FAMILY COURT OF AUSTRALIA
Lahiri & Saha [2021] FamCA 639
File number(s): BRC 8518 of 2020 Judgment of: BAUMANN J Date of judgment: 31 August 2021 Catchwords: FAMILY LAW – PROPERTY – Where the Trustee in Bankruptcy sought to strike out orders sought by the wife in her Response to an Application in a Case – Where a separate Court has determined bankruptcy matters raised by this wife in this Court – Orders made that part of the wife’s Response to an Application in a Case be struck out or otherwise dismissed. Legislation: Bankruptcy Act 1966 (Cth) ss 58, 120, 139ZR, 139ZQ
Family Law Act 1975 (Cth) ss 79, 102NA
Family Law Rules 2004 (Cth) rr 1.04, 1.12, 5.01
Cases cited: Number of paragraphs: 21 Date of last submission/s: 14 June 2021 Date of hearing: 8 June 2021 Place: Brisbane Applicant: The Applicant appeared in person First Respondent: The Respondent appeared in person Solicitor for the Second Respondent: Stacks Law Firm ORDERS
BRC 8518 of 2020 BETWEEN: MR LAHIRI
Applicant
AND: MS SAHA
First Respondent
MR FELTOS
Second Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
31 AUGUST 2021
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That orders 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19, 33, 34, 35, 41 and 52 of the wife’s Response to an Application in a Case filed 24 March 2021, be struck out or otherwise dismissed.
2.That orders 3, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 36, 37, 38, 39, 40, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51 and 53 of the wife’s Response to an Application in a Case filed 24 March 2021, be adjourned to a date to be fixed in the Family Court of Australia in Brisbane.
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 Lahiri & Saha has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
In contested property settlement proceedings commenced by the husband in July 2020, he not only joined the wife as a Respondent, but also joined the wife’s Trustee in Bankruptcy.
The wife was the subject of a sequestration order made by a Judge of the Federal Circuit Court of Australia on 30 September 2016. For reasons not necessary to detail in these Reasons, the wife’s bankruptcy did not end by effluxion of time, but has been extended. She remains at this time, an undischarged bankrupt.
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CaseChat Overview and Summary
In this matter before the Family Court of Australia, the Trustee in Bankruptcy sought to strike out certain orders sought by the wife in her Response to an Application in a Case. The dispute centred on whether the Family Court had jurisdiction to determine issues that had already been, or should have been, determined by other courts, particularly in relation to the administration of the wife's bankrupt estate.
The court was required to determine which of the wife's requested orders should be struck out or dismissed, and which should be adjourned. This involved considering the extent to which the Family Court could exercise jurisdiction over matters concerning bankruptcy and the administration of a bankrupt estate, especially when those issues had been previously litigated or were within the purview of other courts. The court also had to assess whether the wife's applications constituted an abuse of process or were otherwise unnecessary.
Baumann J found that the Trustee's oral application to strike out was permissible under the Family Law Rules 2004, as it served the purpose of resolving the case justly and in a timely manner. The court determined that several of the wife's requested orders were either unnecessary due to existing undertakings, had already been determined by the Federal Circuit Court of Australia, or related to the administration of the bankrupt estate over which the Family Court had not assumed jurisdiction. The reasoning emphasised that attempting to relitigate issues already decided by other courts, or issues falling outside the Family Court's specific jurisdiction in family law matters, constituted an abuse of process. The court noted that the wife had recourse to appeal rights in the Federal Circuit Court and that the Family Court's role was to deal with discrete family law disputes between the parties.
Consequently, the court ordered that a significant number of the wife's requested orders be struck out or dismissed. The remaining orders sought by the wife were adjourned to a date to be fixed in the Family Court of Australia in Brisbane, indicating that some aspects of the wife's claims might still be considered within the appropriate jurisdictional framework.
The court was required to determine which of the wife's requested orders should be struck out or dismissed, and which should be adjourned. This involved considering the extent to which the Family Court could exercise jurisdiction over matters concerning bankruptcy and the administration of a bankrupt estate, especially when those issues had been previously litigated or were within the purview of other courts. The court also had to assess whether the wife's applications constituted an abuse of process or were otherwise unnecessary.
