MORELLI & RASIC
[2015] FamCA 79
•18 February 2015
FAMILY COURT OF AUSTRALIA
| MORELLI & RASIC | [2015] FamCA 79 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Summary Dismissal |
| Family Law Act 1975 (Cth) s 44, 90RD, 90SM Relationships Act 2008 (Vic) s 35 |
| Aldred & Aldred (1986) FLC 91-753 Blair v Curran (1939) 62 CLR 464 Jackson v Goldsmith (1950) 81 CLR 446 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Spellson & Spellson (1989) FLC 92-046 |
| APPLICANT: | Ms Morelli |
| RESPONDENT: | Mr Rasic |
| FILE NUMBER: | MLC | 10349 | of | 2013 |
| DATE DELIVERED: | 18 February 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 9 February 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Litigant in Person |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Litigant in Person |
| SOLICITOR FOR THE RESPONDENT: |
Orders
That the Amended Initiating Application filed 3 March 2014 be dismissed.
That the Amended Initiating Application for property settlement orders filed 3 March 2014 be permanently stayed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Morelli & Rasic has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: MLC 10349 of 2013
| Ms Morelli |
Applicant
And
| Mr Rasic |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Initiating Application filed 27 November 2013, Ms Morelli (“the applicant”) sought a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) that a de facto relationship existed between she and Mr Rasic (“the respondent”) that allegedly commenced in 2006 but irretrievably broke down on 12 May 2011. If a declaration is made then the applicant seeks relief pursuant to s 90SM as to orders for property settlement and division.
For reasons that will later become apparent, the applicant filed an Amended Initiating Application on 3 March 2014 seeking a further order namely, that she have leave to commence the proceedings out of time pursuant to s 44 (6) of the Act. As part of the suite of proceedings I also bring to account an Application in a Case filed 29 January 2015 that seeks the following additional orders:-
(1)The Honourable Justice Lansdowne at (sic) the Supreme Court of Victoria erred in finding that no de facto relationship existed. The date of order was 24 October 2014.
(2)The Honourable Justice Lansdowne at the Supreme Court of Victoria order 16 January 2015 (sic):-
.1The plaintiff’s application for extension of time to commence proceeding for adjustment of property interest is refused;
.2 The proceeding is dismissed.
.3[Ms Morelli] declare that I was in an on and off abusive relationship (started with an affair from 2005 February to 2011 May with [Mr Rasic])
.4I humbly seek that the Judgment of the Honourable Justice Lansdowne Supreme Court of Victoria be set aside please as I do believe that Family Court of Victoria have a power to that under Family Law Act 1975.
Whilst I am uncertain how the applicant intended the application to be dealt with, it seems that whatever the merit of the proposed orders might be, the application should be treated as a further amendment to the Amended Initiating Application.
By a Response filed 18 March 2014 the respondent seeks an interim order that the application for leave to commence proceedings out of time be dismissed, but more relevantly that “the case be dismissed altogether”. The final orders sought by the respondent seek the dismissal of the Amended Initiating Application.
The matter was listed before me on 9 February 2015 to ascertain whether the parties were ready to proceed to a trial on 10 February 2015. The initial directions hearing was by telephone link and I was advised that each of the parties were now self-represented litigants, the applicant had previously been represented whereas the respondent has remained unrepresented throughout the proceedings.
At the directions hearing the respondent submitted that I should consider the summary dismissal of the Amended Initiating Application arising from the application of the doctrine of res judicata, issue estoppel and abuse of process. It was further alleged that I should consider the applicant to be a vexatious litigant and that her application had no merit given that the relevant issues for determination had been the subject of detailed consideration in the Supreme Court of Victoria.
Accordingly, before there could be any final determination as to whether it is proper to declare that a de facto relationship existed and if so then to consider what order should be made pursuant to s 90SM, the respondent’s. application for summary dismissal of the proceedings needs to be considered.
