KEDRINA & AMERY - [2020] FamCA 117

FAMILY COURT OF AUSTRALIA

KEDRINA & AMERY

[2020] FamCA 117

FAMILY LAW – PRACTICE AND PROCEDURE – Injunction – Permanent Stay of Proceedings – Where wife makes application to set aside orders under s 79A of the Family Law Act1975 (Cth) and to set aside a Spouse Maintenance agreement – Where respondent husband seeks “Anshun estoppel” summary dismissal and or permanent stay of the proceedings as abuse of process – Where discussion of applicable principles – Where order made as sought by the husband.

Family Law Act 1975 (Cth) ss 79A, 90C
Family Law Rules 2004 (Cth) r 10.12

Beck v Weinstock; Beck v LW Furniture Consolidated Pty Ltd [2012] NSWCA 289
Brisbane South Regional Health Authority v Taylor [1996] HCA 25
Henderson v Henderson (1843) 3 Hare 100 [67 ER 313]
Jess & Garvey [2018] FamCAFC 44
Keehan & Keehan [2019] FamCAFC 250
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45
Rogers v The Queen [1994] 181 CLR 251
Timbercorp Finance Pty Ltd (in liquidation) v Collins; Timbercorp Finance Pty Ltd (in liquidation) v Tomes [2016] HCA 44
Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28
UBS AG v Tyne [2018] HCA 45
Walton v Gardiner [1993] HCA 77
Wong v Minister for Immigration and Indigenous Affairs [2004] 146 FCR 10

APPLICANT:

Mr Kedrina

RESPONDENT:

Ms Amery

FILE NUMBER:

PAC

2018

DATE DELIVERED:

28 February 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

18 and 19 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richardson SC with him Mr Roche of counsel on 18 December 2019 and Mr Richardson SC on 19 December 2019

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

RESPONDENT – SELF-REPRESENTED LITIGANT:

Ms Amery

Orders

That the applicant wife’s Initiating Application filed 2 January 2018 (as amended) be permanently stayed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2 of 2018

Mr Kedrina

Applicant

And

Ms Amery

Respondent

REASONS FOR JUDGMENT

Thirteen years after final orders and on 2 January 2018 the applicant wife filed a further Initiating Application. In that application the wife sought to set aside property consent orders made on 28 September 2005 and to set aside and/or declare invalid certain financial agreements and other documents entered into between the wife and her former husband dated 1 September 2005.
On 15 March 2018 the respondent husband was ordered to file a Response to the wife’s Initiating Application within seven days. Otherwise, the wife was ordered to file and serve by 7 May 2018 a document (Points of Claim) specifying:
a)the grounds upon which she relies as set out in s 79A of the Family Law Act 1975 (Cth) to set aside orders made by the Family Court on 28 September 2005;
b)the grounds upon which she relies as set out in s 90K and s 113 of the Family Law Act 1975 (Cth) to set aside the financial agreement between the parties dated 1 September 2005; and
c)the grounds upon which she relies as set out in s 113 of the Family Law Act 1975 (Cth) to obtain a declaration from the Court that the deed of release entered into between the parties on 1 September 2005 is invalid.
Subsequently, on 26 June 2018 a registrar made certain orders as to provision of documents between the parties and, otherwise, ordered that the husband file and serve any Application in a Case seeking summary dismissal by 3 August 2018 with the wife to file and serve any Response to such application by 24 August 2018.
Subsequently, on 28 August 2018 the wife, inter-alia, was ordered to file any Amended Points of Claim by 25 September 2018 with the respondent husband to file and serve any application for permanent stay or summary dismissal by 9 October 2018.
On 20 November 2018 a registrar in chambers noted that the husband in his Response filed 21 March 2018 seeks that the wife’s application be permanently stayed or in the alternative be summarily dismissed. It was, otherwise, noted that the wife filed Points of Claim on 14 May 2018 and that no further amended Points of Claim had been filed pursuant to the direction made on 28 August 2018.
On 27 May 2019 it was noted by a registrar that the wife had not filed a Response to the husband’s Application in a Case in compliance with directions made 16 April 2019. A registrar ordered that the husband’s Application in a Case seeking summary dismissal and/or permanent stay of the wife’s substantive application be listed for judicial case management on 18 June 2019 and that the wife file a Response to the husband’s Application in a Case and any affidavit relied upon by 17 June 2019.
On 18 May 2019 proceedings were before the Court for judicial case management. On that day it was ordered:
a)that the wife file and serve one consolidated affidavit in support of her Response to the husband’s Application in a Case together with any affidavits of witnesses relied upon by no later than 26 July 2019;
b)that the husband file and serve written submissions in support of orders sought by him in his Application in a Case by no later than 31 July 2019;
c)that the wife file and serve written submissions in response to those of the husband by no later than 7 August 2019; and
d)that proceedings be listed for judicial case management 13 August 2019.
It was noted by the Court and on the adjourned date the Court would facilitate the listing of the matter for short oral submissions or, otherwise, judgment will be reserved to chambers.
On 13 August 2019 the parties, having failed to comply with the previous directions, were extended time for compliance and the Court adjourned proceedings for oral submissions as to summary dismissal and/or permanent stay to 18 December 2019.
On 19 December 2019 the matter proceeded by way of oral submissions and judgment was reserved to a date to be fixed.
The applicant for summary relief, the husband, relied on the following:
a)Application in a Case filed 3 May 2019;
b)His affidavit filed 3 May 2019;
c)His affidavit filed 25 October 2019;
d)The affidavit of Ms B, solicitor, filed 25 October 2019; and
e)The affidavit of Ms B filed 31 October 2019.
The wife relied on:
a)Her Response to the Application in a Case filed 17 June 2019;
b)Her affidavit filed 1 October 2019; and
c)Her affidavit filed 10 October 2019.

