Laramie & Caul
[2018] FCCA 1371
•23 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LARAMIE & CAUL | [2018] FCCA 1371 |
| Catchwords: FAMILY LAW – High Court and Federal Court – Federal Circuit Court – procedure – ending proceedings early – discontinuance – withdrawal of notice of discontinuance –principles. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.01, 13.02, 16.05 |
| Cases cited: BZAGD v Minister for Immigration & Anor [2015] FCCA 3471 BZAGD v Minister for Immigration and Border Protection [2016] FCA 670 BZAGD v Minister for Immigration and Border Protection & Anor [2016] HCASL 226 Maddison v Qualtime Association Inc [2010] FMCA 25 MZZIO v Minister for Immigration & Anor [2014] FCCA 618 SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 |
| Applicant: | MS LARAMIE |
| Respondent: | MR CAUL |
| File Number: | BRC 11357 of 2016 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 23 April 2018 |
| Date of Last Submission: | 23 April 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 23 April 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jordan |
| Solicitors for the Applicant: | Lake Law |
| The Respondent appeared in person |
ORDERS
The application in a case filed on 24 January 2018 is dismissed.
The response to the application in a case filed 17 April 2018 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Laramie & Caul is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 11357 of 2016
| MS LARAMIE |
Applicant
And
| MR CAUL |
Respondent
REASONS FOR JUDGMENT
This is an application by Ms Laramie, to withdraw a notice of discontinuance, wrongly described in her application in a case as a notice of continuance, that she filed on 25 August, 2017. She then seeks a range of directions for the further continuation of the proceedings.
In his response, the respondent, Mr Caul, opposes the application and asks for some other orders that arise out of the lodging of a caveat over the title to particular real property. Neither party chose to address me on the principles that are to be applied to the resolution of this application.
Whilst the Federal Circuit Court Rules2001 provide for the filing of a notice of discontinuance, they do not provide for the withdrawal of one. Nor does the rule that permits the Court to interfere with a perfected judgment – r.16.05 – permit the Court to interfere with a discontinuance, it being an act of a party rather than an act of the Court.
There are some authorities that bear on the issue. In SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137, Ryan J considered the position where an applicant in this Court had discontinued some proceedings but then sought to have the discontinuance withdrawn.
His Honour considered the relevant Rules – r.13.01 and r.13.02 of the then Federal Magistrates Court Rules– and then recorded this:
17. There is nothing in the relevant provisions of the Federal Magistrates Court Rules which empowers the Court to set aside a notice of discontinuance or to reinstate proceedings which have been regularly discontinued in accordance with rule 13.01. That accords with the traditional understanding of the effect of discontinuance which has been exemplified by Neill LJ in ROFA Sport Management AG v VHL International (1989) 2 All ER 743 where his Lordship said, at 747:
‘It was also not in dispute that if the action had been discontinued by an order made under order 21, rule 3 and the order had been drawn up the action would have been at an end and no order could be made thereafter under order 15 rule 6(2). Order 21, though with amendments, can be traced through order 20 of the Rules of 1962 to order 26 of the Rules of 1883. It provides a complete code relating to the discontinuance of an action. It also deals with cases where a party wishes to withdraw part of a claim or counterclaim. In the present case, however, the order did not provide for discontinuance under order 21, rule 3 and the application for the rectification of the order of 14 August 1985 had been dismissed.’ (emphasis added)
The long and the short of that is that there is no power within the Rules to order the withdrawal of a notice of discontinuance or that it, in some other way, be recalled. However, the authorities do establish that the court has an inherent power to set aside a notice of discontinuance, in exceptional circumstances, in order to prevent injustice or abuse of its process. The circumstances in which that power arises were also described by Ryan J in SZFOZ. Where the discontinuance might involve an abuse of process or was procured by fraud the Court may, on application by a party affected by the offending conduct, set the discontinuance aside.
There are a number of cases in this Court, at first instance, where that principle has been applied and a number of cases where this Court’s application of that principle has been examined on appeal. For example in Maddison v Qualtime Association Inc [2010] FMCA 25, Wilson FM, as he then was said at [30]:
Following on from a consideration of these cases, I conclude that where a notice of discontinuance has been filed in proceedings that were otherwise within the jurisdiction of this Court, the Court has the jurisdiction and the power to set aside the notice of discontinuance in circumstances where:
(a) Its filing was procured by fraud or as an abuse of process;
(b) It is necessary to ensure that the Court’s process does not cause an injustice; and
(c) It was filed pursuant to an agreement that is void or voidable.
