Jeeves and Jeeves

[2007] FamCA 1205

FAMILY COURT OF AUSTRALIA

JEEVES & JEEVES [2007] FamCA 1205

FAMILY LAW – PROPERTY SETTLEMENT – Summary Dismissal – Evidence to be relied upon

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

BA P Associations LLC and Ors & K and Ors (2006) FLC 93-270
Beck & Beck (2004) FLC 93-181
Bigg &  Suzi (1998) FLC 92-799
Barker & Barker [2007] FamCA 13
GWR & VAR (2006) 36 Fam LR 237
Jones & Dunkel (1959) 101 CLR 298
Lindon & Commonwealth (1996) 70 ALJR 541
Webster & Lampard (1993) 177 CLR 598

APPLICANT: Mr Jeeves

RESPONDENT: Mrs Jeeves

FILE NUMBER: MLF 10167 of 2000

DATE DELIVERED: 10 October 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 14 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sweeney

SOLICITOR FOR THE APPLICANT: Taussig Cherrie & Associates

COUNSEL FOR THE RESPONDENT: Ms Molyneux QC

SOLICITOR FOR THE RESPONDENT: J A Middlemis

Orders

1. That the husband’s Form 2 application in a case filed 23 April 2007 is dismissed.

2. That the application of the wife (Form 1) filed 28 December 2006 and the response of the husband (From 1A) filed 25 January 2007 be adjourned to the Trial Notice Pool to be fixed for a callover by a judge for final hearing on a date to be determined with priority from 13 April 2007.

3. That paragraph 3 of the order made 30 January 2007 is discharged.

4. That paragraph 7 of the orders made 13 April 2007 is discharged.

5. That the costs of each party of the appearance on 13 April 2007 is reserved for determination by the ultimate trial judge.

6. Any application by either party for costs arising out of these orders be made in written submission form and filed with the Associate to Cronin J by 4.00pm on Friday 26 October 2007 and any response to such applications by either party be in written form in the same way by no later than 4.00pm on Friday 2 November 2007 and the determination of such submissions be in chambers to the extent that they can be.

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel, including senior counsel.

IT IS NOTED that publication of this judgment under the pseudonym Jeeves & Jeeves is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 10167 of 2000

MR JEEVES   

Applicant

And

MRS JEEVES   

Respondent

REASONS FOR JUDGMENT

1. These are my reasons for judgment concerning the husband’s application for summary dismissal of the wife’s application seeking relief under s 79A and s 90K of the Family Law Act 1975 (Cth) (“the Act”).

2. On 11 December 2003, final financial orders were made between the husband and the wife by Carter J.  The court record shows both parties were represented by senior and junior counsel. All outstanding proceedings were dismissed.

3. The orders noted that the parties intended them to finalise all outstanding financial relationships between them. The orders also noted a warranty by the husband and that the parties had entered into a financial agreement.

4. To all intents and purposes, the exhaustive jurisdiction of s 79 of the Act had been exhausted by those orders.

5. On 28 December 2006, the wife filed an application seeking to set aside both the orders of 11 December 2003 and the financial agreement.

6. The application said that the ground to set aside the order was based on

   
   

   s 79A(1)(a). The ground to set aside the financial agreement was based on s 90K(1)(a).

7. As will be seen, the absence of any other document or expanded details gives no indication of the basis upon which the application is brought other than the reliance upon those two sections.

8. On 25 January 2007, the husband filed a response seeking a dismissal of the wife’s application and further orders about the filing of a financial statement.

9. On 30 January 2007, Registrar Federico ordered the parties attend a conciliation conference but also that the husband file a financial statement.  I have alluded to the absence of particular in the wife’s substantive application.  The Registrar ordered the wife:

   Make file and serve an affidavit setting out the full particulars of the acts, facts, circumstances and things said by her to constitute the grounds for setting aside the orders made on 11 December 2003 and the financial agreement made on 11 December 2003 pursuant to s 79A and s 90K(1)(a) of the Family Law Act.

