Klearchos & Klearchos - [2021] FamCA 375

FAMILY COURT OF AUSTRALIA
Klearchos & Klearchos [2021] FamCA 375

File number(s): SYC 2977 of 2013

Judgment of: ALTOBELLI J

Date of judgment: 8 June 2021

Catchwords: FAMILY LAW – PROPERTY – application pursuant to s 79A of the Family Law Act 1975 – threshold application – admissibility of purported expert report – whether there has been suppression of evidence or failure to disclose information – compliance with a party’s obligation of full and frank disclosure – whether there has been miscarriage of justice – whether impugned orders be varied or set aside – application for summary dismissal – whether application be permanently stayed or summarily dismissed – whether the application has reasonable prospects of success – whether there is a serious question to be tried – abuse of process – application dismissed.

Legislation:
Evidence Act 1995 (Cth) s 48

Family Law Act 1975 (Cth) ss 45A, 79A

Family Law Rules 2004 (Cth) rr 10.12, 10.13, 10.14, 15.51, 15.52

Cases cited:
Amery & Kedrina [2021] FamCAFC 79

Arthurman & Arthurman [2020] FamCAFC 136

Auimatagi v Australian Building and Construction Commissioner (2018) 267 FCR 268; [2018] FCAFC 191

Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11

Barker & Barker (2007) 36 Fam LR 650; [2007] FamCA 13

Bourke & Bourke (2009) 243 FLR 369; [2009] FamCA 27

Bretton & Bondai [2013] FamCAFC 168

Briese and Briese (1985) (1986) FLC 91-713; [1985] FamCA 23

Callis & Callis [2019] FamCA 750

Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70

Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] ALR 333

Ebner & Pappas [2014] FamCAFC 229

Gilbert v The Estate of Gilbert(1989) 98 FLR 68

Gitane & Velacruz (2007) FLC 93-309; [2007] FamCA 183

Hearne & Hearne (2015) 53 Fam LR 454; [2015] FamCAFC 178

In the Marriage of Prowse (1994) FLC 92-557

In the Marriage of Suiker (1993) FLC 92-436

Karlsson and Karlsson [2020] FamCAFC 207

Lane v Lane (2016) FLC 93-699; [2016] FamCAFC 53

Lindon v The Commonwealth (No. 2) (1996) 136 ALR 251; [1996] HCA 14

McGregor & McGregor (2012) FLC 93-507; [2012] FamCAFC 69

Molier & Van Wyk (1980) FLC 90-911

Mullane & Mullane (1983) 158 CLR 436; [1983] HCA 4

Oriolo & Oriolo (1985) FLC 91-653; [1985] FamCA 54

Pearce & Pearce [2016] FamCAFC 14

Pelerman & Pelerman (2000) 26 Fam LR 505; [2000] FamCA 881

Public Trustee & Gilbert (1991) FLC 92-211; [1991] FamCA 10

Thorne & Kennedy (2017) 263 CLR 85; [2017] HCA 49

Wagner & Wagner [2009] FamCAFC 16

Wernham & Capagnola [2012] FamCAFC 137

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Number of paragraphs: 100

Date of last submission/s: 11 February 2021

Date of hearing: 11 February 2021

Place: Sydney

Counsel for the Applicant: Mr Jordan with Mr Alexander

Solicitor for the Applicant: Vizzone Ruggero Twigg Lawyers

Counsel for the Respondent: Mr Kearney SC with Mr Gray

Solicitor for the Respondent: Barkus Doolan
ORDERS

SYC 2977 of 2013

BETWEEN:
MS KLEARCHOS

Applicant

AND:
MR KLEARCHOS

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

8 JUNE 2021

THE COURT ORDERS THAT:
1.The Amended Initiating Application filed by the wife on 14 February 2020 be dismissed.
2.The Application in a Case filed on 22 December 2020 seeking review of order 1 of the order made by Registrar Aitken on 17 December 2020 be adjourned to a date to be fixed by the Court.
3.All other extant interim applications be otherwise dismissed.
4.Any application for costs be made within 42 days of the date of this order, and that:
(a)Any Affidavit, Financial Statement and written submissions in support of said application be filed and served contemporaneously with the application for costs;
(b)Within 28 days thereafter, the Respondent to said application file and serve a Response, any Affidavit material, a Financial Statement and written submissions; and
(c)Within 7 days thereafter, the Applicant file any submissions in reply, such submissions not to exceed 500 words in length.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Klearchos & Klearchos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:

