Legal Research
Cases
KEDRINA & AMERY

KEDRINA & AMERY

Case [2020] FamCA 117 28 February 2020

Type to search within this case.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading KEDRINA & AMERY

Details

AGLC: KEDRINA & AMERY [2020] FamCA 117
Case: [2020] FamCA 117
Decision Date: 28 February 2020

CaseChat Overview and Summary

The wife sought to set aside final property settlement orders made in 2015 and a related spouse maintenance agreement, pursuant to section 79A of the *Family Law Act 1975* (Cth). The husband applied for a permanent stay of these proceedings, arguing they constituted an abuse of process and were barred by *Anshun* estoppel. The matter came before Foster J in the Federal Circuit and Family Court of Australia.

The central legal issue was whether the wife's application to set aside the previous orders and agreement should be permanently stayed as an abuse of process, specifically invoking the doctrine of *Anshun* estoppel. This required the court to consider the principles governing the finality of litigation and the circumstances in which a party may be prevented from raising claims that could have been, or were, litigated in prior proceedings.

Foster J applied the principles of *Anshun* estoppel, which prevents a party from bringing a claim that could and should have been litigated in earlier proceedings between the same parties. His Honour found that the issues raised by the wife in her application were matters that could and should have been addressed in the original proceedings that led to the 2015 orders. The court determined that allowing the wife to pursue these claims would constitute an abuse of process, undermining the finality of the previous judgment.

Consequently, Foster J ordered that the wife's Initiating Application filed on 2 January 2018, as amended, be permanently stayed.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

KEDRINA & AMERY [2020] FamCA 117

Most Recent Citation

Amery & Kedrina [2021] FamCAFC 79

Cases citing this decision · 1 of 1 shown

Amery & Kedrina
[2021] FamCAFC 79

…FAMILY COURT OF AUSTRALIA Amery & Kedrina [2021] FamCAFC 79 Appeal from: Kedrina & Amery [2020] FamCA 117 Appeal number(s): EAA 34 of 2020 File number(s): PAC 2 of 2018 Judgment of: AINSLIE-WALLACE, RYAN & TREE JJ Date of judgment: 25 May 2021 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the appellant wife so…

View all 1 citing cases →

Cases cited in this decision · 24 of 24 shown

Keehan v Keehan
[2019] FamCAFC 250 Para 1

…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 follow…
UBS AG v Tyne
[2018] HCA 45 Para 17

…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 "underlyi…
Jess & Garvey
[2018] FamCAFC 44 Para 8

…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.…
Timbercorp Finance Pty Ltd (in liq) v Collins
[2016] HCA 44 Para 6

…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 base…
Tomlinson v Ramsey Food Processing Pty Ltd
[2015] HCA 28 Para 2

…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 a…
Marsden & Winch
[2013] FamCAFC 177 Para 1

…l 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 7…
Beck v Weinstock
[2012] NSWCA 289 Para 9

…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].…
Wong v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCAFC 242 Para 12

…d 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].…
Brisbane South Regional Health Authority v Taylor
[1996] HCA 25 Para 14

…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…
Ridgeway v the Queen
[1995] HCA 66 Para 1

…red 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 proceedin…
Rogers v The Queen
[1994] HCA 42 Para 12

…The categories of abuse of process are not closed: Rogers v The Queen [1994] 181 CLR 251.…
Walton v Gardiner
[1993] HCA 77 Para 11

…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 f…
Voth v Manildra Flour Mills Pty Ltd
[1990] HCA 55 Para 11

…he 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 no…
Port of Melbourne Authority v Anshun Pty Ltd
[1981] HCA 45 Para 1

…etween 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.…
General Steel Industries Inc v Commissioner for Railways (NSW)
[1964] HCA 69 Para 11

…(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 obje…
Henderson v Henderson
[1948] HCA 15 Para 1

…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…
Hunter v Chief Constable of the West Midlands Police & Ors
[1981] UKHL 13 Para 11

…urisdiction 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…
67 ER 313
67 ER 313 Para 1

…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 Henderso…
(1889) 14 App Cas 665
(1889) 14 App Cas 665 Para 11

…or 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 D…
Metropolitan Bank Ltd v Pooley
(1885) 10 App Cas 210 Para 11

…ce, 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, procee…
Connelly v DPP
(1964) AC 1254 Para 11

…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 W…
(1982) AC 529
(1982) AC 529 Para 11

…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 inconsiste…
Metropolitan Bank v Pooley
(1885) 10 AC 210 Para 11

…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 j…
Reichel v Magrath
(1889) 14 AC 665 Para 11

…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 j…

Legislation cited in this decision · 3

Family Law Act 1975 (Cth)
79A, 90C 3 mentions (from Para 2)
Family Law Rules 2004 (Cth)
10.12 2 mentions (from Para 2)
Limitation Act 1623 (Imp)
1 mention (from Para 14)