10. Thus, looking at the affidavit of the wife filed 15 February 2007, it is clear that she says that there had been a miscarriage of justice by reason of the suppression of evidence. On a careful analysis of that affidavit, it is difficult to see any other assertion.

11. The wife’s application however also seeks to set aside the parties’ financial agreement. Section 90K(1)(a) which is what the wife relies on reads:

    (1)      A court may make an order setting aside a financial agreement or a termination agreement if, and only if, the court is satisfied that:

    (a)the agreement was obtained by fraud (including non‑disclosure of a material matter);

12. That is obviously a different test to the provision in s 79A(1)(a).

13. What the wife asserts is that she intends to establish that:

    (a)in respect of the orders, there has been a miscarriage of justice by reason of the suppression of evidence; and

    (b)in respect of the agreement, there has been fraud which depending upon how that is interpreted by a court, includes a non-disclosure of a material matter.

14. In her affidavit, the wife said there is:

    (a)an inference that can be drawn that the husband’s financial position at the time of the execution of the financial agreement was better than he claimed; and

    (b)that she is in possession of information (which she does not disclose) that shows negotiations between the husband and the owner of the land upon which the business was conducted prior to the financial agreement which, by inference, warrants termination of the agreement.

15. On 11 April 2007, the husband filed an application seeking that the wife’s application filed on 28 December 2006 be “dismissed” but also that he not have to comply with the requirement to file a financial statement. 

16. On 23 April 2007, the husband amended his application to seek a time extension to review all of the January orders of Registrar Federico (in so far as they related to him) as well as the order of Registrar Riddiford in relation to costs made on 13 April 2007. Although the husband’s application referred to a “dismissal”, it was clear on the face of the document that he meant “summarily dismissed”.  That is what I was asked to deal with. The financial statement and the review of the Registrars’ decisions are less important but must not be forgotten.

17. As far as I understand the position, the wife did not file any response to the husband’s application but no point was taken about that. The paperwork has clearly indicated what the wife seeks.

18. On 14 February 2007, the wife filed an affidavit in compliance with the Registrar’s order made on 30 January 2007. 

19. The matter came on for hearing on 29 June 2007. I was referred to the wife’s affidavit and some documents by the husband about which there is controversy.  I shall refer to them below.

20. Before commencing to read anything, I was asked to rule on the admissibility of evidence in the wife’s affidavit because it was said by counsel for the husband that it was on that material alone that the husband’s application for summary dismissal would proceed. 

21. Section 55 of the Evidence Act 1995 (Cth) determines admissibility of evidence and the fundamental question is relevance. Could as distinct from would, the evidence, if accepted, affect the probability, even indirectly, of the existence of a fact in issue in the proceedings? There is clearly a distinction between the sufficiency of evidence and its weight.[1]

    [1] R & Le [2001] NSW CA 49

22. Whilst this is an interim hearing, it has the unusual feature of having a distinct finality about it if the husband is successful. That in itself adds weight to the argument about a cautious approach.  In respect therefore of the evidence, it is enough if the fact in issue affects the probability of the outcome of the proceedings.

23. The evidence rulings on the affidavit filed on 15 February 2007 are as follows:

    (a)paragraph 13 is ruled inadmissible as not setting out the source of the statements;

    (b)paragraph 14 is ruled inadmissible by agreement;

    (c)paragraph 17 is ruled inadmissible by agreement;

    (d)of paragraph 18, the last two sentences are ruled inadmissible as being argument and opinion;

    (e)paragraph 19 is ruled inadmissible on the basis that it has no stated factual basis and is otherwise speculative;

    (f)paragraph 20 is ruled inadmissible on the basis that it relates to an acquisition after the orders and apart from an inference to which I shall turn below, it cannot be relevant to these proceedings;

    (g)although inelegantly put as an opinion, paragraph 21 is ruled admissible because although it is an opinion, it may be relevant to the substantive issue;

    (h)paragraph 22 is ruled admissible as an assertion of fact although one to which little weight would be given.  It may however have some relevance to a fact in issue.

