Hullet & Benton
[2022] FedCFamC1A 13
•11 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Hullet & Benton [2022] FedCFamC1A 13
Appeal from: Hullet & Benton [2021] FamCA 449 Appeal number(s): SOA 43 of 2021 File number(s): MLC 13387 of 2020 Judgment of: AUSTIN, TREE & MCEVOY JJ Date of judgment: 11 February 2022 Catchwords: FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Leave to appeal – Where a registrar made orders dismissing an application for property settlement orders after the wife withdrew her consent to the proposed orders, following the death of the husband – Where the primary judge on review discharged that order and made orders substituting the executor for the deceased husband and for the proceedings to progress as an adversarial contest between the wife and the executor – Where the wife seeks leave to appeal from those orders – Where the orders were a mere ruling on a question of law and not decisive of the parties’ rights – Where the appeal is incompetent – Where the appeal lacks merit – Where proceedings are not comprised of merely the application which initiates the cause, nor determined by its grant or dismissal – Where proceedings are not invalidated by any formal defect or irregularity – Where the orders of the primary judge do not compel the institution of fresh proceedings – Leave to appeal refused – Application in an Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt VIII, ss 4, 39, 79, 79A
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 26, 66, 69
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) Sch 5, Pt 4, Div 2
Family Law Rules 2004 (Cth) ch 4, rr 10.15, 24.04
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.22, 10.26, 10.27, 12.17
Cases cited: Bain & Bain (Deceased) (2017) FLC 93-772; [2017] FamCAFC 80
Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Greval v Estate of the late Greval; Sandalwood Lodge Pty Ltd (Intervener) (1990) FLC 92-132; [1990] FamCA 31
Lim v Comcare (2019) 165 ALD 217; [2019] FCAFC 104
In the Marriage of Strelys (1988) FLC 91-961; [1988] FamCA 1
Repatriation Commission v Nation (1995) 57 FCR 25; [1995] FCA 1277
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Yule v Junek (1978) 139 CLR 1; [1978] HCA 4
Number of paragraphs: 63 Date of hearing: 3 February 2022 Place: Heard in Melbourne (via video link), delivered in Newcastle Counsel for the Applicant: Mr Wraith Solicitor for the Applicant: Robinson Gill Counsel for the Respondent: Dr Matta Solicitor for the Respondent: Kenna Teasdale ORDERS
SOA 43 of 2021
MLC 13387 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS HULLET
Applicant
AND: MR BENTON AS TRUSTEE FOR THE DECEASED ESTATE OF MR D BENTON
Respondent
ORDER MADE BY:
AUSTIN, TREE & MCEVOY JJ
DATE OF ORDER:
11 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 18 October 2021 is dismissed.
2.The Response to the Application in an Appeal filed on 31 January 2022 is dismissed.
3.Leave to appeal is refused and the Amended Notice of Appeal filed on 8 October 2021 is dismissed.
4.The applicant shall pay the respondent’s costs of and incidental to the appeal in the fixed sum of $15,000.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hullet & Benton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, TREE & MCEVOY JJ:
By an Amended Notice of Appeal filed on 8 October 2021, the applicant wife seeks leave to appeal and, if granted, then appeals from orders made by a judge of the Family Court of Australia (as the Court was then known) on 29 June 2021 (but later amended on 20 July 2021 under the slip rule).
The subject orders were made by the primary judge in the course of reviewing orders earlier made on 18 January 2021 by a registrar exercising delegated power. The registrar dismissed an application made jointly by the spouses for property settlement orders, but the primary judge discharged the registrar’s dismissal order and then made procedural orders for the proceedings’ orderly progression as an adversarial contest.
The wife contended the proceedings were correctly dismissed by the registrar and incapable of revival, though, for the following reasons, the appeal is incompetent and leave to appeal is refused.
BACKGROUND
After a long marriage, the spouses separated in 2018.
The spouses reached a compromise over the division of their property and, in December 2020, an application was filed with the Court for consent orders to ratify their agreement. The wife was designated as the applicant and the husband as the respondent.
