Ming & Leong
[2025] FedCFamC1A 3
•20 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Ming & Leong [2025] FedCFamC1A 3
Appeal from: Ming & Leong [2024] FedCFamC2F 731 Appeal number: NAA 175 of 2024 File number: CSC 888 of 2023 Judgment of: MCCLELLAND DCJ Date of judgment: 20 January 2025 Catchwords: FAMILY LAW – APPEAL – Appeal from decision of primary judge dismissing appellant’s application under s 79A of the Family Law Act 1975 (Cth) – Most grounds of appeal are incompetent and misconceived – Whether the primary judge erred in finding that certain non-disclosures by the respondent did not amount to a miscarriage of justice – Where it was determined that even if there had been a miscarriage of justice, the primary judge was not prepared to exercise his discretion – Where the parties have repeatedly failed to make full and frank disclosure – No error established – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) ss 75(2), 79A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621; [1953] HCA 25
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Hicks & Trustee of the Bankrupt Estate of Hicks (2021) FLC 94-006; [2021] FamCAFC 19
Lacey v Attorney-General (QLD) (2011) 242 CLR 573; [2011] HCA 10
Leong & Ming [2018] FamCAFC 7
Livesey v Jenkins [1984] UKHL 3; [1985] 1 AC 424
Ming & Leong [2017] FCCA 65
Ming & Leong [2019] FCCA 1876
Ming & Leong [2020] FamCAFC 10
Ming & Leong [2024] FedCFamC2F 731
Patching and Patching (1995) FLC 92-585; [1995] FamCA 46
Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103
Tame v NSW (2002) 211 CLR 317; [2002] HCA 35
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Watapaldeniya v Transport Accident Commission [2022] VSCA 50
Number of paragraphs: 63 Date of hearing: 20 November 2024 Place: Brisbane (via video link) The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 175 of 2024
CSC 888 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MING
Appellant
AND: MR LEONG
Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
20 JANUARY 2025
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Ming & Leong has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
By Amended Notice of Appeal filed 2 October 2024, Ms Ming (“the appellant”) seeks to appeal an order made on 11 June 2024 by a judge of the Federal Circuit and Family Court of Australia (Division 2). That order dismissed her Initiating Application filed 13 November 2023, which sought an order, pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”), to set aside the orders of Judge Coates on the basis of a failure by Mr Leong (“the respondent”) to make full and frank disclosure.
For reasons that follow, I am satisfied that the appeal should be dismissed.
BACKGROUND
These proceedings have a protracted history, characterised by numerous applications both at first instance and on appeal.
The appellant was born in October 1970 and is currently 54 years of age. The respondent was born in June 1963 and is currently 61 years of age. Both parties were born in Country K and speak limited English.
The parties married in 1996 and separated on a final basis in September 2012. There is one child of the relationship, who is now an adult.
The appellant commenced proceedings in the Federal Circuit Court (as it then was) on 15 June 2015.
Both parties have remained unrepresented since the commencement of these proceedings. This has continued despite several occasions where the presiding judicial officer has expressed concerns regarding the inability or unwillingness of these parties to adequately engage in the judicial process.
The appellant’s Initiating Application advanced to a trial before Judge Coker, with judgment delivered on 19 January 2017. His Honour observed, during the trial, that “the parties had acted less than appropriately when any disclosure was required” and “there was little reliance that could be placed upon the evidence of either of the parties” (Ming & Leong [2017] FCCA 65 at [32]).
The respondent appealed the property settlement orders made by Judge Coker. That appeal, heard by Kent J, as a single judge, succeeded on the basis that Judge Coker had failed to take into account the existence of substantial liabilities contained in a schedule (Leong & Ming [2018] FamCAFC 7 at [61]–[62]).
