Harford & Spalding
[2023] FedCFamC1F 5
•17 January 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Harford & Spalding [2023] FedCFamC1F 5
File number(s): SYC 3026 of 2020 Judgment of: ALTOBELLI J Date of judgment: 17 January 2023 Catchwords: FAMILY LAW – PROPERTY – Where the husband seeks to set aside consent orders pursuant to s 79A(1)(a) and (b) of the Family Law Act 1975 (Cth) – Husband contends nondisclosure of existence and value of designer items renders the consent orders unjust and inequitable – Husband asserts a miscarriage of justice – Purported Notice to Produce issued by the husband’s solicitors a week prior to the hearing date – Notice to Produce was an abuse of process – Husband entered into consent orders despite the parties’ disagreement regarding valuation of the designer items – A party cannot resurrect an unsuccessful argument without leading any new evidence – No reasonable prospects of success – No miscarriage of justice – Husband’s application dismissed. Legislation: Family Law Act 1975 (Cth) ss 45A, 79, 79A
Federal Court of Australia Act s 31A
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 6.42
Cases cited: Arthurman v Arthurman (2019) FLC 93-926; [2019] FamCAFC 214
Barker & Barker (2007) 36 Fam LR 650; [2007] FamCA 13
Colburn & Cleese [2022] FedCFamC1A 147
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61
Eames v Eames (2018) FLC 93-866; [2018] FamCAFC 204
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Gong & Zao (2021) 363 FLR 1; [2021] FamCAFC 110
Harford & Spalding [2021] FamCA 636
Karlsson v Karlsson [2020] FamCAFC 207
Klearchos & Klearchos [2021] FamCA 375
Lane & Lane (2016) FLC 93-699; [2016] FamCAFC 53
Massalski & Riley (2022) 65 Fam LR 73; [2022] FedCFamC1F 36
Ritter & Ritter (2020) FLC 93-957; [2020] FamCAFC 86
Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34
Division: Division 1 First Instance Number of paragraphs: 47 Date of hearing: 21 September 2022 Place: Sydney Counsel for the Applicant: Mr Beaumont SC with Ms Carter Solicitor for the Applicant: Newnhams Solicitors Counsel for the Respondent: Mr Friedlander Solicitor for the Respondent: Deutsch Partners ORDERS
SYC 3026 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HARFORD
Applicant
AND: MR SPALDING
Respondent
order made by:
ALTOBELLI J
DATE OF ORDER:
17 JANUARY 2023
THE COURT ORDERS THAT:
1.The Respondent husband’s Amended Initiating Application filed 11 March 2021 be dismissed.
THE COURT NOTES THAT:
A.In the event that a party notifies chambers of an intention to seek costs arising from this application, directions will be made for such a costs application to proceed by way of written submissions.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Harford & Spalding has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain why the Court has ordered that the Amended Initiating Application, filed 11 March 2021 by the respondent Mr Spalding (“the husband”), be dismissed.
BACKGROUND
The husband and Ms Harford (“the wife”), the applicant in this matter, commenced cohabitation in 1986, married in 1990 and separated in February 2017. In 2020, the parties settled all financial matters between them by entering into a Binding Financial Agreement dealing with spousal maintenance issues on 28 May 2020, and entering into consent orders that were made by Loughnan J on 29 May 2020.
On 27 November 2020, the husband filed an Initiating Application seeking, in effect, that both the consent orders and the Binding Financial Agreement be set aside. The wife’s Response filed on 23 December 2020 sought an order that the Financial Agreement be declared binding and that the husband’s application be otherwise dismissed.
On 21 January 2021, the wife filed an Application in a Case seeking summary dismissal of the husband’s application. In response to this, on 11 March 2021, the husband filed an Amended Initiating Application particularising the orders sought to clarify that he was relying on s 79A(1)(a) and (b) of the Family Law Act 1975 (Cth) (“the Act”).
On 23 June 2021, Henderson J heard the wife’s application for summary dismissal and, subsequently on 27 August 2021, dismissed that application.