These reasons for judgment explain the decision that the Court has made in relation to a contested interlocutory application pertaining to the Applicant wife’s application to set aside property consent orders made on 30 March 2017.
BACKGROUND
On 30 March 2017, Loughnan J made consent orders in proceedings initiated by the wife against the husband and five other Respondents. The consent orders are complex and do not need to be described in detail in the present context. Those orders are reproduced in the first schedule to these reasons for judgment. The effect of the orders is that one of the corporate Respondents pay to the wife the sum of $10 million. There was a consequential deed of release that was entered into between the wife, two named individuals, and a number of corporate entities.
By way of an Amended Initiating Application filed 14 February 2020, the wife seeks a number of orders against the husband and three named corporate Respondents. By way of substantive relief, she seeks an order under s 79A of the Family Law Act 1975 (‘Act’) setting aside the 30 March 2017 orders. She then seeks an order for payment to her by way of alteration of property interests. By way of interim relief, she seeks spousal maintenance and various orders for financial disclosure.
The Court notes that the wife was ordered to file Points of Claim on 15 November 2019. This document was annexed to the wife’s Affidavit filed 11 February 2020. It details the wife’s claim under s 79A against the husband, and the named corporate Respondents.
On 29 June 2020 the husband filed an Application in a Case in which he seeks a number of orders. In the first instance, he seeks an order that the wife’s application be permanently stayed and the final orders sought by her refused. In the alternative, and if that order is refused, the proceedings commenced by the wife be summarily dismissed. In the alternative, and only in the event that both the preceding orders are refused, he sought an order that the wife pay security for costs in the sum of $200,000 in relation to these proceedings. Until payment, the proceedings would be stayed.
By way of the wife’s Response to Application in a Case filed 11 December 2020, she asks the Court to dismiss the husband’s Application in a Case.
Having regard to these competing applications, the Court must decide whether to permanently stay the wife’s application, or summarily dismiss the same, or make an order for security for costs.
The husband is 70 years old and lives in Country J. The wife is 50 years old and lives in Sydney. They cohabited from 1997 to sometime between 2010 and 2013. They married in 2000 and were divorced in September 2014. They have two children who are now aged 20 and 17. The children live with the wife, and holiday with their father twice a year.
On any account of the substantive proceedings between the parties that led to the consent orders made 30 March 2017, the proceedings were complex, drawn-out, and very expensive. The wife’s persistent motif or theme of that litigation, indeed of this round of litigation also, was that the husband had failed to provide full and frank financial disclosure, and thus it was never possible for her to have a meaningful appreciation of the pool of assets available for distribution between them.
Nonetheless, the wife entered into the final consent orders. By the time the orders had been negotiated and entered into, the husband had personally filed a Notice of Discontinuance, but a number of corporate entities continued the litigation and were parties to the deed of release and consent orders. The wife’s contention was that these entities were associated with, and indeed controlled by, the husband.
The wife appears to have settled on the basis of payment to her of $10 million, but her contention now is that the net pool of assets available at the time had a value in excess of $100 million. The wife concedes that most of the funds received by her went towards payment of legal fees, the litigation funder who assisted her, and repayment of loans incurred by her during the litigation.
The wife contends that she commenced the present proceedings in 2019 following the release of what has become known as the “Panama Papers” which the wife alleges mentions the husband’s name in connection with companies incorporated in Country L.
The basis of the wife’s claim is s 79A of the Act. In particular, her Points of Claim indicate that she is relying on s 79A(1)(a). In short, she alleges that there has been a miscarriage of justice by the suppression or the giving of false evidence by the husband in that he failed to provide full and frank disclosure of his financial circumstances and it would seem, in respect of some named corporate entities.
The husband’s case may be simply stated. He contends that the wife was aware of the existence of each of the entities that she now contends she was not aware of, before the 2017 orders were entered into, and thus had the opportunity to pursue such further enquiries and contentions as she sought at that time. He asserts that there has at no time been a failure to comply with his obligations of full and frank disclosure. Moreover, the husband contends that in any event he had no relevant interest in any of the named entities.
In the husband’s case he contends, without controversy by the wife, that she received $10 million, a motor vehicle, furniture, jewellery, a right to reside in a property at Suburb G and the right to use a prestige motor vehicle. He asserts that the terms of their agreement involved an express acknowledgment by the wife that her application was being dismissed as against all the Respondents including the husband. The wife agreed in the deed of release to indemnify the named Respondents and the husband, and release them from any and all claims. He submits that in the deed of release the wife agreed that the husband be entitled to enforce the deed as a release and bar to all proceedings. Moreover, the wife expressly agreed at clause 5.1 of the deed that she entered into the agreement fully and voluntarily upon her own investigations, and that the terms of the agreement would continue to apply even if facts were subsequently discovered which were different from, or in addition to, the facts that she knew or believed to be true at the time of entering into the deed.
Without doing justice to the wife’s case, she contends that the husband’s failure to provide full and frank disclosure amounted to “suppression of evidence” or “other circumstance” within the context of s 79A(1), which in turn amounted to a miscarriage of justice.
The husband denies this. He contends that the wife’s application should be permanently stayed firstly, because it is an abuse of process in that it has no prospects of success; secondly that it is an abuse of process in that she seeks to re-agitate issues previously agitated or that she ought to have agitated in the earlier proceedings; and thirdly the proceedings should be stayed on Anshun estoppel grounds, in that the husband’s financial disclosure as alleged in the proceedings was clearly a matter of issue in the earlier proceedings, and thus by consenting to the 2017 orders the issue was resolved, or alternatively was so connected to the earlier proceedings that it is unreasonable not to have been pursued in that context.
In the alternative, the husband contends that the wife’s application should be summarily dismissed because it has no reasonable prospects of success. He contends that there was not the alleged failure to disclose as contended by the wife. Secondly, the wife’s case proceeds to seek relief that is clearly contrary to the terms of the deed of release that she entered into in circumstances where she makes no application to set aside the deed.
In the event that neither a permanent stay nor summary dismissal is granted, the husband seeks that the wife pay to the husband’s solicitors the sum of $200,000 to be held as security for costs.
Where necessary, the detailed legal and factual matters relevant to this case will be discussed below.
THE MATERIAL BEFORE THE COURT
In support of her case, the wife sought to rely on the following documents:
·Her Amended Initiating Application, filed 14 February 2020;
·Points of Claim filed 14 February 2020;
·Her Response to Application in a Case filed 11 December 2020;
·Her Affidavit filed 10 February 2020 and corresponding exhibit book;
·Her Affidavit filed 11 December 2020 and corresponding exhibit book;
·The Affidavit of Dr AB filed 14 December 2020. Reliance on this Affidavit was objected to by the husband and is a matter to which I will return later in these reasons;
·The Affidavit of solicitor Daniella Ruggero filed 11 December 2020;
·A Case Outline document filed on 5 February 2021;
·A tender bundle annexed to the abovementioned Case Outline document comprising an Affidavit of the Husband sworn 14 November 2016, marked by the Court as exhibit A3; and
·A Court Book marked by the Court as exhibit A2.
The wife also sought leave out of time to rely on the following two documents:
·Her Financial Statement filed 5 February 2021; and
·Her Affidavit filed 5 February 2021.
In support of his case, the husband relied on the following documents:
·The Affidavit of Ms AC affirmed 22 June 2020 and the schedule attached to that Affidavit marked AC1;
·A tender bundle of documents comprising four volumes and marked as exhibit R1[1];
·A Court Book marked by the Court as exhibit R2;
·A Case Outline document filed on 29 January 2021;
·A further Case Outline concerning preliminary issues and objections to evidence filed 9 February 2021; and
·A further Case Outline comprising submissions in reply filed 9 February 2021.
[1] This exhibit was incorrectly marked as exhibit A2 during the hearing and has been re-marked as R1.
A schedule of objections to evidence and the corresponding responses was also marked as exhibit A1 during the hearing.
THE APPLICABLE LAW
Setting aside orders pursuant to s 79A
The wife relies on s 79A(1)(a) in the following terms:
Setting aside of orders altering property interests
(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;
…
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
The defining tenet of s 79A is to capture circumstances where there has been a miscarriage of justice. It should therefore be construed accordingly, that is, in a liberal way so as to reflect its intended remedial purpose: Gilbert v The Estate of Gilbert (1989) 98 FLR 68; Callis & Callis [2019] FamCA 750. That said, however, there must be a significant reason to exercise the Court’s power to set aside orders pursuant to s 79A, given that it is generally considered to be in the public interest for litigation to have reached finality. Mullane & Mullane 158 CLR 436.
In determining a threshold application pursuant to s 79A, the Court must only consider circumstances that existed before or at the time of making the order, as opposed to circumstances which arise after the making of the order: Public Trustee & Gilbert (1991) FLC 92-211; Molier & Van Wyk (1980) FLC 90-911. Consequently, the Full Court in Wernham & Capagnola [2012] FamCAFC 137 has stated:
[23] As is well-known, s 79A of the Act is not a provision which is intended to, or operates as an avenue of redress for a party who has, or believes he or she has, in the light of subsequent events, made a bad bargain.
In the context of consent orders, the Full Court in Pearce & Pearce [2016] FamCAFC 14 aptly summarised the position as follows:
[34] In Gebert and Gebert, this Court, in the context of a s 79A application, held that “ … the law fortunately still allows persons to form their own views as to the arrangement of their affairs”. More recently, the High Court has held that “[i]f both parties are competent, it can still be assumed that any necessary or desirable adjustments can be made to their property interests consensually”. The well-settled proposition that “ … [a]greement to a consent order which may not adequately reflect a party’s entitlements under sec 79 does not, of itself, show that there has been a miscarriage of justice”, derives from these precepts. Of course, “…[t]here may be cases where the order consented to is so far outside the ambit of what is just and equitable that the Court may infer that a party has acted under duress, in ignorance or as a result of incompetent advice”. It has been said that “[o]rdinarily, a failure to comply with that duty will amount to a miscarriage of justice”. Equally, however, “[i]t is not every failure of frank and full disclosure which would justify a court in setting aside an order…”.
[35] In the case of consent orders, the related propositions just discussed intersect at a point where the requisite miscarriage of justice derives from a party’s consent not being a “free and informed consent”; where there is a failure to disclose matters relevant to the decision to enter the consent orders that are “ … peculiarly within [the] knowledge” of that party or omissions which knowingly engendered, or permitted, a mistaken understanding on the part of the other party.
(Citations omitted)
Indeed, the failure by a party to provide full and frank disclosure may amount to a suppression of evidence such that it could give rise to a miscarriage of justice pursuant to s 79A(1): In the Marriage of Suiker (1993) FLC 92-436. Any setting aside or variation of orders pursuant to s 79A requires not only that a suppression of evidence or failure to disclose be made out, but that a miscarriage of justice has occurred by virtue of that suppression or non-disclosure.
It follows that a party’s knowledge, or extent of knowledge, about the relevant facts or circumstances at the time of entering into consent orders is often determinative in a claim for relief pursuant to s 79A: see, eg, Lane v Lane (2016) FLC 93-699.
Accordingly, the four step enquiry to be undertaken in determining an application brought pursuant to s 79A(1) is as follows:
(1)Has the applicant established that a ground exists pursuant to s 79A(1)(a) of the Act?
(2)If so, does that ground amount to a miscarriage of justice?
(3)If so, should the Court in its discretion vary or set aside the order(s) in question?
(4)If necessary, should the Court make another order pursuant to s 79 of the Act?
Permanent stay of proceedings
The husband’s primary contention is that the wife’s application be permanently stayed on the basis that it is an abuse of process.
In Williams v Spautz [1992] HCA 34, the High Court considered the question of jurisdiction to grant a permanent stay for abuse of process at [15]:
The jurisdiction to grant a permanent stay for abuse of process
15. It is well established that Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process (5) Clyne v. N.S.W. Bar Association at p 201; Barton v. The Queen at pp 96, 107, 116; Jago. Although the term "inherent jurisdiction" has acquired common usage in the present context, the question is strictly one of the power of a court to stay proceedings. That power arises from the need for the court to be able to exercise effectively the jurisdiction which the court has to dispose of the proceedings. The existence of that jurisdiction has long been recognized by the House of Lords (6) Metropolitan Bank v. Pooley; Connelly v. D.P.P; Reg. v. Humphrys. The jurisdiction extends to both civil and criminal proceedings. As Lord Morris of Borth-y-Gest observed in Connelly v. D.P.P.
[A] court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction… A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.
(Citations omitted)

