Massalski & Riley
[2022] FedCFamC1F 36
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Massalski & Riley [2022] FedCFamC1F 36
File number(s): SYC 496 of 2015 Judgment of: HARPER J Date of judgment: 4 February 2022 Catchwords: FAMILY LAW – PROPERTY – De-facto relationship – Where wife is a self-represented litigant – Where final judgment had been delivered in 2019 – Wife appealed final judgment – Appeal dismissed with costs – Wife makes substantive application pursuant to s 90SN of the Family Law Act 1975 (Cth) – Where final property orders provided for subdivision of real property by registration of strata scheme, with wife to retain one lot and husband to retain another lot – Where wife sought injunction on the husband’s sale of his strata lot and stay of costs orders – Where husband’s strata property has now been sold – Injunctive relief otiose.
FAMILY LAW – PRACTICE AND PROCEDURE – Where there are multiple applications before the Court – Husband seeking summary dismissal, prohibition on the wife filing further applications, and enforcement by way of charge for payment of outstanding costs orders – Discussion of principles of summary dismissal – Where the husband has the onus of demonstrating no reasonable prospect of success – Where wife alleges non-disclosure by husband, default by husband in compliance with final orders, and that the relevant property does not fall within the definition of “property” by reason of water damage – Where wife’s contentions are without merit and disclose refusal to accept outcome before trial judge and on appeal – No reasonable prospects of success – Proceedings dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal – Discussion of overarching purpose of the family law practice and procedure provisions – Whether overarching purpose informs the assessment of whether prospects of success are reasonable – Consideration of whether application of overarching purpose is to be construed by taking account of the Court’s obligation to completely and finally determine matters in controversy set forth in s 43 of Federal Circuit and Family Court of Australia Act 2021 (Cth).
FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal – Abuse of process – Discussion of principles concerning abuse of process – Where wife refuses to accept the outcome of final proceedings and appeal – Principles of fairness and finality apply – Applications by wife apt to bring the administration of justice into disrepute – Summary dismissal ordered.
FAMILY LAW – PRACTICE AND PROCEDURE – Stay of costs orders and assessments – Where orders for costs have been made – Where wife’s application for stay of costs order and assessment had previously been dismissed – Jurisdictional basis for a stay not established – Where wife relitigates claim for stay of costs order – Where evidence relied upon for stay application is not new – Application for a stay also an abuse of process – Stay refused.
FAMILY LAW – PRACTICE AND PROCEDURE – Application for leave to intervene by wife’s ex-partner – Where intervention would be futile due to summary dismissal – Where intervention concerns proceedings already concluded – Where application is too late – Application dismissed with costs.
FAMILY LAW – COSTS – Enforcement of costs assessment – Charge ordered over the wife’s property to secure payment of outstanding costs orders – Court satisfied it has the power to make such an order and it is appropriate in the circumstances of this case.
Legislation: Civil Procedure Act2010 (Vic) s 63
Family Law Act 1975 (Cth) Pts VIII, VIIIAB, ss 45A, 79A, 90SM, 90SN, 92(1), 102QB, 117(2A)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 43, 46, 67, 68
Federal Circuit andFamily Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) Div 4, s 37
Federal Court of Australia Act 1976 (Cth) ss 22, 31A
Strata Scheme Management Act 2015 (NSW)
Family Law Rules 2004 (Cth)
Family Law Repeal Rules 2021 (Cth) sch 1
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 10.09, 10.11, 11.07
Supreme Court of Judicature Act 1873 (UK) s 24(7)
Cases cited: Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106
Amery & Kedrina (2021) 63 Fam LR 1; [2021] FamCAFC 79
Arthurman & Arthurman (2019) FLC 93-926; [2019] FamCAFC 214
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27
Best & Best (1993) FLC 92-418; [1993] FamCA 107
Bigg & Suzi (1998) FLC 92-799
Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd (2006) 236 ALR 720; [2006] FCA 1352
Bretton & Bondai [2013] FamCAFC 168
Cantrell & North (2020) FLC 93-976; [2020] FamCAFC 175
Cassidy & Sibley [2015] FamCA 335
Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248; [1993] FCA 801
Curtain & Curtain [2019] FamCA 919
Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955
Duff & Duff (1977) FLC 90-217; [1997] FamCA 24
Ebner & Pappas (2014) FLC 93-619; [2014] FamCAFC 229
Friar & Friar [2011] FamCAFC 71
Ghosh v NineMSN Pty Ltd (2015) NSWLR 595; [2015] NSWCA 334
Hewitson & Tierney [2019] FamCA 720
In the Marriage of Rogers and Fernandez (1988) 12 Fam LR 467
Joubert and Anor & Verhoeven [2020] FamCA 53
Karlsson & Karlsson [2020] FamCAFC 207
Korsky & Bright (No 2) (2007) FLC 93-352; [2007] FamCA 1512
Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401; [2009] FCAFC 117
Lenard & Rogers [2012] FamCA 600
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251; [1996] HCA 14
Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27; [2013] VSCA 158
Martin & Newton (2011) FLC 93-490; [2011] FamCAFC 233
Massalski & Riley (2021) FLC 94-047; [2021] FamCAFC 116
Massalski & Riley (No 2) [2021] FamCAFC 152
Massalski & Riley [2019] FamCA 1013
Mullane v Mullane (1983) 158 CLR 436
Olman & Teitzel [2020] FamCAFC 136
Paris King Investments Pty Ltd v Michael Normal Rayhill [2006] NSWSC 578
Pelerman & Pelerman (2000) FLC 93-037; [2000] FamCA 881
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457
Re Golding (2020) 384 ALR 204; [2020] HCA 38
Reichel v Magrath (1889) 14 App Cas 665
Riley & Pateman [2000] FamCA 1296
Ritter & Ritter (2020) FLC 93-957; [2020] FamCAFC 86
Sheldon & Weir (No 4) [2010] FamCA 1214
Simmons & Simmons (2008) 40 Fam LR 520; [2008] FamCA 1088
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549
Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507; [2015] HCA 28
Tzirinis & Tzirinis (No 2) [2008] FamCA 697
UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45
Division: Division 1 First Instance Number of paragraphs: 160 Date of hearing: 13 September and 4 November 2021 Place: Sydney The Applicant: Litigant in person Counsel for the Respondent: Mr Fowler Solicitor for the Respondent: Byrnes Legal The Intervener: Litigant in person ORDERS
SYC 496 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MASSALSKI
Applicant
AND: MR RILEY
Respondent
MR K
Intervener
ORDER MADE BY:
HARPER J
DATE OF ORDER:
4 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The applications filed by the Applicant, Ms Massalski listed below be dismissed:
(a)Application in a Case filed by Ms Massalski on 27 May 2021;
(b)Application for Final Orders filed by Ms Massalski on 10 August 2021;
(c)Application in a Case filed by Ms Massalski on 10 August 2021; and
(d)Application in a Proceeding filed by Ms Massalski on 3 December 2021.
2.The Application in a Case filed on 31 August 2021 by the Intervener, Mr K be dismissed.
3.All moneys which are required to be paid by the Applicant to the Respondent, Mr Riley, pursuant to costs orders made by the Family Court of Australia by the Full Court of the Family Court of Australia or by the Federal Circuit and Family Court of Australia (Division 1), whether made before or after this order, be charged against the Applicant's interest in the property at Unit 1 F Street Suburb G, being Lot 1 in Strata Plan …, and the Respondent shall be entitled to lodge a caveat over that property to secure such charge until payment in full by the Applicant of those costs orders.
4.The Respondent has leave to apply to the chambers of the Honourable Justice Harper to have the proceedings relisted for mention on 14 days’ notice.
5.No party may file any further applications in these proceedings without prior leave of the Court.
6.In relation to the costs of and incidental to the following proceedings, being:
(a)The Application in a Case filed by the Applicant on 27 May 2021;
(b)The Application in a Case filed by the Respondent on 28 July 2021;
(c)The Initiating Application filed by the Applicant on 10 August 2021 and the summary dismissal proceedings; and
(d)The Application in a Case filed by the Applicant on 3 December 2021.
within 28 days of the date of the these orders, a party, other than the Intervener, seeking or pressing a claim for such costs, is to file and serve written submissions setting out their claim for costs and submissions in support thereof.
7.That the Intervener, Mr K, pay the Respondent's costs of and incidental to his application for leave to intervene in the amount of $2,000, within 28 days.
THE COURT NOTES THAT:
A.The Applicant has two Contempt Applications both filed 10 May 2021 which are awaiting judicial determination and not the subject of this judgment.
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 the pseudonym Massalski & Riley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION
This matter was referred to me in a duty list. The proceedings substantively concern an application under the Family Law Act 1975 (Cth) (“the Act”) by the Applicant Wife, Ms Massalski (“the wife”), against the Respondent Husband, Mr Riley (“the husband”) to vary final property adjustment orders.
Final judgment was delivered by McClelland DCJ on 10 December 2019: Massalski & Riley [2019] FamCA 1013 (“final judgment”). McClelland DCJ made property adjustment orders pursuant to s 90SM of the Act, having found that a de facto relationship existed between the wife and the husband.
The relevant factual background of the matter is set out in the final judgment at [4]–[62]. I will not repeat those facts here, save as necessary for the purposes of this judgment.
The final property orders (“final property orders”) of McClelland DCJ can be summarised as follows:
(a)Certain aspects of proceedings in the Supreme Court of Victoria between the husband and wife, which the wife had brought and had been transferred to the then-Family Court of Australia, were dismissed;
(b)The wife was required to withdraw caveats that she had lodged against a property in Suburb A, Victoria, which is owned by the husband and Mr K, the wife’s ex-husband (“the intervener”), and another property at F Street, Suburb G (“the Suburb G property”), which is owned by the husband and wife;
(c)The parties were to complete registration of the strata title subdivision of the Suburb G property with costs to be shared equally, save for fees payable to the Commonwealth Bank of Australia which were to be paid by the husband;
(d)Lot 1 of the Suburb G property strata plan be transferred to the wife, and Lot 2 to the husband;
(e)The mortgage to the Commonwealth Bank over the property be removed from Lot 1 and secured over Lot 2;
(f)That the husband pay the wife a sum of $18,263.50 within fourteen days of her complying with her obligations;
(g)That each party was otherwise entitled to property in their name and possession and be responsible for their own liabilities; and
(h)Orders under s 109A of the Act.
