JEFFCOTT & JEFFCOTT
[2021] FCCA 643
•5 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JEFFCOTT & JEFFCOTT | [2021] FCCA 643 |
| Catchwords: FAMILY LAW – Application for summary dismissal – no reasonable prospects of successfully prosecuting proceedings – matters for consideration – application for summary dismissal successful – no appearance by the applicant in the substantive proceedings. |
| Legislation: Family Law Act 1975 (Cth), ss.45A, 79A Federal Circuit Court Rules 2001, r.6.16 |
| Cases cited: Ritter v Ritter [2020] FamCAFC 86 Stativa v Stativa [2015] FamCAFC 170 Lindon v The Commonwealth (No.2) (1996) 70 ALR 541 Bigg v Suzi (1998) 22 Fam LR 700 |
| Applicant: | MS JEFFCOTT |
| Respondent: | MR JEFFCOTT |
| File Number: | BRC 678 of 2016 |
| Judgment of: | Judge Howard |
| Hearing date: | 5 February 2021 |
| Date of Last Submission: | 5 February 2021 |
| Delivered at: | Brisbane |
| Delivered on: | 5 February 2021 |
REPRESENTATION
| No appearance by or on behalf of the Applicant |
| Counsel for the Respondent: | Ms Dart |
| Solicitors for the Respondent: | Lawrence Sinclair Lawyers |
ORDERS
That the Final Hearing dates of 17 and 18 February 2021 shall be vacated.
That the Wife’s Initiating Application filed 25 September 2019 and the Wife’s Amended Initiating Application filed 23 February 2020 be dismissed.
That all outstanding applications are dismissed.
IT IS NOTED:
(A)These Orders were made in the absence of the wife and that pursuant to Rule 16.05(2)(a) of the Federal Circuit Court Rules2001 the wife may apply to have these Orders set aside.
(B)That paragraph 1 of this Order was made on 5 February 2021. Paragraphs 2 and 3 of this Order have been made on 1 April 2021.
IT IS NOTED that publication of this judgment under the pseudonym Jeffcott & Jeffcott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 678 of 2016
| MS JEFFCOTT |
Applicant
And
| MR JEFFCOTT |
Respondent
REASONS FOR JUDGMENT
A.These reasons were delivered ex tempore on 5 February 2021 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.
The matter before the Court today is an application for summary dismissal. The applicant for the application for summary dismissal is Mr Jeffcott. He is the respondent to the substantive proceedings. The applicant in the substantive proceedings is his former wife, Ms Jeffcott. Ms Jeffcott filed an application in September 2019 because, I apprehend, she was unhappy with some final property orders that had been made in 2017 after the couple had separated on a final basis.
Those final property orders were, in fact, made on 11 August 2017 by his Honour Judge Baumann (as he then was). Those orders were made by his Honour with the consent of the parties. Both of the parties were represented by lawyers on that occasion. The husband’s lawyer at that time was D Law Firm. The respondent’s lawyer was E Law Firm, otherwise known as E Law Firm.
On 25 September 2019 the applicant in the substantive proceedings, Ms Jeffcott, filed an Initiating Application. To say the least, the Initiating Application was difficult to follow. The matter came on before the Court on 29 January 2020. Ms Dart of counsel appeared and urged the Court to dismiss in a summary way the Initiating Application because it had no reasonable prospect of success. The submission made on that occasion, it seems to me, is properly characterised as an application under section 45A of the Family Law Act.
It seems to me in the circumstances of these family law proceedings that that is, in fact, the correct section of the Act for the Court to have regard to, noting, as I do, that the husband in the matter has sought an order for summary dismissal. I will return to that shortly. At the first court date, the Court requested or ordered that the applicant wife file an amended Initiating Application, which she did on 26 February 2020. Once again, the document was difficult to follow. Many allegations seem to be littered through the document: allegations against the husband, allegations against the wife’s own former solicitor, allegations against the husband’s former solicitor. Again, it was exceedingly difficult to discern precisely what Ms Jeffcott was seeking.
The matter returned to court in June of 2020 and the Court ordered that Ms Jeffcott file a statement of claim. A statement of claim was then filed on 22 July 2020. That document appears to be a mixture of submissions, unsworn evidence and other matters but, overall, I would have to say that it is practically impossible to discern the cause of action. The husband filed a defence in accordance with the Court directions. That was filed 7 August 2020. The defence itself was prepared by the husband’s solicitor, Ms Tina Lawrence, and settled by Ms Kirsty Gothard of counsel.