I applied those principles in BZAGD v Minister for Immigration & Anor [2015] FCCA 3471. My decision, wherein I refused to set aside a notice of discontinuance, was considered on appeal in BZAGD v Minister for Immigration and Border Protection [2016] FCA 670. In that case, the Full Court, constituted by Rangiah J, said this:
16. The application for leave to appeal states “the decision is not in accordance with rules”. No such error can be discerned from the primary judge’s careful and thorough judgment. His Honour’s consideration of the circumstances in which a notice of discontinuance may be set aside was correct except perhaps in one respect. His Honour considered that the Federal Circuit Court had an implied power to set aside a notice of discontinuance in order to prevent injustice. To the extent that his Honour may be taken to be saying that the power may be exercised in the interests of justice, it is inconsistent with the judgment of the Full Court of the Federal Court in Chen v Monash University (2016) FCAFC 66 delivered after the judgment of the Federal Circuit Court.
Rangiah J then goes on to deal with what was said by the Full Court in Chen, and suggested that the test that I had set out in BZAGD, to the extent that it suggested that the Court had power to set aside a notice of discontinuance in order to prevent injustice, was too widely stated. The Full Court’s decision in BZAGD was the subject of an application for special leave, which was refused: BZAGD v Minister for Immigration and Border Protection & Anor [2016] HCASL 226.
The upshot of all that is that to succeed on this application the applicant must demonstrate that the notice of discontinuance was procured by fraud or is an abuse of process. Alternatively, it is necessary to ensure that the Court’s processes do not cause an injustice or, alternatively, it was filed pursuant to an agreement that is void or voidable.
In MZZIO v Minister for Immigration & Anor [2014] FCCA 618, at [14] Judge Whelan stated the test slightly differently and posed the following questions to assist the resolution of an application such as the present:
a)Did the applicant knowingly and voluntarily file the notice of discontinuance?
b)Was the filing of the notice of discontinuance procured by fraud or duress?
c)Was it filed pursuant to a void, or voidable, agreement?
d)Did the filing of the notice of discontinuance otherwise involve an abusive process?
e)Is the setting aside of the notice of discontinuance necessary to ensure that the Court’s process does not cause an injustice? and
f)If the notice of discontinuance was set aside, does the application for review have no reasonable prospect of success?
There can be no doubt that the determination to set aside a properly filed notice of discontinuance is a discretionary exercise, but it is an exercise of discretion which is not unfettered, as the authorities demonstrate.
There is nothing here to demonstrate that the filing of the notice of discontinuance was procured by fraud or an abuse of process. The evidence demonstrates that it was a voluntary act by the applicant in these proceedings. She says that, at the time, she was affected by certain stresses and the like and there is medical evidence to attest to that, but there is no suggestion that she was robbed of capacity to make proper decisions for herself in the litigation.
Is it necessary to set aside the notice of discontinuance to ensure that the Court’s processes do not cause an injustice? In my view, it is not. The Court’s processes are quite plain. The act of filing of the notice of discontinuance was a choice made by the applicant and to set it aside now might well amount to an injustice to the respondent. There is nothing to suggest that it was filed pursuant to an agreement that was void or voidable. There was no fraud or other reason to think that there was an agreement between these parties about the filing of the notice of discontinuance that might otherwise be assailable at law.
In my view, the applicant has not established the matters necessary to be established to succeed on the application. Consequently, the application to set aside the notice of discontinuance is dismissed.
In his response, the respondent says that there are certain orders that he seeks, arising out of the filing of a caveat. I am not satisfied that those matters are so closely connected to the proceedings that are presently before me so as to engage in the associated jurisdiction of this Court and which would enliven my ability to make orders essentially, under the Land Title Act 1994 (Qld). The respondent did not articulate the basis upon which the orders that he seeks are within this Court’s power, and it could only be an exercise of the powers granted to the Supreme Court in the Land Title Act.
Having said those things, the present proceedings, apart from the application to reinstate, are at an end, and so there is no pending proceedings upon which the associated jurisdiction might hang.
The response, too, is dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 23 April 2018.
Date: 7 June 2018
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