Context

The wife is presently aged 59 and the husband 62.
The parties commenced cohabitation and were married in 1982. They separated in July 2005 after some 23 years of marriage. Some years later the parties were divorced in 2010. There is one child of the marriage now aged 36.
At the time of separation the husband’s then solicitor received initial correspondence from the wife’s solicitors G Firm about 12 July 2005. The husband and wife agreed that he would pay to her a preliminary property payment of $500,000 and this was paid to her prior to 21 July 2005.
On 21 July 2005 the husband’s solicitor provided to the wife’s solicitor a draft schedule of assets liabilities and resources. On 22 July 2005 an updated schedule of assets liabilities and resources was provided by the husband’s solicitor to the wife’s solicitor.
Subsequent correspondence from the husband’s solicitor to the wife’s solicitor identified values that the husband and wife had agreed for each of the real properties owned and the letter also provided title searches for each of the properties and ASIC searches relating to the parties and various corporate entities.
Subsequently, by letter dated 3 August 2005, the husband’s solicitors provided to the wife’s solicitors significant documents by way of financial disclosure.
On 16 August 2005 draft settlement documents were forwarded by the husband’s solicitor to the wife’s solicitor with such documents comprising:
a)Minute of consent orders;
b)Schedule of assets liabilities and resources;
c)Schedule of the effect of proposed orders;
d)Financial agreement; and
e)Deed of release.
By email dated 23 August 2005 the wife communicated certain corrections to her solicitor and the family accountant in order to “streamline and speed up the settlement”.
By letter dated 24 August 2005 the wife’s solicitor confirmed that there had been a meeting with the parties’ accountant on 17 August 2005.
On 24 August 2005 the husband’s solicitor received correspondence from the wife’s solicitor that reflected the wish of both parties to finalise matters as soon as practicable. On 25 August 2005 amended settlement documents were provided to the wife’s solicitor following which the wife’s solicitors sought clarification from the parties’ accountant as to certain aspects of the schedule of assets, liabilities and resources and a written response to that request was provided by the accountant dated 29 August 2005.
On 30 August 2005 the husband’s solicitor received a letter from the wife’s solicitor requesting certain amendments to the settlement documents.
Subsequently, on 1 September 2005, the husband attended upon his solicitors and signed the settlement documents that were provided that day to the wife’s solicitor. The wife subsequently signed the settlement documents on 6 September 2005 on which day the husband paid a further sum to the wife of $2 million.
On 15 September 2005 the wife’s solicitor wrote to the husband’s solicitor as to arrangements to have orders made as soon as practicable by reason of the wife’s proposed overseas travel on 19 September 2005 and not returning until 11 October 2005. The wife’s solicitor asserted “accordingly [Ms Amery] is extremely concerned that the orders are approved prior to her departure”.
On 28 September 2005 property orders pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) were made by consent. The property pool for division between the parties was substantial with the husband asserting that the totality of the asset pool was approximately $70 million. The husband asserts that the effect of the property orders were that the wife receive assets and entitlements totalling approximately $31.24 million and that the husband receive property and/or entitlements totalling about $38.18 million. Primarily funds representing the majority of the parties’ wealth were realised from the sale of various shares held in D Pty Ltd in April 2004 some 15 months before the parties separated.
On 8 November 2005 the wife purchased a property at Suburb E for the sum of $4 million.
Some years later in 2017 the wife commenced proceedings for enforcement of the s 79 property orders and claims for damages and compensation by reason of the husband’s asserted non-compliance with certain aspects of the orders of 2005.
Those proceedings were resolved by further consent orders dated 13 June 2017 (“the June 2017 orders”) following protracted negotiation. The orders provided that the husband was to pay to the wife an amount of about $455,000 representing unpaid dividends, unpaid unit holdings and interest to which the wife was entitled pursuant to the original property orders made in September 2005.
Six months later the wife commenced the present proceedings once again seeking orders in relation to the orders dated 28 September 2005 and, otherwise, as referred to above.
The husband in his affidavit filed 3 May 2019 sets out, with particularity, circumstances relating to the sale, receipt and disposition of that part of the overall share sale proceeds paid to the parties or their various entities in extensive exhibited documents. His responses were limited by the unavailability of some historical documents.
Subsequent to the orders of June 2017 the husband received communication from the solicitors who had acted on the sale of the shares some 13 years earlier giving notice of the proposed destruction of the old files. On enquiry subsequent to the wife commencing the present primary proceedings the husband was informed that, indeed, the old files and documents had been destroyed.
As a consequence of various subpoena issued by both parties and enquiries by both of them as to the availability of historic documents, many documents are not now available having been destroyed in the years since 2005.

