Laurie and Bledsoe
[2011] FMCAfam 567
•9 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAURIE & BLEDSOE | [2011] FMCAfam 567 |
| FAMILY LAW – Property – s.79A – no case stated – dismissal. |
| Family Law Act 1975, ss.34, 79A, 90AE, 90AF, 144 Federal Magistrates Act 1999, ss.10, 17A, 45 Federal Magistrates Court Rules 2001, rr.1.03, 4.01, 4.02, 4.05, 5.01, 5.02, 5.03, 13.10, 14.01, 14.02 |
| Wright v Gibbons [1954] HCA 17; (1954) 91 CLR 423 Ball v Mannin [1829] EngR 165; (1829) 1 Dow & Cl 380 (6 ER 568); 3 Bli NS 1 (4 ER 1241) Boughton v Knight (1873) LR 3 P & D 64 Jenkins v Morris (1880) 14 Ch D 674 Birkin v Wing (1890) 63 LT 80 Estate of Park (1954) P 112 Manches v Trimborn (1946) 174 LT 344 McLaughlin v Daily Telegraph Newspaper Co. Ltd. (1904) 1 CLR 243 Nestle Australia v FCT (1986) 10 FCR |
| Applicant: | MS LAURIE |
| Respondent: | MR BLEDSOE |
| File Number: | BRC 9012 of 2007 |
| Judgment of: | Coates FM |
| Hearing date: | 10 March 2011 |
| Date of Last Submission: | 10 March 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 9 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Haddrick |
| Solicitors for the Applicant: | Lillas and Loel, Lawyers |
| Solicitors for the Respondent: | Charles Cooper Lawyers |
ORDERS
That pursuant to rule 13.10(a) and (c) of the Federal Magistrates Court Rules 2001 the wife’s Application filed 15 October 2010 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Laurie & Bledsoe is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 9012 of 2007
| MS LAURIE |
Applicant
And
| MR BLEDSOE |
Respondent
REASONS FOR JUDGMENT
The wife filed an application pursuant to s.79A(1)(a) of the Family Law Act 1975 (the Act) seeking to set aside or vary property orders made by consent. If successful, as a final order she sought by way of property settlement a payment to her of $3,500,000.00 within sixty days.
She also sought ancillary orders pursuant to ss.34, 90AE, 90AF and 114 as may be necessary for this decision and for final orders.
She also sought costs.
The Respondent sought to have the application dismissed under s.17A of the Federal Magistrates Act 1999.
He also sought costs.
By way of history, a final order was made by consent on 28 September 2007 in relation to the marital property.
In her Initiating Application filed 15 October 2010 the applicant set out the grounds for setting aside the final orders, relying on s.79A(1)(a) being a miscarriage of justice because of:
a)Fraud;
b)Suppression of evidence;
c)The failure to disclose relevant information; and
d)The giving of false evidence by the respondent.
The respondent raised initial objections to the applicant’s material.
The objections were lengthy and related to the two affidavits filed by the wife, the first being on 15 October 2010 and the second being on
8 December 2010.
I had those two affidavits photocopied so that I could follow the submissions in relation to the objections as well as the submissions in defence thereof and these can be found within the court file marked “A” and “B”. I did not in open court mark them “A” and “B” but for clarity I have now done that.
I am not going to repeat each and every ruling because that was done at the time when striking out much of the wife’s evidence, but I now need to refer to the admissible evidence of the wife. As evidence is a word which has different meanings in different legal contexts, when I say admissible evidence, I am referring:
a)To testimony which the wife says will go to prove her case;
b)But which has not been determined as the truth of the facts alleged.
As to her affidavit filed on 15 October 2010 and now marked “A” she gives admissible evidence of her address, that she is the applicant, that she exhibits the Family Court order dated 28 September 2007, the respondent’s financial statement dated 24 September 2007 and a financial statement from herself which is undated.
