Lahiri & Saha (No 4)
[2023] FedCFamC1F 182
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lahiri & Saha (No 4) [2023] FedCFamC1F 182
File number(s): BRC 8518 of 2020 Judgment of: JARRETT J Date of judgment: 23 February 2023 Catchwords: FAMILY LAW – PROPERTY – Where there is an application to set aside previous orders – Where the applicant did not appear when the orders were made – Where the applicant has failed to reasonably explain her absence – Where the applicant also failed to appear at the hearing of the application to set aside the orders – Where the applicant has failed to establish that any other order would have been made – Application dismissed Legislation: Bankruptcy Act1966 (Cth) ss 137ZQ, 139ZR ,139ZS(1A)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited: Buljubasic & Buljubasic [1999] FamCA 474
Mathews v MacDonnell [2011] FCA 825
Saha & Lahiri (No 2) [2022] FedCFamC1A 181
Taylor v Taylor [1979] 143 CLR 1
Division: Division 1 First Instance Number of paragraphs: 79 Date of hearing: 23 February 2023 Place: Brisbane Solicitor for the Applicant: Litigant in person Solicitor for the First Respondent: Litigant in person (Did not participate) Solicitor for the Second Respondent: No appearance Solicitors for the Second Respondent: Stacks Law Firm ORDERS
BRC 8518 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LAHIRI
Applicant
AND: MS SAHA
First Respondent
MR FELTOS
Second Respondent
order made by:
JARRETT J
DATE OF ORDER:
23 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The application in a proceeding filed 14 February, 2023 is dismissed.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
These reasons relate to an application in a proceeding filed on 14 February, 2023.
There is no appearance for the applicant to the application in a proceeding. I could dismiss the proceedings for want of an appearance by her, but it seems to me that it is probably as well to deal with the application as best I can on its merits.
There is an affidavit that was filed on 14 February, 2023 which seems to support the application in a proceeding. The affidavit is mostly submission, but it does contain some evidence. I treat the affidavit of Ms Saha as her argument for the purposes of this application, and I will do my best to deal with those arguments as appears from her affidavit.
The relief that she seeks in the application in a proceeding is against the orders that I pronounced on 13 February this year. Before I deal with that relief, it is as well to record that this matter has been before the Court for a long time now. There was a hearing in early 2022 to which I will refer later in these reasons concerning the validity of a notice given by the second respondent, Mr Feltos, pursuant to section 139ZQ of the Bankruptcy Act1966 (Cth): Lahiri & Saha [2022] FedCFamC1F 271. There was a subsequent appeal against the decision that I gave on that issue and the appeal was dismissed: Saha & Lahiri (No 2) [2022] FedCFamC1A 181.
In an effort to bring the residue of the proceedings to some finality, on 20 December, 2022 I held a directions hearing which culminated in the making of some orders. The first two orders dealt with the joinder of more parties to these proceedings and in particular persons named Ms PP Saha and Mr L. They are the applicant’s mother and her son respectively.
It was necessary to join them to the proceedings because, as will appear from these reasons, some land which is at issue was the subject of some caveats purportedly lodged by those two people. Mr Feltos, who is the trustee in bankruptcy of the applicant’s estate in bankruptcy and the second respondent to the main proceedings sought the removal of those caveats. It was necessary, therefore, to join the caveators to the proceeding.
The orders of 20 December, 2022 went on to provide for the fourth and fifth respondents (as Ms PP Saha and Mr L were designated in the proceedings) to file and serve a response by a certain time together with any affidavit evidence they wished to lead.
There were also orders made for the adjournment of various applications then before the court for hearing and determination on 13 February, 2023. As to those applications, directions had been made earlier for the hearing of those applications on 13 February, 2023 and the filing and service of material by the parties in preparation for that hearing. See the orders made by me on 21 October, 2022. Those directions required the parties to file and serve their evidence no later than 4 pm on 23 January, 2023 and an outline in a case a few of days later on 6 February, 2023.
On 13 February, 2023, there was no appearance for the first respondent, the applicant now before me. Mr Lahiri, the applicant, appeared. Mr Feltos, the second respondent, appeared. The third respondent in the proceedings is a company, D Pty Ltd, which is trustee for the D Pty Ltd Superannuation Fund. Mr Lahiri sought to appear for the company, but I refused leave for him to do that. No proper application was before the Court for that purpose and none had been foreshadowed to any of the other parties.