The parties were granted liberty to apply on the question of costs. On 25 May 2020 McClelland DCJ ordered the wife to pay, on a party/party basis, costs of and incidental to proceedings in the Supreme Court of Victoria which had been transferred and determined in this Court, and these proceedings on and from 24 February 2017. On 2 November 2020, Registrar Chayna assessed the costs payable by the wife to be $209,945.25, and that they be paid by 29 January 2021.
On 18 January 2021, the wife filed an Application in a Case seeking a stay of the costs order of 25 May 2020 and the costs assessment of 2 November 2020.
The wife also appealed the final property orders. The appeal was heard by the Full Court on 20 October 2020 and 6 May 2021.
On 5 March 2021, McClelland DCJ dismissed the wife’s application for a stay of the costs orders on the husband’s undertaking not to enforce the orders pending determination of the wife’s appeal.
While judgment was reserved in the Full Court, on 27 May 2021, the wife filed a further Application in a Case, seeking a range of orders which will be discussed in more detail below.
On 13 July 2021, the Full Court dismissed the wife’s appeal: Massalski & Riley (2021) FLC 94-047 (“Massalski”). Consequently, the undertaking given by the husband to McClelland DCJ on 5 March 2021 has expired and is discharged. It follows that there is no stay of the costs orders made by McClelland DCJ.
On 27 July 2021, the husband filed an Application in a Case seeking numerous orders, including an order prohibiting the wife from filing further applications, orders for the appointment of receivers by way of enforcement, an order charging property of the wife to secure payment of outstanding costs orders, and orders for costs. This application has not been fully heard. The question of appointing receivers has not been the subject of argument. However, the husband agitated his orders seeking a charge on the wife’s property and orders for costs. These issues will be the subject of this judgment, as explained in more detail later in these reasons.
On 10 August 2021, that is, less than a month after her unsuccessful appeal, the wife filed an Initiating Application seeking, amongst other orders, variation of the final orders pursuant to s 79A of the Act (“substantive application”). The wife also sought a number of interim orders, which I set out later in these reasons. Section 79A is the wrong provision. It relates to property adjustment orders made under Pt VIII of the Act. De facto property adjustment orders are made under Pt VIIIAB. Section 90SN of the Act is the equivalent provision to s 79A and applies to de facto financial causes. For the purposes of this judgment, I will treat the wife’s substantive application as made pursuant to s 90SN.
The Full Court meanwhile received submissions about costs of the wife’s appeal, and on 19 August 2021 delivered a separate costs judgment: Massalski & Riley (No 2) [2021] FamCAFC 152 (“Massalski (No 2)”). On the basis that the wife had been wholly unsuccessful in the appeal, she was ordered to pay the husband’s costs of the appeal fixed in the amount of $30,000 to be paid within 28 days. I will have occasion to refer to Massalski (No 2) later in these reasons.
The matter first came before me on 19 August 2021. An interim hearing was held on 13 September 2021 and completed on 4 November 2021. As explained later, a further hearing took place on 3 December 2021.
The wife was self-represented. The husband retained counsel and the intervener also appeared self-represented. I will discuss his application later in these reasons.
By way of background, several other factual matters should be recorded here about the Suburb G property. As explained by the Full Court (Massalski at [112]), Orders 5 and 7–10 of the final property orders were designed to finalise the registration of the strata plan over the Suburb G property to create two lots, to give the wife clear title to Lot 1 and for the husband to have title to Lot 2, subject to a mortgage due to the Commonwealth Bank which was to be discharged. A strata plan (SP ...) has been registered. Lot 1 of the Suburb G property became Unit 1 F Street, while Lot 2 became Unit 2 F Street. I will refer to these lots by their respective numbers, Unit 1 F Street and Unit 2 F Street. The wife has made application to the NSW Civil and Administrative Tribunal (NCAT), contending SP ... is non-compliant and the lots in the strata scheme have building defects (“NCAT proceedings”).
It is necessary, given the complex and convoluted background to this case, to record the various extant applications which are the subject of this judgment.
Application in a Case filed by the wife on 27 May 2021
This application sought a range of orders staying the final orders and other relief restraining the sale of, or otherwise relating to, the sale of Unit 2 F Street. It is unnecessary to set out the relief sought in full for present purposes.
The husband, in his Response filed on 27 July 2021, seeks orders that:
1.The relief sought in prayer (sic) 1 of the applicant's application be dismissed for want of jurisdiction in the light of the orders of the Full Court of 13 July 2021 dismissing the applicant's appeal against the orders of McClelland DCJ of 24 December 2019 ('the dismissal orders") and/or as abuse of process;
2.The relief sought in prayers (sic) 2 and 4 of the applicant's application be dismissed for want of jurisdiction in the light of the dismissal orders;
3.The relief sought in prayers (sic) 3, 5 and 6 of the applicant's application be dismissed for want of jurisdiction, the dispositive powers of the Court pursuant to Part VIIIAB of the Family Law act 1975 (Cth) ("the Act") having been finally exercised on 24 December 2019 and affirmed by the dismissal orders, or as the applicant did not raise the issues referred to in such prayers prior to the making of the dismissal orders, notwithstanding that the applicant prosecuted an application for leave to adduce further evidence pursuant to s93A of the Act in May 2021 , which application was dismissed by the dismissal orders, the applicant is estopped from now agitating the prayers for relief;
4.The applicant pay the respondent's costs of and incidental to the application on an indemnity basis.
It should be noted that by this response, the husband raised squarely the issue of want of jurisdiction by reference to the final orders, and abuse of process.
Application in a Case filed by the husband on 27 July 2021
This application sought a range of orders, including an order that the wife be restrained from filing any further applications in this Court without prior leave, an order for the appointment of receivers to sell Unit 1 F Street, an order placing a charge on Unit 1 F Street for unpaid moneys, and costs. The wife filed no response to the application.
Substantive Application filed by the wife on 10 August 2021
In her Initiating Application, the wife seeks the following final and interim orders:
Final Orders
…
(1) Pursuant to s 79A (1) (a), (b) and (c), the order (1), made by Justice McClelland on 24 Dec 2019, to dismiss the proceeding in the Supreme Court of Victoria, SCI 2016/05260 be vitiated.
(2) Pursuant to s 79A (1) (a) and (b) the property orders (2) to (16), made by Justice McClelland on 24 Dec 2019 be set aside.
(3) That the costs orders from 25 May 2020 be stayed.
(4) That the any documents executed by the Registrar in relation to orders (2) to (16) be revoked.
(5) That within 14 days the Respondent prepare a transfer in registrable form by which the Respondent transfers 50% of his rights, title and interest in Lot 2 in the strata plan SP … to the Applicant, and register such a transfer in the NSW Land Registry, to restore Applicant’s interest in Lot 2, or alternatively;
(6) That the Respondent be restrained from selling the property, Lot 2, being the lot at the rear of the property known and situated at F Street, Suburb G.
(7) That, unless within 30 days, the Respondent complies with all requirements of the Strata Schemes Management Act 2015 and Strata Schemes Development Act 2015, and any orders that might be made in relation to the strata scheme SP … by the NSW Civil & Administrative Tribunal, the Respondent should do all necessary things to de-register the Strata Plan No ...
Interim or procedural orders sought
…
(1) That the costs orders from 25 May 2020 be stayed.
(2) That the any documents executed by the Registrar in relation to orders (2) to (16) be revoked.
(3) That within 14 days the Respondent prepare a transfer in registrable form by which the Respondent transfers 50% of his rights, title and interest in Lot 2…in the strata plan SP … to the Applicant, and register such a transfer in the NSW Land Registry, to restore Applicant’s interest in Lot 2…, or alternatively;
(4) That the Respondent be restrained from selling the property, Lot 2 …, being the lot at the rear of the property known and situated at F Street, Suburb G.
The husband filed a response on 25 August 2021 seeking the dismissal of the wife’s Initiating Application and costs on an indemnity basis, both as final and interim orders.
19 August 2021
Although it is not entirely clear, it appears some of the competing applications for interlocutory relief were initially listed in the Judicial Duty List on 16 August 2021. In preparation for this listing, Henderson J ordered in chambers that each of the wife and the husband file a document specifying which orders, among the many sought in their various application, they pressed for interim determination.
In accordance with this direction, the wife filed and served a Case Outline which was marked as “Exhibit A” before me, setting out the following limited orders which the wife sought on an interim basis:
1.That the Respondent be restrained from selling Lot 2 in the Strata Plan SP …, until the Application pursuant to s 79A and/or proceedings commenced in NCAT, whichever happens last, are determined.
2.That the costs order from 25 May 2020 be stayed, until the Application pursuant to s 79A and/or proceedings commenced in NCAT, whichever happens last, are determined.
Or alternatively
3.That the cost assessment of Registrar Chayna from 2 Nov 202 (sic), be stayed until the Application pursuant to s 79A and/or proceedings commenced in NCAT, and application in relation to Contempt of Court, whichever happens last, are determined.
Similarly the husband filed and served a document entitled “Orders Sought by Respondent – interim hearing 16.08.2021” which became “Exhibit 1”. This document specified the following orders were pressed on an interim basis:
3. That the Applicant be restrained from doing any act or thing which may interfere with the marketing for sale and the sale by Mr Riley ("the Respondent") of his unit known as 2 F Street, Suburb G, NSW being the whole of the property in Folio Identifier 2/SP … ("the property"), including but not limited to being restrained from:
a. Posting/displaying any signs on the common property of SP …
b. Posting/displaying any signs on both lots I and 2 in SP … or anywhere else where such signs can be seen from anywhere on the property at F Street, Suburb G.
c. Communicating in any way with any prospective purchaser of the property.
d. Attempting to restrict access to the property to any agent and or invitee of the Respondent including, but not limited to, Ms AB of AD Real Estate and or any of her employees and prospective purchasers.
e. Placing any chains and or locks on any gates or other points of entry to the property and the electrical box.