The wife’s appeal against that dismissal was heard on 2 May 2022 and, on 28 May 2022, the Full Court allowed the appeal and remitted the matter for rehearing.
The matter came before me on 21 September 2022.
At the heart of the dispute between the parties is the husband’s contention that the wife failed to disclose valuable designer items in her possession and thus, in effect, the consent orders made were not just and equitable and there was a miscarriage of justice.
In essence, the wife’s case is that she not only disclosed the designer items to which the husband refers, but included them in the joint balance sheet that was tendered to Loughnan J. Moreover, the wife contends that in the said balance sheet, the husband had attributed a value to those designer items of $1,162,000. Thus, there was no miscarriage of justice and the husband had no reasonable prospect of success under s 79A of the Act. If the s 79A claim fails, the claim to set aside the Binding Financial Agreement also fails.
PRELIMINARY ISSUE: NOTICE TO PRODUCE
A preliminary issue arises in this case relating to a Notice to Produce issued by the solicitors for the husband to the solicitors for the wife on 13 September 2022, the week before this matter was heard on 21 September 2022. The wife’s solicitors opposed production on a number of grounds including that it was, in substance, a belated attempt to seek discovery and thus an abuse of process. Issues were also raised about relevance and the Notice to Produce amounting to a fishing expedition.
The documents sought in the Notice to Produce were as follows:
All statements and/or records, digital or otherwise, relating to accounts and/or deposits and/or funds held with any bank and/or any other financial institution, outside of Australia, by the applicant wife in her sole name and/or jointly with any other entity, and/or by any other entity in which she has a beneficial interest as a shareholder or otherwise as a trustee or beneficiary of a trust for the period 1 January 2019 to 30 June 2020.
All lists and/or schedules and/or records, digital or otherwise, created by or on behalf the applicant wife in the proceedings herein from time to time of clothes, bags, coats, shoes, fashion accessories in her possession and/or control, or any one or more of those items, for the period 1 January 2015 to 30 June 2020.
(As per the original)
The Notice to Produce, which is contained in an email correspondence from the husband’s solicitor to the wife’s solicitor, purports to be issued under r 6.42 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) which states:
6.42 Notice to produce
(1)A party may, no later than 7 days before a hearing or 28 days before a trial, by written notice, require another party to produce, at the hearing or trial, a specified document that is in the possession or control of the other party.
(2)A party receiving a notice under subrule (1) must produce the document at the hearing or trial, in a form in which it can be accessed in court.
The Court was referred to a helpful and relevant decision of Collier J in the Federal Court of Australia in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61. At [6], Collier J sets out the following principles relevant to setting aside a Notice to Produce:
1.The party which has issued a Notice to Produce bears the onus of establishing that the documents the subject of the notice are sufficiently relevant to justify production (Seven Network Ltd v News Ltd (No 11) [2006] FCA 174 at [6], Cheung at [55]).
2.Timing of the issue and service of a Notice to Produce is a relevant factor in respect of any application to set aside the Notice.
3.A Notice to Produce cannot be used as an alternative to an application for discovery or for further and better discovery.
4.It is necessary that the material sought has an apparent relevance to the issues in the principal proceedings. The test of apparent relevance in this context is whether the documents are reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case. (Seven network (No 11) at [6], Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union at [14]).
5.A Notice to Produce cannot be used for the purposes of “fishing” or for the purpose of determining a preliminary question as to whether a party has a supportable case.
6.A Notice to Produce may be set aside on the basis that it is unduly burdensome if the width of the categories requested is too broad or the categories are not described with adequate specificity (Tony Azzi Automobiles Pty Ltd v Volvo [2006] NSWSC 283 at [20], Sportsbet Pty Ltd v New South wales (No 9) [2010] FCA 31).
The Notice to Produce in this matter is set aside. Even on the most generous interpretation as to the apparent relevance of the documents, there is no explanation as to why a request that is more in the nature of discovery was made so proximate to the date of the hearing before this Court, and more than two years after the husband initiated the present proceedings and subsequently entered into consent orders purporting to finalise his rights to alteration of property interests under s 79 of the Act. The Notice to Produce was an abuse of process.