There was representation by a lawyer for Ms PP Saha, the fourth respondent, and representation for Mr L, the fifth respondent, by a legal officer from the NSW Trustee and Guardian who was appointed his guardian by the New South Wales Civil and Administrative Tribunal. As between the second respondent and Ms PP Saha and Mr L, there were agreed orders. Those orders provided for an order that those people should withdraw the caveats that they had lodged against the subject real property. Both agreed that those orders could be and should be made. Making those orders finalised their involvement in these proceedings.
There were some other orders that were agreed as between the applicant, Mr Lahiri, and Mr Feltos. I made those orders as well. As between Mr Feltos and the first respondent, there were some orders made in her absence which concerned the parcel of real property to which I have already referred.
I ordered that what I took to be an application by the first respondent to set aside the section 139ZQ notice, pursuant to s 139ZS(1A) of the Bankruptcy Act1966 (Cth) should be dismissed. Although the applicant, Mr Lahiri, had also applied for that relief, by the time of the hearing in February 2022, he had agreed with Mr Feltos, the issuer of the notice, on how the case should be resolved.
The orders that were issued by me on 27 April, 2022 following the hearing contained the following notations:
7.The applicant and the second and third respondents – (that is, [Mr Feltos] and the superannuation fund) – have agreed to settle all matters in dispute between them in this proceeding in terms that include the following:
8.The third respondent will pay the second respondent the sum of $853,875 (Settlement Sum).
9.The Settlement Sum will be paid directly from the net sale proceedings of sale of the property owned by the third respondent with folio identifier […] situated at [FF Street, Suburb C] NSW […].
10.Upon receipt of the Settlement Sum, the second respondent will release the applicant and third respondent from any and all claims arising out of this proceeding and the bankrupt estate of the first respondent, including the notice dated 4 June 2020 to the third respondent under section 139ZQ of the Bankruptcy Act1966 (Cth) and in respect of any costs orders made in favour of the second respondent in these proceedings.
By the time the proceedings came before me in February of this year, again, there were some orders that have essentially been agreed between the parties. The applicant – one of the applicants before me, Mr Feltos – I say applicant because he had filed an application in a proceeding on 28 November, 2022 seeking certain relief against the property at B Street, Suburb C, sought a declaration that the property situate at B Street Suburb C was subject to a charge pursuant to s 139ZR of the Bankruptcy Act1966 (Cth) in favour of Mr Feltos as trustee of the bankrupt estate of the first respondent to secure the payment to him of $853,875 pursuant to s 139ZQ notice that had been addressed to the third respondent, and which was the subject of my earlier decision.
He also sought a declaration that he had power to sell the property (conferred by that section, and pursuant to other provisions of the Bankruptcy Act1966 (Cth)), and that the first respondent give vacant possession of the property to the applicant within 28 days of the orders. That order was necessary because Ms Saha occupies that property. He sought consequential relief and in particular the issue of a writ of possession.
When the proceedings came before me, those orders were not in contest as between all of the parties that were before me. I dealt with those orders by way of default as against the third respondent, because as I said earlier, I refused Mr Lahiri leave to appear for the company. Hence orders were made on 13 February, 2023 to this effect:
1.Pursuant to ss 30, 77(1)(e) and 77G of the Bankruptcy Act 1966 (Cth), the first respondent give vacant possession of the property located at [B Street, Suburb C] NSW […] and described in Certificate of Title Volume […] Folio […] to the second respondent within twenty-eight (28) days of these orders.
2.Pursuant to ss 30, 77(1)(e) and 77G of the Bankruptcy Act 1966 (Cth), a writ of possession in favour of the second respondent may be issued twenty-eight (28) days after the date of these orders.
3.Pursuant to s 30 of the Bankruptcy Act 1966 (Cth), the third respondent execute all documents and do all things as are reasonably necessary to enable the second respondent to effect the sale of the property failing which a Registrar of the Court is authorised to do so.