The Family Court clearly has that power, one that has been described as the “power to make orders that prevent an abuse of its process and protect its own functions”: Hearne & Hearne [2015] FamCAFC 178 per Austin J at [116].
The Full Court’s recent decision in Amery & Kedrina [2021] FamCAFC 79 sets out the relevant legal principles at [100] - [102]:
100     In Tomlinson, the plurality of the High Court said of the relationship between the doctrines of estoppel and abuse of process:
24.      … the doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.
25.      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.
101     A permanent stay may be ordered regardless of the merits of the proposed proceedings.
102     Further, in Johnson v Gore Wood, Lord Bingham at 31 referred to abuse of process in bringing successive proceedings, the “underlying public interest” of finality in litigation and the “current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole”.
(Citations omitted)
Power to summarily dismiss
The husband’s alternate contention is that the wife’s application pursuant to s 79A ought to be summarily dismissed. The principles that govern summary dismissal applications are well traversed in the family law arena. The Court’s powers to summarily dismiss are contained within the Act at s 45A and supplemented by the Family Law Rules 2004 (Cth) (‘Rules’) at 10.12 – 10.14, both of which are reproduced below:
Family Law Act 1975
45A Summary decrees
No reasonable prospect of successfully defending proceedings
(1) The court may make a decree for one party against another in relation to the whole or any part of proceedings if:
(a) the first party is prosecuting the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings.
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.
When there is no reasonable prospect of success
(3) For the purposes of this section, a defence or proceedings or part of proceedings need not be:
(a) hopeless; or
(b) bound to fail;
to have no reasonable prospect of success.
Proceedings that are frivolous, vexatious or an abuse of process
(4) The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or part is frivolous, vexatious or an abuse of process.
(5) To avoid doubt, proceedings or a part of proceedings are not frivolous, vexatious or an abuse or process merely because an application relating to the proceedings or the part is made and later withdrawn.
…
Family Law Rules 2004
10.12 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.
…
10.14 What the court may order under this Part
On an application under this Part, the court may:
(a) dismiss any part of the case;
(b) decide an issue;
(c) make a final order on any issue;
(d) order a hearing about an issue or fact; or
(e) with the consent of the parties, order arbitration about the case or part of the case.
The basis of the exercise of the power to summarily dismiss is referred to in a number of established authorities. For example, Dixon J stated in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91:
The application [for summary dismissal] is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.
Justice Kirby stated in Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541 at 544-545 that the approach to be taken is “not in doubt” and is as follows:
(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. …
(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.
Finally, the Full Court in Pelerman & Pelerman [2000] FamCA 881 at [46] stated that:
a)The power for summary dismissal is a discretionary one.
b)Relief “is rarely and sparingly provided”.
c)The parties seeking summary dismissal must show that the application is “doomed to fail” or has been otherwise described “that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.
d)A weak case or one that is unlikely to succeed is not “sufficient to warrant termination”.
e)“If there is a serious legal question to be determined, it should ordinarily be determined at a trial.”
f)“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 pleadings.”
Indeed the preferred test has been more recently enunciated as that in which the claim has “no reasonable likelihood of success”, which is conceptually different to a claim being “doomed to fail”: Bretton & Bondai [2013] FamCAFC 168; Karlsson and Karlsson [2020] FamCAFC 207.
The Full Court’s comments in Arthurman & Arthurman [2019] FamCAFC 214 properly summarise the position as follows:
17. In Bretton & Bondai [2013] FamCAFC 168 at [59] and [122], the Full Court held that “no reasonable prospect of success” was conceptually different to “doomed to fail”. This distinction was cited with approval by the Full Court in Ebner & Pappas (2014) FLC 93-619 at [60], who went on to consider the interpretation of the same words by the Victorian Court of Appeal in Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27 (“Lysaght”).
18. According to the Court in Lysaght, the test asks whether the application has a “real” as opposed to “fanciful” chance of success. Whilst it must be applied by reference to its own language, the test is nonetheless broader than “hopeless” or “bound to fail”. It must also be borne in mind that “the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried” (Lysaght at [35])
On the basis of the principles above, there is no controversy about the test in which to apply when determining whether an application ought to be summarily dismissed.
THE AFFIDAVIT OF DR AB
The wife sought to rely on an Affidavit of Dr AB sworn 14 December 2020. The Affidavit in question is described as the Affidavit of a Single Expert Witness. Dr AB is a certified fraud examiner and forensic accountant. Senior counsel for the wife sought leave to rely on the Affidavit and this was opposed by the husband. I heard submissions on the issue and indicated that I would rule on whether leave would be granted, and if so any consequential issues of weight, in my reasons for judgment.
The application in question is governed by rr 15.51 and 15.52 of the Rules.
The relevant parts of the Affidavit, for present purposes, comprise the Executive Summary, the Expert Opinion-Summary and the Report-Findings. The Report-Findings are extensive, and are too long to reproduce in these reasons. Where necessary, reference will be made to specific purported findings. The Executive Summary, and the Expert Opinion-Summary will be reproduced in full below:
11. EXECUTIVE SUMMARY
Based on the documents reviewed to date, it is my opinion that there is no basis on which the executed Financial Statement dated November 16^th, 2016 can be deemed as portraying a complete and accurate financial profile of Mr Klearchos.
On the information available it is deemed that Mr Klearchos, appears to have failed to disclose all relevant overseas interests held as at the date of executing his Financial Statement as these interests were masked via complex, multi-jurisdictional inter-related corporate structures. Some of which were subject to a restructuring therefore eliminating the need to make public the financial and operational results of the entity.
Such corporate structures serve to dilute Mr Klearchos's actual financial interests and provide indirect channels via which monetary interests can be distributed.
Based on documents held and reviewed it is my expert opinion that the Financial Statement executed by Mr Klearchos did not provide a full and frank disclosure of Mr Klearchos's actual financial profile including interests held at the time either directly and or indirectly, particularly abroad. Therefore, failing to comply with Part 13.04 of the Family Law Rules.
The information available allows for a reasonable opinion to be formed that Mr Klearchos was associated to entities and interests abroad either prior to or as at the date of November 16th, 2016. Entities that were not referred to in the Financial Statement submitted by Mr Klearchos.
The ability to gain an accurate financial profile of Mr Klearchos as at November 16th, 2016, is not possible based on the open-source and publicly available information gathered and reviewed to-date.
Given the significant number of entities identified as being associated to Mr Klearchos, for which information is not held a further financial investigation is warranted. This investigation needs to address each and every entity noted in this report for a complete and accurate financial profile to be obtained for Mr Klearchos.
The ability to gain an accurate financial profile of Mr Klearchos as at November 16th, 2016, is not possible based on the open-source and publicly available information gathered and reviewed to-date. In order to confirm or otherwise the executed Financial Statement dated November 16th, 2016, it is critical that a proper understanding of all identified associated entities aboard is reviewed and a complete understanding of the inter-related corporate structure gained. Given the structural changes that have been implemented within key entities, this information can only be obtained with the assistance or Mr Klearchos.
12. EXPERT OPINION - SUMMARY
12.1 In my expert opinion, based on information gathered and reviewed,
a) The Financial Statement signed by Mr Klearchos in November 2016, failed to provide a full and frank disclosure of Mr Klearchos's business and financial interests.
b) The executed Financial Statement of Mr Klearchos did not portray a complete and accurate financial profile of Mr Klearchos, particularly in relation to Mr Klearchos's overseas interests.
c) The Financial Statement submitted failed to provide any reference to the significant number of entities registered abroad with which Mr Klearchos was associated when signing the Financial Statement.
d) The executed Financial Statement did not consider the associated entities, with which My Klearchos has been identified as having been associated to shortly prior to executing his Financial Statement.
c) The submitted Financial Statement has not provided a Full and Frank disclosure of Mr Klearchos's financial circumstances as required by Family Law Rules 13.04 (1) and (1)(C) of the Family Law Rules 2004.
f) Structural changes that took place within associated entities have significantly limited the ability to gain publicly available information regarding financial and operational results post financial year 2014.
Counsel for the wife contended that the annexures to the report did not represent the entirety of the information available to Dr AB in preparing her report, and in coming to the conclusions that she has. Any concerns about the evidence would best be addressed through cross-examination, rather than not allowing admission of the evidence. There is no doubt that the evidence of Dr AB was important to the wife’s case. The wife’s counsel explained that the result of the investigation undertaken established that the husband had interests in companies, directorships and/or partnerships of the husband in companies which he had not disclosed. Indeed, her counsel quite properly conceded that if the report was not allowed into evidence, the wife’s claim would probably cease at that point in time.
By way of summary, senior counsel for the husband’s submissions in relation to the evidence focused on the unreliability of the information from which the conclusions were drawn, as well as a fundamental misunderstanding of what needed to be established in order for the wife to succeed on her application under s 79A of the Act.
Indeed, concerns about the evidence become apparent as early as the executive summary. In short, Dr AB purports to express the opinion that on the information available to her, the husband had failed to disclose all relevant overseas interests held at the date of signing his Financial Statement. However, she refers, for example, to the information available to her allowing for a reasonable opinion to be formed that the husband was ‘associated’ to entities and interests abroad that were not disclosed. It is not entirely clear what is meant by use of the word ‘associated’ and how, if at all, an association between the husband and another entity results in the conclusion that he had an interest in the same or that he had failed to disclose in some way. This vagueness continues in the report findings from 13 onwards.
At 13.1, Dr AB attempts to answer the following question: ‘Are you able to identify entities, individuals or assets associated with the husband during 2015 and 2016? If so, please list each entity, individual or asset and describe how it was associated with the husband at the relevant time.’ At 13.1(3), the report identifies the husband as ‘a joint Director and Partner’ of various entities identified in table 1. The report states: ‘It is noted that as at the date of this report there is no definition/distinction of Partner as opposed to Director. Inquiries have been made for a confirmation as to whether the position of Partner also entails ownership. A response is yet to be received.’ It is clear, therefore, that Dr AB recognised the important distinction between concepts of ownership as opposed to some other form of association or relationship. The report does not anywhere indicate the outcome of the further inquiries referred to. Moreover, there is no evidence anywhere in the report indicating that the position of partner also entails ownership, or even influence or control for that matter. Despite these obvious methodological problems, Dr AB had no difficulty in coming to the conclusion that the husband failed to provide frank disclosure of his business and financial interests.
The executive summary also acknowledges another inherent limitation of the report. It states: ‘The ability to gain an accurate financial profile of Mr Klearchos as at November 16, 2016, is not possible based on the open-source and publicly available information gathered and reviewed to date.’ Once again, this frank acknowledgement of the deficiencies in the methodology of the report does not seem to deter Dr AB from her conclusion. Moreover, there are real concerns about what she described as the open-source and publicly available information to which she refers. Senior counsel for the husband drew the Court’s attention to a number of examples in this regard. At page 77 of her Affidavit, for example, there is a document described as: ‘[Business Leaders List]’, purportedly relating to the husband. It provides a brief summary of the various roles in which the husband is purportedly engaged and a list of the current positions that he holds. The document refers to the husband as: ‘Director and Partner’ of a number of named entities. The provenance of this document is completely unknown. In the context of the wife’s application under s 79A, it is unclear how being a director or partner necessarily involves ownership or control. It is hardly, with respect, a secure platform from which to draw certain conclusions. Senior counsel also drew the Court’s attention to a number of other documents, described as: ‘search report’. The provenance of all of these purported searches is also unclear. Perhaps more significantly, however, the relevance of the searches as they relate to AD Limited, AE Limited, AG Company, and AH Company; is unclear given that the records themselves indicate that these entities were not in existence at the time that the wife entered into the consent orders. And yet each of these entities are referred to in the earlier document described as ‘[Business Leaders List]’, and they are clearly documents upon which Dr AB relied in coming to her conclusion. None of the evidence goes to the question of the husband’s interests, proprietary or otherwise, in these entities. Indeed in some of the records identified, it is patently obvious that the husband’s only interest is to receive an income as a director.