The proceedings were remitted to Judge Coates for rehearing. During the second trial, Judge Coates, like the judge who heard the first trial, observed similar difficulties in respect to the parties being unable or unwilling to properly engage in the proceedings and their failure to be forthright in the evidence they gave (Ming & Leong [2019] FCCA 1876 at [102]). In particular, his Honour explained that, despite orders being made for disclosure, limited disclosure had occurred; no updated bank statements were provided; and the parties had refused to provide valuations. As such, his Honour concluded that there had been little advance in the state of the evidence since the hearing before Judge Coker.
The hearing before Judge Coates occurred on 27 February 2019, with the judgment delivered on 11 July 2019. The primary focus of the parties during the hearing was on three properties described as Suburb R, Suburb C, and Suburb E. Judge Coates determined that assessment of contributions favoured the respondent by a margin of 60/40. This was largely due to the respondent’s superior financial contributions and in reducing debt in the lengthy post-separation period.
As a result of the inadequacy of disclosure and the absence of valuations, the Court used previous valuations from the earlier proceedings. The properties were valued at $170,000 for the Suburb E property, $155,000 for the Suburb R property, and $65,000 for the Suburb C property. The total property value was $390,000, with mortgages on the Suburb R and Suburb C properties totalling $67,000.
As earlier noted, Judge Coates found that the respondent made significant financial contributions, including reducing joint debts post-separation. This included paying down debts on the Suburb C and Suburb R properties.
Comparatively, Judge Coates found that the appellant’s contributions were primarily as a homemaker and being the primary carer of the parties’ child. It was found that the appellant did not contribute to debt reduction post-separation.
The parties’ liabilities were found to include a costs order against the respondent and a rates debt payable by the appellant, together with legal fees associated with removal of a caveat. It was determined that the respondent’s costs order was his responsibility as it arose post-separation. The appellant’s rates debt on the Suburb E property was found to be her responsibilities, as they were incurred during her occupation of the property. The caveat on the Suburb R property arose from a judgment against the appellant and the costs associated with removal of the caveat were found to be her responsibility.
The Court found insufficient evidence to make adjustments under s 75(2) of the Act.
The orders made by Judge Coates were that:
(a)The respondent retain one of the real properties in Queensland (the Suburb C property) and the other real property in Hobart (the Suburb R property);
(b)The appellant pay the respondent a cash sum of $14,000 upon which payment the appellant is to retain exclusively the other real property in Queensland (the Suburb E property);
(c)In the event the appellant fails to pay the $14,000, the real property she would otherwise retain is to be sold; and
(d)Each party otherwise retain any other property, including any superannuation interests.
Eight weeks after the appeal period had expired, the appellant filed an application to extend time to appeal Judge Coates’ decision. Justice Kent determined, in his judgment delivered on 21 January 2020, that the appellant’s delay in filing the appeal was not satisfactorily explained and the appeal was dismissed for reasons that included the following (Ming & Leong [2020] FamCAFC 10):
42.The discretionary consideration of the desirability of finality of litigation looms large in this context and in the circumstances of this case. Moreover, it is to be noted that in advance of each of the two trials conducted, directions and orders were made designed to have both parties provide proper disclosure, and neither party complied with such orders. There is no reason to suppose that if this matter proceeded to an appeal and the appeal resulted in the proceedings being remitted, that the trial judge dealing with the third trial of these proceedings would enjoy any better experience, in terms of evidence or assistance provided by the parties, than has occurred to date.
…
44.In my judgment, there would be a greater injustice, and indeed a prospective waste of public resources, to allow these proceedings to continue by the grant of this application.
(Emphasis added)
Those comments by Kent J are prescient in the context of how this appeal has been conducted on the part of the appellant.
Subsequent to the decision of Kent J, the appellant filed an Initiating Application on 13 November 2023 seeking orders, pursuant to s 79A of the Act, to set aside the final property orders made by Judge Coates on 11 July 2019.
At the hearing of that application before the primary judge, the appellant argued that there had been a miscarriage of justice because of the respondent’s failure to disclose a property he had purchased in his sole name at J Street, Suburb H, QLD (“[Suburb H property]”). Under those circumstances, the appellant sought firstly, the discharge of Judge Coates’ orders and secondly, that the parties divide their assets equally on the basis of a re-configured property pool which she asserted should amount to $917,000.
