Korsky & Bright
[2007] FamCA 245
•23 March 2007
FAMILY COURT OF AUSTRALIA
| KORSKY & BRIGHT AND ANOR | [2007] FamCA 245 |
| FAMILY LAW - PROPERTY – Summary dismissal of application to set aside final orders |
| Family Law Act 1975 (Cth), s.79A(1)(a) |
Lindon v. The Commonwealth (No.2) (1996) 70 ALJR 541;
Bigg v. Suzi (1998) FLC 92-799;
Ferrall and McTaggart v. Blyton (2000) FLC 93-054
Pelerman v. Pelerman (2000) FLC 93-037;
Beck v. Beck (2004) FLC 93-181
Custodio v. Pinto and Ors. (2006) FLC 93-279;
Bain Pacific Associations & Ors. v. Kelly & Ors. (2006) FLC 93-270;
Clifton and Stuart (1991) FLC 92-194;
Suiker and Suiker (1993) FLC 92-436;
House v. The King (1936) 55 CLR 499;
McIntyre (1994) FLC 92-468;
M & M [2003] FamCA 1304
Lowe v. Harrington (1997) FLC 92-747;
Rohde v. Rohde (1984) FLC 91-592;
Barker v. Barker [2007] FamCA 13.
| APPLICANT: | Mr I Korsky |
| RESPONDENTS: | Mrs Bright and Mr R Korsky as the legal personal representatives of Ms Tait, Deceased |
| FILE NUMBER: | MLF | 7714 | of | 2001 |
| DATE DELIVERED: | 23 March, 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Brown J |
| HEARING DATE: | 1 November, 2006 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr. North, S.C. |
| SOLICITOR FOR THE APPLICANT | C. Kyriacou & Associates |
| COUNSEL FOR THE FIRST RESPONDENT: | Dr. Ingleby |
| SOLICITOR FOR THE 1ST RESPONDENT: | Kenna Teasdale |
| THE 2ND RESPONDENT: | In person |
Orders
That the husband’s application to set aside the final orders made herein on 24 March, 2003 be dismissed.
That the husband pay the respondents’ costs of and incidental to the following applications :
(a)form 2 application filed by the husband on 29 September, 2005;
(b)form 1 application filed by the husband on 31 October, 2005;
(c)amended form 1 application and form 2 application filed by the husband on 4 October, 2006;
(d)form 1A and form 2 responses filed by the wife (the former respondent in these proceedings) on 9 December, 2005;
(e)paragraphs (2) and (4) (insofar as it relates to costs) of the form 1A and form 2A responses filed by the daughter, 2006; and
(f)paragraphs (2) and (4) (insofar as it relates to costs) of the form 1A and form 2A responses relied on by the son
the quantum of such costs to be agreed and, failing agreement, to be assessed pursuant to the Family Law Rules 2004 and that such costs be paid within three months of agreement or assessment, whichever occurs first.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel, including senior counsel.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 7714 of 2001
| Mr I Korsky |
Applicant
And
| Mrs Bright |
First Respondent
Mr R Korsky
Second Respondent
REASONS FOR JUDGMENT
APPLICATIONS
The question for the Court can be simply stated : should the husband’s application to set aside final property orders made on 24 March, 2003 be summarily dismissed?
Behind that simple question is a lengthy and complex litigation history. Proceedings commenced on 7 December, 2001 but it is events since 24 March, 2003 which are relevant to this case, which commenced when the husband filed a form 2 application on 29 September, 2005, naming his late wife as the respondent.
In March 2003, Guest J heard competing applications for final property orders. Both parties were legally represented. In a judgment delivered on 24 March, 2003, Guest J made a number of findings about the parties, their marriage and their separation. These were reiterated by the Full Court when, on 20 October, 2003, they dismissed the husband’s appeal against Guest J’s orders of 24 March, 2003.
When judgment was delivered by Guest J, both parties were 81. They had met in 1948 in Prague, went through a ceremony of marriage in April 1949 at Bratislava in Czechoslovakia and left Europe for Australia, arriving in about November 1950. Here they built a new life, raised two children and amassed some $3 million of assets in Australia. They separated in February 2001. When judgment was delivered their daughter was 49 and their son 48.
