Loomis

[2017] FamCA 852

FAMILY COURT OF AUSTRALIA

LOOMIS [2017] FamCA 852

FAMILY LAW – PRACTICE & PROCEDURE – Leave to file an Application in a Case – Whether the applicant should be granted leave to file an Application in a Case – Where the hearing of the substantive application has been completed and judgment is reserved – Where the applicant seeks to re-open the evidence and join two third parties to the proceedings – Application dismissed.

Family Law Act 1975 (Cth)

EB v CT (No.2) [2008] QSC 306
Summitt & Summitt and Ors (Re-opening) [2009] FamCA 365

APPLICANT: Mr Loomis

FILE NUMBER: BRC 1010 of 2012

DATE DELIVERED: 27 October 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 24 October 2017

REPRESENTATION

THE APPLICANT: By Telephone

Orders

1. The Husband is not granted leave to formally file and serve his Application in a Case filed on 4 October 2017, and, to the extent that it is necessary, it is hereby dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Loomis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1010 of 2012

Mr Loomis

Applicant

REASONS FOR JUDGMENT

1. For determination is another Application in a Case filed by Mr Loomis, the First Respondent in property settlement proceedings commenced by his former wife, Ms Thurston.  On 10 December 2015, a four day trial of the competing applications concluded.  In May 2016, I made interim orders and gave reasons for determining that before final judgment could be delivered that the parties’ self-managed superannuation fund needed to be put back into compliant status in so far as that was possible to be achieved, with the assistance of a Court appointed expert. That was achieved last year and funds approaching $600,000 are held on behalf of the parties’ Superannuation fund by the solicitor who used to act for the husband and his two companies that are also parties to the proceedings.

2. I gave the parties leave to file any further written submissions they considered appropriate and Mr Loomis filed some in February this year. My final judgment has now been reserved since those last written submissions of the parties were filed. Whilst reserved, I have had to hear and determine several further applications filed by each of the parties. As I already observed this is another one filed by the husband.

3. I have previously ordered that neither party file any further applications without first obtaining my leave. When this one was brought to me in chambers by registry staff, I determined to list it to hear submissions from Mr Loomis in respect of it, so as to determine whether I should actually permit him to file it and to serve it on the wife and two third parties who it directly involves.  I listed it for hearing on Tuesday, 24 October 2017 and heard Mr Loomis’s oral submissions by telephone.

The Application

1. The husband’s Application in a Case filed on 4 October 2017, seeks two orders:

   1.That the matter be re-opened and the Husband be allowed to adduse (sic) further evidence not available at trial.

   2.That [Ms Y] (sic) and [Mr DC] are added as parties to the proceedings. 

2. The husband firstly seeks a re-opening of the proceedings in which the trial concluded nearly two years ago and then joinder of two third parties. He also seeks to be able to adduce more evidence and, presumably, for cross-examination to be permitted over further days of Court time.

3. Ms Y is the elderly mother of the wife. Mr AB is a man who the wife says now is her former boyfriend. They were in a relationship together in the last couple of years but the wife asserted in affidavit evidence she relied upon in a recent application that I determined that they have ended their relationship. She asserted that Mr AB attributed the break-up of their relationship to his desire to be no longer subject to “stalking” and “harassment” by Mr Loomis. I am not in a position to say if I accept that or not. It does not matter for the determination of this application, in my view.

The Hearing of this Application

1. At the commencement of the hearing, I referred to the Application in a Case filed on 4 October 2017 and the supporting affidavit of the husband, also filed on 4 October 2017. The husband then told me that he wanted to rely on multiple other affidavits and documents – a list that he said had about ten or twelve affidavits on it that he had filed in the past.

2. I immediately informed the husband that I would not permit him to rely upon that many affidavits. I was mindful of Rule 5.09 of the Family Law Rules 2004 which limits the number of affidavits that may be relied upon as evidence in chief at the hearing of an interim application to one affidavit, subject, of course, to Rule 9.07, which permits a further affidavit to be filed if the respondent to the interim application has filed a Response to an Application in a Case in which he or she seeks different orders to those sought by the Applicant.

3. I then called on him to make his submissions.  Notwithstanding my ruling as to the affidavit evidence upon which he could rely, he still referred to evidence contained in previously filed affidavits, namely those filed on 15 August 2017 and 8 September 2017, in support of previous interim applications already heard and determined.

4. I understood his submissions in support of the joinder part of his application to be that he had established that there are hundreds of thousands of dollars missing in this case from funds that the wife had at her disposal and that she has used her mother and Mr AB to “launder” or hide this money. He submitted that the evidence shows, prima facie, that the wife invested money, through her mother, into real property acquired by Mr AB and that she must, therefore, have a beneficial interest in one or both of two real properties registered in the sole name of Mr AB.

5. The husband submitted that he applies for a “limited re-opening” of the case, that just goes to the “first step” in what he described as “the four step process” to be undertaken by the Court in determining just and equitable property division orders as between him and the wife, namely, establishing what the assets of the parties or either of them are. I understood him to argue that he expects to be able to show that Ms Thurston has interests in property that she failed to disclose at the trial.

6. As for the other part of his application, he merely says in his supporting affidavit that he wants a re-opening of the case for the “determination of tax liabilities”. In that affidavit, he also says:

   …it is impossible to finalise judgment without first determining the tax liabilities…

   I understand that to be a reference to loans he has always maintained were made by his UK company, L Ltd, to the wife during the relationship. The husband argued, as part of his substantive case at trial, those loans must be repaid by the wife. He also argued, as part of his substantive case at trial, that if the loans are not ordered to be repaid and actually repaid, the company will have a tax liability in respect of those loans. That position maintained by him has always been before the Court. Now it seems he wants to re-open and lead evidence as to those tax liabilities.