4.Pursuant to s 79 of the Judiciary Act 1903 (Cth) and s 74MA of the Real Property Act 1900 (NSW):
(a)the caveat lodged by the third respondent numbered […6H]; and
(b)the caveat lodged by the first respondent, fourth respondent and fifth respondent numbered […70];
be withdrawn by the caveators within seven days of the date of this order.
The orders went on to provide for the sale of the property and the like. It will be appreciated that the principal relief granted by orders 1, 2 and 3 is relief that is effectively against the first respondent. It is against those orders or at least those orders that the current applicant, Ms Saha, now seeks relief.
She refers to the orders made on 13 February, 2023 as ex parte orders, but they were not ex parte. Ex parte means without notice. Those orders were made on notice in that there was an application on foot by Mr Feltos from 28 November, 2022 for that relief and the applicant knew full well of those proceedings and that the application was to be before the Court on 13 February, 2023 for hearing. The orders were not made ex parte.
Nonetheless, the orders were made in her absence and Ms Saha says that the Court has power under rule 16.05 of the Federal Circuit Court of Australia Rules 2001 to set the orders aside.
The rule upon which the applicant seeks to rely, I suspect, is rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. That rule provides that the Court may, at any time, vary or set aside an order if one of eight matters is made out.
The first matter that might be made out which enlivens the Court’s powers under rule 10.13(1) is if the order was made in the absence of a party. This order was made in the absence of Ms Saha and so it seems quite plain that rule 10.13(1)(a) is engaged in this case.
A rule in that form is commonplace and for a considerable period of time now, it has been the case that a person who was absent from proceedings when orders were pronounced has had the ability to apply to have those orders set aside. Even absent a power under the rules to set aside the orders in such circumstances, if a Court made orders in the absence of a party, there was an inherent jurisdiction in a Court to reconsider those orders. See the discussion of that issue by the High Court of Australia in Taylor v Taylor [1979] 143 CLR 1.
Insofar as rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 was concerned, a rule with which I am familiar, a number of matters need to be established by an applicant for relief under that rule. Given that that rule is in substance in the same form as rule 10.13(1)(a), it is difficult to see why the jurisprudence developed around the former rule ought not be applied to the new rule.
It is necessary, according to the authorities, for an applicant to demonstrate first an explanation for their failure to be present at the proceedings. Second, it is necessary to demonstrate that there will be reason to think that orders that are different to those sought to be set aside would be made if there was to be a further hearing. Third, it is necessary to demonstrate that there is no prejudice to the respondent to the application which cannot be cured by an order for costs or if necessary, an adjournment.
Here, the explanation for the failure to appear does not appear in the applicant’s affidavit material, but it is a matter of record, I think, having regard to the correspondence that flowed between this Court and the parties - and when I say this Court I am referring to my chambers and my associates. It is clear in the lead up to 13 February, 2023 that Ms Saha wished to appear at those proceedings by audio-visual link or telephone, and her application for that purpose was denied.
It was denied principally on the basis that there was no consent to her doing so from, in particular, Mr Lahiri. But in any event, it is unlikely to have been granted even if he had agreed, because first, 13 February, 2023 was a final hearing of the proceedings insofar as they concerned a property adjustment application between the applicant Mr Lahiri and Ms Saha.
Second, given the allegations in these proceedings by Mr Lahiri and Ms Saha, one against the other, some of which have some relevance, perhaps, to a division of their superannuation interests, it would be necessary for there to be a proper trial of the proceedings and findings of fact made about some of those disputed matters. That is to say, the Court would have to make a decision about credit. In those circumstances, it would be entirely inappropriate for there to be one of the parties giving evidence via telephone or audio-visual link.
Finally, there was no suggestion in anything that was ever put to the Court that all of the necessary materials for cross-examination, for example, of Ms Saha by Mr Lahiri or the other way around had been organised and were available at each end of the electronic communication link. Given the nature of the case, the nature of the allegations and quite frankly, the personality of the parties involved in the case, it seemed to me that the trial would not be efficiently conducted if one party was on the telephone or audio-visual link.
Whatever the case might be, leave to appear by electronic communication was refused. In those circumstances, it was incumbent upon Ms Saha to appear either in person or by an agent to either ask for an adjournment of the proceedings in the appropriate way or to conduct the proceedings for her. See, for example, the discussion of requests for adjournments made by electronic means in the Full Court’s decision in Buljubasic & Buljubasic [1999] FamCA 474.