On 24 March, 2003 Guest J made final property orders at the conclusion of a five day trial, in which both parties were represented. When determining the asset pool Guest J. included a property at V (near Prague) at a value of $800,000 (“the Prague property”). At paragraph 9 of his judgment, Guest J. found that the husband’s parents (who died in the mid 1950s) had previously owned the Prague property, which had been confiscated by the Nazis in 1939 and not restored to its rightful owners by the post-war Czechoslovakia communist government. In 1993, the husband and wife travelled to Czechoslovakia and commenced proceedings for the return of that property to the husband, who later transferred funds to Czechoslovakia for the purpose of regaining possession and title to the property. At paragraph 45 Guest J noted that the husband deposed that approximately ten years earlier, original owners of confiscated property or their heirs became entitled to seek the return of their property.
At paragraph 91 of his judgment Guest J summarised the husband’s evidence relating to the Prague property. His Honour quoted from the husband’s affidavit of evidence in chief in which he deposed to forwarding $50,000 to the Czech Republic in late 2002 “to assist in having my ownership of the property restored”. He deposed that the funds were provided for the purpose of maintenance and improvements of the property and were to be applied for that purpose, provided its ownership was given back to his family. Guest J recorded the husband’s oral evidence which was that he expected the value of the Prague property to be something in the vicinity of about $800,000. After summarising a deal of other evidence referable to the Prague property his Honour made findings in paragraphs 147 to 157 and, for the reasons set out in those paragraphs, included the Prague property in the asset pool at a figure of $800,000.
On 11 April, 2003 the husband filed a Notice of Appeal against the whole of Guest J’s orders, which was tendered as exhibit A. The first ground of appeal was that “a non-existing asset at $800,000 was added to respondent’s list”. That document also complained of assets not included in the wife’s list and about the outcome of the orders in financial terms.
An application by the husband to stay Guest J’s orders was dismissed on 22 May, 2003.
An amended notice of appeal was subsequently filed and is summarised by the Full Court in its judgment of 9 December, 2003. The first ground was that Guest J erred in including the Prague property in the assets available for distribution. Other grounds related to funds and assets allegedly not included as available for distribution between the parties and the value attributed to a property in a Melbourne outer eastern suburb (which did not include stamp duty paid on acquisition).
On 9 December, 2003 the Full Court (Kay, Holden and Monteith JJ.) dismissed the husband’s appeal. The Full Court’s judgment makes it clear that in the course of the appeal the husband sought to adduce further evidence, in the form of two documents. The first was a form of (unsworn) valuation of the Prague property, dated 31 December, 2002, and the second, an order dated 4 March, 2002 made at the District Court at Prague. As best as the Full Court could interpret, the latter appeared to be a procedural ruling in the midst of litigation relating to the Prague property. For reasons set out in paragraphs 27 to 45 of its judgment, the Full Court declined to admit either document into evidence.
The husband then sought special leave to appeal to the High Court. On 16 July, 2004 the husband filed a form 2 application seeking a stay of enforcement of the orders of 24 March, 2003 pending the outcome of his application for special leave, filed on 14 November, 2003. On 29 July, 2004 Carter J gave him leave to withdraw that application. The wife withdrew her form 2A response and the husband was ordered to pay the wife’s costs of $1,250 within 30 days.
Special leave was refused on 11 February, 2005.
The High Court’s ruling did not conclude the litigation. On 29 September, 2005 the husband filed another form 2 application seeking, among other orders, that :
The Family Court order of 24/3/03 in proceedings MLF7714/01 ought to be changed to rectify the miscarriage of justice and husband’s loss of $800,000 following changes of the order of 24/3/03 are requested.
He sought to “annul and repeal” parts of a number of other orders made by Guest J and that the total assets of the parties be split “50/50%”. In support of that application he filed an affidavit sworn by him on 28 September, 2005; in the first paragraph he deposed to making the affidavit “as my evidence in support of my application under section 79A1 of the Family Law Act 1975”. In the affidavit he deposed to a valuation of the Prague property in December 2002 (being one of the documents the Full Court declined to grant leave to adduce), alleged fraud on the part of the wife’s solicitor and counsel in the proceedings before Guest J, and asserted that it was impracticable for Guest J’s orders to be put into effect.
On 28 October, 2005 the application was adjourned to 21 November, 2005. On 31 October, 2005 the husband filed a form 1 application, which sought orders in the same terms as the form 2 filed on 29 September, 2005. On that day he filed an affidavit, sworn by him on 28 September, 2005, which is identical to the affidavit he filed on 29 September, 2005.