Baumann J found that the Trustee's oral application to strike out was permissible under the Family Law Rules 2004, as it served the purpose of resolving the case justly and in a timely manner. The court determined that several of the wife's requested orders were either unnecessary due to existing undertakings, had already been determined by the Federal Circuit Court of Australia, or related to the administration of the bankrupt estate over which the Family Court had not assumed jurisdiction. The reasoning emphasised that attempting to relitigate issues already decided by other courts, or issues falling outside the Family Court's specific jurisdiction in family law matters, constituted an abuse of process. The court noted that the wife had recourse to appeal rights in the Federal Circuit Court and that the Family Court's role was to deal with discrete family law disputes between the parties.
Consequently, the court ordered that a significant number of the wife's requested orders be struck out or dismissed. The remaining orders sought by the wife were adjourned to a date to be fixed in the Family Court of Australia in Brisbane, indicating that some aspects of the wife's claims might still be considered within the appropriate jurisdictional framework.
Orders
Orders of the court
THE COURT ORDERS UNTIL FURTHER ORDER:
1. That orders 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19, 33, 34, 35, 41 and 52 of the wife’s Response to an Application in a Case filed 24 March 2021, be struck out or otherwise dismissed.
2. That orders 3, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 36, 37, 38, 39, 40, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51 and 53 of the wife’s Response to an Application in a Case filed 24 March 2021, be adjourned to a date to be fixed in the Family Court of Australia in Brisbane.
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).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
On the material relied upon, I find as follows:(a)Leave was given by the Court for the Second Respondent Trustee to make an oral application. To the extent the wife says r 5.01 of the Family Law Rules 2004 (Cth) (“the Rules”) requires a formal, written Application in a Case, in the circumstances of this case – proceeding with the oral application and considering same by written submissions, reflected the power under r 1.12 of the Rules, where the Court of its own initiative, may dispense with the need for a formal, written Application in a Case. This was appropriate considering the main purpose of the Rules is to ensure the case is resolved in a just and timely manner (r 1.04 of the Rules) and the consideration of the administration of justice, which includes that the wife’s bankrupt estate is administered appropriately and according to law; (b)In circumstances where the Trustee has provided an undertaking on 7 August 2020 to this Court, from dealing with or selling the Suburb C property, or enforce any change over the property created under s 139ZR(3) of the Bankruptcy Act, the injunction sought at Order 2 of the wife’s Response to an Application in a Case is unnecessary;(c)The Trustee’s submissions at paragraphs 5 to 11, detail how Orders 4, 5, 6, 7, 8, 9 and 10 sought by the wife have been determined previously by the Federal Circuit Court of Australia. The submissions identified the judgments delivered by his Honour Judge Manousaridis ([2018] FCCA 1738; [2018] FCCA 3760; [2020] FCCA 2125) on these issues. In response to the Trustee’s submission, the wife says:The second respondent continues to mislead the Court by falsely alleging the orders I seek against him have already been determined by the Federal Circuit Court. They have not, as I have repeatedly stated, all of my applications were dismissed ex parte with only me present, without any hearing and without any determination of the issues at a “leave only”, interlocutory stage…(d)I am satisfied the Federal Circuit Court of Australia has determined the issues raised again in this Court at Orders sought 5, 6, 7, 8, 9, and 10. It is appropriate to note that the Federal Circuit Court of Australia has exercised its jurisdiction under the Bankruptcy Act, and where decisions have been made in the past against applications made by the wife, she had appeal rights available. There is no evidence that when she chose to appeal, that she has been successful. The reasons set out at [12] to [15] in … (supra), whereby the wife required leave before filing further applications, provided as follows:12.I will say something very briefly about the affidavit referred to in that email. Various allegations are made in it. These are that fraudulent evidence was presented before me at the time I made the sequestration order and fraudulent evidence was provided before Farrell J on the hearing of the appeal. It also contains assertions in relation to the conduct of the trustee in bankruptcy of Ms Saha’s estate. This includes allegations of providing false sworn evidence, illegally obtaining a garnishee order, the making of false and malicious complaints to the inspector general to seek fraudulent criminal charges against Ms Saha, repeated refusal to settle, collusion with creditors, and the failure to provide any evidence of provable debts. The mere statement of what is asserted in the affidavit should reveal why I formed concerns about whether Ms Saha should be permitted to proceed on the application based on those allegations. 