In a very fair way, counsel for the husband who prepared the defence went through as best they could and pleaded, as they were required to, to the statement of claim, denying allegations of fraud, denying allegations of the undervaluing of property, etcetera. The wife, Ms Jeffcott, filed a reply document. I have also had regard to that. It is similar to the other material filed by the wife, that is to say, very difficult to follow, disjointed, practically one could say drafted by reference to a stream of consciousness rather than any proper ordered manner.
In June 2020, the Court pointed out that the husband would be at liberty to file an application in a case seeking summary dismissal, and that is precisely what he did. In October of 2020 he filed an application in a case seeking summary dismissal. The application in a case was served in accordance with the rules. Because it was not an initiating process, it did not have to be served by hand. It was served by prepaid post, as indicated by the affidavit of service which has been sworn by Ms Tina Lawrence, solicitor for the husband, and which was filed on 11 November 2020.
I note in the rules of the Federal Circuit Court of Australia in rule 6 it is apparent from a consideration of the various subsections of rule 6 and the subrules of rule 6 that the manner of service of the application in a case was appropriate. Not only that, Ms Jeffcott, the wife, signed an acknowledgment of service noting that the application in a case had been served on her on 29 October 2020. The application in a case which was filed by the husband or on his behalf, noted that the hearing of the application, the Court date, was today, Friday, 5 February 2021.
Furthermore, in relation to service and to notice, there are more documents to which I was taken earlier by Ms Dart of counsel who appears today for the husband. In fact, I have made them exhibits 1 and exhibit 2, in particular. The solicitor for the husband, Ms Tina Lawrence, has been communicating with the wife, Ms Jeffcott. There is an email as recently as 8 December 2020 sent at 9.57 am - exhibit 2 this is - that shows a screenshot of the current Court diary, indicating the matter was listed for Court for today, 5 February 2021, and further notice was given by the lawyer for the husband that if the wife was not in court today that the husband would continue with the application in a case in her absence.
The wife in these proceedings, Ms Jeffcott, is well and truly on notice that the husband seeks summary dismissal of her proceedings. The wife has chosen not to attend Court today. She has been called and there is no appearance. It seems to me that it is appropriate to proceed and hear the application for summary dismissal in the absence of Ms Jeffcott. Ms Dart of counsel has provided the Court with an outline of submissions. I also note various cases, including a decision from 2020 called Ritter v Ritter [2020] FamCAFC 86.
In paragraphs 26 and 27 the Full Court there made it clear that, in fact, in an application of this kind, given the proceedings are under the Family Law Act, it is section 45A of the Family Law Act that is applicable. They did point out that section 45A and section 17A of the Federal Circuit Court of Australia Act 1999 are broadly similar and the principles of law are the same. The question for consideration is whether or not, having regard to section 45A subsection (2), is the Court satisfied that the wife in this case, who is the applicant in the substantive proceedings, has no reasonable prospect of successfully prosecuting the proceedings? Section 45A(2) states:-
“No reasonable prospect of successfully prosecuting proceedings
(2) The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:
(a) the first party is defending the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.”
I have indicated the Court’s view that in relation to the documents filed by the wife, the Initiating Application, the amended Initiating Application, the statement of claim, the reply and the affidavits that she has filed, make it difficult to discern precisely what the cause of action is and how it is that she would succeed with the cause of action. Also, in a very fair way, counsel for the husband, Ms Dart, has, as best she can, attempted to distil through this morass of material provided by the wife to try to ascertain what it is the wife might be actually seeking. The only possible application would be an application under section 79A for the setting aside or varying of earlier property orders.