    (i)paragraph 23 is ruled inadmissible on the grounds of relevance to any substantive issue;

    (j)paragraph 24 is ruled inadmissible as to relevance, unidentified hearsay and argument.

    (k)paragraph 25 is ruled inadmissible by agreement;

    (l)paragraph 26 is ruled inadmissible by agreement;

    (m)paragraph 27 is ruled inadmissible by agreement;

    (n)paragraph 28 is ruled admissible as it may have some relevance to a fact in issue in the substantive dispute;

    (o)paragraph 29 is ruled admissible on the ground that it may have some relevance to a fact in issue;

    (p)paragraph 30 is ruled inadmissible as argument.

24. On 29 June 2007, senior counsel for the wife said that the core of the wife’s application is the evidence that within six months of the final orders (and it may have been as little as one month) the husband became the beneficial owner of a property for which he borrowed substantial sums of money and on the basis of his financial position as disclosed to the wife in December 2003, he could not sustain such a borrowing.

25. By inference therefore, it was put by the wife that the husband had not accurately put his financial position not only to her but also to the court in December 2003.

26. Senior counsel initially said that the wife accepted the husband’s representations but my understanding was that she retreated from that position to say that the husband could not have been telling the truth about his financial circumstances because he could not otherwise have afforded to acquire the substantial property in 2004.

27. There was also considerable debate about what material I was to rely upon because senior counsel referred me to the husband’s material. It will become apparent that each side disagrees about what material can be used on a summary dismissal application. I have not taken into account the material of the husband. I have determined this matter on the wife’s material alone.

28. On 29 June 2007, senior counsel for the wife provided written submissions which can be condensed to the following:

    (a)the orders should be set aside on the basis that the husband either suppressed evidence or gave false evidence about the value of [property];

    (b)for the husband to be able to pay for the purchase of a property for $3.6 million plus ancillary expenses and in addition, purchase cattle, plant and equipment and pay expenses within six months of disclosing to the court and to the wife that his income came from a business whose liabilities exceeded its value and his weekly income left him with only $337 for his personal expenses, can only be explained by the husband having given false evidence about material matters that went to the true value of the business or his suppressing material matters that went to that value;

    (c)the inevitable conclusion is that the business was generating greater income than that disclosed to the court and as a consequence, material matters on which the business was valued were false or suppressed by the husband.

29. I do not detect that in respect of the application under s 79A, the wife is alleging fraud or any duress.

30. On 29 June 2007, counsel for the husband submitted that the admissible evidence contained in the wife’s affidavit was incapable of establishing a ground under s 79A of the Act.

31. In so far as the husband’s submissions are relevant, counsel argued:

    (a)it is inherently incredible that the wife can infer that because the husband purchased a property by borrowings, there is an inevitable conclusion that he could not have disclosed his true financial position to the court in 2003 when the orders were made;  and

    (b)it is inherently incredible that if the wife had a “scintilla of evidence” she would not have waited as long as she had.

32. Counsel for the husband argued therefore that the court was entitled to conclude that the wife had no reasonable cause of action and that it was inevitable that her s 79A application was doomed to fail.

33. On 26 July 2007, during a period in between the adjourned hearing, the wife filed an affidavit by Mr L. Objection was taken by counsel for the husband to the whole but specifically paragraphs 13, 28 and 29 of that affidavit.

34. In paragraph 13, Mr L endeavoured to show that the husband’s available funds according to the 2003 accounts could not support his living expenses nor the “financial ability” to operate the purchased property.

35. Counsel for the husband said that there was an arithmetical error but more importantly, the conclusion was a matter for evidence. He argued that there had to be some evidence of a connection between the accounting figures then and what the husband now needed. He said it was not there.

36. In paragraphs 28 and 29 of his affidavit, Mr L said:

    28.My valuation would have been higher if at the time of preparation the husband had disclosed his expectation of a sustain increase in profit of $800,000+.

    29.The orders were made by this Honourable Court halfway through the 2004 financial year) that the 2004 financial accounts would show an increase in profit of $800,000+ and this would continue in subsequent financial years. By his silence, the husband led me and others to proceed on the erroneous basis that the 2004 financial year and subsequent financial years would be the same as 2003.