Not dissimilar to the judges before him, the primary judge found that the parties were unwilling or unable to properly engage in the proceedings and that the evidence provided by the parties was “generally unsatisfactory, fragmented and uncertain” (Ming & Leong [2024] FedCFamC2F 731 at [98]). On 11 June 2024, the primary judge dismissed the appellant’s Initiating Application following his determination that there was no miscarriage of justice relating to the respondent failing to disclose the Suburb H property (at [130]–[138]). His Honour indicated that even if he had not so found, that he would have declined to exercise his discretion to make orders under s 79A of the Act. Appropriately, he recommended that the time has come for the saga of litigation to end, and for the parties to move on with their lives (at [135]).
Despite that sage advice from the experienced and dedicated primary judge, unremarkably, and in fact, predictably, on 9 July 2024, the appellant filed a Notice of Appeal against the primary judge’s decision. Before dealing with matters pertaining to the substantive appeal, however, it is necessary for me to address the two Applications in an Appeal filed by the appellant.
APPLICATIONS IN AN APPEAL
The first Application in an Appeal, filed 2 October 2024, sought leave to extend time to file an Amended Notice of Appeal. The second, filed 10 October 2024, sought leave to adduce further evidence. At the appeal hearing, I granted the appellant leave to rely on her Amended Notice of Appeal out of time, but dismissed her application to adduce further evidence and I set out my reasoning for doing so below.
Application to Adduce Further Evidence
The further evidence is contained in two affidavits filed 10 October 2024 and 30 October 2024. The documents sought to be adduced, and annexed to the appellant’s two affidavits, include:
·Orders of this Court;
·An article about “Failure to Disclose Information” and setting aside court orders;
·Documents pertaining to the employment of the respondent;
·The appellant’s Centrelink Employment Separation Certificate dated and signed in October 2014;
·A medical certificate from December 2010 pertaining to an injury the respondent had to his eye;
·A handwritten note titled “receipt” signed and dated in 2018 by the respondent, which includes the words “I have receive[d] amount $500 from [the appellant] for valuation cost” (as per the original);
·Section 90MZG, as well as other sections of the Act;
·A letter from the Regional Council dated June 2024, enclosing a history of payments made for overdue rates on the property in which the appellant currently resides;
·Documents relating to the respondent’s financial position, including a “Financial record Statement in 2019” and an “Income and Expenditure Summary” for the periods July 2019 to June 2020 and July 2020 to December 2020;
·A Comparative Market Analysis of the Suburb H property prepared on 29 August 2023;
·A Domestic Violence Order from the Magistrates Court dated May 2023;
·An email from February 2022 from a Revenue Officer in the Department of Treasury and Finance to the appellant stating that the property situated at Suburb R was transferred from the appellant’s ownership in September 2019;
·An undated table, presumably drafted by the appellant, outlining what she believes to be her “contribution & non contribution” (as per the original);
·A Tax Invoice from September 2024 in the sum of $2,092.65 for student fees incurred by the parties’ child;
·A letter to the respondent from the Australian Taxation Office dated October 2018 and titled “New reporting for businesses providing cleaning services”; and
·Other annexures including documents in a foreign language (which have not been translated), handwritten notes in English, assorted undated photographs and various documents that cannot be identified with certainty and/or are incomplete.
The principles that apply in the Court receiving further evidence are well settled, having been set out by the High Court of Australia in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”). By way of summary, that case determined that:
(1)The power to admit fresh evidence is discretionary and must be exercised judicially.
(2)The Court should be cautious in giving leave to admit documents that were available at the time of the trial (CDJ v VAJ at [55]) and further evidence will not be admitted “merely because it is useful” (CDJ v VAJ at [113], emphasis in original).
(3)A relevant consideration is whether, if the further evidence had been tendered before the primary judge, it “was likely to have produced a different result” (CDJ v VAJ at [149]).