I note there is a helpful summary concerning summary dismissal in a decision of the Full Court, Stativa & Stativa [2015] FamCAFC 170. In paragraph 8 in the decision of Stativa the Court makes reference to one of the decisions relied upon today, the decision of Kirby J in the High Court in Lindon & The Commonwealth (No. 2) (1996) 70 ALJR 541. The Court states in paragraphs 8 and 9 of the decision in Stativa as follows:-
“8. The power to summarily dismiss an action must be rarely and sparingly used (see Pelerman v Pelerman (2000) FLC 93-037). The Full Court discussed the power of the court to summarily dismiss proceedings in Bigg v Suzi (1998) FLC 92-799 and adopted the articulation of the principles of Kirby J in Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 which may conveniently be summarised thus:
·It is a serious matter to deprive a party of access to the courts and the power to do so should be rarely and sparingly used;
·The party seeking summary dismissal must show that it is clear on the face of the other party’s documents that the other party lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
·That a case appears weak and unlikely to succeed is of itself not sufficient to satisfy summary dismissal;
·If there is a serious legal question to be tried, then it should ordinarily be determined at a trial of the issues;
·Where, notwithstanding a defect in the pleadings, if it appears that a party may have a reasonable cause of action which has not been put in proper form, a Court will ordinarily allow that party to reframe the pleadings; and
·The “guiding principle” is doing what is just. Kirby J said at [6]: 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.
9. Finally in Pelerman v Pelerman (2000) FLC 93-037 the Full Court, in setting out the principles articulated in Bigg v Suzi, said at [46]: …The parties seeking summary dismissal must show that the application is “doomed to fail” or as has been otherwise described ‘that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious’.”
It was noted that it is a serious matter to deprive a party of access to the courts and the power to do so should be rarely and sparingly used. The party seeking the summary dismissal - in this case, the husband - must show that it is clear on the face of the other party’s documents that the other party lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
In relation to the consideration of the prospects of the main proceedings being successful, that is to say, a consideration of section 45A – is there a reasonable prospect of successfully prosecuting the proceedings? What has been submitted on behalf of the husband is that the only possible basis for the application would be section 79A(1)(a) of the Family Law Act. That section states:-
“(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…”
The Court would have to be satisfied that:-
“...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.”
Ms Dart has provided a written outline of submissions. I adopt those submissions in these reasons. Paragraph 30 is where Ms Dart has distilled what it seems to be what the wife is saying. Paragraphs 30 and 31 of Ms Dart’s submissions state:-
“The Husband has endeavoured to try to, as best he can, work out the basis of the Wife's application and summarise it at paragraphs 34 - 37 of his Affidavit filed 16 October 2020. In summary, it appears from the Wife's material that she complains that:
a. The Husband wrote all of the property pools and the Court Orders in 2017.
b. The Husband failed to disclose assets worth one million dollars during the initial court proceedings.
c. That throughout the relationship the Husband gained $4.5 million and she lost $2 million.
d. That the "Mr Jeffcott Team" overvalued properties that they were each to retain pursuant to the final orders. Further, that the Husband sold the Suburb F property for more than it had been valued at during the course of the proceedings.
e. She was not aware that the Husband's mother had passed away at the time she consented to the final orders.
f. The Husband claimed certain income/expenses on his income tax which she now asserts were fraudulent.
g. The Husband paid his first wife spousal maintenance during the relationship and he endeavoured to conceal it.
h. She passed on her objections to an offer which was made by the Husband to her then solicitor, E Law Firm and she did nothing. Further, that her solicitor was complicit in "Grand Equity Fraud" (page 13 of Initiating Application). She also seems to assert that the Husband's counsel, Susan Downes, and his solicitor, Mr D, were "complicit/gullible" together with her solicitor in achieving a positive outcome for the Husband. (page 15 of Initiating Application.). The Wife also appears to seek a malpractice finding against her former solicitors in her Amended Initiating Application.
i. The Husband defrauded her, her parents, her brother, her son and her previous partner.
31. The Wife also appears to make some complaint about initial contributions, contributions during the relationship, earnings during the relationship and payments which were made or not made during the relationship and post the final orders. It is unclear what is being asserted in most cases.”
The first complaint seems to be that the husband wrote all of the property pools and the Court orders in 2017. As has been pointed out by counsel for the husband today, both parties were legally represented during the course of the original proceedings, including at a mediation conducted by the barrister, Mr Bruce Thiele, in March 2017.
I agree with the submission made on behalf of the husband that even if the husband’s solicitors had prepared a proposed balance sheet and draft consent orders, the wife was in receipt of legal advice at the time.