On 21 November, 2005 Dessau J. adjourned the form 1 application filed 31 October, 2005 to 12 December, 2005. On 9 December, 2005 the wife filed form 1A and form 2A responses seeking that the husband’s application filed 31 October, 2005 be dismissed pursuant to s.118 of the Family Law Act 1975 and an order requiring the husband to obtain leave before instituting any further proceedings.
The applications came before Guest J on 12 December, 2005, who adjourned them to 7 February, 2006 and gave directions for the filing of further affidavit material and written submissions.
In January, 2006, the wife died. By will dated 14 January, 2003 she appointed her son and daughter as executors. On 30 January the husband filed an affidavit sworn by him on 29 January, 2006, in which he deposed to her death. He described the document as “my second affidavit in my application under sec.79A1(a), 1(b) with additional evidence under sec.79A(1B).” In that affidavit he sought a number of variations to Guest J’s orders, including orders relating to a property in an outer eastern Melbourne suburb and a superannuation fund, as well as “the Prague non existing property deleted from the final order”.
On 16 March, 2006 the husband filed another affidavit, sworn that day, which he described as “my third affidavit in my application under sec.79A 1(a), 1(b) and (1B) with changes resulting from the death of the applicant/wife . . .”. In that affidavit he reiterated a request for the return of the outer eastern Melbourne property to a company, and the return of a superannuation investment to him. He added a claim for refund of an alleged debt and sought that a registrar be authorised to sign transfers of two real properties to him, pursuant to Guest J’s orders.
The case was adjourned to 3 April, 2006, for directions, and on 3 April adjourned again to 3 May, 2006, with a note that the adjournment was necessary to enable the joint executors of the estate of the deceased wife to bring appropriate proceedings before the Court so as to regularise their legal position.
Probate of the wife’s estate was granted to the daughter and the son on 15 May, 2006. As probate had not been granted by 3 May, 2006, the applications were adjourned yet again to 5 July, 2006, for the making of orders and directions following the appointment of an executor for the estate of the deceased wife. The case was then adjourned to 13 September, 2006 when a registrar listed it for hearing on 1 November, 2006, noting the need for the executors to become parties to the proceedings.
On 4 October, 2006 the husband filed an amended form 1 application in which he reformulated his claim in the terms of s.79A of the Family Law Act 1975 (“the Act). In it he sought that the orders of Guest J of 24 March, 2003 be set aside, varied or discharged and the Court make another order or orders in substitution. That application asserted that there had been a miscarriage of justice by virtue of a suppression of evidence, or a miscarriage of justice by virtue of any other circumstances. No circumstances were specified. In a form 2 filed the same day the husband sought that the executors of the deceased wife be joined as parties and orders in similar terms to those contained in the form 1 filed at the same time.
On 4 October, 2006 the husband also filed an affidavit, sworn by him on 3 October, 2006. A number of documents were annexed to it. In that affidavit the husband sought that the orders of Guest J of 24 March, 2003 be set aside, varied or discharged (paragraphs 4 and 6). He also sought that costs orders made on 18 January, 2002, 4 April, 2002, 31 January, 2003, 11 March, 2003 and 30 March, 2003 be dismissed (paragraph 5) and that the orders of Guest J. be amended under the Slip Rule to deduct the value of the Prague property (paragraph 23).
Much of that affidavit is in the nature of a submission. The husband deposed :
·that Guest J erred in including the Prague property in the assets available for distribution;
·that the Prague property was not property as defined by s.79 of the Act;
·that his application in the Czech Republic was made “on the remote chance” the Republic would return the property to him;
·that the Czech application was not heard until 2005 and “a final decision on appeal from the District Court of Prague to the Court of Appeal in Prague was not heard until March 2006”;
·that he believed an appeal has been lodged by Dr V on his behalf to “the equivalent of the High Court in Prague” but Dr V believed the chances of success to be minimal;
·that he never believed that the property would be returned to him and stated so on several occasions during the trial;
·that since the orders of 24 March, 2003 he had been left with no assets and no cash reserves.
In the affidavit the husband alleged that the deceased wife, on several occasions, told him that she did not wish to enforce the various costs orders in her favour and, in January 2005, that she did not want to enforce the outstanding orders and would instruct her solicitors to stop any further action against him. He alleged she told him she had found the jewellery she had claimed he had taken.