13.At the hearing before me today Mr Carter, who appears on behalf of Ms Saha, made some submissions. After an exchange between me and Mr Carter, I adjourned the matter to permit Mr Carter to obtain further instructions from Ms Saha. When I came back on the bench, Mr Carter informed me that he had instructions that Ms Saha did not wish to move on the application as it was currently formulated and on the affidavit on which she intended to rely. 14.In those circumstances, I indicated to Mr Carter that what has so far occurred should be formalised in some sort of way, and that the manner in which I believe the matter should be formalised is by me making an order granting Ms Saha leave to file the application returnable instanter and for me to dismiss it and also to make an order that Ms Saha is to file no further application in this proceeding without first obtaining the leave of the Court which in practical matters means my leave being the judge to whom this matter has been docketed. 15.In my view, this is a fair way of dealing with the matter. Ms Saha will not be deprived of any reasonable cause of action she may have; and also as importantly other parties will not be troubled by having to deal with an application which may have no reasonable prospects of success or worse, be an abuse of process. In those circumstances, therefore, I propose to make the orders I have indicated I would make.The wife did not appeal the orders made 3 April 2018;(e)It is simply an abuse of power to try again to bring those same proceedings to the Family Court of Australia for determination;(f)Order 11 seeks funds received by the bankrupt estate from a sale of the Bankrupt’s half share in the property located at R Street, Suburb S, New South Wales (“the Suburb S property”) be paid to the wife’s Superannuation Fund “as well as compensation for under sale of the property to a related party.” Although I accept the wife raises many complaints about her sequestration and its extension, the wife’s interest in the Suburb S property vested in the Trustee pursuant to s 58 of the Bankruptcy Act. As I will refer to later in these reasons, the Family Court of Australia has not assumed jurisdiction in every bankruptcy issue between the wife (and for that matter, also the husband) and the Trustee. The issue for discrete determination has been identified and directly impacts on the obligation of this Court to make orders under the Family Law Act (1975), between the husband and wife.(g)Orders 12, 13, 14, 15, and 16 are the subject of submissions by the Trustee at paragraphs [16] to [26] and clearly relate to complaints by the wife (and apparently supported by the husband) about the administration of the bankrupt estate. This Court has not accepted jurisdiction under the Bankruptcy Act to determine every dispute between the wife and the Trustee. If she has remedies against the Trustee, she may elect to pursue them elsewhere. This Court is seized of a discrete dispute, already identified and ready for hearing; (h)To the extent that the wife seeks to canvas these issues in this Court, when jurisdiction may be elsewhere, seems to be motivated by a deep sense of frustration or unfairness, encapsulated by her submissions at [21]:21.The forced bankruptcy of a clearly solvent person, keeping her bankrupt by false statements to Court, and extension of her bankruptcy period by another 5 years with intent to keep her bankrupt indefinitely as the trustee has conveyed to Mr Lahiri, for the wrongful motive and collateral purpose of serial theft of her multiple unencumbered properties, while he has deprived her of all access to any funds at all and left her no money to live on, fits the definition of “abuse of process” as in “Ashby” in [19] above(i)The wife’s concerns about fees charged by the Trustee (and his conduct generally) are succinctly set out at [27] as follows:27.The trustee’s brief assertions in his submissions of 20 May 2021 are deliberately false, and do not answer or address the evidence in my previous affidavits served on him, in particular that my entire share of the property at R Street Suburb S was secured against a mortgage to my parents. Disputed evidence is a matter to be heard at trial, and not summarily dismissed without a hearing. The Court has already fixed a two day trial on 16 and 17 September, and no prejudice has been shown by the trustee in waiting until the hearing, in circumstances where he has already paid himself, the