A Short History of the Litigation

Subsequent to the original consent orders in 2005, the wife in 2013 made various complaints that the husband had failed to comply with certain aspects of those orders. In the period from 2013 to 2017 the wife was represented by five different sets of lawyers.
Beginning in about mid 2013 the wife made various complaints that the husband had failed to transfer to her certain shares in compliance with the orders, that there was a shortfall of more than $1 million in the amount the husband was required to pay and that the wife was entitled to a sum to compensate her for dividends and distributions that she did not receive as a result of the husband’s alleged failure to transfer promptly shares and units to which she was entitled.
The dispute that first arose in 2013 was resolved by the subsequent consent orders of June 2017 referred to above. During that period the wife was represented by four different solicitors. At no time was any complaint made by the wife as to the circumstances surrounding the making of the original consent orders in respect to which the wife was legally represented.
Importantly, the June 2017 orders in recitals records that “the parties intend to enforce their respective obligations under the final property orders by way of these orders. The parties do not intend for these orders to set aside the final property orders” and “the parties consent to the making of the following orders and to those being the same force and validity as if they had been made after a hearing by the court.”
Six months after the June 2017 orders the wife commenced the present primary proceedings and on 14 December 2017 the husband received notice of the wife’s present primary application.

The Wife’s Primary application

In her primary application and subject to the exercise of the Court’s discretion under s 79A of the Act, the wife seeks orders that would require the husband to pay her:
a)$5 million within 30 days;
b)a further $50 million within six months plus interest;
c)a further five per cent adjustment of the net asset pool as at the date of final orders; and
d)plus further “undisclosed and/or presently indeterminable amounts”.
On 14 May 2018 the wife filed Points of Claim (Exh “H”) as ordered to facilitate some understanding of the basis of the relief sought by her against the husband. On 8 June 2018 the wife filed as ordered Amended Points of Claim (Exh “H”) and Further Amended Points of Claim on 15 January 2019 (Exh “G”) that represent the present basis for the relief sought by her against the husband. The Points of Claim provide:
a)a meandering history of the parties’ relationship since April 1981;
b)the wife’s acknowledgement that she was legally represented prior to and at the time of the orders made;
c)the wife’s complaint that at the time of the implementation of the settlement pursuant to the orders she was not working, was fearful how she would manage the funds that she was to receive and had recently moved out of the matrimonial home some months before. (Notwithstanding the wife thereafter received a most significant sum referred to above by way of settlement. This notwithstanding the husband made a preliminary payment to her of $500,000 in June 2005.);
d)the wife’s history of the husband’s alleged defaults under the orders from 2013 to 13 June 2017;
e)the wife’s suspicions and assertions that there was not proper disclosure by the husband at the time of orders in 2005;
f)the wife’s “calculations” based on third party documents from December 2014 leading her to a conclusion that the sale price of the D Pty Ltd shares and associated entities was understated by the husband;
g)the wife’s assertions that various corporate interests were not disclosed or were understated by the husband at the time of the orders;
h)the wife’s assertions that there was duress and or undue influence exerted over her by the husband and that he acted unconscionably at the time of the orders, this notwithstanding that the parties had been separated for 18 months and the wife was legally represented at the relevant time of the orders in 2005;
i)the wife’s general assertions that there was fraud, suppression of evidence and the giving of false evidence that render the 2005 orders subject to being set aside; and
j)the wife’s assertions that similarly the Financial Agreement dated 28 September 2005 should be set aside on the same grounds.