She states that:
a) She and the applicant were married in [omitted] 2004;
b) She committed $130,000.00 of her own funds into a business partnership with the respondent, and
c) On or about September 2009 the respondent sold his interest in a company [A] for $10,000,000.00. That affidavit, after my rulings, contained no further relevant information.
The affidavit filed 6 December 2010 and marked “B” again identifies her as the applicant and that she filed this application on 15 October 2010. It also states:
a) She and the respondent were married on [date omitted] 2004;
b) The parties consented to orders for an alteration of property interests on 28 September 2007;
c) They separated on a final basis in or about September 2008;
d) A divorce certificate issued in this court in January 2009;
e) At paragraph 8, that at the time the consent orders were made, the respondent valued his business at approximately $500,000.00 to $1,000,000.00;
f) That the parties agreed to adopt the value of $500,000.00 for the purposes of settling their financial affairs;
g) In or about September 2009 the respondent sold his interest in [A] Pty Ltd for $10,000,000.00;
h) The consent orders were prepared on the basis of a settlement agreement reached in a mutual mediation with her local pastor and that under the agreement she received $525,000.00, by way of an initial payment of $400,000.00 and periodic payments of $100,000.00 fortnightly thereafter (a statement which does not make sense because having received $400,000.00, she could only receive a further payment of $100,000.00 plus $25,000.00 to total the $525,000.00 she said she received under the consent orders);
i) The respondent received the balance of the assets of the marriage including the former matrimonial home, investment properties and the business;
j) Under a heading “Basis for Allowing a s.79A Adjustment”, that during the marriage she and the respondent built up and worked in a successful business - the one she states the husband sold for $10,000,000.00;
k) Over time the parties were able to diversify the business interests and assets to invest and expand the property portfolio;
l) That she had a firm background in [omitted] and invested her time equally with the respondent to improve and capitalise the business;
m) The business had five permanent offices and over 30 visited sites from Toowoomba to the Gold Coast and north to Mackay and her role was to set up new retail outlets, employ and train new employees;
n) She worked in the business from May 2005 until September 2009 and she states that she during that time she estimates the value of the company increased exponentially;
o) The business generated a means to acquire various properties being the matrimonial home at [P] and a residential investment [in] [S];
p) The parties owned another property [in] [S] and she is aware that the respondent purchased another property [in] [S] in the post-separation period;
q) The properties were purchased against the business;
r) The respondent and his extended family created an environment of constant and ongoing conflict in the time prior to the signing of the consent orders which “permeated” most aspects of her life and she addressed the behaviours through her treating psychologist;
s) She was bullied on public internet sites, was emotionally and verbally abused, received incessant telephone calls from the respondent’s family, and was being blackmailed with money to leave the country to return to the United States of America, her home country;
t) On or about 10 May 2007 the police filed an application for a domestic violence order on behalf of herself and her daughter and she left the former matrimonial home and moved to a women’s shelter in [omitted] for three nights before securing finance from a joint account to set up a residence at [R];
u) In about June 2007 the respondent followed her after she collected her daughter from school and drove behind her for about two kilometres in breach of a protection order and she was frightened by his behaviour. She pulled over in front of the police station at [R] and reported the incident to the police;
v) The police gave her advice - but she does not state whether they charged the respondent for breaching a domestic violence order;
w) In the months prior to the consent orders being settled she experienced severe internet bullying by the respondent and his daughters wherein the respondent allegedly posted nude photographs of her through a fictitious hotmail account to her entire address book, allegedly with threats to keep distributing this material if she did not back down from the settlement of the financial affairs;
x) The respondent’s father was instrumental in communicating the threats to her mainly by telephone and on one occasion told her to take $10,000.00 and leave the country and return to the United States and that he threatened that she would have to pay one half of the debt of the business in the event that the matter proceeded to court;
y) She attended a psychologist from April 2005 until October 2010 about her marital issues and mental health issues and that she attended a Dr D on October 2005 with the respondent, in relation to her concerns about the respondent’s control of money matters, his anger outbursts and his failure to adhere to promises made prior to the marriage regarding church attendance, as well as financial support for her eldest son; and
z) She discussed with her psychologist her frail psychological condition which was exacerbated by the respondent’s forwarding of private photos to her family and friends, his breaches of trust and domestic violence and that she was experiencing pain and pressure of her sons returning to the United States to live with their father.