MATERIAL BEFORE THE COURT
In support of his case, the husband relied on the following documents:
(a)Initiating Application filed 27 November 2020;
(b)Amended Initiating Application filed 11 March 2021;
(c)Response to Application in a Case filed 24 February 2021;
(d)His affidavit filed 24 February 2021;
(e)His affidavit filed 22 April 2021;
(f)Financial statement filed 27 November 2020;
(g)His affidavit filed 10 August 2022;
(h)His affidavit filed 31 August 2022;
(i)Affidavit of Mr G filed 10 August 2022;
(j)Affidavit of Ms U filed 17 August 2022;
(k)Case outline filed 20 September 2022; and
(l)Affidavit of Mr V filed 31 August 2022.
In support of her case, the wife relied on the following documents:
(a)Application in a Case filed 21 January 2021;
(b)Application in a Proceeding filed 19 September 2022;
(c)Her affidavit filed 21 January 2021;
(d)Financial statement filed 23 December 2020;
(e)Affidavit of Ms W filed 19 September 2022;
(f)Case outline filed 14 September 2022; and
(g)Wife’s J Company portfolio as at 19 March 2020 (marked Exhibit A1).
APPLICABLE LEGAL PRINCIPLES
Relevantly, ss 79A(1)(a) and (b) of the Act state that:
(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a)There has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
(b)In the circumstances that have arisen since the order was made it is impracticable for the order to be carried out
…
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
The Court adopts the statement of applicable legal principles found in the wife’s case outline filed 14 September 2022.
Both s 46 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) and s 45A of the Act allow the Court to make a summary decree in favour of a party in relation to the whole or part of a proceeding if the Court is satisfied that a party has no reasonable prospect of successfully prosecuting the proceedings.
Whilst in substantially the same terms as s 45A of the Act, s 46 of the FCFCOA Act refers specifically to Division 1 matters and is relied upon for the purpose of the Wife's application; Massalski & Riley (2022) 65 Fam LR 73 at [58]. Section 46(3) expressly states that proceedings need not be hopeless or bound to fail in order to satisfy the Court that a party has “no reasonable prospect of successfully prosecuting the proceedings”.
In Spencer v The Commonwealth (2010) 241 CLR 118 (“Spencer”), the High Court considered the cognate predecessor provision to s 46, namely, s 31A of the Federal Court of Australia Act 1976 (Cth). This also expressly provides that proceedings need not be hopeless or bound to fail in order to satisfy the requirement that a party has no reasonable prospect of successfully prosecuting the proceedings.
The main judgment of Hayne, Crennan, Kiefel and Bell JJ states the following about s 31A at 140 [56]:
[56]Because s 31A(3) provides that certainty of failure ("hopeless" or "bound to fail") need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s 31A is to be understood as requiring a different inquiry from that which had to be made under earlier procedural regimes. It follows, of course, that 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.
Their Honours, while readily accepting “that the power to dismiss an action summarily is not to be exercised lightly”, repeated this warning about the danger of applying the old General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 (“General Steel”) test of certainty of failure at [60].
The Full Court of this Court has confirmed the applicability of the reasoning in Spencer to s 45A of the Act in both of these respects. That is, (1) the power to dismiss summarily should still not be exercised lightly, but (2) it would be wrong to apply the earlier, more stringent “clear certainty of failure” test in General Steel, given the express terms of s 45A(3) and the reasoning in Spencer: Arthurman v Arthurman (2019) FLC 93-926 at [16]; Eames v Eames (2018) 340 FLR 148 at [17]; Karlsson v Karlsson [2020] FamCAFC 207 at [40] - [41]; Gong & Zao (2021) 363 FLR 1. The same reasoning applies to s 46 of the FCFCOA Act.