…
17. Pending the sale of Unit 1 F Street. all moneys sought by the Respondent in Order 12 be charged against Unit 1 F Street, and the Respondent shall be entitled to place a caveat over such property to secure such charge.
…
21. That the Application in a Case filed by the Applicant on 27 May 2021 be dismissed.
22. That the Applicant pay the costs of the Respondent of the Application in a case filed by the Applicant on 27 May 2021 on an indemnity basis.
23. That the Applicant pay the costs of the Respondent of the Application in a case filed by the Respondent on 28 July 2021 on an indemnity basis.
These orders are taken from an earlier minute of orders sought by the husband set forth in a Case Outline he prepared in anticipation of a hearing on 16 August 2021, and which derived from the husband’s Application in a Case filed on 27 July 2021. This earlier minute of orders included orders pursuant to s 102QB of the Act declaring the wife a vexatious litigant.
The matter was first listed for mention before me on 19 August 2021. On that occasion, I made orders for the further filing of materials and the hearing of discrete issues set out in Exhibit A and Orders 3, 17, 21, 22, and 23 of “Exhibit 1”. The husband did not press any order pursuant to s 102QB for a restraint on the wife instituting further proceedings or filing applications without leave or the appointment of receivers on an interim basis.
Application in a Case filed by Mr K on 31 August 2021
Mr K is the wife’s former husband. The parties separated on a final basis in 2002 and are now divorced, with Mr K now residing in Europe.
By way of his Application in a Case, he seeks leave under s 92(1) of the Act to intervene in the proceedings commenced by the wife’s Initiating Application filed on 10 August 2021.
The matter was then listed for further mention on 1 September 2021, where I made orders for the husband’s application for summary dismissal, and Mr K’s application to intervene, to be included for an interim hearing on 13 September 2021.
13 September 2021
The husband filed and served prior to the hearing on 13 September 2021, a further document entitled “Orders Sought by Respondent – Hearing 13.09.2021” which consolidated the orders he sought for summary dismissal and the orders which had been specified in Exhibit 1 as follows:
1.That pursuant to s 45A Family Law Act, 1975 the Initiating Application filed by the Applicant on 10 August 2021 be summarily dismissed in its entirety.
2.That the Applicant be restrained from doing any act or thing which may interfere with the marketing for sale and the sale by Mr Riley ("the Respondent") of his unit known as 2, F Street, Suburb G, NSW being the whole of the property in Folio Identifier 2/SP … ("the property"), including but not limited to being restrained from:
a.Posting/displaying any signs on the common property of SP …
b.Posting/displaying any signs on both lots 1 and 2 in SP … or anywhere else where such signs can be seen from anywhere on the property at F Street, Suburb G.
c.Communicating in any way with any prospective purchaser of the property.
d.Attempting to restrict access to the property to any agent and or invitee of the Respondent including, but not limited to, Ms AB of AD Real Estate and or any of her employees and prospective purchasers.
e.Placing any chains and or locks on any gates or other points of entry to the property and the electrical box.
3.That all moneys which are required to be paid by the Applicant to the Respondent pursuant to costs orders made by the Family Court of Australia and by the Full Court of the Family Court of Australia, whether made before or after this order, be charged against the Applicant's interest in the property at Unit 1 F Street Suburb G being Lot 1 in Strata Plan …, and the Respondent shall be entitled to lodge a caveat over that property to secure such charge until payment in full by the Applicant of those cost's orders.
4.That the Application in a Case filed by the Applicant on 27 May 2021 be dismissed.
5.That the Applicant pay the Respondent's costs of and incidental to these proceedings in such amount as may be fixed by the Court or alternatively, as agreed or assessed on an indemnity basis, within 28 days, such proceedings being:
a.The Application in a Case filed by the Applicant on 27 May 2021.
b.The Application in a Case filed by the Respondent on 28 July 2021.
c.The Initiating Application filed by the Applicant on 10 August 2021and the summary dismissal proceedings.
6.That the application filed by Mr K seeking leave to intervene in these proceedings be dismissed.
7.That Mr K pay the Respondent's costs of and incidental to his leave application in such amount as may be fixed by the Court or alternatively, as agreed or assessed on an indemnity basis, within 28 days.
I decided in chambers that this document should be marked as a further exhibit, so that it became “Exhibit 1A”.
During the interim hearing on 13 September 2020, the wife sought orders pursuant to Exhibit A as set out above. The husband sought orders pursuant to Exhibit 1A which is also set out above. It can be seen that Exhibit 1A raises for determination, inter alia, the question of charging Unit 1 F Street to secure costs orders against the wife, and orders for costs of various applications made by the wife and Mr K. I also heard submissions concerning Mr K’s application to intervene, and reserved judgment in relation to all these issues.
However, I did not hear the husband’s application for summary dismissal. The wife argued that she had not had sufficient time to consider it, and I formed the view that it may be procedurally unfair to the wife for that application to be heard without giving her a further opportunity to consider it and respond with evidence and argument if she wished.
The outstanding application for summary dismissal was listed for further interim hearing on 22 October 2021. This listing had to be administratively vacated by reason of the disruption caused by the Covid-19 pandemic. The proceedings were then listed on 13 December 2021.
On 12 October 2021, the wife informed the Court that Unit 2 F Street had been sold in September 2021 and requested an urgent relisting to seek orders preventing distribution of the proceeds of sale, pending further order. To accommodate the wife, and with some difficulty, the matter was accordingly listed for mention on 14 October 2021.
14 October 2021
On this date, orders were made rescheduling the hearing of further interim issues to 4 November 2021 in order to account for the proposed date of settlement, which was 5 November 2021. The husband gave an undertaking to the Court that he would take no steps to settle the sale of Unit 2 F Street up to and including 12.00 pm on 5 November 2021, pending any further order.
4 November 2021
The further hearing took place on 4 November 2021 and judgment was again reserved. The wife sought no extension of the husband’s undertaking beyond 5 November 2021, nor did she seek injunctive relief beyond that date. In any event, as explained later in these reasons, I am satisfied the wife’s applications should be dismissed, and I would not have acceded to any application for further interlocutory relief concerning the sale of the Suburb G property, even if one had been made.
The settlement of the sale of Unit 2 F Street took place on 9 November 2021. Consequently, orders sought by the wife seeking to restrain the sale have become otiose.
Application in a Proceeding filed by the wife on 3 December 2021
On 3 December 2021, while judgment remained reserved, the wife filed another Application in a Proceeding seeking orders for the termination of strata plan SP ...SP…, for the husband to transfer to the wife a property located at Suburb A in Victoria, for the husband’s solicitors to disclose correspondence, for the husband and his solicitor to be restrained from seeking any orders against the wife pending purge of an alleged contempt, and joinder of the purchasers of Unit 2 F Street to the proceedings.
Mr K also filed another Notice of Intention to Intervene.
I listed the proceedings before me on 21 December 2021 for mention, when the parties agreed I should deal with the wife’s further application as part of this judgment. The point of Mr K’s further notice was unexplained, in light of his existing notice. I ordered it to be struck out.
Summary of Applications
Therefore, the competing applications for orders the subject of this judgment, and disregarding orders about the sale of Unit 2 F Street which have become otiose, are as follows.
By the wife:
(1)A stay of the costs order of McClelland DCJ made on 25 May 2020, or alternatively a stay of the costs assessment of Registrar Chayna of 2 November 2020; and
(2)A dismissal of the orders of McClelland DCJ made on 24 December 2019;
(3)The relief sought by the wife in her application filed on 3 December 2021.
By the husband:
(1)Summary dismissal of the wife’s substantive application and her outstanding interlocutory applications;
(2)An order that the wife’s interest in the property at Unit 1 F Street, Suburb G NSW, be charged with her liability to satisfy costs orders and the husband be entitled to lodge a caveat over the property until the wife complies with the costs orders and assessments that have been made in this Court;
(3)Costs for outstanding proceedings; and
(4)Dismissal of the intervener’s application in a case and costs.
Finally, there is Mr K’s application to be joined to the proceedings.
This judgment will firstly deal with the husband’s application for summary dismissal of the wife’s substantive application. As explained in the reasons which follow, I am persuaded the wife’s application for orders pursuant to s 90SN has no reasonable prospects of success, is an abuse of process and should be dismissed. I note here that, accordingly, there was no occasion to revisit interlocutory relief restraining the husband from dealing with Unit 2 F Street on 4 November 2021, and in any event it has been sold. For reasons set out later, Mr K’s application must be dismissed and the wife’s application filed 3 December 2021 will also be dismissed.
EVIDENCE RELIED UPON
The wife relied upon the following documents:
(a)Affidavit of Applicant Wife filed 8 Sep 2021;
(b)Application in a Case filed 27 May 2021;
(c)Affidavit of Applicant Wife filed 13 Aug 2021;
(d)Affidavit of ZM re Application pursuant to s 79A;
(e)Contempt of Court Combined Application;
(f)Exhibit 1 Orders from Tribunal;
(g)Exhibit 2 NCAT 21-34254 interim application;
(h)Undertaking Exhibit Z-2;
(i)Updated orders sought- 14 Aug 2021;
(j)Orders of Riordan J made 18 August 2017 (S CI 2016 05260);
(k)S CI 16 5260 - Massalski v Riley & Ors – Order from 8 Oct 2020; and
(l)Summary of paragraphs to be read from the material submitted by Ms Massalski.