petitioning creditor who appointed him and their same (common) lawyer nearly $ 550 000.00 from his trust account (Annexure “M”, page 163 of trustee’s affidavit of 18 May 2021 lists $192 630 35.00 paid to himself, the trustee, $175 612.15 paid to the petitioning creditor, and $110 883.87 paid to their common lawyer in fine print without dates paid or names paid to) without any assessed costs, and without signed consent of the other creditors, myself or Mr Lahiri while there were orders pending against him to pay back those funds wrongfully seized by him. The prejudice is to me, in being forced into bankruptcy and being left derelict, with NO access to fundsJust because the Family Court of Australia is a Court, does not mean, as presumably oral submissions by the wife suggest, it should determine these issues when other Courts have, she says, not done so to her satisfaction. Forum shopping is not appropriate. (j)In the Trustee’s submissions in Response, at paragraphs [23] to [26] that:23.Ms Saha’s position seems to be that because a final contested hearing did not occur in the Federal Circuit Court, her applications were not determined. This is obviously wrong, and ignores the inconvenient truth that the reason why final contested hearings did not occur is because the Federal Circuit Court, on three separate occasions, determined that her applications could not proceed to final contested hearings because they:(a) had no reasonable prospects of success;(b)were bound to be summarily dismissed if they were allowed to proceed; and(c) would be an abuse of process of the Court.24.The bulk of Ms Saha’s submissions are accordingly misconceived. They cite largely irrelevant authorities and rules, and are misdirected at satisfying irrelevant legal tests. For example:(a)it is not true, as asserted by Ms Saha at [5] of her submissions, that Federal Circuit Court case SYG 235/2015 was ‘closed’ in the Federal Circuit Court to allow this Court to determine the issues raised in her Response. Annexed and marked “A” is a copy of an email dated 7 August 2020 from the Registry which confirms that Federal Circuit Court case SYG 235/2015 was closed because it was finalised on 4 August 2020 with judgment being delivered by Judge Manousaridis. It is a gross misrepresentation to assert that an administrative act by the court has the legal effect contended by Ms Saha;(b)there is no relevant error, or relevant judgment, identified in [9] of the submissions;(c)Ms Saha’s incorrectly attributes her bankruptcy to the Trustee at [21], as opposed to the petitioning creditor;(d)the Trustee is not required to establish any abuse of process (as contended at [22] of the submissions) to succeed on the present application; and(e)there is incontrovertible evidence (in the Trustees affidavit affirmed 18 May 2021) that the property at R Street, Suburb S was sold pursuant to orders of the Supreme Court of NSW, contrary to [24] of the submissions.25.Ms Saha refers at [27] to evidence in unidentified affidavits being relevant to this application. Ms Saha failed to identify any evidence in any affidavit that supports her submissions. The Trustee notes that Ms Saha was required to serve any further evidence on which she relied in respect of this application by order 3 of the orders made by this Court on 10 May 2021.26.Ms Saha incorrectly states at [27] of her submissions that the Trustee’s fees were paid without consent of the creditors of her bankrupt estate. The Trustee’s fees have been approved by creditors.I agree with the force of those submissions. (k)Order 19 seeks an order that:19.Order that the applicant and 2nd respondent pay funds seized from superannuation fund accounts and sale of superannuation fund assets to the superannuation fund, at replacement value with interest and Company and trust accounts back to those accounts and that these funds are not to be seized by the trustee.There is no evidence that the Trustee has “seized” funds from the wife’s Superannuation Fund. It may be that the wife complains (as Order 19 suggests) that the husband has seized funds, but that issue can be sensibly ventilated during the future proceedings under s 79 of the Family Law Act (1975). As against the Trustee, that relief is doomed to fail. (l)A similar complaint is articulated within Order 41, namely that the Trustee “be ordered to account to me for any funds or assets of my superannuation fund received by him within 2 days of the order.” To the extent this relates to the administration of her bankrupt estate, I rely upon the finding made earlier in these Reasons. It does seem clear, to some degree, that the wife is not entirely certain who her target for recovery should be, because she seeks relief against the husband “to account to me for any funds or assets of my Superannuation Fund received by him...since 5 November 2000” (Order 40).CONCLUSION
Ratio Decidendi
Legal Principle Established
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