The husband died in early 2021, just before the application was determined. He was diagnosed with cancer about six months before, about which the wife knew nothing. Upon learning of his death, the wife notified the Court and the deceased’s lawyers of her withdrawal of consent to the proposed consent orders. As a consequence, on 18 January 2021, the registrar dismissed the application for consent orders.
A dispute then arose over the dismissal order. The deceased’s executor (“the executor”) filed an application in February 2021 to review the registrar’s decision and the wife responded in March 2021 seeking the dismissal of the review application. Those were the two applications listed for hearing before the primary judge.
The primary judge characterised the gist of the dispute in this way:
3.The crux of the dispute is in relation to what if any proceedings remain on foot following the death of the husband and the wife withdrawing her consent to the orders for property settlement agreed upon by the husband and wife prior to his death.
The executor contended the filing of the application for consent orders by the spouses constituted the commencement of proceedings, which same proceedings could then be pursued in a different form upon either or both of the deceased’s death and the withdrawal of the wife’s consent, which contention the primary judge accepted to be correct. Her Honour summarised the executor’s position on the review application in this way:
21.… The Executor of the husband’s estate seeks both an order appointing him as the husband’s legal personal representative and orders with respect to the future conduct of the proceedings.
Conversely, the wife contended the application for consent orders (made under r 10.15 of the now repealed Family Law Rules 2004 (Cth) (“the old Rules”)) was a quite different species of application to an adversarial application for property settlement (made under ch 4 of the old Rules) and had to be treated differently, notwithstanding both types of application seek to invoke the Court’s discretionary power under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”). In determining the review application, the wife submitted the primary judge’s power was confined to either the grant or the dismissal of the application for consent orders and, since she had withdrawn her consent to the consent orders, there was no option but to dismiss the application, as the registrar had already correctly done.
In rejecting the wife’s argument, the primary judge said this in the reasons for judgment:
16.Although I accept as submitted by the wife that the provision of information pursuant to r. 10.17(b) of the Rules does not extend to an order requiring either the Executor or the wife to file an Initiating Application I do not accept that the filing of an Initiating Application would commence new and distinct proceedings.
17.Although the procedures and processes may be different the power the Court is exercising, whether it is an Application for Consent Orders or contested proceedings, is the power pursuant to s 79 of the Act to make such order or orders in property settlement proceedings as it considers appropriate.
…
22.Both parties relied upon the decision of the Full Court of the Family Court of Australia in In the Marriage of Strelys [1988] FLC 91-961 (“Strelys”) in particular the decision of Nygh J who said (at page 76,964) as follows:
Is the word “proceedings” to be interpreted as constituted by an application or a cross-application, as his Honour clearly understood it, or is it to be understood as referring to the power of the court, once an application has been instituted under s 79, to adjust the property rights of the parties either way, as was argued for the appellant?
The word “proceedings” is defined in s 4(1) of the Act as: “A proceeding in a court, whether between parties or not, and includes cross proceedings or an incidental proceeding in the course of or in connection with a proceeding.”
...
It follows in my view that “proceedings” cannot be interpreted as being synonymous with “application”. When s 44(1) provides that “proceedings under this Act shall be instituted by application”, the reference in the word “application” is to the document prescribed under the rules in which the various kinds of relief sought are to be set out. I would therefore agree with the view expressed by Mullane J In the Marriage of Jacobsen (1987) 11 Fam LR 990 at 991, that the words “application” and “cross-application” are procedural terms established and defined in the Family Law Rules.
23. Nygh J said further (at page 76,965) as follows:
…an application is the machinery whereby a proceeding under s 79 is instituted. Once that proceeding is instituted the whole of the property of the parties is affected by the power of the court to adjust the interest of each of the parties in favour of the other. It is true to say that no enforceable right can arise until an order is made, but an inchoate right or claim affecting the whole of the property of the spouses arises as soon as the proceeding is commenced. Hence it must follow that each of the applicant and the respondent has an interest in continuing the proceeding after the death of the other. The word “proceedings” in s 79(8) must therefore be taken to refer to the process of litigation which will result in an adjustment of the interests of each of the parties in relation to the whole of their property which is just and equitable in the circumstances. That process may under s 79(8) be continued by either the applicant or the respondent.