Senior counsel for the husband submitted that in substance and effect, what Dr AB has done is built a premise from a series of propositions based on inadmissible documents that as a result of the husband’s mere association with a series of entities, he somehow has an interest that should have been disclosed, and was not disclosed, at the relevant time. He submitted that leave should not be granted to the wife to rely on the Affidavit in question and, in the alternative, if leave were granted such little weight would be placed on this evidence that it would not assist the wife’s case.
The Court observes that each of the documents referred to in the Affidavit were probably admissible in their own right under s 48 of the Evidence Act 1995. The documents in question were either business records or public documents, even if the public documents relate to a foreign country. The irony is that even if the documents were admitted unconditionally, that is, to prove the fact asserted in the document, they would probably not assist the wife in her case.
From the Court’s perspective, the real concern about the Affidavit of Dr AB is that it is not expert evidence because the purported factual basis on which she expresses her opinion is so vague and indeterminate. With respect to Dr AB, one could be forgiven for forming the impression that her report is based on internet searches yielding results, at best, of questionable provenance. Notwithstanding some of the limitations she herself identifies about the methodology used in the report, Dr AB nonetheless expresses seemingly unqualified opinions. In McGregor & McGregor [2012] FamCAFC 69 the Full Court considered the role and function of an expert. The Court there said as follows:
81. Furthermore, an expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based and the opinion in question so that it is possible for the court to determine whether the opinion is “wholly or substantially based on specialised knowledge based on training, study or experience” per Gleeson CJ in HG v R (1999) 197 CLR 414, 427.
82. In addition, not only should the facts on which the opinion is based be identified, the reasoning process leading to the formation of the opinion must be exposed so as to demonstrate that the opinion is based on particular specialised knowledge (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (“Makita”) at [85] per Heydon JA. The Full Court of the Federal Court has held that many of the matters referred to by Heydon JA in Makita “involve questions of degree, requiring the exercise of judgment” and in trials by judge alone they should commonly be regarded as going to matters of weight rather than admissibility (see Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [16] and [87]; see also Carpenter & Lunn (2008) FLC 93-377; Noetel & Quealey (2005) FLC 93-230).
Having regard to the above this Court concludes that leave should not be granted to the Applicant wife to rely on the Affidavit of Dr AB. If the Court is wrong, however, and leave should be granted, based on the concerns identified above the Court would place no weight on the said Affidavit. Accordingly, and based on counsel for the wife’s own concession, quite properly made, the wife’s application could not possibly succeed as presently framed, and the husband’s application for permanent stay or summary dismissal would need to be considered. As will be seen below, however, even if the Affidavit was admitted and received weight, the wife’s claim remains highly problematic.
THE WIFE’S POINTS OF CLAIM AND THE ROLE OF PLEADINGS
As mentioned, on 15 November 2019 the wife was ordered to file Points of Claim in relation to her s 79A application, and did so by way of a lengthy document that is annexed to her Affidavit filed 11 February 2020. It is important to understand the wife’s claim in order to properly consider the various applications advanced before me.
The Points of Claim refer to five Respondents, with the husband comprising the first Respondent, and four corporate entities making up the remaining Respondents. Each of these named Respondents were parties to the 2017 consent orders and the deed of release entered into by the wife. The fifth named Respondent is no longer a registered company. The wife, in her Amended Application filed 10 February 2020, amended her application so as to remove the fifth named Respondent as a party to the proceedings. Subsequent to this, on 19 May 2020, the wife filed a Notice of Discontinuance in respect of the Second, Third and Fourth Respondents. The husband is therefore the only Respondent that remains a party to the proceedings and it follows that it is unnecessary for me to consider the Points of Claim insofar as they are directed to the previously named Respondents.
This Court is not a Court of pleadings. That much is true since formal pleadings were abolished from the Rules in 1995. Pleadings can, however, play an important role in complex property matters such as this one, and in particular where relief is sought against third parties. In Bourke & Bourke [2009] FamCA 27, Murphy J considered the role of pleadings in such matters:
[25] In cases such as this, where specific "causes of action" are pursued against third parties, pleadings have, in my respectful view, an important and highly useful role. The proper pursuit, and ordering of, particulars, equally serves a vitally important role in defining-and very frequently confining-the issues for determination by the court.
[26] I note with interest that the Full court in a decision handed down at the beginning of this year in B Pty Ltd and Ors v K and K (2008) FamCA FC 113 held:
44. However, the narrative or descriptive nature of evidence is often unsuited to formulate or particularise a cause of action against a third party. Something resembling a statement of claim will generally be necessary.
45. In Gould v Gould: Swire Investments Ltd (1993) FLC 92-434 Fogarty J (with Nicholson CJ and Finn J agreeing) said (at 80,451):
I conclude, consistently with Buckeridge and Barro, that the correct procedure, where an applicant in proceedings under the Family Law Act seeks relief against a person who is a stranger to marriage or relationship, is to name that person as an additional respondent in the proceedings and set out the nature of the claim and the basis of it in the ordinary way in the application" [emphasis added by the Full [C]ourt in B Pty Ltd].
46. Of relevan[ce] to the procedure adopted in the instant case, Fogarty J had also earlier said (at 80,448):
… good case management and fairness to the parties, in particular to the third party, suggests that in appropriate circumstances the claim against the third party, or more particularly the jurisdictional base of that claim, be determined as a preliminary issue where it is appropriate and practical to do so … " "
That the wife’s claim was initially advanced against third parties illustrates then, at least in part, why the wife was ordered to file Points of Claim.
With respect to the role of pleadings, the comments of Mason CJ and Gaudron J in Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11 bear reproduction:
The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490, per Isaacs and Rich JJ. at p 517. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness.
Subsequently in that decision, Brennan J went on to affirm the general rule, quoting the oft cited case of Dare v Pulham (1982) 148 CLR 658:
When the pleadings bring the parties to the issue, the court's function is to determine that issue and to grant relief founded on the pleadings unless the parties are allowed to alter the issues at the trial without amendment of the pleadings (as to which, see the observations in London Passenger Transport Board v Moscrop [1942] AC 332 at 340, 347, 351, 356). The rule is clearly laid down in the judgment of this court in Dare v Pulham (1982) 148 CLR 658 at 664; 44 ALR 117 at 121:
Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon [v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 at 517, 518]; Sri Mahant Govind Rao v Sita Ram Kesho [(1898) LR 25 Ind A 195 at 207]).
A recent articulation of the rule can be found in the decision of Auimatagi v Australian Building and Construction Commissioner (2018) 267 FC 268:
49. One of the main purposes of pleadings is to define the issues in dispute with sufficient clarity to enable the opposite party to understand the case he or she has to meet and to provide him or her with an adequate opportunity to prepare to meet that case: see Dare v Pulham (1982) 148 CLR 658 at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ). A concomitant of this principle is that a party is not entitled to depart from his or her pleaded case except if the parties have both deliberately chosen to conduct the dispute on a different basis. That principle was expressed in Banque Commerciale S.A., En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286–287.
(Emphasis added)
The husband contended at various points throughout the hearing that the wife ‘impermissibly’ attempted to depart from her filed Points of Claim. This is a matter to which I will return later in these reasons, but first requires closer consideration of the Points of Claim insofar as they present the wife’s case against the husband.
The Points of Claim make it very clear that from the wife’s perspective the husband perpetrated non-disclosure: see paragraph 12 of the Points of Claim.
At paragraph 16 of the Points of Claim, the wife contends that such non-disclosure was intended to defeat her interests under the Act and had the effect of concealing the true value of the husband, his finances, financial dealings, and the interests that he owned and held.
The particulars of this contention are set out at paragraph 17 of the Points of Claim, and bear reproduction in full:
17. The Husband (and the Second, Third, Fourth and Fifth Respondents), did not disclose the entirety of the private companies, partnerships, and trusts in which the husband had an interest.
Particulars
17 .1. The husband became a Director of an entity known as AD Ltd on or around 29 August 2011.
17 .2. K Ltd is a shareholder of AD Ltd.
17.3. Neither the entity AD Ltd, nor the husband’s interest in AD Ltd was disclosed throughout the proceedings.
17.4. The Husband also became a Director of an entity known as AJ Ltd in or around 2015. Neither the entity AJ Ltd, nor the husband's interest in AJ Limited was disclosed throughout the proceedings.
17.5. The value of AD Ltd, AJ Ltd, and the value of the Husband's interest in AD Ltd and AJ Ltd is unknown; however, the non-disclosure of significant and relevant assets and entities, together with the overall non-disclosure of the husband and the respondents, disclose the intention of the husband and the respondents to defeat the interests of the wife under the Family Law Act and conceal the true value of the husband, his finances, financial dealings and the interests he owned and held at the time that the 30 March 2017 Orders were entered into.
It is on the above basis that, at paragraph 18, the wife claims that there had been a miscarriage of justice by way of suppression of evidence, the giving of false evidence and any other circumstances. Paragraph 18.3 of the Points of Claim also bears reproduction as it purports to reveal the apex of the wife’s claim:
18.3. The husband's non-disclosure, in particular, the non-disclosure of the entities AD Ltd and AJ Ltd amounts to a miscarriage of justice.
So far in the Points of Claim the basis of the wife’s s 79A application is expressed to be in terms of the husband’s non-disclosure. At paragraph 19, however, the wife presents an alternate basis for her claim, namely duress. Paragraph 19 therefore bears reproduction in full:
19. There has been a miscarriage of justice by way of duress.
Particulars
19.1. The wife entered into an agreement with a third party litigation funder, namely AK Lawyers. The wife was required to obtain the services of a third party litigation funder as the wife throughout the proceedings did not receive any spousal maintenance, lump sum payment or payment toward legal fees.
19.2. The wife’s legal fees were in excess of $900,000 and the fees for AK Lawyers were $4,175,000.
19.3. As the proceedings did not conclude on 30 March 2017 and were to be stood over for another five (5) days, AK Lawyers indicated that they would not be providing any further funding to the wife. As a consequence of this, the wife's solicitors and Counsel asserted pressure on the wife to settle, in order to secure payment of their legal fees.
19.4. The wife was emotionally drained and distressed and had no option but to enter into the Consent Orders.
Thus, there are two bases to the wife’s s 79A application that need to be considered in the context of the husband’s permanent stay, summary dismissal and alternative applications.
FIRST LIMB OF THE WIFE’S 79A APPLICATION: NON-DISCLOSURE
Has the wife established a ground pursuant to s 79A?
The central axis on which the wife’s claim revolves is that the husband failed to provide full and frank disclosure. She alleges that such failure on behalf of the husband amounted to a miscarriage of justice by way of suppression of evidence, the giving of false evidence and any other circumstances.
If the wife’s case were to be accepted, the husband was less than diligent in providing disclosure, but if the husband’s case is accepted, he fully and diligently complied with all disclosure obligations. There can be no doubt, however, that the culmination of the wife’s claim, the ‘pointy edge’, so to speak, is found at paragraphs 17 and 18 of the Points of Claim. Her direct focus was on a number of entities, namely AD Limited, K Limited, and AJ Limited. Her contention is very clear: the husband did not disclose his interests in these named entities. It must be implied in the wife’s contentions that the husband, in fact, held an interest in these entities. It is noteworthy that the three above-named entities are the only entities to which the wife refers in the Points of Claim, despite seeking to contend by way of her submissions that there were additional entities, or interests therein, that had not been disclosed by the husband. In this respect, she did not seek leave to amend or depart from the Points of Claim and I consider that it would be impermissible for her to do so in the circumstances.
The husband’s primary contention is that the wife knew about the entities she now complains that she was unaware of. He is fortified in this contention through the evidence he has advanced from the prior proceedings, namely, a number of the wife’s prior affidavits and correspondence between the parties which refer to the relevant entities. Importantly, however, whether or not the wife knew, or ought to have known, about the relevant entities is not an answer to whether or not the husband complied with his obligations of full and frank disclosure such that there was a suppression of evidence. The wife is correct to assert that the husband’s duty of disclosure is a positive one, and is owed to both the wife and to the Court. In this regard, the comments of Smithers J in Briese and Briese (1986) FLC 91-713 at 75,180, as affirmed by the Full Court in Oriolo & Oriolo (1985) FLC 91-653, are apposite:
The Regulations, and now the Rules, are not intended as a vehicle to mask the true position, or as an aid to confusion, complexity or uncertainty. They are not intended as the outer limits of the obligation of financial disclosure, but as providing avenues towards disclosure. The need for each party to understand the financial position of the other party is at the very heart of cases concerning property and maintenance. Unless each party adopts a positive approach in this regard delays will ensue with the consequent escalation of legal, accounting and other expenses, always assuming that a party has the strength to continue the struggle for information and understanding.
The obligation to disclose the nature and extent of the husband’s interests does not dissipate on the basis that the wife knew, or ought to have known, about the interests or entities in question. The relevant question is whether or not the husband complied with his positive duty, to the Court and to the wife, to set out his financial position, encapsulating all relevant interests, in a clear and comprehensive manner. It is a failure in this respect that may lead to this Court finding that the husband has suppressed evidence, or failed to disclose relevant information, for the purposes of s 79A(1)(a).
In order to establish that there has been a suppression of evidence or a failure to disclose relevant information, the wife is required to establish to the Court’s satisfaction that, firstly, the husband held a relevant interest in one of the relevant entities, at the time of the prior proceedings, and secondly, that he failed to disclose that interest. The height of the wife’s evidence in this regard is Dr AB’s report. Aside from this, I am unable to discern any evidence capable of sustaining her contention that there has been a suppression of evidence on part of the husband in the prior proceedings. It is not enough to advance what can only otherwise be described as a mere suspicion that the husband’s interests were not fully disclosed, based only on the ‘Panama Papers’, the source and veracity of which have not been verified or tested.
There is nothing in either the report of Dr AB or the evidence led by the wife that leads the Court to conclude that the Husband suppressed evidence or failed to provide full disclosure. This will become evident below. However, if the Court is wrong in this conclusion, it would nonetheless conclude that there was no miscarriage of justice, for reasons set out below.
Has the suppression of evidence or failure to disclosure information amounted to a miscarriage of justice?
The wife says, at paragraph 18.3 of the Points of Claim, that “the husband’s non-disclosure, in particular, the non-disclosure of the entities AD Pty Ltd and AJ Ltd amounts to a miscarriage of justice”. She fails to meaningfully elaborate or particularise in her Points of Claim what it is that constitutes the miscarriage of justice that she complains of. Inferentially, her claim is that the miscarriage of justice arises in circumstances where the husband’s non-disclosure led her to enter into consent orders in which she accepted a percentage division of an intentionally deflated and deceitful asset pool, and one that was substantially less than its true value.
Relevantly, the Full Court in Barker & Barker (2007) 36 Fam LR 650 has aptly summarised the position as follows:
[123] …in order for a claim under s 79A(1) to succeed, the Court must be satisfied that a miscarriage of justice has resulted. It is not sufficient to merely establish the existence of one or more of the stated grounds, such as suppression of evidence. In Livesey v Jenkins, Brandon LJ had this to say about the nexus between non-disclosure and setting an order aside (at 445-6):
I would end with an emphatic word of warning. It is not every failure of frank and full disclosure which would justify a court in setting aside an order of the kind concerned in this appeal. On the contrary, it will only be in cases when the absence of full and frank disclosure has led to the court making, either in contested proceedings or by consent, an order which is substantially different from the order which it would have made if such disclosure had taken place that a case for setting aside can possibly be made good. Parties who apply to set aside orders on the ground of failure to disclose some relatively minor matter or matters, the disclosure of which would not have made any substantial difference to the order which the court would have made or approved, are likely to find their applications being summarily dismissed, with costs against them, or, if they are legally aided, against the legal aid fund.
We agree with this statement.
[124] But s 79A is a remedial section designed to avoid a miscarriage of justice. Where there is some intervening factor known to one party, but not the other, this may lead to a result which is unfair and unjust and can be characterised as a flaw in the judicial process by which the orders were made. There may also be circumstances in which the judicial process could be impugned by a sale after orders were made and in the absence of bad faith by either party or suppression of some relevant fact, if it led to a significant miscarriage of justice.