The respondent’s evidence is very short, confirming the consent orders reached on 28 September 2007.
He states that:
a) He has complied with his obligations under those orders and made all payments to the applicant pursuant to those orders;
b) The applicant and he were together for under two years and he provided her with a settlement in excess of $525,000.00;
c) The business did not sell for $10,000,000.00. He said that it was sold for substantially less than that and any amount of money received in respect of the sale of the business is also subject to capital gains tax; and
d) The business sold more than two years after the settlement between the parties by which time the business had changed its nature completely.
After excising part of the applicant’s evidence on the test that it was inadmissible, I am left in essence with the fact that the parties were married for a short time, they ran a business, the wife contributed $130,000.00, she alleges domestic violence and harassment and because of that she had psychological issues.
So that there is no misunderstanding, I am not determining disputed issues such as the length of the relationship, I am determining the only matter before the court and that is whether to exercise a discretion to set aside final property orders.
The respondent submitted that the application ought to be dismissed, as there was no case to answer or there was little prospect of success.
The central argument was that the applicant had stated her grounds to have the judgment set aside, being a miscarriage of justice by reason of fraud, suppression of evidence, the failure to disclose relevant information and the giving of false evidence.
Effectively his argument was that the Initiating Application followed the wording of s.79A(1)(a) in part, but not in full. It did not state the orders should be set aside because of “duress” or for “any other circumstance”, which are also grounds stated in the section.
The issue before me is whether the application filed by the wife, with her evidence, shows that there is a case to answer and whether her evidence presents a triable case that there has been fraud, suppression of evidence, failure to disclose relevant information or the giving of false evidence.
Her case clearly relies on some type of lack of capacity to make decisions, because of alleged violence and pressure by the husband, none of which directly appear to invoke the discretion to set aside the judgment because of fraud, suppression of evidence, failure to disclose relevant information or the giving of false evidence.
Although she does not refer to duress in her Initiating Application, she has a heading in her affidavit filed 6 December 2010 stating “[Mr Bledsoe]’s defamatory conduct and circumstances of duress underpinning the consent orders”.
I will give reasons further below, but because she has not alleged duress in her Initiating Application, she cannot claim that it is a ground for setting aside the consent property orders.
There is also no evidence to support a case of fraud – a dishonest intention or act – in the criminal or civil sense, although at first glance, that seems to be a claim also related to evidence being suppressed or that the husband has failed to disclose relevant evidence.
This would be based on values of entities given by the husband in his affidavits leading up to the consent orders being reached, compared with values now. That she has stated that he sold the business for $10,000,000.00 is a mere claim and from what I will say further, is nothing but an embarkation on a fishing expedition to obtain a figure from an entity she has no connection with.
The wife then goes on to explain that at the time the orders were made in 2007, she suffered a psychological dysfunction. But in my view, she fails to offer evidence linking any such disorder the husband’s acts or omissions which would be the basis for a miscarriage of justice in the manner she stated in her application. She did not state there was duress, she did not give evidence of duress other than through a heading in her affidavit and she did not state in her application that the 2007 orders should be set aside for “any other circumstance”, which s.79A contemplates. Duress is some type of undue pressure or undue persuasion.
Prima facie, the grounds addressed in the application are not supported in evidence, and on my reading of the evidence, taken with the submissions made, I am not led to infer I can make out any of the grounds.
I will refer to the value evidence of the business again, because it is a key to understanding all of the wife’s evidence. It could be said that the husband had acted to suppress evidence in some way, taking advantage of her psychological state. But that is not what is being alleged with the wife actually stating that she accepted what was in the pool, so for whatever reason, she made a decision and I could not say that her evidence shows that it was not an uninformed decision.