The Court is still to take into account the husband's case “at its highest”, unless his version is inherently incredible or unreliable: Ritter & Ritter (2020) FLC 93-957 at [66]. However, as Harper J recently held, “this does not mean every factual assertion by the respondent to the summary dismissal application must be accepted as true without qualification. Some evaluation must be undertaken. Otherwise, any exaggerated, distorted or deliberately misleading or untrue factual assertion by the respondent would have to be taken at face value”: Massalski & Riley (2022) 65 Fam LR 73 at [68]. Hence, a Court is entitled to conclude that an evidentiary claim is unsustainable and apt to be summarily dismissed where it is squarely contradicted by the claimant's earlier evidence: Klearchos & Klearchos [2021] FamCA 375 at [89].
Further, the Court is required to apply its rules in a way that best promotes the overarching purpose of the Rules, which is to “facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible” (r 1.04).
The Husband’s Application Pursuant to s 79A of the Family Law Act
By his Amended Initiating Application filed on 11 March 2021, the husband had sought that the consent orders (discussed further below) made on 29 May 2020 be set aside or varied pursuant to either s 79A(l)(a) or s 79A(l)(b). However, the husband has since abandoned any reliance on s 79A(l)(b), and confirmed that he only relied on s 79A(l)(a): Harford & Spalding [2021] FamCA 636 at [58]–[60].
It is well settled that to engage s 79A(l) of the Act, the Court must be satisfied that:
(a)there has been some misleading conduct or non-disclosure;
(b)the conduct which has occurred is sufficient to give rise to a miscarriage of justice; and
(c)in all of the circumstances, the Court should exercise the discretion to vary or set aside the orders sought to be impugned: Barker & Barker (2007) 36 Fam LR 650 at 676 and 678; Lane & Lane (2016) FLC 93-699 at [82]–[97].
RELEVANT FACTUAL FINDINGS
The facts of this case are largely undisputed. The material put before Loughnan J and the transcript of submissions made before his Honour were before the Court. The husband was represented by his solicitor, a very experienced Accredited Specialist in Family Law, and the wife by her senior counsel.
The parties prepared a joint balance sheet, which was before his Honour at the time that he was considering whether to make consent orders.
Item 2 of said balance sheet is described as “[J Company] and International Designer Clothing”. In the column headed “Husband’s Value”, the estimated figure attached to that item is $1,162,000. In the wife’s column, the value is “NIL”.
There are also notes attached to item 2 of the balance sheet, which are reproduced below. In effect, the notes summarise the competing contentions of the husband and wife about these items, collectively item 2.
Husband:
For full list of items refer to ‘[Ms Harford] Clothes & Other Items Schedule’ prepared by the Wife as at June 2014. Husband contends that the Wife’s clothing collection has grown substantially to date (as per images taken by the Husband). Husband’s figure breakdown is E$728,000 for clothes in use by Wife and E$434,000 for clothes in storage.
Wife:
•The Wife uses her Representation Allowance to purchase [J Company] clothing which she purchases as set out in Item 1.
•The items of clothing are second hand clothes and the market has extremely low returns unless the garments are couture items or form part of a significant collection of a globally known public figure.
•In any event, the Wife is not permitted to re-sell her [J Company] clothing whilst an employee of [J Company].
The transcript of the submissions before his Honour was before this Court, as well as the Full Court, whose observations are apposite. At [22]–[24] their Honours state:
In thereafter failing to have regard to the transcript and, particularly, the submissions made by each party’s counsel before Loughnan J in seeking the 2020 orders, her Honour further erred. That is because the transcript of 29 May 2020 clearly demonstrates that both counsel made the submission that, notwithstanding the unresolved issue of the value of the wife’s designer clothing, each party nonetheless sought that the consent orders be made.
Thus at the hearing before Loughnan J, then senior counsel for the wife said:
[COUNSEL FOR THE WIFE]:… We run into some difficulties when we come to the question of valuation of my client’s personal property and there’s a substantial difference as between the parties.