On 1 November, 2006 I ordered, pursuant to rule 6.15(3) of the Family Law Rules 2004, that the daughter and son be substituted for the wife, deceased, as the respondents.
Although contained in two separate responses, the orders sought by the daughter and son were identical. They sought that the husband’s amended form 1 application filed 4 October, 2006 and paragraph 2 to 5 of his form 2 application filed on the same day, be summarily dismissed. They also sought an order, pursuant to s.118 of the Act, restraining the husband from instituting any further proceedings without leave.
LEGAL PRINCIPLES
Summary dismissal
The principles which govern an application for summary relief are as stated by Kirby J. in Lindon v. The Commonwealth (No.2) (1996) 70 ALJR 541 at 544-5 (references omitted).
The approach to be taken by the court to the Commonwealth's application for summary relief is not in doubt:
1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.21
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 action22 or is advancing a claim that is clearly frivolous or vexatious.23
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.24 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.25 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.26 A question has arisen as to whether O 26, r 18 applies to part only of a pleading.27 However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim.
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.
That approach has been the subject of discussion in a number of decisions of the Full Court of this Court since Lindon; see Bigg v. Suzi (1998) FLC 92-799; Ferrall and McTaggart v. Blyton (2000) FLC 93-054; Pelerman v. Pelerman (2000) FLC 93-037; and Beck v. Beck (2004) FLC 93-181. These and a number of other relevant authorities were considered by Finn J. when she delivered judgment in Custodio v. Pinto and Ors. (2006) FLC 93-279 on 1 September, 2006.
In Custodio v. Pinto and Ors. Finn J. noted (at 80,760) that there are limitations on the material upon which an applicant for summary dismissal can rely in establishing a case for that relief. Quoting Kirby J. in Lindon (at 554-5), her Honour noted that in order to secure relief by way of summary dismissal, 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. Considering this issue, the Full Court in Bigg v. Suzi referred to the fact that the wife, who was the applicant for summary dismissal of a s.79A application filed by the husband :
. . . had no right to adduce any evidence at the summary hearing to contradict the evidence of the husband or to seek to contradict any inference which it might be submitted should be drawn from that evidence. (para. 6.31)
Finally, Finn J. referred to the decision in Bain Pacific Associations & Ors. v. Kelly & Ors. (2006) FLC 93-270 in which the Full Court referred to the consideration of the issue in Beck, observing :
. . . that apart from material in the case of the respondent to an application for summary dismissal, the Court may have regard to relevant non-contentious facts, even if raised by the applicant for summary dismissal.
Before me, the applicants for summary dismissal did not rely on evidence other than affidavits sworn by the husband and court orders and judgments in the proceedings.
Setting aside orders pursuant to s.79A
Senior counsel for the husband made it clear that the application of the husband was to set aside the orders of 24 March, 2003 pursuant to s.79A(1)(a), and that the alleged miscarriage of justice arose by reason of “any other circumstance”. He did not press any of the other grounds which may have been foreshadowed by the husband in his affidavits, including alleged fraud and impracticability, or the other ground referred to in the amended application filed 4 October, 2006, being alleged suppression of evidence.
Section 79A(1) provides as follows :
Section 79A
(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 essential component is a miscarriage of justice. The question is not whether the order made arises from an inappropriate exercise of the original discretion; that is a matter for appeal.
It is well established that the notion of a miscarriage of justice concerns the integrity of the judicial process; the miscarriage must arise out of that process; see Clifton and Stuart (1991) FLC 92-194, Bigg v. Suzi. In Suiker and Suiker (1993) FLC 92-436 at 80,472 the Full Court observed that the expression “judicial process” can refer to a variety of matters and circumstances which had an influence on the outcome of the litigation and that it is neither necessary nor desirable to attempt to define the matters which may amount to a miscarriage of justice by reason of any other circumstance in the relevant sense.
It is also well established that a miscarriage of justice can only occur by reason of a fact or event which occurs before or at the time of the making of the order which is sought to be set aside; see Bigg v. Suzi; Barker v. Barker [2007] FamCA 13.
To succeed in a s.79A application an applicant in the husband’s position must show that something which occurred prior to or at the time the orders were made resulted in the exercise of judicial power miscarrying. The degree of inappropriateness of the order may be relevant in assessing the degree of miscarriage and the exercise of the s.79A discretion: see McIntyre (1994) FLC 92-468. But events which occur after the order is made cannot provide the foundation for an order to be set aside pursuant to s.79A(1)(a).