There was an allegation that the husband had failed to disclose assets worth $1 million during the initial court proceedings. No evidence has been offered by the wife to support this allegation of a failure to disclose assets worth $1 million during the initial proceedings. Nor is there any evidence to disclose the allegation of losses or gains during the relationship.
The wife, in a remarkable comment, alleges at one part of her documentation that during this short relationship between these parties, (which on the husband’s case lasted about six and a half years and the wife’s case four and a half years), that the husband had gained four and a half million dollars and the wife had lost two million dollars. That is a remarkable contention and the wife does not actually provide any evidence to support it. It is not clear how it could be that the husband has gained four and a half million dollars during that relationship.
In the first proceedings the final orders provided the wife with about 55 per cent of the pool.
The next complaint by the wife seems to relate to valuations. It was said that the husband’s legal team, referred to as “the Mr Jeffcott team” by the wife, overvalued properties and that the husband had sold the Suburb F property for more than it had been valued at during the course of the proceedings.
The wife has not provided any evidence that any valuations were fraudulent. The fact that a property sold subsequently might have achieved a higher amount than was anticipated in the pool is not a sufficient reason to set the orders aside unless there was some persuasive evidence by the applicant, that is, the wife, that it had been significantly undervalued. But there is no such evidence. There was a joint valuer at the time of the original proceedings. I agree with the submission made on behalf of the husband today that if the wife had concerns about the valuation she ought to have contested it at the time of the original proceedings.
The valuer was a jointly appointed expert. As I say, the wife has not provided any evidence that the valuation was fraudulent.
The wife complains she was not aware the husband’s mother had passed away at the time she consented to the final orders. It is true that the grandmother had died. I am not satisfied that that is a sufficient reason that would support the wife’s case, keeping in mind that the husband’s mother, Ms C, was actually 98 years of age at that point in time. It is inconceivable that the wife in these proceedings might not have brought into her own mind for consideration the fact that at some stage in the probably not-too-distant future the husband might have received some inheritance from his very elderly mother. It seems to me that that is not a reason that would support an order under 79A.
The wife makes complaints about possible payment of spousal maintenance by the husband to his first wife during the relationship and it was concealed. These are not reasons that the Court would consider setting aside the property orders after that short relationship between the husband and the wife in the substantive proceedings.
There are allegations of fraud in the husband’s tax return. Again, no evidence is produced by the wife that would convince the Court that her claim to set aside or vary orders is, in fact, correct.
An allegation that the wife’s solicitor, E Law Firm, was complicit in something referred to by the wife as “grand equity fraud” is referred to at page 13 of the Initiating Application. Complaints were also made against the husband and the husband’s solicitor and the husband’s counsel. There is no evidence that would support any of these contentions.
An allegation is made that the husband defrauded the wife, defrauded her parents, her brother, her son and her previous partner. Again, there is no credible evidence that would support such a contention. As to the other allegations raised by the wife in her documentation, I do not consider there is any credible evidence to support any of the contentions. They are merely bare assertions by the wife of fraud against any number of people, including valuers, lawyers, parties.
Looking in more detail at the comments or the principles summarised in Stativa, I have come to the conclusion that it is clear on the face of the documents of the wife, which is what I am required to look at, that the wife lacks a reasonable cause of action. She is seeking to advance a claim that is, in my view, clearly frivolous or vexatious.
In my view, I have taken Ms Jeffcott’s case at its highest. I do not think that the wife, Ms Jeffcott, has raised serious questions of fact or law to be considered at a trial. She appears to have made assertions without any proper basis in terms of the evidence. I have had regard to the affidavits of the wife. They are replete with “stream of consciousness” assertions by the wife; nothing by way of any substantial or discernible evidence that would assist her in successfully prosecuting a claim under s.79A of the Act. Particularly, I note the affidavit of 3 December 2020 and the affidavit of 26 November 2020. I note, for instance, by way of example, paragraphs 10, 11 and 12 of the 26 November 2020 affidavit:-
“10. On 08/02/2017, Mr Jeffcott's Mortgage was "BROKE" known to Mr Jeffcott, being the point of contact given to his Mortgagor to reach him variously before Westpac approved his Mortgage.
11. On 08/03/2017, Mr Jeffcott's Mortgage was "FORECLOSED" for which Mr Jeffcott is responsible to pay his Mortgage Balance in Full Discharge on this date or his Mortgagor will proceed to sell at Auction as is usual, known to Mr Jeffcott same reason as above.