The husband relied on the following:
(a)Case Outline of Respondent Husband 13 Sep 2021;
(b)Case Outline of Respondent Husband 4 Nov 2021;
(c)Minute of Orders Sought;
(d)Response to Application in a Case filed 27 Jul 2021;
(e)Application in a Case filed 28 Jul 2021;
(f)Response to Initiating Application filed 23 Aug 2021;
(g)Affidavit of Mr ZZ field 27 Jul 2021;
(h)Affidavit of Ms AB filed 11 Aug 2021;
(i)Affidavit of Ms AB filed 9 Sep 2021;
(j)Affidavit of Mr Riley filed 25 Aug 2021;
(k)Respondent Tender Bundle 1;
(l)Respondent Tender Bundle 2;
(m)Financial Statement of Ms Massalski filed 10 Aug 2021;
(n)Response to an Application in a Case filed 10 Sep 2021;
(o)Affidavit of Mr ZZ filed 10 Sep 2021; and
(p)Massalski & Riley [2019] FamCA 1013 – judgment of McClelland DCJ.
The intervener relied on the following:
(a)Application in a Case to Intervene filed on 31 August 2021;
(b)Affidavit of Intervener filed on 31 August 2021; and
(c)Correspondence produced by Intervener.
The following documents were received into evidence on 19 August 2021 and in chambers:
53 Exhibit Label
Document
Tendered by
A Summary of paragraphs to be read from materials submitted by Ms Massalski A/W 1 Respondent Orders Sought/Documents to be Read – Interim Hearing 16.08.2021 R/H 1A The husband’s proposed orders on 13 September 2020 R/H
The following documents were received into evidence at interim hearing on 13 September 2021 and 4 November 2021:
54 Exhibit Label
Document
Tendered by
1 Page 1, paragraph 63, and Appendix F (p. 107–131) in the Affidavit of Ms Massalski filed 22 September 2015, contained in the Respondent Husband’s tender bundle filed 10 September 2021. R/H 2 Page 1, paragraph 48, and Appendix D (p. 190 – 191) in the Affidavit of Ms Massalski filed 29 September 2017 contained in the Respondent Husband’s tender bundle filed 10 September 2021. R/H A Respondent’s Tender Bundle, p. 163, 169, 190 and 198 (Affidavit of Ms Massalski filed 26 Sept 2017), Respondent’s Tender Bundle p. 62, 108, 110, 111, 112 (Affidavit of Ms Massalski filed 22 Sep 2021) R/H B Affidavit of Mr ZZ filed 27 Jul 2020, Exhibit RB-1 (p. 45–49, 83–101, and 103) R/H
SUMMARY DISMISSAL
As indicated above, I will firstly deal with the husband’s application for summary dismissal of the wife’s Initiating Application, first set out in his Response to Final Orders filed on 25 August 2021.
On 1 September 2021 the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the new Act”) commenced. Section 37 of Pt 5, sch 5 of the Federal Circuit andFamily Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) provides that Div 4, Pt 5 of Ch 3 (Case management) of the new Act “applies in relation to a proceeding commenced before, on or after the commencement day,” which was 1 September 2021.
The applications of both parties were brought at a time when the Family Law Rules 2004 (Cth) (“2004 Rules”) were operative. The 2004 Rules have also been repealed (Family Law Repeal Rules 2021 (Cth), sch 1). The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) also commenced on 1 September 2021 (“the new Rules”). These apply to proceedings not finally determined before the repeal of the 2004 Rules (FCFCOA Practice Direction - Transitional Arrangements, Clause 2.1). The 2004 Rules no longer have any application. This was the position by the time of the first hearing on 13 September 2021.
For the purposes of this judgment, I will refer to the new Rules, although some reference to the 2004 Rules may be necessary.
As pointed out by the husband in his Case Outline dated 13 September 2021, s 45A of the Act used to be the jurisdictional basis on which a summary dismissal could be ordered by the Court. Section 46 of the new Act, which is materially identical to s 45A, now provides the power to order summary dismissal:
Summary judgment
…
(2) The Federal Circuit and Family Court of Australia (Division 1) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and;
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 1) has apart from this section.
In addition, a party may apply for summary dismissal pursuant to r 10.09 of the new Rules, which is in the following terms:
10.09 Application for summary orders
(1) A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a) the court has no jurisdiction; or
(b) the other party has no legal capacity to apply for the orders sought; or
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
(2) An application under this rule must be made by filing an application in accordance with the approved form.
Rule 10.11 of the new Rules sets out the powers which the Court may exercise on a summary dismissal application:
10.11 Orders that may be made under this Part
(1) On an application under this Part, the court may:
(a) dismiss any part of the proceeding; or
(b) decide an issue; or
(c) make a final order on any issue; or
(d) order a hearing about an issue or fact; or
(e) with the consent of the parties, order arbitration about the proceeding or a part of the proceeding.
(2) If the court makes orders against a party who is claiming relief against the party who obtains the orders, the court may stay execution on, or other enforcement of, the orders until determination of that claim.
It can be seen that the statutory test to be satisfied for an application for summary dismissal in s 46 is “no reasonable prospect of successfully prosecuting the proceedings”. The wording in r 10.09(1)(d) is slightly different: “there is no reasonable likelihood of success”. However, it does not appear that anything turns on this difference.
The Full Court recently reiterated the relevant principles governing summary dismissal in Ritter & Ritter (2020) FLC 93-957 at [27] (“Ritter”), in particular by following Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 at 255–256 (“Lindon”), per Kirby J:
The approach to be taken by the Court to the Commonwealth's application for summary relief is not in doubt:
1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided;
2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
3. An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;
4. Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;
5. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. A question has arisen as to whether O 26, r 18 applies to part only of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim; and
6. The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
(Citations omitted)
In Spencer v Commonwealth of Australia (2010) 241 CLR 118 (“Spencer”), the High Court, when construing the same wording as s 46 used in s 31A of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”), pointed out that the legislation has introduced the concept of reasonableness in assessing the prospects of a claim. At [22], French CJ and Gummow J said the criterion of a “reasonable prospect” of success has been understood “in analogous statutory settings to mean a “real” rather than “fanciful” prospect”, and the expression “no reasonable prospects of success” applies to a case in which the pleadings disclose “no reasonable cause of action and their deficiency is incurable.” They continued at [25]:
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. …
Hayne, Crennan, Kiefel and Bell JJ further held at [52]:
... effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. ... [I]t is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the enquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.
Finn and Strickland JJ at [59], and May J at [120]–[122], pointed out in Bretton & Bondai [2013] FamCAFC 168 that the Lindon principles remain apposite: see also Karlsson & Karlsson [2020] FamCAFC 207 at [40]. The principles set forth in Lindon have long been applied in this Court in applications for summary dismissal: Bigg & Suzi (1998) FLC 92-799; Pelerman & Pelerman (2000) FLC 93-037 at [46]; Korsky & Bright (No 2) (2007) FLC 93-352; Simmons & Simmons (2008) 40 Fam LR 520 at [51]; Friar & Friar [2011] FamCAFC 71 at [51]; Ebner & Pappas (2014) FLC 93-619 (“Ebner”) at [57]. Olman & Teitzel [2020] FamCAFC 136 at [28]; Karlsson & Karlsson [2020] FamCAFC 207 at [41].
In Ebner at [63], and Arthurman & Arthurman (2019) FLC 93-926 at [17]–[18], the Full Court cited with approval the interpretation of the applicable test in relation to “reasonable prospects” stated by the Victorian Full Court in Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27 at [27], in construing s 63 of the Civil Procedure Act2010 (Vic), at [35] as follows:
a.the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
b.the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in [General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125];
c.it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
d.at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.
In Ritter the Full Court said at [66]:
The determination of the issue must only take into account the material on which the respondent seeks to make out the case, or as often expressed takes the respondent’s case “at its highest” unless the respondent’s version is inherently incredible or unreliable (see Munnings v Australian Government Solicitor (1994) 68 ALJR 169 at 171; Bigg & Suzi (1998) FLC 92-799; Webster v Lampard (1993) 177 CLR 598 at 608). …
Nonetheless, this does not mean every factual assertion by the respondent to the summary dismissal application must be accepted as true without qualification. Some evaluation must be undertaken. Otherwise, any exaggerated, distorted or deliberately misleading or untrue factual assertion by the respondent would have to be taken at face value.
It is not uncommon for the Court to be presented with some contest of fact on summary judgment applications. As the decision in Spencer makes clear, in determining whether a party has a “real” and “not fanciful” case which is devoid of incurable deficiency, or has “reasonable prospects”, persuasive guidance can be derived from other authorities discussing the application of s 31A of the Federal Court Act. These give clear guidance about how a contest of fact should be assessed in the context of a summary judgment application.
In Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd (2006) 236 ALR 720 at [45], Rares J held:
... the Court must be very cautious not to do a party an injustice by summarily dismissing the proceedings where, in accordance with the principles in Hocking v Bell (1947) 75 CLR 125, contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed. As soon as the evidence may have such an ambivalent character prior to a final determination, I am of opinion that then, as a matter of law, at that point there are reasonable prospects of success within the meaning of s 31A. Unless only one conclusion can be said to be reasonable, the moving party will not have discharged its onus to enliven the discretion to authorise a summary termination of the proceedings which s 31A envisages... [citations omitted]
Rares J continued at [47]:
… [s 31A] is engaged only to determine summarily a claim or defence which has no reasonable prospect of success. The purpose of the enactment is to enable the Court to deal with matters which should not be litigated because there is no reasonable prospect of any outcome but one. If there is a reasonable danger that a claim or defence could be dismissed under s 31A, which could succeed at a trial, the provision would create miscarriages of justice. It is a key feature of the judicial power under Ch III of the Constitution that the Court be in a position to, and in fact does, quell a controversy. The exercise of the judicial power to prevent the substantive agitation of a controversy in which each side has a reasonable prospect of success would defeat, not advance, the ends of justice.
In Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955, Gilmour J observed at [6] that:
... in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading [at [6(c)]]; [and]... if there was a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claims succeeds that there is ‘no reasonable prospect of success [at [6(e)]]; and... evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects. [at [6(h)]].
It has been recognised that the question of whether a proceeding has no reasonable prospect of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 at [28].
The husband is the applicant for summary dismissal and bears the onus of establishing the wife has no reasonable prospect of success, or that her substantive application is frivolous, vexatious, or an abuse of process.