DISCUSSION
24.Although counsel for the wife accepted as per Nygh J in Strelys that the reference to a “proceeding” was a reference to the “process of litigation” rather than the application which initiated that proceeding it was his submission that Strelys “does not stand for the proposition that a proceeding commenced by the filing of an Application for Consent Orders may be continued as if it were a proceeding commenced by the filing of an Initiating Application for Final Orders”. This submission in my view directly contradicts the principles enunciated in Strelys treating the application itself as the proceeding rather than as the process by which that proceeding is initiated.
…
26.I am satisfied that the proceedings in this case are the property proceedings as between the husband and the wife. Although prior to the husband’s death the husband and the wife were seeking to have the Court exercise its power pursuant to s 79 of the Act to make consent orders using the procedures provided for in the Rules for that purpose, following the husband’s death the Court is exercising the same powers albeit the process may be different. It is these proceedings pursuant to s 79 of the Act that the husband’s Executor seeks, acting as the husband’s personal legal representative, to continue.
…
28.I am satisfied that the property proceedings were not discontinued as a consequence of the wife having withdrawn her consent to the orders, the Application for Consent Orders should not have been dismissed and that orders are required for the future conduct of the matter.
29.The wife did not take issue with the husband’s Executor being appointed as his legal personal representative for the purposes of the proceedings nor was it the wife’s case that the Court would not have made an order if the husband had not died or that it would not be appropriate for the Court to make orders pursuant to s 79 of the Act in the event that the Court did not accept the wife’s submissions with respect to the Application for Consent Orders being different to an application for final property orders. …
(Emphasis added)
The orders then made by the primary judge achieved these outcomes:
(a)the discharge of the dismissal order made by the registrar (Order 1);
(b)substitution of the executor for the deceased in the proceedings commenced by the application for consent orders, pursuant to s 79(8) of the Act (Order 2);
(c)the requirement of the wife to file an Initiating Application within 14 days (Order 3);
(d)the requirement of the executor to file a Response within 14 days thereafter (Order 4); and otherwise
(e)dismissal of the review application and directions for the filing of costs submissions (Orders 5–9).
The wife appealed from all of those orders.
LEAVE TO APPEAL
Being ostensibly interlocutory orders, leave to appeal is necessary.
However, there is a wider question of whether any appeal capably lies from any of the orders. The existence of a “judgment” is the pre-requisite for a competent appeal (s 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)), for which purpose a “judgment” is defined to include an order or decree, whether it be final or interlocutory (s 7 of the FCFCA Act).
But importantly, a “judgment” does not include a mere ruling on a question of law which is not decisive of the parties’ rights in the justiciable dispute, even if it is expressed in the form of an order (Commonwealth v Mullane (1961) 106 CLR 166 at 169; Yule v Junek (1978) 139 CLR 1 per Mason J at 14, Jacobs J at 18, Murphy J at 21 and Aickin J at 26).
Here, none of the orders amount to a “judgment” since none is decisive of the parties’ rights under Pt VIII of the Act. The orders do no more than achieve the continuity of the proceedings. The primary judge simply ruled on the question of law concerning the continuing competency of the proceedings, once the wife had withdrawn her consent to the original orders and the executor (after his substitution for the deceased) foreshadowed an intention to prosecute an application for property settlement orders in one form or another.
Leave to appeal must be refused once it is understood that no appeal validly lies. However, since the incompetency of the appeal was not contemplated by either party prior to the hearing and each had prepared on the basis that the proposed appeal would be contested on merit, it is nonetheless worthwhile to briefly explain why it lacked merit.