In this case the Court finds that there has been no miscarriage of justice, again for the reasons discussed below. Even if the Court is wrong, however, it still would not exercise its discretion to vary or set aside the orders in question.
Would the Court in its discretion vary or set aside the 2017 consent orders?
A finding that justice has miscarried does not necessarily dictate that the impugned orders necessarily be varied or set aside: Barker & Barker (2007) 36 Fam LR 650 at [134] citing In the Marriage of Prowse (1994) FLC 92-557.
The Court must consider whether the circumstances are such that ultimately, the Court should exercise its discretion to vary or set aside the orders. The extent of a party’s knowledge about the relevant facts or circumstances at the time of entering into the consent orders is often determinative in this respect: Lane v Lane (2016) FLC 93-699 at [83]; Ebner & Pappas [2014] FamCAFC 229.
The evidence of both the husband and the wife establishes that the wife was aware of the existence of the entities named in her Points of Claim as those she asserts that the husband failed to disclose an interest in. Notwithstanding this knowledge, and notwithstanding having the ability to undertake her own investigations in the face of the husband’s contention that he had no interest in these entities, she did not do so, presumably for her own reasons, and entered into the consent orders.
This Court does not intend to traverse, page by page, paragraph by paragraph, line by line of each document referred to by the husband to establish to the satisfaction of this Court the nature and extent of the wife’s prior knowledge. For the sake of completeness and transparency, however, the Court will refer to just two examples from the evidence which are indicative of the wife’s knowledge of the matters that she now claims the husband had not disclosed.
At paragraph 26 of the wife’s Affidavit sworn 13 June 2013, reproduced at tab 11 of the husband’s tender bundle, she refers to K Limited. There is another reference at paragraph 79, including the allegation that the husband was, presumably at the time of the Affidavit, chairman of K Limited. She gives quite extensive evidence about K Limited at paragraphs 225 – 233. The wife annexes to her Affidavit the 2012 annual report of K Limited, which refers to the husband as executive director, and explicitly refers to the AD Limited project in Country AR. This same document establishes that the husband is but one director of the company, explicitly refers to the benefits that he receives as director and executive chairman, and explicitly refers to the husband’s shareholding. At page 32 of this report there is an extensive list of the entities controlled by K Ltd.
The wife’s further knowledge about these entities is found, for example, at paragraph 38 of her Affidavit of 25 August 2014, as reproduced at tab 15 of the husband’s tender bundle. In her Affidavit of 30 March 2016, reproduced at tab 18 of the tender bundle, at paragraph 8 the wife again refers to K Ltd, and then again at paragraph 16(b)(iii)(E) refers to the entity known as 0906251BC, which was the prior name of AJ Limited.
Another significant document is the letter from the wife’s solicitors at the time, dated