There was also discussion of a litigant’s right to appear by electronic means if that be the best way to describe it, in Mathews v MacDonnell [2011] FCA 825, a decision of Logan J in the Federal Court of Australia.
Whilst there is an explanation for the failure of Ms Saha to appear on 13 February, 2023 the explanation is not one which I would consider is reasonable in the circumstances. Perhaps the more important issue is whether there would be different orders made if there was to be a trial of the proceedings. For the purposes of considering that aspect of this matter, I turn to the affidavit of Ms Saha and to the arguments within it that she raises.
In paragraph 1 of her affidavit she says that she informed the Court by email on 19 December, 2022 that the fourth respondent, Ms PP Saha, had not been served and could not comply with the timetable as ordered in her absence on 20 December, 2022. How she could inform the Court on 19 December, 2022 that somebody could not comply with a timetable that had not yet then been ordered is not clear.
In any event, both the fourth and fifth respondents appeared on 13 February, 2023 and were represented, one by a lawyer and the other by a legal officer from the office of his guardian. They had filed notices of address for service and therefore appeared in the proceedings.
The Court is entitled to assume that those people – and in particular, the legal practitioners – were appearing on instructions. Both the fourth and fifth respondents consented to orders which disposed of their further involvement in the proceedings. The point made by Ms Saha in paragraph 1 of her affidavit is not to the point given that those parties appeared at the hearing, represented in a proper way and properly participated in the proceedings.
Paragraph 2 of her affidavit suggests that because I have in the past granted other parties leave to appear by audio-visual means but not her, I have demonstrated apprehended bias. What the record will show and indeed, what the formal record of the orders made during the course of these proceedings demonstrates is that on more or less every occasion in 2022, Mr Lahiri has appeared in person. He has not appeared by telephone. Mr Feltos has appeared by counsel, and in particular, Mr Keane KC. There have been occasions when Mr Keane KC’s instructor has been on the telephone, but Mr Feltos has appeared by counsel in person. There is a significant difference between a party representing him or herself appearing by electronic means and an instructing solicitor appearing by electronic means in circumstances where counsel is in fact before the Court, and the nature of the business to be transacted on any particular occasion is that in the nature of a directions hearing.
I do not consider that the matters raised by Ms Saha indicate that a fair-minded observer sitting in the back of the Court may have considered or would consider that I have prejudged the issues in this case.
The next point made by Ms Saha is that the docket judge for this case is Baumann J, and that I have been assigned “only for the 21 to 23 February, 2022 hearing on [Mr Lahiri’s] application to set aside section 139ZQ notice”. That is not so. Whilst this Court does operate a docket system in a sense, to which docket a particular case is assigned is not a matter for the parties. It is a matter for the Case Management Judge and the administrative processes of the court. Litigants do not get to pick their judges and judges, sadly, do not get to pick their litigants.
So to the extent that as part of the present application before me in order 6, Ms Saha seeks an order that this application be returnable instanter before Baumann J or in the Family Court Sydney, that application is refused. There is no basis upon which I might make that order, given that first, I am not satisfied that there is any proper basis for suggesting an apprehension of bias having regard to the material relied upon by Ms Saha, and secondly, the matter is assigned to me for case management and hearing.
The next matter raised by Ms Saha is that the application of Mr Feltos of 28 November, 2022 has not been filed, is incompetent, “is an abuse of process filed after her application against [Mr Feltos] on the same issues was filed in Supreme Court Sydney [in late] 2022 and a breach of his own consent orders that released the 139ZQ notice property at [B Street, Suburb C], as in order 10 of 27 April, 2022 of this court”.
There are a few things to unpack there. The first is that assertion that the application of Mr Feltos of 28 November, 2022 was not filed. That is simply wrong. It was filed. It was filed on 28 November, 2022 although it was not sealed until 12 December, 2022. But nothing turns on that.
Whether it was filed on 28 November, 2022 or 12 December, 2022, it was nonetheless filed. Second, to the extent that it is suggested that it is incompetent and an abuse of process because it was filed after Ms Saha’s application against Mr Feltos on the same issues which apparently were filed in some proceedings in the Supreme Court of Sydney in late 2022, those proceedings are not before me. There is no copy of those proceedings and I do not know whether:
(a)proceedings were in fact commenced in the Supreme Court of Sydney on that date in 2022; or
(b)what they are about.