THE APPEAL
Despite the wife purporting to appeal from all orders, only Orders 1, 3 and 4 were the subject of direct challenge.
Grounds 4, 5 and 8 attack Order 1, which has the effect of allowing the proceedings to continue on a contested basis.
Grounds 1, 2, 3 and 7 attack Orders 3 and 4, which purport to compel the parties to file fresh process.
Ground 6 is a separate complaint about the primary judge’s alleged discretionary error in failing to take a material consideration into account when making the orders.
There was no separate challenge to the supplementary procedural orders (Orders 5–9), meaning the wife accepted those orders would stand if the challenge to Orders 1, 3 and 4 failed.
The wife also expressly conceded in the appeal that it was open to make an order substituting the executor for the deceased, so there was no error in making Order 2.
Grounds 4 and 5 – characterisation of the proceeding
Ground 4 asserts the primary judge erred by determining the property settlement proceeding, commenced by the filing of the application for consent orders under r 10.15 of the old Rules, was capable of being continued as an adversarial proceeding and an outcome other than the binary choice of either the grant or dismissal of the application was then permissible. Essentially, the complaint is the re-statement of the case put by the wife at first instance.
Ground 5 alternatively claims that, even if the property settlement proceeding could indeed be carried on in some other form after the wife’s withdrawal of consent to the orders originally proposed, as the primary judge found, then insufficient reasons were given to explain why.
In support of these grounds, the wife’s argument is neatly encapsulated in this submission within her Summary of Argument:
49.Whilst proceedings under rule 10.15(b) and 10.17 for Consent Orders and proceedings for final property division under Chapter 4 both fall within the rubric of "property settlement proceedings" under s 4, in the options available to the Court in the former are fundamentally different, and vastly more constrained, than those available to the Court in a proceeding commenced under Chapter 4. They are separate processes of litigation, albeit that both may culminate in the exercising of power under s 79.
(Emphasis in original)
We reject the submission and accept, as the executor contends and the primary judge found, that the wife’s submissions tend to conflate the concepts of “proceedings” and “applications”.
The Court is empowered under Pt VIII of the Act to make property settlement orders between spouses, but the power only derives from the existence of jurisdiction in a matrimonial cause, which jurisdiction does not necessarily exist simply because an application is filed.
Jurisdiction was prescribed by the Act in these terms at the time the appealed orders were made (though the form is now different due to the enactment in the interregnum of both the FCFCA Act and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) (“the Transition Act”)):
39 Jurisdiction in matrimonial causes
(1) Subject to this Part, a matrimonial cause may be instituted under this Act:
(a) in the Family Court; or
(b) in the Supreme Court of a State or a Territory.
…
(4)Proceedings of a kind referred to in the definition of matrimonial cause in subsection 4(1), other than proceedings for a divorce order or proceedings referred to in paragraph (f) of that definition, may be instituted under this Act if:
(a)in the case of proceedings between the parties to a marriage or proceedings of a kind referred to in paragraph (b) of that definition in relation to a marriage—either party to the marriage is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, at the relevant date; and
(b)in any other case—any party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, at the relevant date.
(4A) In subsection (4), relevant date, in relation to proceedings, means:
(a)if the application instituting the proceedings is filed in a court—the date on which the application is so filed; or
(b)in any other case—the date on which the application instituting the proceedings is made.
(5)Subject to this Part and to section 111AA, the Supreme Court of each State is invested with federal jurisdiction, and jurisdiction is conferred on the Family Court and on the Supreme Court of each Territory, with respect to matters arising under this Act in respect of which:
(a)matrimonial causes are instituted under this Act; or
(b)matrimonial causes are continued in accordance with section 9; or
(d)proceedings are instituted under regulations made for the purposes of section 109, 110, 111, 111A or 111B or of paragraph 125(1)(f) or (g) or under Rules of Court made for the purposes of paragraph 123(1)(r); or
(da)proceedings are instituted under Division 4 of Part XIIIAA or under regulations made for the purposes of section 111CZ; or
(e)proceedings are instituted under section 117A.