37. Counsel for the husband said that these were irrelevant to what happened on 11 December 2003. He said that Mr L’s argument was not only speculative but it was noticeable that he did not say that the husband had the supposed knowledge as at 11 December 2003.  Therefore what he was saying was purely speculative. In other words, the evidence of Mr L did not advance the issue of the wife’s case at all.

38. The matter returned before me part-heard on 14 August 2007 and senior counsel for the wife then argued:

    (a)as the wife had filed the assertions in her affidavit and also the affidavit of [Mr L], the husband was required to provide an explanation;

    (b)how the husband could afford to become the beneficial owner of the property subsequent to the orders being made required an explanation;  and

    (c)an explanation as to how he could afford the borrowings when his source of income was simply the company was something that ought to be subjected to cross-examination.

39. Of Mr L’s evidence she said:

    (a)if [Mr L] had known in 2004 that the net profit was going to be much higher than it now appears to have been, then his valuation would have been significantly different;  and

    (b)the husband had not only the wife’s affidavit since February but also over two weeks in respect of the [Mr L] affidavit to explain all of these things and had chosen to remain silent.

40. The fundamental issue here is that set out in paragraph 29 of Mr L’s affidavit that when he prepared his final figures, the husband remained silent but that depends on whether the husband knew as at that time that the profit would be other than as had been discussed by all of the experts. There is no evidence of the husband’s knowledge. The wife relies upon an inference that the figures as at December 2003 could not have been right because the husband would not have been able to do what he has now done. Mr L’s evidence is therefore of little assistance.  This sort of difficulty was commented upon by the Full Court in Barker & Barker[2] where the Full Court said:

    121.We acknowledge the reality of the process by which parties reach agreement about many issues, and in particular about valuations, leading to consent orders.  Where a single expert is employed, the valuation may be concluded months before a settlement is reached.  There are many factors that may intervene during this period.  The opinion expressed in the single expert report will often be the subject of negotiation, either through the formal intervention of the Registrar at a Conciliation Conference, some other formal intervention, or simply negotiation between the parties and their respective solicitors.  During the intervening period the normal commerce of life will continue.  Sales of properties, whether they be metropolitan or rural and regional, will continue and may affect the value of relevant properties.  It would be incomprehensible to expect that in this arena, that valuations will always be updated on a regular basis. 

    122.There will thus be many cases in which an order will be made, by consent or otherwise, based upon an agreed valuation which has been prepared many months earlier.  There may be factors in the intervening period which have affected the value so agreed.  Unless there is some particular act which impugns the process by which the orders were obtained, the mere effluxion of time and the consequent changes in the market during that period, whether they be upward or downward, will not of themselves create an injustice, nor require either of the parties to make further investigations of value if they choose not to do so.

    [2] [2007] FamCA 13

41. The evidence I am left with is simply the inference. Is that sufficient to call upon the husband for an explanation as put by senior counsel for the wife or is it such that I could say the wife’s application is doomed to fail?

42. Interestingly, both sides looked at the same authorities but disagree on the question of both whether the husband’s material should be examined and if he does not make any evidence available, whether an inference can be drawn from his silence. In my view, the husband’s position is the correct one.

43. In Webster & Lampard[3], Mason CJ, Deane and Dawson JJ referred to an outline of relevant facts as the basis of their decision.  The court said:

    …the above outline of the relevant facts is largely premised on an assumption that the evidence of the Websters would ultimately be accepted if the matter were to proceed to trial in the ordinary course.  In circumstances where the evidence of the Websters was not inherently incredible and where no opportunity for cross-examination had been extended before the master, that was an assumption which plainly had to be made for the purposes of the application for summary judgment.

    [3] (1993) 177 CLR 598

44. That decision does no more than say that where there is an assumption that the evidence put forward by the respondent to a summary dismissal application would ultimately be accepted and the evidence is not inherently incredible, that is, on its face believable, in circumstances where there is no opportunity to test that evidence, it is an assumption that should be accepted.