The Husband’s Position

The husband firstly contends that the subsequent proceedings between the parties resolved by consent orders dated 13 June 2017 give rise to an “Anshun estoppel”: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45.
The nature of the Court’s powers as to estoppel was explained by the High Court in Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28 at [22]:
Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as "cause of action estoppel". Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as "issue estoppel". Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies". The third form of estoppel is now most often referred to as "Anshun estoppel", although it is still sometimes referred to as the "extended principle" in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a "true estoppel" and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument. (Footnotes omitted)

In Anshun (supra) in the High Court the joint judgment of Gibbs C.J., Mason and Aickin JJ referring to Henderson v Henderson (1843) 3 Hare 100 [67 ER 313] said at [22]:
The critical issue, then, is whether the case falls within the extended principle expressed by Sir James Wigram V.C. in Henderson v Henderson (1843) 3 Hare, at p 115 (67 ER, at p 319) . The Vice-Chancellor expressed the principle in these terms:
"where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." (at p598)
The husband as to the present application argues that any application by the wife seeking to impugn the original s 79 consent orders should have been properly bought in the context of her subsequent application to enforce the very same orders “as it was fundamental to that part of the 2017 orders which enforced the 2005 orders that the latter were valid and enforceable”.
Otherwise, it is contended that the June 2017 orders, where the wife sought and obtained damages or compensation for shares and units that were to be transferred to her, were not orders that would be supported by an enforcement power but rather clearly s 79A(1)(c) of the Act. That provision provides:
(c)a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order;
The wife, it is correctly submitted, now seeks a second round of relief under s 79A of the Act.
In Anshun (supra) the High Court said at paragraphs [38] – [40]:
It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment.
… By "conflicting" judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.
In Timbercorp Finance Pty Ltd (in liquidation) v Collins; Timbercorp Finance Pty Ltd (in liquidation) v Tomes [2016] HCA 44 at [62] the High Court said:
…. that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and fresh litigation started with a view to obtaining a judgment based upon a different assumption of facts. If this were permitted, litigation would not have the finality deemed desirable.
It was inherent in the orders of 2017 that the orders of 2005 were valid and enforceable and not subject to challenge. Indeed, the validity of the orders was the foundation for the wife to receive damages and compensation for breach. As a consequence the husband paid her $455,000.
The Full Court, as discussed below, applied these principles in Jess & Garvey [2018] FamCAFC 44 where a previous application to enforce a Financial Agreement gave rise to an estoppel as to a later application to set the agreement aside.
It is well settled that consent orders such as in the present case can give rise to the estoppel asserted by the husband: Beck v Weinstock; Beck v LW Furniture Consolidated Pty Ltd [2012] NSWCA 289 at [63].
The Anshun estoppel principle was considered by the Full Court in Jess & Garvey (supra) where the Court said at [122] – [125]
Her Honour’s finding at [71] that the wife had “notice, invitation and opportunity” to argue her case that the agreement should not be enforced is plainly correct. The wife had notice of the husband’s contention that the agreement was enforceable as an agreement, and as a “financial agreement” within the meaning of the Act. She had the opportunity in the 2016 proceedings to advance such case as she might raise in denial of his particularised assertions.
Thus, it was not open to the wife to subsequently pursue a claim to set aside the agreement for reasons that could, and should have been put before the court previously, in the context of determining the issue of enforceability.
In other words, although the proceedings may not have been finalised by her Honour’s order of 7 June 2016 because it was then a matter of how the agreement would be enforced, the question of the enforceability of the agreement was finally determined by her Honour’s order dismissing the wife’s response, and the wife was estopped from subsequently bringing proceedings which challenged that enforceability via claims based on s 90K (and/or s 90KA) of the Act. Indeed, her Honour was correct in applying the Anshun principle here, and we are not persuaded that her Honour erred in finding that the wife was estopped from bringing the further proceedings.
Although there were distinct causes of action, that masks what in fact was the outcome of the first action. To repeat, the issue before the court was whether the agreement should be enforced, and the wife had been put on notice by the husband that she should bring forward all arguments that went to that issue, and plainly that would include any claim to set aside the agreement pursuant to s 90K (and/or s 90KA). The court had also ordered that the wife respond to the application for enforcement, and the wife clearly had the opportunity to present all arguments as to why the agreement should not be enforced. Nevertheless, she chose to limit her challenge to a claim that the agreement was void for uncertainty, and to repeat, she went further and set out how the agreement should be enforced if it was not void for uncertainty. Moreover, as referred to above, shortly after filing her response the wife filed an Initiating Application predicated upon the financial agreement being enforceable and seeking an adjustment of any property of the parties not caught by the financial agreement.
And then at [127]:
…we consider that the claims pursuant to s 90K and/or s 90KA were “so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding”.
The application of these principles clearly gives rise to the estoppel asserted by the husband. The wife asserts no matters that would constitute “exceptional special” circumstances that would give rise to an exception to the general application of the Anshun principle; see Wong v Minister for Immigration and Indigenous Affairs [2004] 146 FCR 10 at [38].
The wife’s application to set aside property orders of 2005 will be permanently stayed. It is thus unnecessary to consider in the context of the 2005 orders the husband’s contention that the wife’s application, otherwise, constitutes an abuse of process and should be permanently stayed. However, for the reasons given below, such an order would otherwise be proper.