She wants me to accept that it was an uninformed decision and she presents a report dated 23 April 2010, from psychologist Ms D, stating:
“I am of the opinion that at the time that Ms Laurie agreed to a divorce settlement, her ability to make informed decisions had been severely compromised. The ongoing stress that she experienced during her relationship would have made her psychologically vulnerable, engendering a strong flight of flee response. An agreement on any terms and conditions that would bring the relationship to a conclusion, would be welcomed as a form of emotional release and relief. Compounding factors that would have diminished Ms Laurie’s capacity for making carefully though-out decisions include her levels of anxiety/depression that remained unmedicated. A further barriers (sic) to clear thinking would have been involved the co-currant departure of her two sons and the grief experience associated with their perceived loss. It would appear therefore that having agreed to certain terms while in the described psychological state, Ms Laurie has not added in her own best interests”.
Putting aside the factual matters asserted to be the truth, which are trial issues, the report does not say the wife had a lack of capacity to make decisions. It states:
“…her ability to make informed decisions had been severely compromised”.
Despite the description “severely” being used before the word “compromised”, applying the ordinary meaning of the word, it can and must only mean at its highest that there was a settlement of differences or her ability to make informed decisions was hampered or was somewhere between having such ability and not having such ability, because they are ordinary meanings of the word compromise. At no time was it put in submissions that there was a special meaning attributable to the word as used in psychology by psychologists.
The applicant had been seeing this psychologist since 2005 about marital issues and there is no evidence that Ms D formed a professional view in 2007 that the applicant may not have capacity to make decisions, because that is not what her report is stating. It is also clear from Ms D’s correspondence, which is attached as an exhibit, that the applicant saw her on several occasions throughout the year 2007.
As with contract law where a party is presumed to have the capacity to contract, I think I must take it that a person is presumed to have the capacity to come to consent property orders, which then have a further test to meet before being made, which is that they are just and equitable.
But even if the report referred to a lack of capacity to understand decisions, which it does not, there is a legal issue which is of fundamental importance – Ms D’s opinion is put before the court by way of an exhibit. It is in correspondence addressed “To whom it may concern”.
It is not in admissible form as the sworn evidence of a competent professional, who could be questioned as to her expertise. I need to put this in context of the nature of the wife’s case, that there is no evidence of any sort of psychological condition or evidence of such affecting her capacity to understand the acts which led to her consent to make property orders.
But, in order to give the wife the benefit of the doubt, even if it was in admissible form, it:
a) Does not state the expertise of Ms D; and
b) It does not address the issue of capacity in any way other than by perfunctory reference. It does not address the issue of capacity as understood at law.
In Wright v Gibbons [1954] HCA 17; (1954) 91 CLR 423, which dealt with land title in circumstances where capacity to transfer was questioned, at paragraph 7, Dixon CJ Kitto J and Taylor J, held that:
“The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation”.