45. In Beck & Beck[4], Holden J at first instance heard the husband’s application to summarily dismiss the wife’s s 79A application. The wife had sought to set aside orders on the basis of a miscarriage of justice by virtue of fraud and suppression of evidence. The particulars were that representations by the husband in a document given to her about 15 days before the orders were made, were materially false and misleading but that she relied upon the document to consent to the orders. The alleged misrepresentation related to the husband’s superannuation value, his shareholdings and a liability to a bank. There were other grounds in the application including duress. The husband’s application for summary dismissal was based on the fact that there were no grounds to support the misrepresentation or suppression of facts. Counsel for the husband presented to Holden J affidavit material from the husband and his Honour referred to the material in his judgment.

    [4] (2004) FLC 93-181

1. Holden J referred to the fact that the wife alleged that the husband’s superannuation “may have” been $1 million or that there was a separate fund in her name which the husband did not disclose. To make those assertions, the wife relied upon a document she discovered but she did not produce, describing the superannuation fund as having two members. Holden J was told of (or at least had) the husband’s evidence in which he denied the wife’s assertion. The husband produced a letter to show the reference to two members in the fund was an error.  Holden J referred to the evidence of the wife that she had been “involved” in the husband’s business activities.  His Honour said:

   44.Notwithstanding the extensive enquiries she has made she has not been able to produce one shred of hard evidence that would indicate that the husband had more superannuation than he declared or that he was secreting superannuation to which the wife was entitled.

2. His Honour went on to find that because of the wife’s involvement in the husband’s business activities, there was a clear inference the wife knew of the superannuation details. His Honour then said he found it “inherently incredible” that the husband would secrete superannuation when he must have known he would need the wife’s cooperation to access it. 

3. Holden J pointed to the wife’s submission that “given the opportunity to conduct her case in the usual way and of access to material produced on subpoena”, she would be able to satisfactorily establish what she was saying.  Holden J described this as a “meaningless submission”. Because of his Honour’s findings that the wife was aware of the position and that she produced no evidence that would indicate the husband had suppressed evidence or otherwise misled her, he granted the husband’s summary dismissal application. 

4. On appeal, the Full Court determined the matter on the basis that Holden J relied upon new material other than that of the wife. Importantly, bearing in mind what both parties had asked Holden J to do, the Full Court referred to the following passage in the High Court case of Webster & Lampard[5]:

   As has been said, it was incumbent on the Master, in the absence of any opportunity of cross-examination, to dispose of the case on the basis that the Websters' version of the facts, which was not inherently incredible, would ultimately be accepted on the trial of the action.

   [5] op cit

5. Their Honours in fact started from an assumption that that evidence would be accepted at trial. In Beck[6] the Full Court said that Holden J should only have looked at the wife’s material. They said:

   34.In these circumstances and having regard to the strong authority for the proposition that it is only the respondent’s material to which regard should be had in the determination of an application for summary dismissal, we do not consider that we can allow his Honour’s judgment to stand.

   [6] op cit

6. Ms Molyneux on behalf of the wife before me said that Beck’s case[7] was inconsistent with Webster & Lampard [8]in that in so far as the Full Court in Beck said that a judge was only to look at the material of the respondent, that was wrong. She referred to the recent Full Court decision of BA P Associations LLC and Ors & K and Ors[9].  That was a case where summary dismissal of a wife’s s 106B application was sought by the husband and third party.  Rose J dismissed the application for summary dismissal.  His Honour said:

   11.It has been further held that “it is only the respondent’s material to which regard should be had in the determination of an application for summary dismissal”.  In application of that principle, I have not had regard to any of the evidentiary material on behalf of the respondents or any of them or the submissions made in respect thereof notwithstanding the lack of objection by counsel for the wife.