28 October 2016 and reproduced at tab 20 of the husband’s tender bundle, sent to the husband’s solicitor in which she states, amongst other things:
“…our client has elected to not pursue the valuations of K Limited, DD Limited, AJ Limited and the business trading as AL Company.”
In fairness to the wife, the context of this letter is that the wife was maintaining her assertion of what is described as the husband’s “serious lack of disclosure to date”, which would be drawn to the Court’s attention at an appropriate time.
In closing submissions the wife’s counsel explained that he was not in a position to respond to the issue of the wife’s prior knowledge. He was instructed to communicate to the Court, on his client’s explicit instructions, that when the wife’s affidavits were prepared in 2013 and 2014, that she was unwell, and has no present recollection of the documents in question.
What emerges from a consideration of the above evidence is this. The wife, or at the very least, the wife’s legal representatives at the time, possessed knowledge of the entities the wife now claims, by virtue of her Points of Claim, that she was unaware of prior to entering into the 2017 consent orders. The wife elected not to pursue valuations of the same prior to entering into the consent orders, which is indicative of a conscious choice not to pursue or take those matters further.
The Court acknowledges that, consistent with the wife’s written submissions, her affidavit material, and the submissions made on her behalf at the hearing, she asserts that the state of her knowledge is a central factual dispute between the parties about which she ought to be cross examined. She maintains that she did not possess the requisite knowledge to which the evidence referred to above suggests that she possessed. She maintains that she was ‘unwell’ during the earlier tranche of proceedings and does not recollect any of the matters deposed to, despite advancing no medical evidence to support this hypothesis. She also maintains that Dr AB’s report has illuminated at least 17 entities in which the husband had an interest, each of which she says she was not aware of, despite her Points of Claim referring only to three such entities.
There is no sustainable basis to the Wife’s claims. It is her own evidence filed in the earlier proceedings that precludes the granting of the relief she now seeks. Her claim has no reasonable prospects of success.
SECOND LIMB OF THE WIFE’S 79A APPLICATION: MISCARRIAGE OF JUSTICE BY WAY OF DURESS?
This part of the claim did not attract much attention in submissions. There is scant reference to it in the wife’s Case Outline document. There is scant reference to any evidence about duress in the admissible parts of the wife’s Affidavits. Nonetheless, serious consideration must be given as to whether or not her claim should be permanently stayed or summarily dismissed, insofar as it is based on duress.
The particulars provided at paragraph 19 of the Points of Claim create the impression that the source of the duress purportedly experienced by the wife was her third-party litigation funder, and her solicitors and counsel at the time. She contends that she was so emotionally drained and distressed that she had no choice but to enter into the consent orders. She adduces no medical evidence in this regard pertaining to the relevant period. In any event, there is no contention by the wife that she was subjected to duress by the husband other than in the most indirect sense, one infers, that were it not for the litigation against the husband, neither her litigation funders, nor her own lawyers, would have exerted pressure on her to settle the case.
Consistent with the authorities, there seems to be no basis for the wife’s claim of duress. She has advanced no evidence to suggest that the orders were entered into by way of duress. Likewise, it could not seriously be suggested that the husband was in some way implicated in the duress to which the wife refers in her Points of Claim: see, eg, Wagner & Wagner [2009] FamCAFC 16, Thorne & Kennedy (2017) 263 CLR 85.
Insofar as the wife’s claim under s 79A(1) is based on a miscarriage of justice by way of duress, it too has no reasonable prospects of success.
SHOULD THE WIFE’S APPLICATION UNDER SECTION 79A BE PERMANENTLY STAYED OR SUMMARILY DISMISSED?
Despite the Husband’s claim being framed primarily as one for the grant of a permanent stay, by the time of closing submissions, and perhaps emboldened by concessions, quite properly, made on the Wife’s behalf, his senior counsel pressed for summary dismissal.
Out of abundant caution the Court finds that it would have granted a permanent stay of the wife’s application in any event, as it constituted an abuse of process. The recent discussion of the Full Court in Amery & Kedrina [2021] FamCAFC 79 at paragraphs [36]-[51] sets out the legal principles that underpin this conclusion, even if the Husband’s claim was not primarily framed on the basis of estoppel (but, arguably, could have been). Based on the wife’s own evidence, and taking it at its absolute highest, she had relevant evidentiary material available to her which she could reasonably have used but declined to. It is now unreasonable, and strongly contrary to the public interest, for her to seek to use the same material in later proceedings. The Court wishes to emphasise that this is a normative decision, confined to the facts of this case as presented to the Court.
Senior counsel for the wife referred the Court to the Full Court’s decision in Gitane & Velacruz (2007) FLC 93-309. At [25]-[26] Kay J, with whom Coleman and Boland JJ agreed, set out the principles to be applied in a summary dismissal application. Based on this, the following conclusions are available. The Court accepts that relief for summary dismissal is rarely and sparingly provided, consistent with the authorities referred to herein as well as this case. On the facts of this matter before me, however, the Court concludes that it is clear on the face of the documents of the wife herself, that she has no reasonable prospects of success based on the matters referred to at paragraphs 17, 18 and 19 of her Points of Claim.
The Court accepts that it is not enough to demonstrate that the case is merely a weak one. The wife’s case goes beyond that. To use the words adopted by senior counsel in the husband’s case outline, the wife’s case is ‘doomed to fail’ based on the issue of non-disclosure. The wife has not produced evidence sufficient to sustain her contention that the husband has supressed evidence or failed to disclose relevant material, such that would give rise to a miscarriage of justice. Indeed the wife’s material suggests that she was, in effect, well aware of the existence of the entities to which she refers, and was well aware from her own evidence that the husband’s interests existed through K Limited. Moreover, the issues in relation to the wife’s case based on non-disclosure, are not mere defects in the pleading for a party who still has a reasonable course of action. The problems go well beyond that. The Court concludes that the wife’s application under s 79A of the Act has no reasonable prospects of success, insofar as it is based on non-disclosure. The same result applies to her claim based on duress.
APPLICATION FOR REVIEW
The remaining outstanding application is the Application in a Case filed by the husband on