To my mind, this seems to have settled the law, because the High Court directly followed this statements with reference to a long line of cases, stating:
“The case of Ball v. Mannin [1829] EngR 165; (1829) 1 Dow & Cl 380 (6 ER 568); 3 Bli NS 1 (4 ER 1241) though somewhat confusedly reported, is an authority in point. The House of Lords had before it certain exceptions to a charge delivered to a jury. The trial judge, after saying that the question to be tried was whether the person whose deed was in question was a person of unsound mind, added that to constitute such unsoundness of mind as should avoid a deed at law, the person executing the deed must be incapable of understanding and acting in the ordinary affairs of life. As to this, Lord Tenterden, who delivered the leading judgment, said: "perhaps in that he went too far, but that was a matter of which the plaintiff in error was not, under this bill of exceptions, entitled to complain" (1829) 1 Dow & Cl, at p 391 (6 ER, at p 572) . Then he turned to the appellant's main contention, that in order to avoid a deed the unsoundness of mind of the party executing it must amount to that degree of unsoundness which constitutes idiocy, a test which, it was said, "implies a total absence and deprivation of the faculty of reason in the party, and is not a question of degrees, but of the nature and quality of the mind and faculty, directly at variance with the language and direction of the learned judge" (1829) 1 Dow & Cl, at pp 386-387 (6 ER, at p 570) . To this contention their Lordships gave no countenance. They approved a statement in the charge that as one test of the requisite capacity the jury was at liberty to consider whether the person concerned was capable of understanding what he did by executing the deed, when its general purport was explained to him. The principle which the case supports, and for which Boughton v. Knight (1873) LR 3 P & D 64, at p 72 ; Jenkins v. Morris (1880) 14 Ch D 674 ; Birkin v. Wing (1890) 63 LT 80 and Estate of Park (1954) P 112 may also be cited, appears to us to be that the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained. As Hodson L.J. remarked in the last-mentioned case, "one cannot consider soundness of mind in the air, so to speak, but only in relation to the facts and the subject-matter of the particular case" (1954) P 112, at p 136 . (at p438)
Ordinarily the nature of the transaction means in this connection the broad operation, the "general purport" of the instrument; but in some cases it may mean the effect of a wider transaction which the instrument is a means of carrying out: Manches v. Trimborn (1946) 174 LT 344, at p 345. In the present case, it was necessary, we think, that the two sisters should have been capable of understanding, if the matter had been explained to them, that by executing the mortgages and the memorandum of transfer they would be altering the character of their interests in the properties concerned, so that instead of the last survivor of the three joint tenants becoming entitled to the whole, each of them would be entitled to a one-third share which would pass to her estate if she still owned it at her death. This is apparently not what the learned Chief Justice put to the jury. It was the direct effect of the instruments according to their terms, and not the resultant severance of the joint tenancy, that seems to have been referred to by the expression "the effect of the deed", in the questions ultimately formulated. But a jury which found the sisters incapable of understanding the direct effect of the deeds could hardly have found them capable of understanding the indirect effect of the deeds in severing the joint tenancy. We shall therefore consider the case on the footing that the appellant has established that, at the respective dates of the mortgages and the memorandum of transfer, the sisters lacked that capacity to understand which was necessary for the complete validity of the instruments. (at p439)
But proof of this was not enough to entitle the appellant to succeed in the action if the result was that the instruments were merely voidable; for an instrument voidable by reason of the incapacity of a party, or by reason of any form of imposition upon a party, is valid unless and until it is avoided by that party or his representatives. It is clearly not open to other persons, such as one claiming adversely to the party, to elect against the validity of the instrument; and perhaps it was a realization of this which led the appellant to decline the opportunity she was given by the Full Court to amend the pleadings and have a new trial of the action. Neither Ethel Rose Gibbons nor Olinda Gibbons purported in her lifetime to avoid the instruments severing the joint tenancy, and the respondent as their executor has always affirmed their validity. Consequently the appellant must fail unless the law is that a deed disposing of property is absolutely void if at the time of its execution the disponor was incapable of understanding what he was doing, in the sense we have mentioned. As to whether this is the law, there is a singular lack of modern authority. The matter was discussed in McLaughlin v. Daily Telegraph Newspaper Co. Ltd. (1904) 1 CLR 243 , and the opinion was there expressed that every deed executed by a lunatic is void, at least unless the lunacy was unknown to the person who procured the execution of the deed. The deed there in question, however, was a power of attorney, and not one directly affecting property. What was said in the judgment, therefore, went beyond the necessities of the case. The present appeal raises the problem in an acute form. (at p439)”
It seems to me then that for a person to say they lacked capacity, such requires a lack of understanding, not a mere hindrance to clear thinking or a mere “compromised” state of mind, whatever that last statement may mean in terms of the inadmissible report. Again, reading the
[Ms D] report, there is no statement made in terms of a lack of understanding as stated in Wright v Gibbons.
As to suppression of evidence or failure to disclose on the basis that the applicant now says she lacked capacity due to depression, that is not the same as evidence of being deprived of knowledge, mandatorily required by disclosure rules applicable to property matters under the Act.