   [7] ibid

   [8] op cit

   [9] (2006) FLC 93-270

7. His Honour then went on to say:

   35.I have concluded that the questions of fact and law to which I have referred represent matters of substance to be determined. I bear in mind that even if the wife’s case is a weak one, that “is not sufficient to warrant termination.” There are disputed issues of fact and absence of material evidence of a commercial nature to which I have referred.  In the face of those matters, as well as the questions of law which are open to be argued, I have determined that I must follow the caution emphasised in the leading authorities including “nowhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact.” In such a case, it is essential that “great care… be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his (or her)  opportunity for the trial of his (or her) case by the appointed tribunal. For the reasons outlined by me I am unable to conclude that the application of the wife “is clearly frivolous or vexatious.  (footnote references omitted)

8. The Full Court said:

   21.In considering whether Rose J did misapply the relevant principle, we accept the proposition, as we understand it to be put by counsel for the investors, that apart from material in the case of the respondent to an application for summary dismissal, the court may have regard to relevant non-contentious facts, even if raised by the applicant for summary dismissal. (Emphasis added).

9. That Full Court statement must follow because if one looks at Webster & Lampard[10], the High Court was saying it was assuming that the facts were accepted.  Non-contentious facts would clearly be accepted. 

   [10] op cit

10. Senior counsel for the wife said that because the husband did not respond to the wife’s affidavit nor to Mr L’s affidavit, he had remained silent and an inference should be drawn. In her third written submission, counsel referred to Jones & Dunkel[11] and GWR and VAR[12] both of which related to contested proceedings where there was an opportunity to call evidence and have it tested by cross-examination. I reject the proposition put by Ms Molyneux on the basis that if the husband had responded and disagreed with the wife, the evidence would be contentious and therefore on any of the authorities, I would not be in a position to rely upon that evidence.

    [11] (1959) 101 CLR 298

    [12] (2006) 36 Fam LR 237

11. In Beck’s case[13] therefore, had Holden J not strayed from the correct path as outlined by the Full Court, he would in any event have been left with evidence which would have been supposition unsupported by any corroborative document and upon which the wife’s counsel said that given an opportunity to fully test the matter, she would establish the miscarriage of justice. Similarities between that case and this are striking. 

    [13] op cit

12. In Bigg & Suzi[14] Hilton J at first instance, struck out the husband’s application under s 79A. The husband’s case was that he had settled and not pursued a property claim against the wife because he mistakenly believed he would (and ultimately did not) receive substantial benefits from the wife’s family. Hilton J struck out the husband’s applications saying that a miscarriage of justice had to arise out of the judicial process itself and that the husband’s belief did not fall into that category. On appeal, counsel for the husband argued:

    Senior counsel for the husband submitted that there had been no trial of the issue whether the wife knew of her father's promise to the husband, at the time of the consent orders, and that there was evidence before his Honour sufficient to raise, as a matter of inference, a triable issue that the wife must have been aware of Mr Dowling's assurance to the husband.

    and then

    on an application for summary judgment it was only necessary for the husband to adduce evidence from which it will be open to the court, on a trial of the proceedings to draw…and inference;  and

    the onus on the husband at the summary dismissal stage was a very slight one and he need only produce evidence sufficient to support, albeit only tenuously the drawing of the necessary inference.

    [14] (1998) FLC 92-799

13. In Bigg & Suzi[15] the Full Court said:

    Assuming the state of the wife's knowledge of her father's promise to the husband to be material to the determination of the proceedings before his Honour, it was not appropriate for his Honour to make a finding in these summary proceedings that the wife did not have such knowledge unless an inference to the contrary could not possibly be drawn from the evidence before him. In our judgment, a contrary inference might possibly be drawn from that evidence, in accordance with the arguments (raised above).

    [15] ibid

14. The Full Court went on to say that Hilton J was right to dismiss the husband’s application because the miscarriage of justice had to arise out of the judicial process. In that case, the husband would have had to have established that the wife’s knowledge of the husband’s erroneous expectation.