Much of the husband’s evidence went to events after the orders were made on 24 March, 2003. He was unsuccessful in his application to adduce further evidence before the Full Court. Insofar as his evidence relates to events prior to trial, it is a continuation of his attack on Guest J’s findings, and particularly the findings which resulted in Guest J including the Prague property in the pool.
The expression “any other circumstance” encompasses a miscarriage of justice whereby orders are unjustly obtained or obtained contrary to the justice of the individual case.
THE COMPETING ARGUMENTS
Counsel for the wife submitted that the husband’s s.79A application was simply an attempt to appeal Guest J’s orders by other means. It traversed evidence and arguments unsuccessfully advanced before Guest J and/or the Full Court. The High Court having refused special leave, the husband’s appeal rights were exhausted. No evidence adduced by the husband or submission made on his behalf established a miscarriage of justice for the purposes of s.79A(1).
Senior counsel for the husband submitted that an essential and express pre-requisite for the exercise of judicial power granted under s.79 is for the Court to have been satisfied that in all the circumstances it is just and equitable to make the order. If the object of s.79 is to obtain a just and equitable determination of the dispute between the parties to the litigation, and if it appears that a just and equitable determination has not been achieved, then the judicial process whereby the power has been exercised will, in all likelihood, have miscarried.
Senior counsel elucidated the point in these terms (transcript, p.20) :
Your Honour, it would be open for a court following determining the application under section 79A to reach the conclusion that although no appealable error took place, a judgment has been delivered by a judge of this court intending to divide the property between the parties on a fifty-fifty basis because such a division was the just and equitable outcome between these parties given the length of the marriage found. That included in the assets left with the husband an asset that did not exist and that that happened without appealable error.
Now, in my submission that of itself is a miscarriage of justice. I’ll come to whether it is a miscarriage of justice by reason of any other circumstance. The miscarriage is that where the just outcome was an equal division, the division in fact that took place was $800,000 short of equal in the parcel that came to my client.
[. . . ]
. . . But we accept that that all happened without appealable error. But again that’s irrelevant. The outcome of the appeal is quite irrelevant to the proceedings under 79A because they’re a different enquiry. We’re enquiring about whether it arose as a result of a circumstance relating to the judicial process that doesn’t appear in the record. The circumstance relating to the judicial process that gives rise to this appealable error is that the court was left being entitled to draw an inference that is contrary to the true facts.
In my view there is a flaw in the argument advanced by senior counsel which is fatal to its success, which is that the place in which to make the argument he advanced in this case, summarised in the two preceding paragraphs, was before the Full Court when it considered the husband’s appeal against Guest J’s orders in 2003.
The principles relating to appeals from discretionary decisions are well established. In House v. The King (1936) 55 CLR 499 the High Court (Dixon, Evatt and McTiernan JJ) said :
The manner in which an appeal against an exercise of discretion should be determined is governed by established principle. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, (emphasis added) the appellate court may infer that in someway there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.
A litigant who contends that final property orders are not, in all the circumstances, just and equitable is entitled to put that case to the Full Court. It is then for that Court to consider the relevant evidence and submissions, and determine the point.
In a brief reply, senior counsel for the husband formulated the issue by reference to the obligation on a trial judge to make final orders which are just and equitable, submitting (transcript, p.27 to 28) :
The miscarriage of justice that we rely on here is that in the judgment where the intention after the consideration of all the factors under s.79(4) to provide a just and equitable settlement between these parties was to divide their property fifty-fifty, gave rise to a division whereby my client received as part of his 50 per cent an $800,000 that didn’t exist; substantially less than 50 per cent with the intention of the court exercising its discretion and mindful of the obligation under 79(2) was to give him 50 per cent.
Section 79(2) provides that the Court shall not make an order under s.79 unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. That is an integral part of the four step process which a trial judge must undertake when determining applications for orders pursuant to s.79. Having made findings about the relevant assets and the parties’ contributions, and considered all relevant s.75(2) factors, Guest J. had to then be satisfied that, in all the circumstances, the orders he proposed were just and equitable. To use senior counsel’s word, he had to be mindful of the obligation under s.79(2). If he were not, his discretion would miscarry. If the husband’s submission is that he was not mindful of that obligation or the orders made were not just and equitable, that should have been ventilated before the Full Court.