The Financial Agreement: Abuse of process and delay

The Full Court considered “abuse of process” in Keehan & Keehan [2019] FamCAFC 250 at [21]:
Clearly enough the trial judge was referring to an abuse of process in the wider sense of that expression as discussed in the authorities referred to in Marsden & Winch [2013] FamCAFC 177; (2013) FLC 93-560 at [143] and following. In particular, as is there noted, in Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 Gaudron J said at 74-75:
The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are ‘‘frivolous, vexatious or oppressive’’. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to ‘‘defined and closed categories’’ because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of ‘‘abuse of process’’ is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are ‘‘seriously and unfairly burdensome, prejudicial or damaging’’ or ‘‘productive of serious and unjustified trouble and harassment’.’’
Rule 10.12 of the Family Law Rules 2004 (Cth) (“the Rules”) provides:
Application for summary orders
A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a) the court has no jurisdiction;
(b) the other party has no legal capacity to apply for the orders sought;
(c)it is frivolous, vexatious or an abuse of process; or
(d)there is no reasonable likelihood of success.
Otherwise, it is not contended that this Court as a superior court of record does not have inherent power to dismiss or permanently stay an application.
The wife contends that the Financial Agreement (s 90C of the Act) dated 1 September 2005 as to mutual spouse maintenance releases be set aside by seeking to impugn the validity of the agreement on the basis of duress, unconscionability, fraud and/or suppression of evidence yet proffers no cogent explanation for her inordinate delay in bringing such proceedings.
The wife proffers no explanation for her delay from 2005 to 2017 in seeking to set aside the Financial Agreement as to spouse maintenance. By reason of her settlement funds, the dissipation of which remains unexplained, the utility of any such application for some years after 2005 seeking to enliven her right to spouse maintenance would have been in all probability illusory.
She asserts psychological thought process difficulties in 2005 at the time of the agreement. A difficulty that she concedes dissipated after the orders were made. How evidence could be adduced to prove or disprove such an assertion after so many years where it is common ground that her treating practitioner’s records are no longer available is problematic.
The husband argues that such application constitutes an abuse of process in that the wife’s extended delay will inevitably result in prejudice to the husband in defending what are serious allegations by reason of the expiration of time with such delay contrary to the public interest in the finality of litigation.
It is in the public interest for there to be timely, cost-effective and efficient administration of justice, with delay being one of the relevant considerations attaching to the Court’s discretion as to whether to make an order such as sought by the wife.
The wife’s failure to agitate as to the related Financial Agreement in the context of her 2017 application is not explained. No cogent explanation is given for the delay in bringing the present application.
Such delay, it is contended by the husband, is an abuse of process that should result in the dismissal of her application.
In Walton v Gardiner [1993] HCA 77 Mason CJ, Deane and Dawson JJ said at [23]:
The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail ((22) See, e.g., Metropolitan Bank v. Pooley (1885) 10 App Cas 210, at pp 220-221; General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) [1964] HCA 69; (1964) 112 CLR 125, at pp 128-130.). Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them ((23) See, generally, Voth v. Manildra Flour Mills Pty. Ltd. [1990] HCA 55; (1990) 171 CLR 538.). Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings ((24) See, e.g., Reichel v. Magrath (1889) 14 App Cas 665, at p 668; Connelly v. D.PP. (1964) AC 1254, at pp 1361-1362.). The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v. Chief Constable of the West Midlands Police ((25) [1981] UKHL 13; (1982) AC 529, at p 536.) as "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people".
The categories of abuse of process are not closed: Rogers v The Queen [1994] 181 CLR 251.
It is properly contended by the husband that, relevantly, abuse in the context of the present primary application falls into two well recognised categories: delay in commencing proceedings and the failure to raise the matter in an earlier proceeding.