What are the Principles that apply?

1. Common law principles govern applications to re-open property settlement proceedings in this Court.  Those principles make it clear that the granting of leave to re-open is discretionary and that the exercise of the discretion is guided by the interests of justice.  As Murphy J proposed in Summitt & Summitt and Ors (Re-opening) [2009] FamCA 365:

   The essential question is, is the court more able to do justice in the facts and circumstances of the particular case if the application is granted. (see eg Smith v NSW Bar Association (1992) 176 CLR 256; Urban Transport Authority v NSEISER (1992) 28 NSWLR 471 at 478 and EB v CT (No. 2)[2008] QSC 306

2. In EB v CT (No.2),[1] Applegarth J had referred to the Victorian Supreme Court decision of Reid v Brett (2005) VCS 18 and pointed out that in that decision the Court said of the criteria governing the exercise of the discretionary power that:

   (a)The further evidence is so material that the interests of justice require its admission;

   (b)The further evidence, if accepted, would most probably effect the result of the case;

   (c)The further evidence could not with reasonable diligence have been discovered earlier; and

   (d)No prejudice would ensue to the other party by reason of the late admission of the further evidence.

   [1] [2008] QSC 306

3. I respectfully agree with their Honours that these are guiding principles in the exercise of the discretion.  I mention, further, that Applegarth J also pointed out, correctly in my respectful view, that;

   The interests of justice is served by finality in litigation, particularly were prolonged litigation imposes a strain on personal litigants.

Is there evidentiary substance to any of the husband’s submissions and, if so, is it so material that the interests of justice require re-opening and admission of that evidence?

1. The husband’s arguments began with a submission that he had established that there were hundreds of thousands of dollars missing in this matter. I accept that he asserts that. I do not accept that he has necessarily established that. That is but one of the many matters I must deal with, consider and determine in my final judgment that remains reserved. Evidence that he points to in the affidavits that he referred to includes a statement of a bank account of the wife’s mother, Ms Y, for a period in January, February and March of 2015. That statement shows deposits of funds described as being paid in by the wife. It shows an entry for 26 February 2015, being a debit of $5,000 from the account described as “Deposit for JV [Thurston]”. It shows another entry for 27 February 2015, being another debit of $5,000 from the account, described as an “internet withdrawal to …35”.

2. The husband’s affidavit of 4 October 2017, includes a document downloaded from the internet, that purports to show that the BSB number …34 (the same as on the account statement debit entry just referred to) is the BSB of the Commonwealth Bank Mortgage department.  

3. In the affidavit filed 15 August 2017, the husband attached titles searches in relation to two properties registered in Mr AB’s name. One of those shows Mr AB became the registered proprietor of the property in December 2013, and that a mortgage in favour of the Commonwealth Bank was registered over that property on 13 March 2015.  The other shows that Mr AB became the registered proprietor of the property on 13 March 2015, and that a mortgage in favour of the Commonwealth Bank with the same number as the one registered that same day over his other property was also registered over this property on that same day.

4. Mr Loomis submits that all this evidence establishes, prima facie, that the wife was involved in a Joint Venture with Mr AB to purchase and build a house on the property acquired in early 2015 and that she caused at least $10,000 to be invested in it through money deposited into her mother’s bank account.

5. Whilst I accept that this evidence, prima facie, supports a submission that $10,000 from Ms Y’ bank account could very well have been paid towards Mr AB’s acquisition of the property acquired and registered in his name in early 2015, including, possibly, through a Commonwealth Bank Mortgage that he was a party to, that evidence does not establish where that money came from to be deposited into Ms Y’s bank account, nor does it show that any more than just less than $15,000 was deposited into that account at around the time those debits were recorded against it.

6. With respect to Mr Loomis and his theories (they can be described as nothing more than that at this point in time), I do not consider this evidence to be “so material that the interests of justice require its admission”, particularly when I am already aware of the fact that the mother has conceded a contravention of interim orders that were made earlier in the proceedings involving the retention by her of funds she received back from a real estate agent as a refund of a deposit paid on the purchase of a property that did not go through, which funds had been ordered to be deposited to her then solicitor’s trust account. I am far from persuaded that re-opening the case, joining the wife’s mother and Mr AB, and allowing the evidence referred to above to be adduced, in addition to some broader, as yet unspecified, further enquiry to be embarked upon, would most probably affect the result of the case.

7. In addition, although Mr Loomis baldly asserted that he could not, with reasonable diligence, have discovered all of this evidence earlier than he did, the dates on the documents evidence all of these transactions occurring in early 2015, which was nine to ten months before the trial. Mr Loomis himself conceded at the hearing that he had these bank statements from the wife’s mother a few weeks before the trial.  He provided no reasonable explanation for not using the evidence during the trial save for saying from the bar table that “it was too difficult a task to put it all together”.

8. As for the other part of his application, as I have already observed, the fact that there could be tax liabilities in respect of the “loans” from L Ltd to the wife if they were not repaid was already part of the husband’s case and is not a new issue that has only come to light since the trial concluded. There is no justification for re-opening the trial now to lead more evidence about potential tax liabilities.

9. As I have said to Mr Loomis and Ms Thurston a number of times before, when hearing their interim applications, each time one of them files another interim application the requirement for me to hear and determine it takes time away from me that would otherwise be able to be devoted to bringing their final judgment in the matter to fruition. It is not too far away now. The responsibility of hearing and determining so many matters in this Court has contributed significantly to the delay in its delivery.

10. I do not consider that the interests of justice now demand that it be delayed further by a re-opening of the case and the hearing of further applications as to whether the two named third parties should be joined.

11. I dismiss the husband’s application and will not give him leave to file it now.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 27 October 2017.

Associate:

Date:  27 October 2017