However elegantly expressed, the complaint adumbrated by senior counsel for the husband is a complaint that the discretion of the trial judge miscarried. It is a complaint that the outcome of the exercise of the discretion by Guest J is not fair and equitable. It is a complaint that, to use his words, “the court was left being entitled to draw an inference that is contrary to established facts”.
In its judgment the Full Court found that the natural inference to be drawn from the husband’s lack of disclosure about the Prague property was that the husband was in possession of material that would not have assisted the proposition he was trying to put before Guest J. The Full Court held that in circumstances where the husband had failed to establish any lingering doubts concerning the ownership of the Prague property, and had been found to be entirely unco-operative in respect of the exercise, it was open to the trial judge to proceed as he did and draw adverse inference against the husband. Even though there were some doubts surrounding the husband’s entitlement to the property, given the husband’s lack of co-operation in relation to the production of documents, it was open to the trial judge to assume that those doubts would be resolved unfavourably to the husband. It declined to interfere with Guest J’s inclusion of the Prague property in the pool at a value of $800,000.
The husband now seeks to re-litigate that point, and challenge that and a handful of other findings of Guest J relating to assets the husband submitted should have been included in the pool, and the value of another real property. The other findings should have been challenged (if he sought to challenge them) in the course of the appeal. He did challenge the inclusion of the Prague property in the pool of relevant assets; he was unsuccessful in that challenge. He was also unsuccessful in an attempt to adduce evidence of a December 2002 valuation (which he seeks to rely on in these proceedings) and a ruling in the legal proceedings in Prague.
Senior counsel for the husband submitted that there were some analogies with the issue which was before the Court in M & M [2003] FamCA 1304. In that case the trial judge proceeded on the basis that the asset pool included $564,000, being the proceeds of the sale of a property to be received by the husband. Counsel for both parties agreed on the accuracy of the figure. Subsequently it was discovered that the figure mistakenly failed to take into account certain associated expenditure, with the result that the asset pool was overvalued by some $412,225. The husband successfully applied to have the orders set aside pursuant to s.79A(1)(a) arguing that there had been a miscarriage of justice due to “any other circumstance”. The wife appealed, arguing that the error in the result came from the trial judge accepting an agreed fact, and not from any defect in judicial process. She submitted that all that was then left was an erroneous result and that was not a sufficient basis for a finding of a miscarriage of justice.
In dismissing her appeal, the Full Court held that the mistake was part of the judicial process; the integrity of the judicial process was clearly undermined by the innocent mistake of counsel.
The Full Court held that to the extent Bigg v. Suzi supports the proposition that a unilateral mistake cannot form the basis of a miscarriage of justice, it overstates the position of the earlier Full Court in Lowe v. Harrington (1997) FLC 92-747. In Lowe v. Harrington the Full Court held (at 84,095) that :
. . . the circumstances in which a court may find that there has been a miscarriage of justice under s.79A are not necessarily limited to those in which a court of equity would set aside consent orders. However, if as we have concluded, it can be shown that there has been a unilateral mistake by one party known to the other such that a court of equity might set aside the orders, we cannot see how it could possibly be argued that there was not a miscarriage of justice within the section . . .
In M & M the Full Court noted (at para.33) that the judicial process involves many elements, observing :
It involves giving the parties a fair hearing. It involves procedural regularity. It involves arriving at a just decision based on evidence properly put before it. There is often heavy reliance upon the conduct of counsel and concessions and agreements reached by counsel. In our view, where a concession is made or an agreement is reached based on a fundamental misunderstanding by counsel of the nature of his, her or their instructions then, if that misunderstanding is led to result which is neither appropriate nor just and equitable in property proceedings, it is properly within the discretion of a judge hearing an application under s.79A to find that there has been a “miscarriage of justice”.