As to the impact of delay upon the quality of justice see the comments of McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25:
The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates." Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
…
Even before the passing of the Limitation Act 1623 (Imp), many civil actions were the subject of time limitations. Moreover, the right of the citizen to a speedy hearing of an action that had been commenced was acknowledged by Magna Carta itself. Thus for many centuries the law has recognised the need to commence actions promptly and to prosecute them promptly once commenced. As a result, courts exercising supervisory jurisdiction over other courts and tribunals in their jurisdictions have power to stay proceedings as abuses of process if they are satisfied that, by reason of delay or other matter, the commencement or continuation of the proceedings would involve injustice or unfairness to one of the parties…
Notwithstanding that the wife may satisfy the Court that one or other of the grounds are satisfied to set aside the Financial Agreement, the Court has a discretion to do so. Delay is a relevant consideration.
As discussed above, the failure to raise a claim in earlier proceedings can give rise to an abuse of process. In Tomlinson (supra) at [25]-[26] the High Court said:
Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel.
(Footnotes omitted)
See also UBS AG v Tyne [2018] HCA 45 where Gageler J said at [66] – [67]:
Lord Bingham in Johnson explained the application of the doctrine of abuse of process to the bringing of successive proceedings in terms consistent with the later reasoning of the joint judgment in Tomlinson. He identified as the "underlying public interest" that "there should be finality in litigation and that a party should not be twice vexed in the same matter". That public interest, he observed, was "reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole".
Lord Bingham then said this [53]:
"The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party."
His Lordship immediately added:
"It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim."

The overlapping of the Anshun principle and that of abuse of process was referred to by Gageler J as follows at [70]:
Finally, and for present purposes no less importantly, Lord Bingham's reference to the need for the requisite normative judgment to take account of "the public and private interests involved" underscores that the question of whether the claim sought to be brought in the later proceedings "should" have been brought in the earlier proceedings cannot be determined solely by reference to interests of the parties to the action. There is a public interest in the timely and efficient administration of civil justice. The importance of that public interest has only increased in the years since Lord Bingham spoke.
The nature of the wife’s allegations are referred to above. The husband properly contends that a defence of same would require a close examination of the primary business transaction some 18 months before the parties separated in respect to which many primary documents are no longer available.
Otherwise, it would require a close examination of the wife’s personal circumstances at that time and as a far back as 1982 as to the equitable remedies sought by her. In particular, her solicitor’s file has been destroyed, the wife’s psychologist files are not available, the wife’s laptop containing, she asserts, “historical information” was stolen in 2013 and the wife has failed to discover or disclose any financial documents relating to her personal circumstances or that of various entities controlled by her.
The husband further contends that the availability of witnesses is likely to be compromised after so many years thus impacting on the quality of justice the deterioration of which may not even be apparent even to the parties: Brisbane South Regional Health Authority v Taylor (supra).
It is properly contended that the intervening years have made the husband’s defence all but impossible.
In the circumstances discussed above, it is in the interests of justice that the wife’s application as to the Financial Agreement be permanently stayed as an abuse of process. Otherwise, for reasons given, it would be otherwise proper to dismiss or permanently stay the application by reason of the application of the Anshun principle.
Orders will be made accordingly.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 28 February 2020.

Associate:

Date: 28 February 2020