Faced with the state of the evidence, counsel for the applicant sought an adjournment to issue subpoenas to obtain more evidence, although such was also anticipated in part by the seeking of orders under ss.34, 90AE, 90AF and 114.
This submission requires an examination of the elements required to conduct litigation.
There needs to be:
a)A party or parties;
b)A dispute;
c)A jurisdiction, and
d)Evidence from which facts are determined.
I do not need to dwell on the required parties and this can be in the singular, for example when one party is deceased, but the stating of the dispute with enough particularity to identify its existence and filing the matter in the appropriate court activates the jurisdiction, that is, the power of a court to determine a matter.
Matters come before the Federal Magistrates Court pursuant to various Acts and the Federal Magistrates Court Rules2001.
Rule 4.01 (1) states: “Unless otherwise provided in these Rules, a proceeding must be started by filing an application in accordance with the form of application set out in Part 1 of Schedule 2.”
Rule 4.02 states: “An application must precisely and briefly state the orders sought and (if the application is a general federal law proceeding) the basis on which the orders are sought.”
The rule has a mandatory command indicated by the word “must”, being that the application must precisely and briefly state the orders sought and the basis on which the orders are sought.
As a matter of grammar, the bracketed words – if the application is a general federal law proceeding – do not alter the effect of the rule, but merely refer to general federal law proceedings. The bracketed words can be deleted in relation to a reading of the rule for this matter without changing the meaning of what is required, which is that “An application must precisely and briefly state the orders sought and the basis on which the orders are sought”.
But the rules require more than an application, with r.4.05 stating:
“1)A person filing an application or response, whether seeking final, interim or procedural orders, must also file an affidavit stating the facts relied on.
2)However, an application for interim or procedural orders may be filed without an affidavit if the evidence relied on is in an affidavit or affidavits filed in the pending proceeding.”
I have said in other matters that this rule is in plain simple language, and is amongst the most powerful in this court’s rules, stating with clarity what is required with regard to evidence. That an applicant must make out a case by stating the facts “relied on” is mandatory and cannot be ignored because an application casts a legal duty on a respondent to respond, with all the associated costs when solicitors are briefed.
The rule overcomes the requirements of filing stand alone pleadings, that is statements of fact without the evidence. It allows for a document which to an extent includes pleadings but with evidence, in line with the objects of the rules stated at r.1.03, which allows for informal operation of the court and the use of streamlined processes to avoid undue delay, expense and technicality.
But doing away with formal pleadings does not mean that a litigant can disregard the need to state a case, because of the effect of the rules in their requirements for the application and supporting affidavit to contain certain, definite information.
The rule, while simple, is a fundamental plank for revealing that an applicant has a triable case. Without leave, it cannot be dispensed with. That leave can be given to dispense with an affidavit envisages some type of urgent application, the urgency of which would be apparent at the time an application is made - see rr.5.01, 5.02 and 5.03. Such leave would not be given for this type of application now before the court.
I go to the rules because the submission from the applicant’s counsel was that an adjournment was required to issue subpoenas, to secure evidence.
It was not merely evidence which would go to supplying particulars for the claim, it was for evidence to create a case in light of the respondent’s submissions that no case was made out.
As I understand the application of the rules I have referred to, they do not allow for an application to be filed which does not state a case. If such were allowed, then the court would be flooded with what are referred to as fishing expeditions, where litigious parties hope that something or other adverse to the possible respondent will be obtained, see Nestle Australia v FCT (1986) 10 FCR.
As was said in Litigation Evidence and Procedure 6th Edition 1998 by Aronson and Hunter, at page 35, disclosure and discovery were “always intended to assist a party to make out their case, but that assistance would be denied if the party was unable even to plead the bare outlines of their complaint. In that situation, the case was said to be merely speculative, and the courts refused assistance”.
Such a position is in line with public policy where courts are created to resolve issues, not as general vehicles to search for and create issues to be resolved.