22 December 2020 seeking review of order 1 of the order made by Registrar Aitken on

17 December 2020. At the commencement of the hearing, counsel for the husband advised the Court that the parties were in agreement that the matter be adjourned pending my determination on the substantive issues.
The order that is the subject of the review relates to documents produced pursuant to a subpoena directed to AS Lawyers. In view of the orders that the Court will make, this application appears redundant and should probably be dismissed. Nonetheless, as the document might be relevant to a costs application, out of abundance of caution the application will be stood over to a future date before me.
COSTS
It is possible that costs may be sought as a result of this decision. The Court will make directions to the effect that if any application for costs is to be made, it should proceed by written submissions accompanied by such Affidavits and Financial Statements as the applicant for costs considers appropriate and which must be filed and served within 42 days of the date of these orders, to allow time for the filing of an appeal. Any opposition to the application for costs should likewise proceed by way of written submissions, Affidavit and Financial Statement.

I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli.
Associate:
Dated:            8 June 2021
SCHEDULE ‘A’
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT SYDNEY   File No. (P)SYC2977/2013
BETWEEN
MS KLEARCHOS  (Wife)
AND
MR KLEARCHOS   (Husband - Discontinued)
AND
E PTY LIMITED  (Second Respondent)
AND
Q PTY LIMITED  (Third Respondent)
AND
R PTY LIMITED  (Third Respondent)
AND
H LIMITED  (Fifth Respondent)
AND
MR NORTON  (Sixth Respondent)
30 March 2017
Before The Honourable Justice LOUGHNAN
UPON APPLICATION made to the Court AND UPON HEARING the legal representatives for the parties
IT IS ORDERED THAT:
1.By consent, orders, declarations and notations are made in accordance with the document titled “Orders” (Exhibit A dated 30 March 2017), as set out hereunder:
1.       In proceedings No. SYC 2977/2013 all previous orders of, and undertakings to, this Court (and save for parenting orders) be and are hereby discharged including any orders as to costs and any current injunctions.
1A.   The Wife shall on or before 4:30 pm on 31 March 2017 deliver to the solicitor for the second respondent (E Pty Ltd) a withdrawal of Caveat in relation to the caveats lodged on the titles to the retail arcade, Town QQ, the Sydney CBD Office and the Suburb G property, except in relation to the Suburb G property the time is extended to the date upon which the Wife registers a mortgage in her favour on the said property.
2.       The applicant Wife (“the Wife”) have sole use and occupation of the real property situate at and known as F Street Suburb G (“the Suburb G property”) but only as the residence of herself and her children (and guests), and not so as to let out the Suburb G property, and further that the Wife shall vacate the Suburb G property on or before 31 December 2017 with her right to sole use and occupation of the Suburb G property then ceasing, save only that it shall continue in the event of non payment of the settlement sum as defined in order 5 hereof and the wife is otherwise not in default of these orders. Should the Wife elect to vacate the Suburb G property before 31 December 2017, then the Wife must give one month’s notice thereof in writing to H Ltd by service thereof upon H Ltd’s solicitors, AN Lawyers Sydney (“ANL”).
3.       The wife is responsible for outgoings in respect of the Suburb G property until she vacates that property, including rates, electricity, and all other charges but excluding land tax. Such amounts as are not paid will be deducted from the settlement sum with the balance to then be paid to the Wife.
4.       On and from 1 October 2017, the Wife is to make the Suburb G property available to E Pty Ltd for the purpose of marketing it for lease or sale following the Wife's vacation of the Suburb G property. Such access is to be made available on 7 days notice by appointment only.
5.       That the fifth respondent H Ltd (“H Ltd”) pay to the applicant wife (“the Wife”) the sum of $A10 million (“the settlement sum”)
6.       The settlement sum be paid at the Wife’s direction simultaneously with her vacating and leaving the Suburb G property in similar order and condition as inspected by Mr HH on 28^th March 2017.
7.       In order to secure the settlement sum:
7.1.E Pty Ltd shall forthwith execute a mortgage in the sum of $9 million in favour of the wife (“the wife’s mortgage”) and E Pty Ltd shall produce the title to the real property at F Street Suburb G to the solicitors for the wife if and when called upon to do so to enable the wife’s mortgage to be registered on the title to that property, with the Wife’s solicitors to retain the title subject to the rights and obligations of a first mortgagee, and with the title to be returned upon receipt of the Settlement sum by the Wife;
7.2.H Ltd shall forthwith execute all documents and do all acts and things required to execute a Postponement of Mortgage to give priority to the wife’s mortgage over the mortgage in favour of H Ltd currently registered on the title to the Suburb G property;
7.3.The wife forthwith sign and deliver to H Ltd’s solicitors, AN Lawyers, (“ANL”) a discharge of the wife’s mortgage to be held in escrow by ANL pending the payment of the settlement sum to the wife.
7.4.By way of further security H Ltd shall by no later than 4pm 31 March 2017, pay into a controlled monies account under the control of ANL the sum of $A1 (one) million to be held by them pending the payment of the Settlement sum; and
7.5.H Ltd shall irrevocably authorise and direct AN Lawyers to pay the monies in that controlled monies account to the wife in reduction of the Settlement sum in the event of default by H Ltd in making the payment of the Settlement sum.