To the extent that in paragraph 4 of her affidavit, Ms Saha suggests that Mr Feltos’ actions in seeking relief in accordance with the application filed on 28 November, 2022 is a breach of “his own consent orders that released the 139ZQ notice property at [B Street, Suburb C], as in order 10 of 27 April 2022 of this court”, the argument cannot succeed. That is because first, order 10 of the orders made on 27 April, 2022 is a notation. It is not an operative order as such, even though it appears before the signature of the Court in the order.
Second, it does not release the property at B Street, Suburb C from the 139ZQ notice because what notation 10 says is that upon receipt of the settlement sum of $853,875, the second respondent would release the applicant and third respondent from any claims arising in the proceedings, including the 139ZQ notice.
There is no suggestion in any of the evidence – and indeed, the pursuit of the relief by the trustee that was ultimately granted on 13 February this year demonstrates that the settlement sum has not been received by the second respondent, and so, even if paragraph 10 of those orders was to in some way operate as or record a release, the condition for the release has not been fulfilled.
The next point made by Ms Saha is that enforcement orders to force a sale of a superannuation fund property cannot be made until the Court has ordered that Mr Feltos has an entitlement to the property after a hearing at which all interested parties are heard. She then refers again to the proceedings in the Supreme Court in Sydney. To be perfectly frank, I do not understand this point. The superannuation fund owes a debt to the second respondent. The debt arises as a matter of statute and its validity is not in doubt. That was the purpose of the hearing and the orders I delivered in April of 2022, an appeal from which was dismissed.
Mr Feltos is entitled to enforce his debt. The debtor is the third respondent. That it is the trustee of the superannuation fund matters not, because as set out in the decision handed down in April of 2022, there was a transfer of Ms Saha’s property to the superannuation fund. The transfer fell afoul of the Bankruptcy Act 1966 (Cth).
The next point made by Ms Saha is that no hearing took place on the s 139ZQ notice as Mr Feltos served consent orders the day before the 21 February, 2022 hearing without her consent, and that were opposed by her. Whilst it is true that as between the third respondent, Mr Lahiri and Mr Feltos, there were consent orders that dealt with Mr Lahiri’s application to set aside the s 139ZQ notice, the reasons that I delivered following that hearing demonstrate that I treated Ms Saha’s participation in that hearing as an application by her to set aside the s 139ZQ notice even though she had not formally applied for that relief. I delivered a judgment where I have determined that application and it was that judgment that was the subject of an appeal. The appeal was dismissed, and the reasons of the Full Court confirm that, in fact, I dealt with the application before me as if it were an application by Ms Saha to set aside the s 139ZQ notice and I considered all of the arguments that she wished to make in support of setting aside that notice. As matters turned out, she failed.
To the extent that she now complains in paragraph 6 of her affidavit that the orders were opposed by her, that there was no trial of the relevant issues and that she did not have the chance to be heard or legally represented, those are matters that could have been the subject of her appeal, and as I have said already, the appeal was dismissed.
I pass from paragraph 7 of her affidavit, because I simply do not understand it.
As to paragraph 8, she says that the orders of 20 December, 2022 do not allow for any filing of evidence or submissions by her in relation to her share of the regulated superannuation fund properties. That is true. But it was unnecessary to make an order on 20 December, 2022 to that effect because orders had already been made for that purpose on 21 October, 2022. It is worth noting that on 21 October, 2022 when the trial directions were made, the first respondent appeared on her own behalf.
Paragraph 9 asserts that the applicant, Ms Saha, was injured in a serious car accident which she says was caused by the applicant’s negligence in refusing to repair or service the vehicle that he left her to use on 19 January, 2023. She says she cannot travel to Queensland.
She gives a description of the accident and then says that because of the applicant’s misdoings, she has no vehicle. She then exhibits to her affidavit some documents which purport to corroborate what she says. A perusal of the documents is illuminating. The first to be found at annexure C is a handwritten note from the New South Wales Ambulance Service which confirms that they attended upon her at the scene of the accident. It is worth setting it out in full. It says this:
Problem / impression MVA R cut to forearm and chest pain due to seatbelt / steering wheel contact.