The short reason for that being that my client is not permitted to sell items which she has received, subject to the policy of her employer, whilst employed by her employer which we say affects their market value. Both parties have come to a commercial decision to resolve that. The husband will retain some of my client’s personal property but your Honour will have seen the restraint on him using her name to sell that…
(Transcript 29 May 2020, p.2 lines 29–38) (Emphasis added)
Likewise, then counsel for the husband said:
[COUNSEL FOR THE HUSBAND]: … It is my client’s decision, after having the benefit of legal advice, to proceed with this settlement. Your Honour may take comfort in knowing that the parties participated in a mediation … on 23 March. It was a long mediation. They were both represented. I was in attendance with my client and the wife was represented by her lawyer. That mediation went for some 10 hours and whilst this resolution doesn’t precisely arise from the matters that were resolved at the mediation, it has been an ongoing discussion between the parties, directly for the most part, in recent weeks to resolve the matter.
Your Honour quite rightly notes the very different contentions by each party in relation to the balance sheet. We ultimately could not agree on the appointment of a valuer and a valuation process for items that my client would say are very valuable. The wife has a different view about the value that should be attributed, based on the limitation she says her employer places on what she can do with these items and how she can use them and the fact that she contends she can’t sell them.
HIS HONOUR: Yes.
[COUNSEL FOR THE HUSBAND]: But having regard to all of the circumstances, my client instructs me very clearly – and I met with him in person yesterday – that he wants to go ahead with this settlement and is completely aware of the process that the legislation provides for for [sic] property settlement. He is aware of his rights in relation to spousal maintenance…
(Transcript 29 May 2020, p.3 line 34 to p.4 line 10) (Emphasis added)
By way of brief summary, therefore, this evidence indicates that the husband’s solicitor, acting on his behalf, plainly and unconditionally told the Court that: the husband and wife had different views in relation to the valuation of the clothing in question; those different views were reflected in the different values on the balance sheet; the parties could not agree about valuation; and despite that, the husband clearly instructed his solicitor, and wished for the Court, to make the consent orders which were ultimately made.
It is clear from this undisputed evidence that the husband made a conscious choice to settle and enter into consent orders despite the unresolved issue of the value of the chattels in question.
Wife’s submissions
In short, the wife’s case was that there was no miscarriage of justice for the purposes of s 79A(1) and that, even if there were, the Court would not exercise its discretion in the husband’s favour on the clear facts of this case. The competing contentions about the value of the designer items were apparent to both the husband and wife, as well as to the Court. At all relevant times, the husband believed that the value of the clothing was $1.162 million and he entered into the consent orders on that basis. The husband cannot now say that he believed the clothing in question to have no value, and to complain that the wife may have sold some of that clothing, thus causing him to falsely believe that the clothing did have a value. Neither the husband nor the Court was misled in any way. Thus, whilst the power to dismiss summarily should not be exercised lightly, this is a matter where, even taking the husband’s case at its highest, there was no reasonable prospect of success.
Husband’s submissions
It was very hard to discern the substance of the husband’s case, other than that he reiterated the wife had perpetrated fraud upon him and the Court in her nondisclosure and nil value representation of the clothing in the balance sheet. The husband caused voluminous material to be filed in support of his case, indeed several hundred pages of affidavit material. It was incumbent on his counsel to elucidate his claim by reference to the husband’s evidence and not to engage in unhelpful and superficial generalities in the expectation that the Court would trawl through the husband’s material and discover a hitherto hidden gem that would prove the husband’s case.
There was very little joining issue with the wife’s case. Indeed, at times the parties’ assertions resembled two metaphorical ships passing in the night. The husband simply did not address how there could be a miscarriage of justice in circumstances where, fully aware of the valuation issue of the chattels in question, he nonetheless asked the Court to make the consent orders.
Additionally, there were allusions to lack of full disclosure regarding the wife’s jewellery collection and overseas bank accounts.
The Court is none the wiser about how the husband’s claim under s 79A(1)(b) arises from the material before the Court. Ultimately, the husband’s counsel conceded that his case was based solely on s 79A(1)(a).