Many of the documents sought to be relied upon in the appellant’s application were clearly available at the time of the hearing. In any event, it is clear that none of the further evidence sought to be adduced by the appellant satisfies the requirements of CDJ v VAJ.
Firstly, many of the documents are inadmissible, either because of their form, or their lack of relevance. More significantly, however, is that the documents do not demonstrate that the primary judge erred in his determination that there was no “miscarriage of justice” in the respondent failing to disclose the Suburb H property, nor do they establish that there is a likelihood that there would have been a different outcome if the documents had been tendered in the proceedings before the primary judge.
Thus, the appellant’s Application in an Appeal to adduce further evidence is dismissed.
Application to Rely on Amended Notice of Appeal
By orders dated 13 August 2024, the appellant was directed to file and serve an Amended Notice of Appeal by 27 September 2024. This deadline was not met, and consequently, on 2 October 2024, the appellant filed an Application in an Appeal seeking leave to file her Amended Notice of Appeal out of time.
In her affidavit supporting the application, the appellant cites two reasons for her late filing. Firstly, that she was unwell and secondly, that she was unaware that the Court’s Justice of the Peace services concluded at 3.30pm, which prevented her from having her documents witnessed in time. I will explain why the reasons provided by the appellant for her late filing are not persuasive.
In her affidavit, the appellant included a “Summary of Hospitalization” from March 2007. The remainder of the document is written in a foreign language and has not been translated. Furthermore, the relevance of a medical condition from 2007 to her current situation is questionable. The appellant also submitted an ultrasound report from April 2023, but this document does not provide sufficient evidence to justify her inability to meet the filing deadline.
This is not the first time the appellant has attempted to use a medical condition as a justification of late filing. In Ming & Ling [2020] FamCAFC 10 at [38], Kent J said:
In the course of oral argument, the [appellant] referred to another medical certificate she had but its content, like the certificate referred to, did not establish that the [appellant] was medically precluded, by reason of ill health, from attending to the filing of a Notice of Appeal throughout the period for filing an appeal.
In this case, the appellant’s explanations for the delay in filing her Amended Notice of Appeal are also unsatisfactory. Despite her claims of being unwell, the appellant was able to file all other necessary documents related to this appeal. Furthermore, the appellant had ample time to have her documents witnessed before the deadline. It is the appellant’s responsibility to be aware of the operating hours of essential services and to plan accordingly. The failure to do so indicates a lack of diligence rather than an unavoidable obstacle. The Court cannot accept this as a valid reason for the delay.
Another significant issue is the appellant’s failure to comply with the specific instructions outlined in the orders dated 13 August 2024. In particular, Order 12 directed the appellant to detail in her Amended Notice of Appeal the errors of law or principle asserted “in succinct numbered grounds of appeal” (emphasis added). Instead, the appellant has added to her grounds of appeal, resulting in a more convoluted and less coherent document.
The appellant’s Notice of Appeal and proposed Amended Notice of Appeal are both fundamentally flawed as they include submissions – instead of grounds – which are incompetent and incomprehensible. The appellant has quoted various paragraphs of the primary judge’s reasons and provided rebuttals to each paragraph she disputes. The Amended Notice of Appeal fails to introduce any new or useful information that would advance her argument on appeal. Rather, the appellant has cited legislation without clear relevance. She also contends that the primary judge erred by not personally engaging with her about the authenticity of particular evidence and an earlier judgment delivered in 2019. Other information contained in the Amended Notice of Appeal references conversations where she says she received legal advice. She has also included a list of hours she worked as a homemaker between 2003 and 2016, and a brief statement on the impact of family violence on property settlements in Australia. These inclusions do not identify error on the part of the primary judge or otherwise present a coherent legal argument. The grounds of appeal, if they can be described as such, only serve to further cloud the issues to be determined in the appeal.
Despite these failings, I granted leave to the appellant to rely on her Amended Notice of Appeal in circumstances where there was no objection from the respondent and, frankly, I wished to curtail further expenditure of unproductive time that was being taken up engaging with the appellant in respect to her application.
