Korsky & Bright

This case concerned an application by Mr I Korsky (the husband) to set aside final property orders made on 24 March 2003 by Guest J in the Family Court of Australia. The application was opposed by the respondents, the executors of the deceased wife’s estate. The husband sought to set aside the orders pursuant to section 79A of the Family Law Act 1975, alleging a miscarriage of justice by reason of "any other circumstance".

The primary legal issue before Brown J was whether the husband’s application to set aside the final property orders should be summarily dismissed. This required the court to determine if the husband had demonstrated a reasonable cause of action or was advancing a claim that was clearly frivolous or vexatious, applying the principles of summary dismissal as outlined in *Lindon v. The Commonwealth (No.2)* and subsequent authorities. A further issue was whether the husband’s claim constituted a miscarriage of justice under section 79A(1)(a) of the Act, considering that any such miscarriage must have occurred prior to or at the time the original orders were made.

Brown J reasoned that the husband's application was essentially an attempt to relitigate issues that had already been determined by Guest J and unsuccessfully appealed to the Full Court, and for which special leave to appeal to the High Court had been refused. The court found that the husband's arguments, particularly concerning the inclusion of the Prague property in the asset pool, constituted a challenge to the exercise of discretion by the original judge, which should have been raised on appeal. The court applied the principle that events occurring after the making of an order cannot form the basis for setting aside an order under section 79A(1)(a). Ultimately, the court concluded that the husband's claim was doomed to failure and did not establish a miscarriage of justice for the purposes of section 79A, nor did it demonstrate a reasonable cause of action.

The court ordered the dismissal of the husband's amended application filed on 4 October 2006. Furthermore, the court ordered the husband to pay the respondents’ costs of the various applications made by him since September 2005, finding that his proceedings were vexatious within the meaning of section 118 of the Family Law Act 1975. The court certified that the attendance of counsel, including senior counsel, was reasonably required for these applications.