8. Upon vacating the Suburb G property the Wife will deliver up to E Pty Ltd at E Pty Ltd’s direction:
8.1.The prestige motor car located at the Suburb G property; and
8.2.All art works including paintings, figurines, sculptures and like items located at the Suburb G property belonging to E Pty Ltd.

9. The wife is declared to be the sole legal and beneficial owner of:
9.1.The motor vehicle presently kept at the Suburb G property (and E Pty Ltd shall sign all documents and do all acts and things required to give effect to the transfer of the vehicle to the wife);
9.2.All furniture at the Suburb G property;
9.3.Her personal effects, including jewellery, in her possession.

10.     E Pty Ltd, through it’s director Mr HH shall forthwith make available to the wife whatever is in the storage facility at Town QQ on the condition that hereafter the wife is to bear the costs associated with the removal of the wife’s chattels and any past and ongoing storage costs of the wife’s chattels beyond the date of these orders.
11.     That E Pty Ltd forthwith, at its expense, authorise and direct the company or business known as “AO Company” to repair the “Smart House System” at the Suburb G property and if the repair is not completed within 14 days the wife is irrevocably authorised to engage AO Company to do so and any account shall be forwarded to and paid by E Pty Ltd.
12.     Pending payment of the settlement sum E Pty Ltd shall maintain the current insurance on the Suburb G property due to expire on 8 December 2017, and shall renew such insurance pending the Wife’s vacation of the property.
13.     That each party bear their own costs of the whole of the proceedings, save that the costs of the sixth respondent be costs of administering the Deed of Company Arrangement of E Pty Ltd.
14.     That the Wife’s application otherwise be dismissed as against all Respondents, including the Husband.
In Cross-vested Supreme Court Proceedings No …:
15.     Judgment for possession of the Suburb G property against the wife and E Pty Ltd in favour of H Ltd, with the writ of possession to lie in the registry until 31 January 2018.
16.     Judgment for H Ltd against E Pty Ltd in the sum of $14,300,000 inclusive of interest to date (plus continuing interest at the rate of the Reserve Bank of Australia cash rate plus 2%).
17.     Vacate all existing costs orders including all reserved costs orders in Proceedings No. SYC 2977/2013, Supreme Court Proceedings No … and Full Court Proceedings No. EA 79 of 2016.
18. In the event that any party shall neglect or refuse to sign any document or instrument to give effect to the terms or orders herein the Registrar of the Family Court of Australia at Sydney is appointed pursuant to s106A of the Family Law Act to sign that document or instrument in the name of the defaulting party and for this purpose an affidavit filed in the Registry sworn by the solicitors on the record for the party who is not in default shall be deemed to be sufficient evidence of default.
19. NOTED: In consideration of these consent orders the wife will enter into a Deed with E Pty Ltd, Q Pty Ltd (in its own right and as trustee of the Klearchos Family Trust (“KFT”)) and R Pty Ltd of the one part and H Ltd, and all companies within the “S Group” of the other part, indemnifying them and the husband and releasing them and the husband from any and all claims that she may have against either of them or any one of them, and or the husband save for any rights of enforcement under the orders of the Court. This deed will be expressed to be effective in any jurisdiction in the world in respect of any proceedings, whether under the equivalent of the Family Law Act or otherwise. Companies mentioned in the case outline of the Wife, such as AP Company and AQ Company, may if necessary and practicable be parties to the deed, as will Mr MM. The Deed will be an absolute bar to any such demand or claim by the Wife against any of the parties mentioned above and their related persons or entities.

By the Court

The Honourable Justice Loughnan

File number(s):	SYC 2977 of 2013
Judgment of:	ALTOBELLI J
Date of judgment:	8 June 2021
Catchwords:	FAMILY LAW – PROPERTY – application pursuant to s 79A of the Family Law Act 1975 – threshold application – admissibility of purported expert report – whether there has been suppression of evidence or failure to disclose information – compliance with a party’s obligation of full and frank disclosure – whether there has been miscarriage of justice – whether impugned orders be varied or set aside – application for summary dismissal – whether application be permanently stayed or summarily dismissed – whether the application has reasonable prospects of success – whether there is a serious question to be tried – abuse of process – application dismissed.
Legislation:	Evidence Act 1995 (Cth) s 48 Family Law Act 1975 (Cth) ss 45A, 79A Family Law Rules 2004 (Cth) rr 10.12, 10.13, 10.14, 15.51, 15.52
Cases cited:	Amery & Kedrina [2021] FamCAFC 79 Arthurman & Arthurman [2020] FamCAFC 136 Auimatagi v Australian Building and Construction Commissioner (2018) 267 FCR 268; [2018] FCAFC 191 Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 Barker & Barker (2007) 36 Fam LR 650; [2007] FamCA 13 Bourke & Bourke (2009) 243 FLR 369; [2009] FamCA 27 Bretton & Bondai [2013] FamCAFC 168 Briese and Briese (1985) (1986) FLC 91-713; [1985] FamCA 23 Callis & Callis [2019] FamCA 750 Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] ALR 333 Ebner & Pappas [2014] FamCAFC 229 Gilbert v The Estate of Gilbert(1989) 98 FLR 68 Gitane & Velacruz (2007) FLC 93-309; [2007] FamCA 183 Hearne & Hearne (2015) 53 Fam LR 454; [2015] FamCAFC 178 In the Marriage of Prowse (1994) FLC 92-557 In the Marriage of Suiker (1993) FLC 92-436 Karlsson and Karlsson [2020] FamCAFC 207 Lane v Lane (2016) FLC 93-699; [2016] FamCAFC 53 Lindon v The Commonwealth (No. 2) (1996) 136 ALR 251; [1996] HCA 14 McGregor & McGregor (2012) FLC 93-507; [2012] FamCAFC 69 Molier & Van Wyk (1980) FLC 90-911 Mullane & Mullane (1983) 158 CLR 436; [1983] HCA 4 Oriolo & Oriolo (1985) FLC 91-653; [1985] FamCA 54 Pearce & Pearce [2016] FamCAFC 14 Pelerman & Pelerman (2000) 26 Fam LR 505; [2000] FamCA 881 Public Trustee & Gilbert (1991) FLC 92-211; [1991] FamCA 10 Thorne & Kennedy (2017) 263 CLR 85; [2017] HCA 49 Wagner & Wagner [2009] FamCAFC 16 Wernham & Capagnola [2012] FamCAFC 137 Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34
Number of paragraphs:	100
Date of last submission/s:	11 February 2021
Date of hearing:	11 February 2021
Place:	Sydney
Counsel for the Applicant:	Mr Jordan with Mr Alexander
Solicitor for the Applicant:	Vizzone Ruggero Twigg Lawyers
Counsel for the Respondent:	Mr Kearney SC with Mr Gray
Solicitor for the Respondent:	Barkus Doolan

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	8 JUNE 2021