Such a state of affairs would allow the bringing of specious applications merely to tie a respondent up in legal procedures and possibly costs.
If that were not so, then s.17A of the Federal Magistrates Act1999 and the rules supporting that section allowing for an application to strike out a claim would be superfluous, - having no meaning or utility whatsoever.
The applicant’s only recourse then is to the rules and whether some pre-trial discovery is available. I was not taken to any such rule of this court available under the Federal Magistrates Act 1999 or the Family Law Act 1975.
A search of the rules show that rr.14.01 and 14.02 allow for a declaration to be made under s.45 of the Federal Magistrates Act 1999, to allow interrogatories on application by a party or the court’s own motion.
Section 45 states:
“(1)Interrogatories and discovery are not allowed in relation to proceedings in the Federal Magistrates Court unless the Federal Magistrates Court or a Federal Magistrate declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(2)In deciding whether to make a declaration under subsection (1), the Federal Magistrates Court or a Federal Magistrate must have regard to:
(a)whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
(b)such other matters (if any) as the Federal Magistrates Court or the Federal Magistrate considers relevant.”
The test placed upon the court is that such would be in the interests of justice.
But it assumes that there is a case made out on material filed. It cannot be on an assumption that a person files something, but does not make out a case, because of s.10 of the Federal Magistrates Act 1999, which states:
“(1)The Federal Magistrates Court has such original jurisdiction as is vested in it by laws made by the Parliament:
(a) by express provision; or
(b)by the application of section 15C of the Acts Interpretation Act 1901 to a provision that, whether expressly or by implication, authorises a civil proceeding to be instituted in the Federal Magistrates Court in relation to a matter.
(2)The original jurisdiction of the Federal Magistrates Court includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts.
(3)The process of the Federal Magistrates Court runs, and the judgments of the Federal Magistrates Court have effect and may be executed, throughout Australia.”
Nothing in that section allows a party to file an application in a family law matter, which does not state a case. There is no definition of any word or sentence used in the Federal Magistrates Act 1999 which would allow for such a state of affairs.
So fishing expeditions under the guise of Initiating Applications are not allowed to search for material to start a case.
It was put that it is a serious matter to deprive a person of opportunity to ventilate their case, but that assumes of course there is a case. Apart from having no prospect of success, the wife’s application also amounts to an abuse under r.13.10 because no case was made out.
I intend dismissing the application, but I need to address further some other issues.
The first is the supplementary orders under ss.34, 90AE, 90AF, 114 of the Act. As to an order pursuant to s.34, I imagine that an Anton Piller injunction may have been sought in relation to alleged property in the husband’s hands. But like orders sought under ss.90 AE and 90 AF or injunctions under s.114, the failure to state a case indicates that the wife’s position would not and could not be improved by supplementary orders. It was part of the fishing exercise anticipated in her Initiating Application the adjournment she sought. The court is not to be used to create a case. It is to be used to adjudicate a dispute between parties. It is as simple as that.
The second issue is the need to address the business being sold for an alleged $10,000,000.00, because it seems to be a large sum. There was no evidence of that and even if it was, after two years the business may well have changed its character, but essentially the claim is irrelevant because, again, the wife has not made out a case. She also stated that she estimated the business expanded exponentially, but that is part of the wife’s legal problems, it is a guess. Her material actually becomes embarrassing in that the husband cannot answer what is not stated without a case being made out.
The last issue is what power I invoke to dismiss the wife’s application. The solicitor for the husband sought that be done under s.17A of the Federal Magistrates Act 1999. That section deals with summary judgment for a party and this is not a case where summary judgment is being asked for, I am being asked for a dismissal of the matter. I then turn to the supporting rules and r.13.10, which allow for dismissal where there is no reasonable prospect of prosecuting a proceeding or a claim, or it is an abuse of process. It is apparent that this is the section I would use to dismiss the claim.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Coates FM
Date: 21 June 2011
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