THE DECISION AT FIRST INSTANCE
The principles applied by the primary judge for dismissing the appellant’s s 79A application were consistent with relevant authority.
The primary judge noted that s 79A of the Act allows the court to vary or set aside property settlement orders if a miscarriage of justice has occurred due to factors such as fraud or suppression of evidence. It is not a mechanism for appealing or reviewing earlier orders, but aims to address miscarriages of justice identified after the original order.
The section emphasises the integrity of the judicial process and requires significant reasons to alter an order.
A miscarriage of justice under s 79A of the Act may occur when circumstances make the order contrary to law and justice, affecting the integrity of the judicial process.
In considering a s 79A application, the Full Court in Patching and Patching (1995) FLC 92-585 at 81,797 explained that there are four steps. First, it must be established whether there has been a suppression of evidence or “any other circumstance”, as alleged by the applicant seeking to set aside the orders (s 79A(1)(a) of the Act). Second, it must be determined whether this amounts to a miscarriage of justice on the balance of probabilities. Third, the court must consider whether, in its discretion, it should vary the order or set it aside following a positive finding. Finally, the court must decide whether to make another order under s 79 of the Act in substitution for the order so set aside.
There is no prima facie entitlement to have orders set aside upon establishing a miscarriage of justice. Applicants carry the onus of satisfying the court, firstly, that a miscarriage of justice has occurred and, secondly, that it is in the interests of justice for the court to exercise its discretion to set aside or vary the original orders.
The primary judge highlighted the importance of full and frank disclosure in family law proceedings (at [124]) – a sentiment, I note, that has been echoed by other presiding judges who expressed concerns, about the conduct of the parties to this litigation, including in respect to their failure to provide proper disclosure. In this instance, however, the primary judge found that the respondent’s non-disclosure of a property purchase did not result in a miscarriage of justice. This was in circumstances where the property had been purchased six years after the parties separated and the purchase involved modest capital solely related to the respondent’s efforts, with no contribution from the appellant.
The primary judge therefore found that the appellant had failed to establish a miscarriage of justice.
As a related issue, his Honour held that even if he was wrong in determining that there had been no miscarriage of justice, the circumstances of the case – including, for example, the appellant’s own non-disclosure, were such that the appellant had failed to establish that the Court should exercise its discretion by setting aside or varying the property adjustment orders.
THE GROUNDS OF APPEAL
The grounds of appeal, as originally filed were largely incomprehensible and did not identify any appealable error on the part of the primary judge. In those circumstances, it was entirely appropriate for the registrar to, by orders made on 13 August 2024, require the appellant to:
12. … file and serve an amended Notice of Appeal by 4.00pm on Friday 27 September 2024 which:
a. Details at Part E in succinct numbered grounds of appeal the error/s of law or principle asserted, and
b. Details at Part D, Question 8 the Orders sought to be appealed.
(Emphasis added)
As earlier indicated, the amended grounds of appeal filed by the appellant further clouded rather than clarified the appeal. It has frequently been observed that providing an expansive catalogue of alleged errors tends to conceal rather than reveal an essential ground of appeal (Thorne v Kennedy (2017) 263 CLR 85 at [49]). This is more likely to be the case where the grounds that are relied upon, as in this case, are rambling, verbose and repetitive (Tame v NSW (2002) 211 CLR 317 at [70]; Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [8]).
The appellant’s Summary of Argument essentially repeated the grounds of appeal and failed to comply with the requirements of r 13.23 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) by:
·Setting out each ground of appeal and, for each ground of appeal, a statement of the arguments setting out the points of law or fact and the authorities relied on (together with references to the relevant pages of the appeal book and transcript);
·Having all paragraphs numbered consecutively;
·Identifying each asserted error of fact (including any failure to make a finding of fact);
·Identifying the finding that the party contends should have been made;
·Stating concisely why the finding, or failure to make a finding, is erroneous; and
·Referring to the evidence to be relied on in support of the argument (including any reference to the relevant pages of the appeal book and transcript).
