [2020] FamCA 621
Appeal number(s): EAA 121 of 2020
File number(s): SYC 2998 of 2018
Judgment of: ALDRIDGE, AUSTIN & TREE JJ
Date of judgment: 16 July 2021
Catchwords: FAMILY LAW – APPEAL – PROPERTY – Summary dismissal – Appeal against orders dismissing the appellant’s application to summarily dismiss the respondent’s application seeking a division of funds held in Australia – Whether the property of the parties in Australia has already been dealt with by orders made in China – Doctrine of res judicata, claim estoppel and Anshun estoppel – Whether the respondent is estopped from prosecuting his proceedings – Consideration of principles in Clayton & Bant (2020) 95 ALJR 34 – Where the appellant failed to establish that the funds were an issue in the proceedings in China or that the Court in China intended to deal with the funds – The primary judge erred in the approach taken and incorrect test was applied – The application for summary dismissal should fail – The Court cannot be satisfied that the respondent’s application had no reasonable prospects of success – Application for leave to appeal allowed – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum.
Legislation:

Family Law Act 1975 (Cth) ss 45A, 79

Family Law Amendment (Family Violence and Other Measures) Act 2018 Sch 1, s 14

Family Law Rules 2004 (Cth) r 10.12
Cases cited:

Clayton v Bant (2020) 95 ALJR 34; [2020] HCA 44

Ebner & Pappas (2014) FLC 93-619; [2014] FamCAFC 229

Friar & Friar [2011] FamCAFC 71

Lindon v The Commonwealth (No. 2) (1996) 136 ALR 251; [1996] HCA 14

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45

Ritter & Ritter and Anor (2020) FLC 93-957; [2020] FamCAFC 86

Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28
Division: Appeal Division
Number of paragraphs: 43
Date of hearing: 27 May 2021
Place: Sydney
Counsel for the Appellant: Mr Lloyd SC with Mr Ford
Solicitor for the Appellant: JC Legal
Counsel for the Respondent: Mr Livingstone
Solicitor for the Respondent: Sunfield Chambers Solicitors & Associates

ORDERS

EAA 121 of 2020
SYC 2998 of 2018

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MS GONG

Appellant
AND:

MR ZAO

Respondent

ORDER MADE BY:

ALDRIDGE, AUSTIN & TREE JJ

DATE OF ORDER:

16 JULY 2021

THE COURT ORDERS THAT:

1.The application for leave to appeal the orders made by a judge of the Family Court of Australia on 31 July 2020 which was filed on 26 August 2020 be allowed.

2.The appeal be dismissed.

3.The appellant pay the respondent’s costs fixed in the sum of $13,025.76.

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…

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Gong & Zao [2021] FamCAFC 110
Case
[2021] FamCAFC 110
Decision Date

CaseChat Overview and Summary

In the case of Gong & Zao, the appellant sought to appeal the Family Court's dismissal of their application to summarily dismiss the respondent's application for a division of funds held in Australia. The appeal raised two primary issues: whether the primary judge correctly applied the principles concerning summary dismissal and claims of res judicata and claim estoppel. The primary judge's decision was based on the doctrine of res judicata, claim estoppel, and Anshun estoppel, arguing that the respondent was estopped from prosecuting their proceedings due to a previous division of property in China. The court had to determine if the primary judge correctly applied these principles.

The court found that the primary judge failed to apply the correct principles regarding summary dismissal and the doctrine of res judicata. The court highlighted that the primary judge incorrectly applied the "doomed to fail" test instead of the current "no reasonable prospect of success" test. Additionally, the primary judge did not adequately consider whether the funds in Australia were an issue in the Chinese proceedings or whether the Chinese court intended to deal with the funds. The court concluded that the primary judge's approach was incorrect and that the principles in Clayton & Bant (2020) 95 ALJR 34 were not appropriately applied.

The court allowed the appeal for leave, dismissed the appeal, and ordered the appellant to pay the respondent's costs in a fixed sum of $13,025.76. This decision underscores the importance of correctly applying legal principles and tests, particularly in matters involving international elements and summary dismissal applications. The court's ruling emphasises the need for judges to be cautious when considering applications for summary dismissal and to apply the correct legal standards to avoid unjust outcomes.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The application for leave to appeal the orders made by a judge of the Family Court of Australia on 31 July 2020 which was filed on 26 August 2020 be allowed.

2. The appeal be dismissed.

3. The appellant pay the respondent’s costs fixed in the sum of $13,025.76.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gong & Zao has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Although there were five grounds of appeal, they raised but two issues – whether the primary judge applied the correct principles on the applications for summary disposal and matters involving claims of res judicata and claim estoppel.Did the primary judge correctly apply the principles concerning summary judgment? (Grounds 4 and 5) It may be wondered why the appellant troubled the primary judge by advertence to s 45A of the Act, since her application for dismissal of the respondent’s application was premised entirely upon estoppel principles. Either the proceedings in Australia were estopped or they were not. In the former case, the proceedings had to be dismissed, but in the latter case they could not be. If the proceedings were not estopped, there was no other basis upon which the appellant contended the proceedings had no reasonable prospect of success so as to engage s 45A of the Act. However, having been taken to s 45A of the Act, the primary judge did not apply its principles correctly. We will therefore deal with the grounds of appeal which cover the subject of summary dismissal. The provisions of s 45A of the Act apply to applications for summary disposal of proceedings under the Act initiated both before and after its commencement date of 1 September 2018 (Family Law Amendment (Family Violence and Other Measures)Act 2018 (Cth) Sch 1, s 14). It provides that a court may make a decree for one party, as to the whole or any part of the proceedings, where the Court “…is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part…” (s 45A(2) of the Act). The proceedings need not be “hopeless” or “bound to fail” for the section to apply (s 45A(3) of the Act). The section is in similar terms to r 10.12(d) of the Family Law Rules 2004 (Cth) which provides that a person may apply for summary orders where “there is no reasonable likelihood of success”. As was explained in Ebner & Pappas (2014) FLC 93-619 (“Ebner”), this rule replaced the earlier test for summary dismissal, which looked to see whether the proceedings were doomed to fail, with a less stringent test. As the present test is a “different enquiry” to the earlier one, “it is dangerous to seek to elucidate the meaning of the statutory expression ‘no reasonable prospect of successfully prosecuting the proceeding’ by reference to what is said in those earlier cases” (Spencer v The Commonwealth (2010) 241 CLR 118 per Hayne, Crennan, Kiefel and Bell JJ at [56]). Nonetheless, the cautions against the too ready inclination to summarily dispose of proceedings expressed by Kirby J in Lindon v The Commonwealth (No. 2) (1996) 136 ALR 251 at 255–256 remain relevant. In the reasons for judgment, the primary judge at [30]–[41] extensively referred to Friar & Friar [2011] FamCAFC 71 (“Friar”) which applied the earlier “doomed to fail” test and at [42]–[51] to Ritter & Ritter and Anor (2020) FLC 93-957 (“Ritter”) which applied the current test at. In the course of the latter discussion the primary judge said:47.The relevant paragraph of the Act in relation to summary dismissal applications is section 45A and as the Court stated in Ritter, a “Judge is obliged to consider whether the husband had no reasonable prospect of success in prosecuting his application under section 79A taking his case at its highest”…

Ratio Decidendi

Legal Principle Established

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