I take that to mean motor vehicle accident, a cut to her forearm on her right arm and chest pain due to seatbelt or steering wheel contact. It then goes on to provide as follows:
Thank you for seeing [Ms Saha]. [Ms Saha] was driving […] when [another vehicle] distracted her and caused her to collide with [another vehicle]. This caused her car to flip […], patient was wearing seatbelt, airbags were not deployed […].
There is then a zero with a line through it, and the letters “LOC”.
Does not believe she hit her head. No obvious head injuries. Patient would not allow New South Wales ambulance to assess her cervical spine due to previous [injury]. States pain in the area but feels like her ongoing pain, no nausea, vomiting, dizziness, altered vision. GCS15, fast negative PEARC, [or perhaps L], no altered sensations, able to self-mobilise. Small […] laceration to […] forearm and chest pain along sternum. No obvious bruising / deformity. ECG shows NSK. No D18. Equal chest rise. Chest clear. Patient refused conveyance against strong advice. Full capacity to make decision.
Thereafter is a medical certificate that purports to certify that Ms Saha received multi-trauma in the car accident and that she would be unfit to travel to Queensland, represent herself in court, stand trial or move house until October 2023.
There is then a medical report from Dr QQ dated 17 January, 2023. He too asserts that Ms Saha sustained multiple injuries, some of which exacerbated her underlying pathology. His examination revealed head injury and limited range of movement in her neck. He noted bruising to her chest, arms and interestingly, with “healing lacerations from the broken car window”. This observation is at odds with the New South Wales ambulance service which said there was one laceration, to her forearm. It tends to suggest that the report of Dr QQ is a bit exaggerated. He then talks about her having injury to her knees, her foot, and an exacerbation of her underlying pathology.
There is an MRI report which concludes this:
There is a […] disc protrusion […]. There is [a spinal injury] causing [damage]. There is a […] disc protrusion at […] causing moderate [spinal injury]. This is slightly worse than previous [spinal injury] causing minimal – for a minimal [damage].
The reference to “slightly worse than previous” is a reference to a pre-existing condition dealt with earlier in the report.
How any of that is particularly relevant to this application is not clear. It might be said to suggest that there ought to have been different consideration given to a request by Ms Saha to appear on 13 February, 2023 by electronic means. What it does demonstrate is that at best, there perhaps could have been an application for an adjournment, but that was not prosecuted by Ms Saha in the way explained by the Full Court in Buljubasic. Nor is there any application before me today to appear by electronic means at this hearing.
The next point made by Ms Saha at paragraph 10 of her affidavit is that Mr Feltos obtained the charge and caveat against the property at B Street in 2017 by signing a false declaration to the Land Titles Office of New South Wales that he had served the registered owners and mortgagees when he knew that he had not. She says that this constitutes fraud. There is no evidence before me to support such an outrageous suggestion.
The next point made is that Mr Feltos extended Ms Saha’s bankruptcy period by another five years in circumstances where she now contends he ought not have, but that is not a matter for this Court or this application. It is, in my view, just irrelevant.
Paragraph 12 of her affidavit makes an allegation against Mr Feltos taking money from her estate, in circumstances which are inappropriate. Again, the allegations are unsupported by any evidence, but in any event, seem entirely irrelevant to the present proceedings.
Next is an argument about costs in paragraph 13 of her affidavit, but it is nothing more than an argument which is expressed in terms of an entitlement. It has no persuasive value.
Paragraphs 14, 15, 16, 17, 18, 19, 20, 21, and 22 of the affidavit then make a range of allegations against Mr Lahiri, unsupported by any evidence. Those matters, if they are supported by evidence, might have some relevance to the issues that remain to be determined between the applicant and the first respondent. Whether they are or can be supported by evidence is not clear. But for the purposes of the present application, they are irrelevant because they do not go to any relief that has been granted as between the second respondent Mr Feltos and the applicant Ms Saha. Those matters, if they have any relevance at all, go to the ultimate determination of the property adjustment proceedings between Mr Lahiri and Ms Saha.