…
(9)The jurisdiction conferred on or invested in a court by this section includes jurisdiction with respect to matters arising under any law of the Commonwealth in respect of which proceedings are transferred to that court in accordance with this Act.
For the application of s 39, the Act relevantly defines (in s 4) a “matrimonial cause” as follows:
matrimonial cause means:
…
(ca)proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:
(i) arising out of the marital relationship;
…
(f)any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of paragraphs (a) to (eb), including proceedings of such a kind pending at, or completed before, the commencement of this Act.
In this instance, the matrimonial cause was of the type prescribed in paragraph (ca)(i) of the definition and jurisdiction was enlivened under s 39 of the Act.
Once jurisdiction exists and is regularly invoked, as was the case here, the proceeding comprises the matrimonial cause and is not determined until discretionary power under Pt VIII of the Act is exhausted. The proceeding is not comprised of merely the application which initiates the cause, nor determined by merely the grant or dismissal of that particular application.
Whatever prescribed form the original application takes to invoke jurisdiction and petition the Court for the exercise of power, the power wielded under Pt VIII of the Act is exactly the same. The order made by the Court in the exercise of such power then finalises the matrimonial cause between the parties; not merely the application which initiates the proceeding, nor the various amended applications the parties subsequently make during the course of the proceeding. After the proceeding is validly commenced, the Court is enjoined to make such property settlement orders as are just and equitable; not just grant or dismiss the suites of orders for which the spouses individually apply.
Due to the wife’s withdrawal of consent, neither the registrar (in January 2021) nor the primary judge (in June 2021) could make the orders for which the spouses originally jointly applied, but the dismissal of the proceeding was not then the only remaining option for the primary judge, as the wife contended. The specific application for consent orders which started the proceeding had to be declined, but the proceeding for property settlement could not then be summarily dismissed without a hearing on the merits when one party still pressed for orders to be made under Pt VIII of the Act.
The review conducted by the primary judge was a hearing de novo and, by then, the executor sought an order substituting him for the deceased, pursuant to the power reposing in s 79(8) of the Act, so he could then prosecute an application for property settlement orders, even if the wife might by then have been content with no orders at all being made.
Given the wife expressly conceded these points in the appeal:
(a)she could not “unilaterally discontinue the proceeding”;
(b)her withdrawal of consent to the originally proposed orders “did not in and of itself end the proceeding”; and
(c)the Court had power to substitute the executor for the deceased in the proceeding;
it was puzzling that she persisted in submitting the property settlement proceeding could not be validly continued and ultimately concluded by different orders from those originally proposed by the spouses consensually.
The incompatibility of the wife’s admissions and submissions can be easily demonstrated in this way: there would be no point in substituting the executor for the husband in the pending proceeding, as the wife admitted could occur, if the Court was then bound to simply dismiss the original application for consent orders, as the wife asserted must occur. The executor could only be substituted for the deceased pursuant to s 79(8) of the Act if, despite the deceased’s death, it would still be just and equitable to make some form of property settlement order. If, as the wife contended, there was no option but to dismiss the proceeding then the provisions of s 79(8) were not validly engaged.
We agree with the primary judge’s view (at [24]) that the wife’s submissions are repugnant to Nygh J’s observations in In the Marriage of Strelys (1988) FLC 91-961, the correctness of which we endorse. The wife’s submissions also offend the commentary of the Full Court to similar effect in other more recent cases (Greval v Estate of the late Greval; Sandalwood Lodge Pty Ltd (Intervener) (1990) FLC 92-132 at 77,907; Bain & Bain (Deceased) (2017) FLC 93-772 at [74]–[75]). Ground 4 fails.
As for Ground 5, we consider the primary judge’s reasons, extracted above, explain quite satisfactorily why the proceeding for property settlement under Pt VIII of the Act, commenced by the wife filing the application for consent orders, was capable of being prosecuted in an adversarial form once she withdrew her consent to orders being made in the form originally proposed and the executor was substituted for the deceased. In any event, the primary judge only had to apply the law correctly; not give reasons why the settled law is correct. Judges need only give reasons to explain the orders they make. Ground 5 fails also.