15. In this case, looking at the affidavit of the wife or at least those parts which I have ruled to be admissible, there is a very strong reliance on an inference. The wife claims to have been misled in some way. The issue before me is whether I can possibly draw an inference on the evidence that requires some testing. If I find that there is possibly an inference, I need to contemplate what Kirby J said in Lindon & Commonwealth[16]:

    The approach to be taken by the Court to the Commonwealth’s application for summary relief is not in doubt:

    1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided;

    2.To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;

    3.An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination.  Even a weak case is entitled to the time of a court.  Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;

    4.Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer.  If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;

    5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading.  A question has arisen as to whether O 26, r 18 applies to part only of a pleading.  However, it is unnecessary in this case to consider that question because the Commonwealth’s attack was upon the entirety of Mr Lindon’s statement of claim; and

    6.The guiding principle is, as stated in O 26, r 18(2), doing what is just.  If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.

    [16] (1996) 70 ALJR 541

16. Thus, notwithstanding:

    (a)the constant reminder that the use of the s 79 power is a once-only power;

    (b)the circumstances creating the miscarriage of justice must have had an influence on the outcome; and

    (c)the process in the s 79A application of establishing a miscarriage of justice occurred as a result of one of the grounds and then convincing a judge to favourably exercise a discretionary remedy,

    it is important to say that refusing to allow access to the courts is a serious matter and that a weak case which on the facts here certainly appears to me to be apparent, that is not a basis to dismiss the application. 

17. Turning then to the evidence such as it is.  The only evidence of the wife which could be relevant to establish a miscarriage of justice or to terminate the financial agreement, is in paragraphs 21 and the second last and last sentences of paragraph 28 of the wife’s affidavit. That is, she asserts, based on documents that she has seen but not disclosed to the Court, and because of her knowledge of the business practices of the husband, he entered into negotiations prior to the final orders and that somehow the value he attributed to the business enabled the post-order acquisition of the land.  The only evidence of Mr L which could be relevant to the same issue is in paragraph 29 that the husband somehow knew of his 2004 financial year results and that they would have been different to that of 2003. On its face, that evidence seems to me to be extremely tenuous and weak in respect of giving rise to a miscarriage of justice.  However, that is not what I am determining here. There is little doubt that this is a discretionary exercise and because of the matters to which I have already referred, it seems to me that I cannot say that an inference could not be drawn from the evidence at least of the wife and on that basis, the husband’s application must fail.

18. The other matters that need addressing are those also set out in the husband’s Form 2 application. He sought time to review the Registrar’s orders. Those reviews, if time is granted, are by way of a de novo hearing. Having regard to the nature of the dispute, notwithstanding this issue has not been fully argued, I propose to grant an extension of time. In respect of the conciliation conference, I have concluded that it took place on 13 April 2007. There is no basis to review Orders 1 and 2 of 30 January 2007. In respect of the third order for the exchange of documents, that order is no longer relevant because I am not proposing to order another or any conference. Accordingly, I propose to discharge Order 3 of the orders made 30 January 2007. 

19. In respect of the orders made on 13 April 2007 in relation to costs, as I have not heard argument nor do I have the benefit of the reasons for the Registrar’s order, I propose to exercise my discretion to vary the order of the Registrar and reserve the costs of both parties until the ultimate determination of these proceedings. Notwithstanding this issue should be determined also on a de novo basis, having regard to the fact that I do not know (and neither party led evidence as to why the order was made and I would not infer anything from the face of the order) why the costs were awarded, if the wife is ultimately unsuccessful in her substantiative s 79A application, it would be inappropriate to make that costs order. In so far as the order may have been made because the husband had not filed financial material, it is a problem in cases where the authorities require a court only to determine a matter on one party’s documents and then require the other to formally respond and provide information which would not normally be taken into account. In those circumstances, I discharge the order for costs relating to 13 April 2007 and order that all costs of both parties are reserved to the trial judge. I would not normally reserve costs for another judge to have to deal with but in my view, the costs in this case largely depend on the success or otherwise of the s 79A application. In respect of any application for costs of these proceedings, I will make my usual orders giving each party an opportunity to make written submissions but I express the preliminary view that like the sentiments I have just expressed, the ultimate success or otherwise of the wife’s application would have a significant bearing on whether I would grant costs. I will hear what each party says about that but otherwise be inclined to reserve the costs of both parties to the ultimate trial.

I certify that the preceding Sixty Four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate

Date:  10 October 2007