12. However, since his Mortgagor remains unable to contact Mr Jeffcott thereafter, charged Ms Jeffcott severally in a Tenants in Common Registered Title to pay every cent that Mr Jeffcott DID NOT PAY. They charged me to pay @ $121,345.48 all the way from Point of Purchase on 08/11/2013 up to date on 13/10/2017. They sourced my Cash @ $121,345.48 from within my Positive Equity on 13/10/2017 @ $560,870.63 (PROOF that Ms Jeffcott paid the Purchase Cost @ 100% @ $395,000 within) since Mr Jeffcott's Negative Equity on 13/10/2017 @ <$128,626.76> (being his Overall Cash Deposits post Co-Signing the Contract to purchase on 14/01/2013 which was held up by Unexpected Receivership managed by G Accountants) @ Only $27,328.66 less his Unpaid Long Term Liabilities / his Proceeds from Equity Fraud @ <$155,955.42> could not pay. Ms Jeffcott had already paid inclusive within the sum of Mr Jeffcott's Unpaid Principal @ $94,554.96 THRICE @ $283,664.88 charged by Mr Jeffcott to Pay again. Note: Ms Jeffcott had PAID My Basic Positive Cash Equity @ $689,497.39 for my Suburb C Rental More Than Mr Jeffcott who had UNPAID his Negative Cash Equity @ <$128,626.76> = LESS THAN $ZERO with due regard that every dollar UNPAID by Mr Jeffcott/ Ms Jeffcott had to pay myself, since Creditors will not be denied their Income Stream. Post 11/05/2016 and thereafter, Solicitor Mr E told me that Mr Jeffcott / or his substitute had made contact with her regularly and insisted that Ms Jeffcott buy him out, which caused Solicitor Mr E to continue to insist that I buy him out thereafter / Yet, He owned nothing to Sell Ever since Mr Jeffcott was a ‘Negative Show’.”
The paragraphs I am referring to are quite unlike anything I have ever tried to read in this jurisdiction. It is just not possible to discern what on earth the applicant is talking about. Each of her affidavits are like this; in particular, as I say, these most recent affidavits which are, I assume, the affidavits she intended taking to trial later this month. Most of it is incomprehensible gibberish. The Court is satisfied, having regard to the relevant principles, and having regard to the documents of the wife in the substantive proceedings, that her claim is doomed to fail. She has not appeared today for the hearing of the summary dismissal application. There is no explanation for that.
The wife’s action is doomed to fail and the Court should dismiss the action to protect the defendant, that is to say, the respondent, Mr Jeffcott, in this case from being further troubled, to save the wife herself 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 actually have “legal merit” in this regard. I am relying upon the words of Kirby J in the Lindon decision.
As noted, a Stativa and Bigg & Suzi makes it clear that the Court should regard the material of the person seeking to prosecute the claim, that is to say, the wife. I do note the husband had filed an affidavit. I am not relying upon it except to the extent that I need to consider the basis of the first set of orders because I gained no assistance whatsoever from the wife's affidavit in terms of the history of the matter. However, I wish to make it abundantly clear – that in respect of the Court actually considering the application for summary dismissal – I do not rely on any of the evidence filed by the husband. I am referring only to the material prepared by the wife. The history of the first proceedings merely provide some context or background. It does not impact upon the Court’s consideration of the application for summary dismissal and the fact that the wife’s current application is doomed to fail is a conclusion reached by the Court having regard only to the wife’s material.
The estimate is that a significant further amount of money in the order of $60,000 would need to be expended by the husband if I permit this trial to proceed later in February as it is currently listed. I am well aware that the power to summarily dismiss must be rarely and sparingly used. But nonetheless the Court has the power to do it and ought to do it if the Court is satisfied of the matters set out in section 45A subsection (2) of the Act and as explained further in the various cases to which I have referred.
For the reasons stated I have come to the conclusion that the wife’s application is doomed to fail and the husband's application for summary dismissal is granted. The Court will, simultaneously with the delivery of these settled Reasons for Judgment, issue an order dismissing the wife’s application. There will be a reference to rule 16 because the hearing on 5 February 2021 proceeded in the absence of the wife. I reiterate, the wife’s absence was unexplained.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 1 April 2021
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