Ground 8 – no proceeding on foot
The wife amended the grounds of her appeal to include this additional ground. She contended the application for consent orders she originally filed was incomplete by reason of the omission of some pages and, since the application was filed in a defective form, it meant no proceeding was ever validly instituted. It was therefore impossible, so it was contended, to continue a proceeding which did not exist.
In an effort to vindicate the point, the wife filed an application to adduce further evidence which, if admitted, would demonstrate the inadvertent omission of some pages from the original application for consent orders. But, even if the appeal was competent, there would be no need to receive the further evidence in the appeal since, if the initiating application was defective in that way, it did not mean the proceeding was then never validly commenced. An invalid proceeding is not the inevitable consequence of defective process. Rule 24.04(3) of the old Rules expressly provided that strict compliance with an approved form was not required. For that reason, aside from its lateness, nor is there any need to consider the executor’s application to adduce further evidence to meet and rebut that which the wife wished to adduce.
The omission of relevant information from the application might have prompted a requisition from the registrar (had the wife not withdrawn her consent to the application beforehand), but a defective application form did not deprive the proceeding of its validity. Although dismissed by the registrar, the proceeding was revived when the review application was filed by the executor.
If it be assumed that the appeal on this point was both competent and correct then, in the re-exercise of discretion, this Court would be bound by reason of Sch 5, Pt 4, Div 2 of the Transition Act to apply the provisions of the FCFCA Act, in which case s 66 of the FCFCA Act provides the proceeding is not invalidated by any formal defect or irregularity. So the defective application form is of no consequence and an appeal on this ground is futile.
It should not pass without comment that this contention about the invalidity of the proceeding is the antithesis of the wife’s other grounds of appeal, which assert the proceeding was validly entertained and properly dismissed by the registrar.
Grounds 1, 2, 3 and 7 – power of compulsion
These grounds collectively assert the primary judge had no power to make Orders 3 and 4, which purport to compel the wife to file an Initiating Application and the executor to file a Response.
It is quite true the primary judge had no power to compel the parties to either begin or continue contesting fresh proceedings, but that is not what the orders do. These grounds misunderstand the effective intent of the orders, the meaning of which must be construed objectively (Repatriation Commission v Nation (1995) 57 FCR 25 at 33–34; Lim v Comcare (2019) 165 ALD 217 at [40]–[41]).
No fresh proceeding was necessary because the primary judge found the original proceeding remained on foot. Correctly, the primary judge said this:
16.… I do not accept that the filing of an Initiating Application would commence new and distinct proceedings.
Rather than seeking to compel the institution of fresh proceedings, as the wife thought, the orders only sought to ensure that the parties file, in a timely way, documents setting out the fresh suites of orders for which they now apply – it being accepted that the wife certainly does not want property settlement orders in the form the spouses originally proposed and the executor’s revised proposal is yet to be revealed.
Orders 3 and 4 should be construed to only mean that, if either the wife or executor wishes to prosecute an application for property settlement orders, then by the given dates she or he should file the Application or Response setting out the relief sought. For the proceeding to progress sensibly, both the wife and the executor must formally notify the Court and one another of the new suite of orders for which they apply. The only consequence of either party choosing not do so is that the original proceeding might then be concluded on an undefended basis (ss 69(3), 69(4) and 69(5) of the FCFCA Act; rr 10.22, 10.26 and 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the new Rules”).
Ground 6 – failing to take a material consideration into account
This ground asserts the primary judge erred by holding that the deceased’s failure to notify the wife of his terminal illness when the application for consent orders was pending was irrelevant “for the purposes of the matters to be determined”.