As noted in her substantive application, the wife relies upon s 90SN to set aside the final orders. Relevantly, s 90SN(1) is in the following terms:
(1) If, on application by a person affected by an order made by a court under section 90SM in property settlement proceedings, the court is satisfied that:
(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the de facto relationship, the child or, where the applicant has caring responsibility for the child (as defined in subsection (3)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
(e) a proceeds of crime order has been made covering property of the parties to the de facto relationship or either of them, or a proceeds of crime order has been made against a party to the de facto relationship;
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 90SM in substitution for the order so set aside.
Sections 90SN(1)(a), (b) and (c) appear to be the subparagraphs relied upon by the wife. Sections 90SN(1)(d) and (e) have no application.
At [3] of her affidavit filed on 10 August 2021, the wife sets out a summary of alleged non-disclosure and the circumstances since McClelland DCJ’s final orders in 2019 which she claims justify revisiting those orders, pursuant to s 90SN. She was given the opportunity to explicate her case further in written submissions and oral argument.
Paragraph 3 is as follows:
The circumstances that occurred since the making of the orders in 2019, which provide basis for re-opening the proceedings are set out below:
(1) The Respondent did not provide full financial disclosures.
(2) The Respondent defaulted on the orders in relation to the registration of the strata plan on the title of the property at F Street, Suburb G, failing to comply with the Strata Schemes Management Act, Strata Schemes Development Plan.
(3) The property registered as Lot 1 in the strata plan … is affected by water damage and does not fit the definition of the asset for the purposes of the property settlement.
(4) The application was filed in the NCAT (NSW Civil and Administrative Tribunal) in relation to non-compliance with the requirements of the Strata Schemes Management Act, with the following issues submitted for urgent determination:
a. failure to convene the meeting of the Owners’ Corporation;
b. failure to insure the property in the name of Owners’ Corporation;
c. failure to rectify building defects.
(5) The Respondent defaulted on the consent orders in relation to the proceeding transferred from the Supreme Court of Victoria.
The wife then elaborates upon these five grounds in the following paragraphs of the affidavit. She spoke to them at length orally on 13 September and 4 November 2021. I set out each of these allegations in turn, together with the husband’s submissions.
The husband’s failure to provide full financial disclosure
It has been long held in this Court that where non-disclosure is relied upon for the purposes of s 79A(1)(a), the Court must be satisfied there has been non-disclosure in the sense alleged which has given rise to a miscarriage of justice, and then that the discretion, having been enlivened, should be exercised in the applicant’s favour: Riley & Pateman [2000] FamCA 1296; Curtain & Curtain [2019] FamCA 919. These authorities are equally applicable to s 90SN(1)(a).
But it is well settled that not every non-disclosure will enliven the discretion in s 90SN. In Cantrell & North (2020) FLC 93-976, the Full Court set out the applicable law as follows:
82. Further, s 79A(1)(a) of the Act … requires a finding that there has been the relevant fraud, duress, suppression of evidence, giving of false evidence or any other relevant circumstance; and that in circumstances there was a miscarriage of justice which finally justifies varying or setting aside the order (Suiker and Suiker [1993] FamCA 141; (1993) FLC 92-436).
83. The final step may involve a comparison between the orders that were made and those that were likely to be made, absent any relevant default, but that is not the only means by which a Court could be satisfied that it was just to vary or set aside the orders. A denial of procedural fairness of the kind just discussed is, in our view, sufficient to be able to justify such a course without such comparison, because the failure to disclose and notify the creditor is a circumstance leading to a miscarriage of justice which, of itself, justifies the setting aside of the orders.
…
85. It very much depends on the circumstances. In Barker v Barker [2007] FamCA 13; (2007) 36 Fam LR 650 (“Barker”), the Full Court said:
120. A miscarriage of justice under s 79A(1)(a) will occur if circumstances exist which “for some significant reason, make the order contrary to law and justice according to law as it relates to the integrity of the judicial process” (original emphasis) (Bigg v Suzi (above) in [4.5]). See also Suiker; Public Trustee v Gilbert). While cases such as Suiker; In the Marriage of Holland [1982] FamCA 31; (1982) 8 Fam LR 223; (1982) FLC 91-243; and In the Marriage of Gebert (1990) 14 Fam LR 62; (1990) FLC 92-137 indicate that the words “miscarriage of justice” should not be construed narrowly and the phrase “integrity of the judicial process” should not be taken only to refer to the hearing in the court, the circumstances creating the miscarriage must nevertheless have been such as to have had an influence on the outcome of the litigation. As the Full Court said in Holland (above at 239):
To succeed in an application under s 79A, the wife must show some circumstance leading to a miscarriage of justice. Agreement to a consent order which may not adequately reflect a party’s entitlements under s 79 does not, of itself, show that there has been a miscarriage of justice. There may be cases where the order consented to is so far outside the ambit of what is just and equitable that the Court may infer that a party has acted under duress, in ignorance or as a result of incompetent advice.
…
87. As to non-disclosure between parties to a marriage or de facto relationship, the Full Court in Barker continued:
123. As previously discussed, in order for a claim under s 79A(1) to succeed, the court must be satisfied that a miscarriage of justice has resulted. It is not sufficient to merely establish the existence of one or more of the stated grounds, such as suppression of evidence. In Livesey v Jenkins, Brandon LJ had this to say about the nexus between non-disclosure and setting an order aside (at All ER 119; AC 445-6):
I would end with an emphatic word of warning. It is not every failure of frank and full disclosure which would justify a court in setting aside an order of the kind concerned in this appeal. On the contrary, it will only be in cases when the absence of full and frank disclosure has led to the court making, either in contested proceedings or by consent, an order which is substantially different from the order which it would have made if such disclosure had taken place that a case for setting aside can possibly be made good. Parties who apply to set aside orders on the ground of failure to disclose some relatively minor matter or matters, the disclosure of which would not have made any substantial difference to the order which the court would have made or approved, are likely to find their applications being summarily dismissed, with costs against them, or, if they are legally aided, against the legal aid fund.
88. In Lane, Ainslie-Wallace and Ryan JJ quoted this passage with approval. We also agree with it. We consider, however, that this reasoning has a limited role to play where there has been a failure to disclose and notify a creditor. Chan, which was specifically relied on by the wife, is simply an application of this principle stated in Barker.
The wife gave more details of her allegations of non-disclosure at [6]–[11] of her affidavit filed 10 August 2021 as follows:
6. In his Affidavit filed in response to my Initiating application, sealed on 7 July 2015, the Respondent deposed that he borrowed $300,000 on renovation of the property in D Street Suburb E. In para 53, the made the following statement:
“I have purchased the property at Suburb E with Ms O and we have mortgage on that property for $300,000 to cover the proposed costs of renovations to such property.”
7. On his financial statement, the Respondent declared that he withdrew the sum of $130,000 from his Superannuation fund to pay for the renovation of the Suburb E property.
8. During the interim hearing held on 27 July 2018, the Respondent was ordered by the Family Court to provide me with a contract from the builder engaged to renovate/extend the Suburb E property. He failed to provide such a contract.
9. The valuation of the Suburb E property had to be made from outside, because the Respondent refused to let the valuer inside the property. He also refused to disclose the plans of extension of the Suburb E property.
10. In the early January 2021, I discovered a Development Application number D…, filed by the Respondent with the Sydney City Council on 10 Aug 2015.
11. The cost of works in relation to the alterations and additions was estimated at $185,063.
The husband submits that the wife’s assertions cannot be substantiated or upheld, even if her evidence is taken at its highest. In particular, on their face, the wife’s assertion at [6]–[9] all relate to the time well before the final orders, do not obviously raise any non-disclosure, and in any event, are not substantiated in her evidence. I accept this submission.
Furthermore, the order made on 27 July 2018 did not require the husband to provide a building contract. It only required the husband to take reasonable steps to obtain building plans for the Suburb E property.
The alleged “discovery” of Development Application number D…, referred to at [10] of the wife’s affidavit of 10 August 2021, is obviously also wrong. As the husband submits, the wife annexed a copy of that development application and consent to an affidavit she filed on 22 September 2015. She conceded in oral argument that she knew about the development consent for this Development Application in 2015, but had forgotten it (Transcript 13 September 2021, p. 74 line 23). Furthermore, the issues have been considered before. The wife’s evidence does not support her contention that the husband provided “misleading evidence” about the cost of the renovations to D Street, Suburb E. Moreover the same allegations were made by the wife even before the final property hearing before McClelland DCJ.
The wife then asserts that the husband’s discharge of the Commonwealth Bank of Australia loan over the Suburb G property is evidence that the husband “has been putting money aside”, and “proves that the Respondent was not honest with the court.” I infer this is said to be by suppressing evidence of additional sources of money, for example, by deliberately diverting the funds from selling a Suburb J property to the Suburb E property so he could get these funds “out of reach of the Family Court” (see [12], [16], [23], and [28] of the wife’s affidavit filed 10 August 2021). These allegations are difficult to understand. They show the wife draws a range of untenable inferences from events already considered in the final judgment of McClelland DCJ. More to the point, under the final property orders and upheld on appeal, the husband was obliged to discharge the mortgage over Unit 1 F Street of the Suburb G property. In doing so, he simply complied with his obligations under the Court’s orders. The inference drawn by the wife about “putting money aside” finds no basis in her own evidence.
At [17] of her affidavit of her affidavit of 10 August 2021, the wife states:
I had recently discovered a note that was made on the loan application, by the lender, Mr AC in the small print made in the “Comments’ section:
“Loan purpose:
To do some minor renovations on the two properties one under the joint name in D Street, and Ms O’s property U Street in Suburb V + buffer.”
The wife then sets out a table of assets which she says replicates the assets disclosed by the husband in this application for finance. The values attributed to the Suburb G property, she then contends at [20], show that the husband was in the process of executing his plan to transfer “my share of one of the properties to himself”, and at [21] asserts the husband “prepared the grounds for such a transfer by forging my signature on the instrument that was to be registered in the Land Titles Office”. The husband submitted that the allegation in [17] is demonstrably untrue. There was no “recent discovery”. The conclusions at [20]–[21] are unsupported by any evidence in the affidavit itself and appears to be no more than fanciful allegations against the husband. The husband further submits that the documents upon which the wife relies for these allegations were available to her prior to the final hearing, and she had the opportunity, if she had wanted to do so, to test her theories by cross-examining the husband. I accept these submissions.