I am not able to draw from this decision the comfort sought by senior counsel for the husband. The facts are not analogous. It is true that in M & M the Full Court held that identifying the party at fault in relation to a mistake is not an essential step in determining whether or not there has been a miscarriage of justice for the purposes of s.79A. But the problem the husband faces in meeting this application to summarily dismiss his s.79A application is not the fact the he could be said (as conceded by his counsel) to be the architect of his own misfortune, in the sense that it was his lack of disclosure which ultimately led to the relevant finding. That could well be a relevant factor were a court to hear the s.79A application and might preclude relief; as senior counsel conceded, there is some authority to the effect that if the alleged miscarriage has arisen as a result of the fault of the applicant to set aside, that may be an impediment to success; see Rohde v. Rohde (1984) FLC 91-592 at 79,768. However, that is not a relevant matter at this stage; the applicants for summary dismissal must meet a much higher threshold, satisfying the court, on the husband’s documents, that he lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
Senior counsel for the husband sought to characterise the issue in these terms (transcript, p.24) :
Your Honour, I’m not saying that this is a case my client must win, but I don’t have to. Dr. Ingleby has had to have convinced you today that there is no chance that I must lose. In my submission that I must lose only if a true statement of the law without question, without argument is that an unjust outcome brought about primarily or as a result of your own agency cannot be a miscarriage of justice. In my submission in the context of the remedial provision of section 79A is, that is a construction that is too narrow. It is unnecessary, it’s not called for by the words used and if one gives a liberal interpretation to the provision of section 79A it is sufficient for the court to regard the agency giving rise to the miscarriage by the person who seeks the relief as an important matter in the exercise of discretion.
In many cases it may be decisive. Whether it is decisive depends upon a consideration of all the evidence after a trial. I don’t think I can take it any further.
I am mindful of the caution necessary before depriving a person of access to the Court; only in the clearest of cases should an application be summarily dismissed. However, considering the husband’s s.79A case at its highest (and ignoring inconsistencies in his own evidence and his evidence that his appeal to the High Court (or its equivalent) in Prague is still pending) I am satisfied he is advancing a claim in this Court that is doomed to failure. I am satisfied that the facts on which he relies cannot establish a miscarriage of justice by reason of any other circumstances for the purposes of s.79A. The Court should dismiss the application now, to protect the respondents from the burden of continuing litigation. That will also save the husband from further costs, frustration and disappointment although it is unlikely he will see the outcome as beneficial.
Having regard to the litigation history since final orders were made by Guest J, and the evidence on which the husband has sought to rely in these proceedings, I am satisfied the proceedings are vexatious within the meaning of s.118 of the Act.
The amended form 1 application filed 4 October, 2006 will be dismissed.
COSTS
The respondents to that application (now the daughter and son) sought costs in the event they were successful in their applications to summarily dismiss the husband’s s.79A application. I took submissions from counsel on 1 November, 2006. Senior counsel for the husband sought that the current respondents to the s.79A application pay his client’s costs if his client successfully resisted their application to summarily dismiss the claim. If his client were unsuccessful, he submitted that the Court would need to have a closer look at the parties’ comparative financial circumstances, as deposed to by his client in these proceedings, and take into account the assets which are now sought to be recovered from his client. Counsel for the respondents sought costs in the event the application for summary dismissal was successful.
Section 117(1) of the Act sets out the general rule that parties to proceedings under the Act shall bear their own costs. The Court has a discretion to order costs if it is of the opinion that there are circumstances which justify that course. In considering whether to make an order for costs, the Court must have regard to the matters set out in s.117(2A). Of particular relevance to these proceedings are sub-paragraphs (a) (the parties’ financial circumstances), (c) (the conduct of the parties in relation to the proceedings) and (e) (whether a party has been wholly unsuccessful).
The husband has deposed to his allegedly parlous financial circumstances. The executors of the late wife’s estate are pressing him for enforcement. I take account of his evidence in those respects and of alleged failures to comply with orders requiring the transfer of properties to him. However, since he filed the form 2 application on 29 September, 2005 the wife, and subsequently her executors, have been embroiled in litigation, facing a number of applications, each supported by affidavit material. The amended application filed 4 October, 2006 has been found to be so without merit as to warrant summary dismissal. The husband has been wholly unsuccessful. In those circumstances, and notwithstanding his evidence of his financial position, I am satisfied the husband should be responsible for the costs of the wife, and, since their substitution for the wife, the daughter and son. The quantum of those costs will be as agreed, or failing agreement, assessed pursuant to the Family Law Rules 2004.
I will hear submissions as to the disposition of other aspects of the applications before the Court, including the applications for an order requiring the husband to obtain leave prior to commencing further proceedings.
I certify that the preceding
64 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.
Dated the day of 2007.
…………………………………………
Associate.
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as KORSKY & BRIGHT & ANOR
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