The primary judge said this in the reasons for judgment:
6.The husband was diagnosed with cancer in July 2020 and died [in early] 2021. It is part of the wife’s case, although not relevant for the purposes of the matters I must determine, that the husband did not disclose his ill health and that she was not aware that he was ill, let alone terminally ill, until after his death.
(Emphasis added)
The wife took issue with her Honour’s characterisation of the deceased’s concealment of his ill health as being “not relevant” to the matters in issue.
Significantly, the only material “matters” to be determined by the primary judge were, first, whether the executor should be substituted for the deceased, and secondly, whether the property settlement proceeding, commenced consensually between the spouses, could be continued as an adversarial contest between the wife and the executor.
The deceased’s concealment of his terminal illness may indeed have been relevant if the consent orders had been made before his death and the wife was then seeking to set the orders aside at first-instance under s 79A of the Act, but that is not the situation at hand. Since the consent orders were not made, we are unable to see how the deceased’s concealment affected the inter-related questions of whether the executor should be substituted for the deceased and whether jurisdiction and power existed to make property settlement orders between the wife and executor other than on a consensual basis.
In support of this ground, the wife submitted in her Summary of Argument:
73.It is submitted that in light of the Wife’s evidence that she would not have consented to the making of the orders sought had she known of the husbands’ diagnosis, and in light of the concession that orders sought could not be pronounced by consent in circumstances where the wife’s consent had been withdrawn, it is apparent that had the husband not died, in light of the facts now known, it would not have been appropriate for the Court to make any orders in the proceeding commenced by the Application for Consent orders had the husband not died.
(Footnotes omitted)
The submission is rejected because, apart from any other reason, it is not consistent with the wife’s concessions. At first instance, the wife took no issue with the executor’s application to substitute for the deceased, with the primary judge saying this in the reasons for judgment:
29.The wife did not take issue with the husband’s Executor being appointed as his legal personal representative for the purposes of the proceedings nor was it the wife’s case that the Court would not have made an order if the husband had not died or that it would not be appropriate for the Court to make orders pursuant to s 79 of the Act in the event that the Court did not accept the wife’s submissions with respect to the Application for Consent Orders being different to an application for final property orders. In all of the circumstances I am satisfied that the husband’s Executor should be appointed as his legal personal representative for the purposes of continuing the property proceedings. I propose in these circumstances to make orders in the terms sought by the Applicant.
(Emphasis added)
Satisfaction of those conditions was necessary to enable the invocation of s 79(8) of the Act (Stanford v Stanford (2012) 247 CLR 108 at [24], [48], [51] and [53]), so the wife’s assent to the fulfilment of such conditions properly enabled the primary judge to make the order substituting the executor for the deceased (Order 2). In the appeal, the wife expressly conceded the primary judge had power to substitute the executor for the deceased in the proceedings and none of the grounds of appeal assert that the primary judge erred by making the order to that effect. It must then follow that the deceased’s concealment of his illness could not be a factor affecting Order 2.
As we have already explained, the existence of jurisdiction and power to make the remaining orders concerning the future conduct of the proceedings is a matter of statutory construction and could not possibly be influenced by the deceased’s concealment of his medical condition.
Of course, the property settlement orders ultimately made between the wife and the executor in the discretionary exercise of such power will certainly be influenced by the fact of the deceased’s death, but that is an entirely different issue.
CONCLUSION
Leave to appeal is refused.
The Application in an Appeal filed by the wife on 18 October 2021 is dismissed, as is the Response to the Application in an Appeal filed by the executor on 31 January 2022.
The executor sought costs of some $30,000 in the event the appeal failed, which sum is unreasonably high. However, the application for leave to appeal was wholly unsuccessful and, given the wife did not oppose a costs order being made against her, the executor should recover some costs. To avoid the inconvenience, delay and additional expense which would attend the assessment of the executor’s costs, pursuant to r 12.17(1)(a) of the new Rules, we fix costs at $15,000 which sum is proportionate to the work necessary to resist the application for leave to appeal and the appeal.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Tree & McEvoy. Associate:
Dated: 11 February 2022
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