In Massalski (No 2), the Full Court specifically addressed these factual contentions of the wife and said:
14. … The information contained in what the wife says are the recently discovered loan applications and development application made in relation to the husband’s renovation of the Suburb E property is irrelevant and does not establish a basis for varying or setting aside the property settlement orders. As to this being recently discovered, the renovations were discussed in the trial reasons and, assuming for the moment the wife did not have the documents sooner, they were obtainable with little effort. If they were somehow relevant it was incumbent on the wife to present them at trial and it is too late to raise the issue now.”
15. The fact that the husband has discharged the Commonwealth Bank Loan is similarly irrelevant. After all, his doing so is consistent with the orders by the primary judge designed to give the wife clear title to Unit 1 of the F Street property and for the husband to be responsible for the mortgage due to the Commonwealth Bank
I have reached the same conclusions based on the evidence provided by the wife. The evidence relied upon by her to establish a failure to disclose which could lead to a miscarriage of justice fails to do so, is inherently unreliable, and does not establish any reasonable prospect of convincing this Court that the discretion in s 90SN(1)(a) would be enlivened, nor any reason to exercise it in her favour, even if it was enlivened.
The husband having “defaulted on the orders in relation to the registration of the strata plan…(by) failing to comply with the Strata Management Act, Strata Schemes Development Plan”
Order 5(b) of the orders of McClelland DCJ made on 24 December 2019 is as follows:
(5) Within 28 days of registration of the strata plan for the F Street property, the parties are to do all acts and things and sign all documents required to effect the following:
…
(b) To hold a meeting of the Strata Committee of the Strata Plan (by proxy if preferred) to pass the necessary resolutions as required by the Strata Schemes Management Act 2015 (NSW).
When asked to explain her case under s 90SN(1)(b) in oral submissions on 4 November 2021, the wife argued that the husband defaulted in respect Order 5(b) because he “avoided organising the strata scheme owner’s meeting”, thus forcing her to make an application to NCAT. Somewhat confusingly, the wife claimed she was forced to commence proceedings in order to avoid further proceedings “to protect myself and any potential buyers from further litigation” (Transcript 4 November 2021, p. 12 lines 9–10). When asked to identify the circumstances said to have arisen as a result of the default, the wife pointed to events which took place well before the order in respect of which default was alleged, as she then conceded (Transcript 4 November 2021, p. 12 lines 29–33). She then pointed to the litigation she had commenced in NCAT as the relevant circumstances said to have arisen as a result of the default. As I understood her argument, she contends there should have been an owner’s corporation meeting pursuant to the Strata Scheme Management Act 2015 (NSW), which is the relevant state legislation. She argued the husband failed to organise the necessary meeting and he did so deliberately so that he could sell Unit 2 F Street to unsuspecting purchasers without an Owners Corporation dealing with a range of problems with the property.
The husband submits that there is no evidence that he has defaulted on the orders in relation to the registration of the strata plan. The parties are the only two members of the body corporate, given that the strata plan comprises the two lots only, and the said lots are owned by the parties. In any event, Order 5(b) imposes obligations on both parties, not just the husband. The wife seemed greatly exercised by the fact that Unit 1 F Street remains registered in the name of both her and the husband. But as the husband pointed out, and it was undisputed, he has submitted an executed transfer to the wife, but she has not responded. Issues concerning the strata plan, including the appointment of a Compulsory Strata manager and the calling of an Owner’s Corporation meeting, are now the subject of competing applications by the parties to NCAT. The wife has not demonstrated any default. I accept these submissions.
The wife developed her argument further by contending that compliance with the final orders was impractical because there were numerous building defects which meant the strata plan should never have been registered and also prevented her putting her lot on the market. This argument again relies on the assertion that the husband is in default of the final orders, which has not been shown, even on an arguable basis, to resist summary dismissal. But also, even if these contentions are assumed to be true, they do not constitute fresh circumstances which prevent Order 5(b) being carried out or impracticable for a part of the order to be carried out. As noted already, issues of building defects have not arisen as a result of any default in compliance by the husband, and problems between strata lot owners are dealt with by NCAT and do not make the orders of this Court impracticable.
I do not accept any of these arguments or factual contentions are sustained even taking the wife’s evidence at its highest. They are plainly inconsistent with findings and conclusions in the decision of McClelland DCJ and the final orders. But as pointed out to the wife in oral argument, none of these circumstances, even if true, arose as a result of any default of the husband within s 90SN(1)(b) in carrying out the final orders. Rather this argument exposes what appeared to be the wife’s main complaint, namely, that she does not accept the final orders of this Court, and seeks to impugn them, despite failing on appeal to have them disturbed.
“The property registered as Lot 1 in the strata plan … is affected by water damage and does not fit the definition of the asset for the purposes of the property settlement”
The wife was unable to explain how this strange complaint in relation to water damage to Unit 1 F Street could support her application pursuant to s 90SN. It is not a new complaint. There is clear evidence it was raised no later than 2016, well prior to the final hearing before McClelland DCJ, as the following evidence demonstrates:
(a)In an email to Mr ZZ dated 5 April 2016 (Affidavit of Mr ZZ filed 27 July 2021 at [34] and Exhibit B, p. 103);
(b)In the wife’s affidavit filed 1 June 2016 (Affidavit of Mr Riley filed 20 August 2021 at [39]);
(c)On 3 June 2016 at a hearing in the Family Court of Australia (Affidavit of Mr ZZ 27 July 2021 at [39]);
(d)In the wife’s Affidavit filed 29 September 2017 (Affidavit of Mr ZZ 27 July 2021 at [41]); and
(e)In an Amended Statement of Claim sought to be filed by the Applicant in the Supreme Court of New South Wales on 31 July 2020 (Affidavit of Mr ZZ 27 July 2021 at [45]–[46]).
Water damage to Unit 1 F Street cannot sustain any argument about miscarriage of justice, new circumstances or default in carrying out a Court order. The asserted water damage does not support any ground to set aside or vary the final property orders.
The wife, as a variation on this argument, submitted that Unit 1 F Street, having been affected by water damage, “does not fit the definition of the asset for the purposes of the property settlement”. This is incorrect as a matter of law. The Full Court in Best & Best (1993) FLC 92-418 has stated at 948 that “property” has always been treated generally in the law as a word of the widest connotation. It is the most comprehensive of all terms which can be used, inasmuch as it is indicative and descriptive of every possible interest which the party can have (Duff & Duff (1977) FLC 90-217 (“Duff”)). More specifically, this argument by the wife was explicitly rejected by the Full Court in Massalski (No 2) at [17] saying: “the wife’s assertion that her interest in her F Street unit is not property is wrong. Reference need only be made to cases such as Duff and Mullane v Mullane (1983) 158 CLR 436”. I agree the argument is without merit.
The filing by the wife of an application in NCAT “in relation to non-compliance with the requirements of the Strata Schemes Management Act”
As I understood it, the wife argues that issues before NCAT demonstrate that the final orders can no longer be carried out. The husband submits that the mere filing of an application by the wife in NCAT is irrelevant to proceedings under s 90SN. I agree. The fact that the wife has made an application to NCAT could not of itself demonstrate the final property orders cannot be carried out. It may demonstrate the wife has tried to manufacture a situation which undermines the smooth management of the strata scheme, but it is unnecessary to make such a finding.
Again, the wife had made such arguments before the Full Court, who noted in in Massalski (No 2) at [18] that
The effect of these matters is that none of the other matters which the wife submits are relevant to whether an order for costs should be made in favour of the husband withstand even gentle scrutiny and they are plainly irrelevant.
The husband defaulting on the consent orders in relation to the proceedings transferred from the Supreme Court of Victoria.
This contention is again hard to understand. The husband submits that the wife produces no evidence in support of this assertion. I accept this submission. Moreover, the wife was unable to explain how the alleged default in respect of consent orders supported her application pursuant to s 90SN. This theoretically could lead to some enforcement action, of which there is none, but it is again irrelevant to an application to set aside or vary the final property orders.
Additional orders sought by the Wife
For completeness, I will state my conclusions regarding the balance of the orders sought by the wife in her substantive application, being Orders 4, 5, 6 and 7, which are set out above at [22].
Proposed Order 4 seeks an order revoking “any documents executed by the Registrar in relation to orders (2) to (16).” This order is sought consequential upon the wife’s substantive relief seeking to set aside the final orders. Any power within jurisdiction, if one exists, to make such an order must rely upon the wife succeeding in her substantive application. I am persuaded that her application should be dismissed. Moreover, assuming there is power to make such an order, the husband submits, and I accept, that the wife has not adduced, and it is hard to see how she could, any evidence to establish any impropriety, or non-conformity with the final property orders, in the execution of those documents by the Registrar.
Proposed Orders 5 and 7, like Order 4, could only be made as consequential orders, and should be dismissed for the same reasons. Both are also inconsistent with the final orders of McClelland DCJ. I accept the husband’s submission that any prospect of these orders being made requires the final orders to be set aside, and I have concluded that the wife has no reasonable prospect of succeeding on such an application.
Finally, Order 6 sought to injunct the husband from selling Unit 2 F Street. As pointed out, this order is now otiose, because Unit 2 F Street has been sold. However, before passing on, I will express my view on submissions made by the husband as to why such and order would not be made in any event. The husband submitted that as the owner of Unit 2 F Street, he is entitled to deal with it as his own property, in accordance with the final property orders. Furthermore, he submits that it is in the nature of an interim order and is also sought by the wife as interim relief in these proceedings. It has no place as a “final order” sought in the Initiating Application and no reasonable prospect of success in being made as a final order. I accept these submissions and make clear I could see no reasonable prospect of the Court making such an order, even if Unit 2 F Street had not been sold.