CONSIDERATION
As stated in Allesch v Maunz (2000) 203 CLR 172 at [23], my powers as a single judge sitting on appeal are only exercisable if the appellant can demonstrate that “having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error” (see also Lacey v Attorney-General (QLD) (2011) 242 CLR 573 at [57.3]).
This is in the context where there is a “strong presumption” in favour of the decision appealed from, and an appellate court must be satisfied it is “clearly wrong” before there is any appellate interference: Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627.
THE APPEAL
On the hearing of this appeal on 20 November 2024, both parties appeared by video link. Each party was self-represented.
The grounds of appeal which the appellant has advanced, so far as they can be understood, are substantially incompetent and the Summary of Argument, which mirrors the Notice of Appeal, fails to provide any additional clarity or support.
As identified by the Victorian Court of Appeal in Watapaldeniya v Transport Accident Commission [2022] VSCA 50 at [2], a ground of appeal must be “a specific and concise statement of the point sought to be argued”. Contrary to this requirement, the appellant has submitted documents that verbosely recount her personal views regarding the case. These submissions include numerous grievances about the primary judge’s alleged misinterpretation of the facts and broad criticisms of the primary judge, other judges who have presided over this case since its commencement in 2015, and the respondent.
The only grounds of appeal that I consider to have substance are:
·Ground 1 to the extent that it can be construed as a complaint that the primary judge “ignored the [mistake] of [the respondent]” in failing to disclose that he had purchased the Suburb H property subsequent to the earlier proceedings being determined; and
·Ground 12 insofar as it contends error on the part of the primary judge in finding that the appellant made no direct or indirect contributions to the purchase of the Suburb H property (at [131]).
CONSIDERATION
As noted by the Full Court in Hicks & Trustee of the Bankrupt Estate of Hicks (2021) FLC 94-006 at [86]:
It is trite that the integrity of the s 79 process heavily depends upon the absolute duty of parties to meet their obligations of full and frank disclosure of all information relevant to the case, including disclosure of their financial position both as to assets and liabilities.
(Footnote omitted)
Section 79A(1)(a) specifically provides that a party’s failure to provide proper disclosure may result in a finding that there has been a “miscarriage of justice” such as to enliven the court’s power to consider whether “in its discretion” a property settlement order made pursuant to s 79 of the Act should be varied or set aside.
However, as noted by the House of Lords in Livesey v Jenkins [1984] UKHL 3 at 16:
… 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 …
In this case, the primary judge held that the appellant failed to establish such an injustice for the following reasons:
(1)Firstly, both parties had failed to discharge their obligation of disclosure in circumstances where both parties “approached the second hearing [before Judge Coates] on the basis that it would occur in the same evidentiary parameters as the first hearing [before Judge Coker]” (at [133]);
(2)Secondly, where the failure of disclosure on the part of the respondent to disclose the purchase of the Suburb H property occurred “some six years after the parties’ final separation, during which period they had led distinct financial lives” (at [130]); and
(3)Thirdly, where “the purchase involved a modest amount of capital, which [the primary judge was] satisfied solely related to the efforts of [the respondent] and to which [the appellant] made no direct or indirect contribution” (at [131]).
Those factual findings were reasonably open to the primary judge, as was his conclusion, based on those findings, that the appellant failed to establish that the non-disclosure of the Suburb H property purchase would have led to the making of an order “substantially different” from the order made by Judge Coates, such as to result in a “miscarriage of justice” enlivening the Court’s discretion to vary or set aside the order.
Having so found, it is strictly unnecessary to consider whether the primary judge erred in holding that, even if such a miscarriage of justice had been found, he would have declined to exercise his discretion to vary or set aside the orders of Judge Coates. I would observe, however, that having regard to the similar assessment of the unhelpful manner in which the parties have conducted themselves during the course of this litigation, I can well understand how the primary judge arrived at that conclusion.
ORDER
Accordingly, for these reasons, the appeal must be dismissed.
In circumstances where both parties were self-represented, there will be no order as to costs.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 20 January 2025
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