Paragraph 23 is a complaint about Ms RR from the New South Wales Trustee and Guardian Office who is the legal officer who appeared for the parties’ son, Mr L. The argument seems to be that she has “no interest over the SMSF properties in [Suburb C] New South Wales” and she should be refused leave to act as Mr L’s lawyer.
That she has no interest in the property is a good thing. That is, in fact, no reason to mean that she should not act as Mr L’s lawyer, nor is there any basis for suggesting that the New South Wales Trustee and Guardian should be removed from these proceedings. They are tasked with the business of representing Mr L’s interests.
Finally, Ms Saha points out that “[Mr L] should be allowed to be separately legally represented as was ordered by the Guardianship Tribunal [in late] 2022” and she then attaches an order from the New South Wales Civil and Administrative Tribunal issued in late 2022. That order provides the following:
(1) The decision in the appellant’s application for a stay is reserved.
(2)The appeal is listed for hearing on […] 2022 at 10.15 in Sydney. A separate notice of hearing will issue.
(3)A separate representative is appointed for [Mr L] (designated […] in the appeal)
I infer from that document a few things. The first is that there has been a decision of the New South Wales Civil and Administrative Tribunal against which Ms Saha wishes to appeal or has appealed. Second, for the purposes of that appeal, Mr L is being separately represented, not unlike, I suppose, the appointment of an independent children’s lawyer in this Court in cases involving parenting. There is a letter attached to Ms Saha’s affidavit from a person called Mr SS who is the separate representative for Mr L in the appeal referred to in the above orders. His letter is dated 19 December, 2022. The balance of it is not particularly relevant for today’s purposes, other than to establish that first, Mr L has a separate representative for the purposes of the appeal, and second, Mr SS is that separate representative. What that has to do with these proceedings, I do not know. There is no need in this case for Mr L to be separately represented.
Paragraphs 25, 26 and 27 of Ms Saha’s affidavit are irrelevant and contain complaints against Ms RR.
Paragraphs 28, 29, 30 and 31 of Ms Saha’s affidavit are matters for trial as between the applicant and Mr Lahiri. They are not matters that bear on whether the relief that she now seeks to have set aside should be set aside.
Paragraph 32 raises an issue that suggests that at the time the orders were made, the trustee of the superannuation fund was not the corporate entity which is named as the third respondent in the substantive proceedings, but the trustee was the two individual members, Mr Lahiri and Ms Saha. She asserts that she executed the amended trust deed on 2 February, 2023, “and a copy has been emailed to the court”.
I do not know what has been emailed to the Court, nor should I. I have consistently told the parties in this case, those that represent themselves, that it is entirely inappropriate to simply send documents by email to the Court or to my associates. It is not something new in this case. I have no idea what has been emailed to the Court, nor do I wish to know. There is nothing in the filed material that would suggest that there is a fresh trust deed that has been executed.
The balance of the applicant’s affidavit is argument that has no basis either in any facts that might be established from her affidavit or from any other facts that have been brought to my attention on the hearing of this application.
Having regard to that affidavit and the matters raised by Ms Saha within it, I am comfortably satisfied that if the orders now sought to be set aside were set aside, and there was a further hearing in relation to these proceedings as between the applicant Ms Saha and the second respondent Mr Feltos, no different orders would be made in the proceeding. That is to say, Ms Saha does not raise any issues that require a trial or further hearing which might result in a different outcome.
That is sufficient, in my view, to dispose of the application. Accordingly, the application in a proceeding filed on 14 February, 2023 insofar as it seeks the setting aside of the orders made on 13 February, 2023 is dismissed.
Insofar as the application seeks a transfer of what is left of the proceedings to the Family Court at Sydney, I dismiss that application. No basis is made out in the evidence or the argument for a transfer of the proceedings to Sydney. These proceedings have been conducted in the Brisbane registry for a long time now, and there is no reason why in the evidence the Family Court in Sydney is better placed to deal with these proceedings.
I have allocated a trial date for a hearing and determination of the balance of the outstanding issues in the case in April of this year. There is no evidence before me that would suggest that a judge in Sydney could hear the proceedings earlier than that.
No basis is made out in the evidence for the making of costs orders, lump sum or otherwise, against Mr Feltos or Mr Lahiri.
For all of those reasons, the application filed on 14 February, 2023 is dismissed.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 22 March 2023
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