Just and equitable considerations
I record here that the wife was specifically asked to explain how it would be just and equitable for the purpose of s 90SN(1)(c) to set aside or vary the final orders. She referred to Martin & Suburb E (2011) FLC 93-490 at [201]. The purpose of this reference was not self-evident. The Full Court at [201] simply refers to the requirement to specifically consider the just and equitable requirement stipulated in s 79(2) in property adjustment proceedings under Pt VIII of the Act. I note here that Mr K asserts he lent money to the wife and the husband in 2009. As I understood the argument, the wife connected this assertion by Mr K to the final orders, arguing that the Suburb G property was not “property of the parties” to the de facto relationship because they held that property on trust for Mr K.
The wife also then contended that the fact Mr K sought to intervene and be joined as a creditor was a reason to resist summary dismissal, on the basis that he has an undetermined claim, including a claim on the Suburb G property. I reject this argument. Even if Mr K had some arguable claim as creditor or in respect of the Suburb G property as beneficiary of some trust, the time for making that claim in this Court has long passed. At the risk of labouring the point, McClelland DCJ has conducted a final hearing and delivered final judgment giving a clear adjustment of property. That judgment was not disturbed on appeal. The wife has failed to convince me that she has a reasonable prospect of establishing any claim to set aside or vary those final orders pursuant to s 90SN. Her proceedings will be dismissed. There will be no proceedings to which Mr K could be usefully joined. His application to intervene is futile.
Finality and the overarching purpose
It is also necessary to take account of the provisions of the new Act, in particular ss 43, 67 and 68.
Section 43 is in the following terms:
In every matter before the Federal Circuit and Family Court of Australia (Division 1), the Court must grant, either:
(a) absolutely; or
(b) on such terms and conditions as the Court thinks just;
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by a party in the matter, so that, as far as possible:
(c) all matters in controversy between the parties may be completely and finally determined; and
(d) all multiplicity of proceedings concerning any of those matters may be avoided.
As noted, s 43 applies to all proceedings in this Court since 1 September 2021. Its application is obligatory. The obligation is imposed upon the Court, not the parties. The Court “must” grant such remedies as far as possible to determine matters finally and to avoid a multiplicity of proceedings. Section 43 replicates in material respect s 22 of the Federal Court Act, which itself stands in a long tradition of similar provisions deriving from s 24(7) of the Supreme Court of Judicature Act 1873 (UK), the point of which, in part, is to avoid needless litigation: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at [9] per Gibbs J (as he then was).
Section 67 reiterates and elaborates on the overarching purpose of the family law practice and procedure provisions, which are defined in s 67(4). It also continues to impose a duty to promote the overarching purpose in applying the rules. Section 68 obliges parties to act consistently with this overarching purpose.
Section 67, which applies to all proceedings in this Court from 1 September 2021, is in the following terms:
Overarching purpose of family law practice and procedure provisions
(1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Note 1: See also paragraphs 5(a) and (b).
Note 2: The Federal Circuit and Family Court of Australia (Division 1) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The family law practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act, or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 1).
There is also the overarching purpose of the new Rules to consider. This is now set out in r 1.04, which is to facilitate the just resolution on the proceedings “according to law and as quickly, inexpensively and efficiently as possible.” This overarching purpose is replicated from the 2004 Rules. Those Rules also provided for the parties to take necessary steps to help achieve, and imposed a duty on the Court to promote the overarching purpose, which duties, as pointed out, are now found in s 67 of the new Act. It is unsurprising that the wife, being self-represented, did not make submissions regarding this question. Rule 10.09, upon which the husband relies, is a family law practice and procedure provision. It must be applied to promote the overarching purpose.
Sections 43, 45, 67, and 68 should be read together. As a matter of construction, it seems to me that the Court must, in the context of all proceedings before it, including an application for summary dismissal, grant all remedies to avoid a multiplicity of proceedings, as part of achieving the overarching purpose. For example, the efficient use of the judicial and administrative resources available for the purposes of the Court, the efficient disposal of the Court’s overall caseload and the disposal of proceedings in a timely manner, and the resolution of parties’ disputes at a cost that is proportionate to the importance and complexity of the matters in dispute, are all objectives which are assisted by avoiding a multiplicity of proceedings.
For these reasons, as a matter construction, the obligation of the Court to promote the overarching purpose, coupled with the statutory duty of the parties (s 68 of the new Act) to act consistently with the overarching purpose, bear upon the question of whether the prospects of a litigant’s success are “reasonable” for the purposes of s 45 or r 10.09(1)(d).
It is possible to enumerate many principles which underlie modern case management provisions and the constraints they impose on litigants and the Courts in the conduct of proceedings. Among these concepts, finality and fairness are central, allowing fairness to flow to all parties. These concepts can operate to thwart even a claim with merit. Recently, in Amery & Kedrina (2021) 63 Fam LR 1 the Full Court, when explicating the principles of res judicata and estoppel pointed out at [97]:
Thus considerations of finality and fairness may operate to preclude a party from continuing an ostensibly meritorious claim where, as we have said, an issue sought to be raised is so relevant to the subject matter of the first proceedings that it would have been unreasonable not to rely on it in the first proceedings.
I have already concluded that the wife’s prospects of success are not reasonable because of factual and legal deficits on established principles. In other words, her claim is not meritorious.
But I also, and separately, hold that the wife’s prospects of success are also not reasonable, in that her application pursuant to s 90SN, with its attendant numerous interlocutory applications, and in light of the final determination of McClelland DCJ and her unsuccessful appeal, taken together, are clearly inconsistent with the statutory elements of the overarching purpose set forth in ss 67(1)(a), (b) and (2)(a)–(e). She therefore fails in her duty to promote the overarching purpose. Her many applications constitute a multiplicity of proceedings which the Court must strive to avoid.
Conclusion as to prospects of success
I am satisfied, for the reasons given, that even taking it at its highest, the wife’s substantive application to set aside the final property orders of McClelland DCJ pursuant to s 90SN has no reasonable prospect of success. The wife’s application should be dismissed.
The conclusions at [82]–[120] are sufficient to dispose of the wife’s substantive proceedings. But I consider it desirable to also address the husband’s argument concerning abuse of process.
ABUSE OF PROCESS
Abuse of process is one of the grounds for summary dismissal in r 10.09(1)(c) of the new Rules. The husband submits that a reading of the wife’s evidence indicates clearly that she simply seeks to relitigate the substance of the property proceedings which have been tried and determined both at first instance and upon appeal. Combined with the lack of merit in any of the grounds relied upon by the wife, this leads to an inevitable conclusion that the wife’s application under s 90SN has been filed with an ulterior motive and amounts to an abuse of process.
Abuse of process is a broad and flexible legal concept. A determination that an abuse of process has occurred is not strictly a discretionary decision. Rather, it is an evaluative decision of a subjective nature, regarding an issue upon which minds may differ: Ghosh v NineMSN Pty Ltd (2015) NSWLR 595 at [37] following Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at [7].
But since Reichel v Magrath (1889) 14 App Cas 665 at 668, it has been settled law that proceedings or applications which constitute a “scandal to the administration of justice” can constitute an abuse of process.
Abuse of process is a wide and flexible concept. In Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507, French CJ, Bell, Gageler and Keane JJ explained in their joint judgment:
24. … The doctrine of abuse of process is informed in part by … considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.
25. Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
(citations omitted)
Subsequently, Kiefel CJ, Bell and Keane JJ said in UBS AG v Tyne (2018) 265 CLR 77:
1. ... The varied circumstances in which the use of the court’s processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court’s procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute.
...
45. The courts must be astute to protect litigants and the system of justice itself against abuse of process. It is to hark back to a time before this Court’s decisions in Aon [Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27] and Tomlinson [Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507; [2015] HCA 28] and the enactment of s 37M of the FCA [Federal Court of Australia Act 1976 (Cth)] to expect that the courts will indulge parties who engage in tactical manoeuvring that impedes the ‘just, quick and efficient’ resolution of litigation. ...
(citations omitted)
This has been recognised by the Full Court, who at [14] of Massalski (No 2) noted that,
Clearly the wife had read our reasons but for whatever reason she is unwilling to accept that the proceedings between her and the husband are a de facto financial cause, that her arguments have failed and principles of finality. It is difficult to come to any view other than the wife’s recently filed s 79A application (or its allied provision Pt VIIIAB) has no reasonable prospects of success and that it is no more than a strategy which is designed to delay enforcement of the orders mounting up against her as long as possible.
I refer to what is said above at [110]–[120]. Here again the duty to promote, and act consistently with, the overarching purpose in the new Act, which came into effect after the decision in Massalski (No 2), by the appropriate application of case management provisions lays even greater weight on the principle of finality in the context of abuse of process. In Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549 at 567 Mahony JA commented “The right to be heard does not involve the right to be heard twice”.
I refer to my reasons above at [82]–[109], which led to the conclusion the wife has no reasonable prospect of success on her substantive application under s 90SN. For the same reasons, I conclude, like the Full Court, that the wife in truth refuses to accept the outcome of the proceedings before McClelland DCJ and the Full Court. While relying on the discussion above in full, I point in particular to the multiple applications the wife has brought since the final decision of McClelland DCJ. These betray this obdurate refusal, as does her continued and substantial reliance on circumstances which are clearly long past, including the purported claim of Mr K. This is sufficient to warrant a conclusion that the wife wants to relitigate issues already finally determined, and the principles of finality and fairness operate to preclude her doing so, even if her claims had any merit, which I have found they do not.
But in addition and separately, for the same reasons, I draw the same inference as the Full Court, namely, that the wife’s multiple applications constitute “no more than a strategy which is designed to delay enforcement of the orders mounting up against her as long as possible”. This clearly brings the administration of justice into disrepute and requires dismissal of the wife’s applications as an abuse of process.
The above reasons dispose of the wife’s applications. However, it is necessary to give some separate reasons relating to her applications for a stay of the costs orders and the application of Mr K.