DISCUSSION
Insofar as the husband’s case is based on the designer items at item 2 of the balance sheet, even before considering whether the claim should be summarily dismissed on the basis contended by the wife, the Court believes that it should be summarily dismissed because the husband is estopped from now asserting to this Court something completely different to that which he asserted to Loughnan J at the time the consent orders were made. Clearly, the husband represented to his Honour that the designer items had a certain value. He cannot now assert that those items didn’t have that value. Moreover, through his solicitor, the husband effectively represented to the Court that the outcome was just and equitable for the purposes of s 79 of the Act. He cannot now effectively represent to this Court that it is not just and equitable. The issue of estoppel was recently considered by the Full Court in Colburn & Cleese [2022] FedCFamC1A 147 at [20]–[35]. As the Full Court noted, an issue of estoppel arises from an order made by consent, as well as from an order made by the Court after adjudication. Moreover, on the husband’s own evidence, there is no fraud due to his own knowledge.
Even if that were not correct, however, the Court accepts the wife’s submissions that there has been no miscarriage of justice on the facts of this case. The husband made choices prior to entering into the consent orders, including the choice not to take the issue of the valuation of the designer items any further. No miscarriage of justice arises. Even if there were a miscarriage of justice, none of the material presented to the Court on behalf of the husband would indicate that, on the facts, the discretion to set aside should be exercised in his favour. The husband has no reasonable prospect of successfully prosecuting this part of his claim.
Insofar as his case is based on the wife’s non-disclosure of her jewellery, even taking the husband’s evidence at its highest, it fails. The relevant evidence is found at paragraph 11 of his affidavit filed 10 August 2022, in which he contends that the wife did not disclose an item of jewellery which appears in a photograph annexed to his affidavit which, he deposes, “…seems to be a gold brooch with a precious stone.” It is clear from his evidence that this is a photograph in his possession. The husband’s contention that it “seems” to be that which he represents is somewhat audacious. It lacks plausibility and is contrary to common sense that, even if the item were what the husband purports it to be, the Court would exercise its discretion to set aside the consent orders in the circumstances of this case. He makes no attempt to explain how, even if he were correct, the existence of this piece of jewellery would make a material difference.
Finally, the husband’s evidence regarding the wife’s alleged overseas bank accounts is found at paragraphs 14 and 15 of his affidavit filed 22 April 2021. Henderson J deals with this allegation of the husband at [74]–[83] of her Honour’s reasons for judgment dated 27 August 2021, in which her Honour concluded that it had no merit. Of course, the orders made were overturned on appeal, but her Honour’s findings in this regard were not challenged on appeal. This Court accepts that the matter was remitted for hearing de novo. However, the husband leads no new evidence on this issue in the present application. Whilst no estoppel arises, the wife contends that it is an abuse of process for the husband to now, in effect, resurrect an unsuccessful argument without leading any new evidence.
The Court agrees that it is an abuse of process in the sense discussed by Brennan J in Williams v Spautz (1992) 174 CLR 509 at [2]. The husband had presented all of his evidence regarding the bank accounts in the proceedings before Henderson J. This was not an issue in dispute before the Full Court. The mere fact that the appeal was allowed and the summary dismissal application remitted for hearing to this Court does not change the fundamental character of the husband’s actions in seeking to re-litigate a matter already decided by another judge of this Court. It does not serve the interests of justice to allow such conduct.
In any event, this Court reaches exactly the same conclusion that Henderson J did, having regard to the evidence before it. The husband has no reasonable prospects of successfully prosecuting his case on the basis of the allegedly non-disclosed bank accounts. Even if the Court is wrong in that regard, the husband makes no attempt to explain how it would make a material difference.
DISPOSITION
It follows from the above that the husband’s application filed 11 March 2021 has no reasonable prospects of success and should be dismissed. In the event of a party notifying chambers of an intention to seek costs of this application, directions for such a costs application to proceed by way of written submissions will be made.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 17 January 2023
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