OTHER APPLICATIONS
Having considered the question of summary dismissal and abuse of process, there remain four outstanding applications to be determined. They are as follows:
(1)The wife’s further application for a stay;
(2)Mr K’s application to intervene;
(3)The wife’s further application filed on 3 December 2021; and
(4)The husband’s application to charge Unit 1 F Street as security for the wife’s unpaid obligations to pay money and her application for costs orders.
Stay Application
To recap, this Court has made various costs orders against the wife, which can be summarised as follows:
(a)Order of McClelland DCJ on 25 May 2020 for the costs of the property proceedings, as well as ancillary proceedings in the Supreme Court of Victoria; and
(b)Order of Registrar Chayna on 2 November 2020 assessing the above costs in relation to the Family Court property proceedings only at $209,945.25 to be payable by 29 January 2021.
The Full Court has also ordered the wife to pay the husband’s costs of her appeal fixed in the amount of $30,000.
There was no dispute that the wife has not paid any part of the costs ordered against her.
Following Registrar Chayna’s costs assessment in November 2020, the wife filed two applications in a case. The first was filed on 1 December 2020, seeking
l. That the Cost Assessment of Registrar Chayna from 2 Nov 2020, to award the costs of $209,945.25 to the respondent, Mr Riley be set aside pursuant to Rule 19.38.
2. This application is to be determined by the Registrar
This application was heard and dismissed by the registrar on 22 November 2020. The wife did not file an application for review.
On 18 January 2021, the wife filed a second Application in a Case seeking:
l. Order to stay the Costs Order of the Family Court from 25/05/20.
or alternatively and order,
That the the (sic) Costs Order of the Family Court from 25/05/20 and/or the Order of Registrar Chayna from 2 Nov 2020, to award the costs of $209,945.25 to the Respondent, be stayed until all proceedings between the parties in the Family Court, Supreme Court of NSW and in the Supreme Court of Victoria are determined and attention is given to the consequential relief, as well as cost.
As noted above at [8], McClelland DCJ dismissed this application for a stay, on the husband’s undertaking not to enforce the costs orders until final determination of the wife’s appeal.
By her Application in a Case of 27 May 2021, the wife in summary seeks an order regarding costs as follows:
A stay of the costs orders of McClelland DCJ and/or costs assessment of Registrar Chayna pending determination of the NCAT and s 79A proceedings;
In light of my conclusions summarily dismissing the wife’s substantive proceedings for having no reasonable prospects of success and as an abuse of process, there can be no basis to set aside the costs assessment of Registrar Chayna. Even if the wife’s substantive application survived summary dismissal, she has put forward no basis for an order setting aside this costs assessment. The application for this order will be dismissed.
The further application for a stay will also be dismissed. In my view, it is misconceived. As the jurisdictional basis for her stay applications, the wife appears to rely upon the principles applicable to the grant of a stay pending appeal, as explained in Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106 at [17]–[18] (“Aldridge”). There is also authority that a stay may be granted in special circumstances in anticipation of a notice of appeal being filed in special circumstances: Sheldon & Weir (No 4) [2010] FamCA 1214; Lenard & Rogers [2012] FamCA 600; pending delivery of judgment: Cassidy & Sibley [2015] FamCA 335; in respect of unperfected orders pending a determination of s 79A application: Hewitson & Tierney [2019] FamCA 720; and of costs orders pending determination of spousal maintenance proceedings: Tzirinis & Tzirinis (No 2) [2008] FamCA 697.
But here there is no extant appeal. The wife’s appeal has been determined and dismissed with costs, as already explained. Her NCAT proceedings and s 90SN proceedings are not appeals. They are separate and fresh applications made in a different tribunal, in the case of NCAT, or pursuant to an entirely different statutory provision to s 90SM, in the case of her s 90SN application. The proceedings in NCAT have absolutely no bearing on the wife’s existing obligation for costs, which relate to proceedings finalised long before the NCAT proceedings were commenced. More to the point, as already explained at length, her substantive s 90SN application has no reasonable prospect of success and is an abuse of process, requiring its dismissal.
The wife argues that she did not have the opportunity to put certain assertions before the Court in relation to the costs orders and assessment. However, the ultimate fact of the matter is that the material the wife relies upon has always been known by her, and was known by her at the time she originally sought a stay of the two costs orders in December 2020. This was also recognised by the Full Court. There is no change in circumstance, despite what the wife asserts.
In relation to her application for a stay, the wife relied on evidence at [15]–[40] of her affidavit of 8 September 2021. I allowed this over objection, because although it alleges a contempt of court by the husband’s solicitor, it had had some apparent relevance. Putting aside her unsubstantiated allegations against the husband’s solicitor, about which I make no finding, the material referred to at these paragraphs all dates back to 2016 and 2017, and again, is material that she knew of at the time she originally sought a stay of the costs orders of McClelland DCJ and Registrar Chayna. Therefore, it is not material that bears upon the question of any change in circumstance, and is irrelevant to whether I should make a fresh stay order.
One of the principles in Aldridge is that a person who has obtained a judgment is entitled to the benefit of that judgment, in addition to being entitled to presume that judgment is correct. The issue of costs has been litigated twice, and the wife has failed on each of these occasions.
The matters discussed at [142]–[147] are reason enough to conclude the wife’s application for a stay must fail. But in truth, the wife’s outstanding application for a stay is also an abuse of process. The same application was heard and dismissed by McClelland DCJ on 5 March 2021. The wife’s refusal to accept her stay applications have failed offends the principle of finality, which applies to interlocutory applications as well as final determinations: Paris King Investments Pty Ltd v Michael Normal Rayhill [2006] NSWSC 578 at [14]; Joubert and Anor & Verhoeven [2020] FamCA 53 at [30]–[31]. Generally, an applicant for interlocutory relief is required to advance all of the grounds on which he or she relies in support of the relief sought unless there has been discovery of facts of which the applicant was not aware, and which the applicant could not have ascertained with reasonable diligence at the time of the first application: Re Golding (2020) 384 ALR 204 at [11]. There are no such facts raised here by the wife.
The wife’s application for a stay in respect of costs orders and assessment will be dismissed.
Application for Leave to Intervene
Mr K seeks leave to intervene under s 92 of the Act, where subsection (1) provides as follows:
(1) In proceedings (other than divorce or validity of marriage proceedings), any person may apply for leave to intervene in the proceedings, and the court may make an order entitling that person to intervene in the proceedings.
As the Court noted in In the Marriage of Rogers and Fernandez (1988) 12 Fam LR 467 at 469, “intervention under s 92 is designed to allow third parties who are affected personally by the proceedings to intervene to protect their own interests, rather than the public interest.”
Mr K argued that:
I have the right to seek intervention pursuant to S 92, on the basis that I am a creditor who provided funds for construction of the property at F Street, Suburb G, which was distributed by the orders Family Court between Mr Riley and Ms Massalski, pursuant to S79.
It is unnecessary to form a view on whether these contentions have any force for two reasons. First, the wife’s substantive application will be summarily dismissed, so, as pointed out already, an order allowing Mr K to intervene would be futile. He seemed to labour under the misapprehension that he had a right to intervene by reason of s 90SM(10). But as already pointed out, the only substantive application before the Court was the wife’s application pursuant to s 90SN, which gives a creditor no such right to intervene. Secondly, I accept the husband’s submission that the current proceedings before the Court concern already concluded proceedings between the husband and wife. Mr K was not a party to those proceedings, nor had he ever attempted to seek leave to intervene in those proceedings. It is too late for him to seek to intervene now in proceedings with no reasonable prospects of success. Mr K’s application will be dismissed.
Wife’s Application filed 3 December 2021
This application seeks relief that could only be ancillary to the wife’s substantive application, which will be dismissed. Accordingly, none of the relief sought in this application should be ordered. Moreover, there is no obvious jurisdictional basis for the order seeking transfer to the wife of a property located in Suburb A, Victoria. This application will be dismissed.
Husband’s Application for a charge on Unit 1 F Street.
The husband argued that the Court has enforcement powers in relation to obligations for the payment of money. They are now found in r 11.07 of the new Rules. Rule 11.07(e) empowers the Court to make an order “in aid of the enforcement of an obligation”. This is a broad discretionary power. The husband also points out that his application for the appointment of receivers remains on foot, and that a charge supporting a caveat over Unit 1 F Street would prevent the dissipation of Unit 1 F Street as an asset. Rule 11.07(f) specifically empowers the Court to make an order “to prevent the dissipation or wasting of property”. He argues that the conduct of the wife in failing to make any payment of the outstanding costs order, while filing numerous applications which constitute an abuse of process, demonstrates that the wife is unlikely to make payment and will use strategies, as the Full Court found, to avoid payment. I accept this is correct. In the circumstances, the Court has the power to make the order sought and such an order is appropriate.
OUTSTANDING MATTERS
There remains for determination the balance of orders sought by the husband pursuant to s 102QB of the Act, for restraints upon the wife filing any further proceedings or applications without leave, and for the appointment of receivers. The application for these orders has not been the subject of any argument. In light of the summary dismissal of the wife’s substantive application, the sale of Unit 2 F Street, and the order granting a charge over Unit 1 F Street, it may be the husband will not press for any further relief. On one view, the balance of the relief sought by the husband is now unnecessary and these proceedings should be brought to end. However, the husband has not yet had an opportunity to agitate his claims for further relief. I will make orders granting him leave to apply to relist the proceedings for mention on 14 days’ notice.
Finally, in light of the multitude of interlocutory applications filed in this matter since the decision of McClelland DCJ and the wife’s unsuccessful appeal, the Court will order, on its own motion, that no further applications are to be filed by any party, without prior leave of the Court.
COSTS
The husband sought costs of the wife’s various unsuccessful applications. It would be desirable to make costs orders as part of this judgment. However, the wife has not had an opportunity to make submissions about costs. I will make procedural orders for material relating to costs to be submitted by the parties.
Mr K has also been wholly unsuccessful. I propose to order he pay the husband’s costs of his application to intervene. I fix the amount of these costs at $2,000.
CONCLUSION
For the reasons given, I am satisfied the orders set out at the commencement of these reasons should be made.
I certify that the preceding one hundred and sixty (160) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 4 February 2022
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