RELATIONSHIP HISTORY
The applicant claims that she and the respondent were in a de facto relationship from 2006 until 2011. The respondent denies that the parties were in a relationship, but it seems that he would concede that the parties may have cohabited for about five months between July and November 2006 and upon a reconciliation in 2008 for a period of only a few weeks. There is a dispute as to the nature of the relationship after March 2008. Even on the respondent’s case it is likely that the parties were involved romantically but not in circumstances that would satisfy a definition of a de facto relationship having the necessary appearance of a marital like association.
The applicant alleges that she and the respondent had worked together from time to time and that they resided together in her premises between 2010 and 2011. It was only following a continuation of the alleged aggressive behaviour on the part of the respondent that prompted the applicant to require the respondent to leave her premises. She does acknowledge that he went to the police and made a report against her for alleged harassment. The applicant also alleges that following what she says was an abusive relationship with the respondent she declared herself bankrupt in 2008. The relationship was clearly troubled thereafter and was littered with police involvement, intervention orders and conflict between 2008 and 2011 when the relationship came to a complete end.
DISPUTE HISTORY
At the time of the final separation in May 2011 the respondent was the sole registered proprietor at a property at B Street, Suburb C. Shortly after the separation the applicant lodged a caveat over the property claiming that she held an equitable interest in the property by way of resulting, constructive or implied trust. The dispute between the parties was such that in September 2011 the property was sold by the respondent but the parties were not able to agree as to what proportion, if any, the applicant should receive. Agreement was not reached as to who would hold the net proceeds of the sale in the sum of $136,141.92 pending a determination of the applicant’s claim. Ultimately, the net proceeds were paid into the Court Fund on 20 December 2012.
The dispute raged on and ultimately the respondent by originating motion commenced proceedings in the Supreme Court seeking an order that the applicant had no equitable interest in the property and therefore no entitlement to share in the net proceeds of sale. The proceedings were listed for a one day trial in March 2014. Importantly, the respondent was self-represented throughout the proceedings, whereas the applicant remained represented by the same solicitors up until they filed a Notice of Ceasing to Act on 6 November 2014.
In response to the Supreme Court litigation, the applicant filed her Initiating Application in this Court on 27 November 2013 seeking a declaration that a de facto relationship existed between the parties and that there be property adjustment pursuant to s 90SM of the Act. In December 2013 the applicant sought but was refused a stay of the Supreme Court proceedings until the hearing of the Family Court proceedings.
Lansdowne J refused the application for a stay and also a further application by the applicant for an interim distribution from the funds being held in Court pending determination of her Family Court proceedings. Her Honour refused both applications on the basis that the applicant would need to demonstrate that she could establish and equitable interest in the funds and beyond that, without an application made under the Relationships Act 2008 (Vic)(“the RelationshipsAct”) there could be no interim determination of an entitlement to a distribution.
It appears that the applicant thereafter did not actively prosecute her Family Court application whilst proceedings were pending in the Supreme Court of Victoria.
On 3 February 2014 an order was made by Registrar Field adjourning the proceedings to the Judicial Duty List on 1 April 2014 but with the following notations:-
(a)There are proceedings currently being conducted in the Supreme Court of Victoria between the parties in respect to the distribution of funds held by that Court in respect to the sale of [B Street, Suburb C]. Judgment is expected to be delivered this week in respect to whether those proceedings are to be transferred to the Family Court in accordance with the jurisdiction of Courts (Cross Vesting) Act 1987 (Cth).
(b)The applicant will be amending her application to seek leave of the Court to proceed out of time in accordance with section 44 (6) of the Family Law Act 1975 (Cth).
As an aside, the applicant was significantly out of time both in terms of any application in this Court but also with her application under the RelationshipsAct in the Supreme Court of Victoria.
SUPREME COURT PROCEEDINGS
Transfer of proceedings to the Family Court
In January 2014 Rush J heard and then determined a summons issued by the applicant seeking an order that the Supreme Court proceedings be transferred to the Family Court. She filed an affidavit on 16 October 2013 in which she disputed the assertion of the respondent namely, that to the extent there had been any relationship at all it was of five months duration only. She alleged that the parties had commenced a relationship in February 2005 and that it was intermittent until May 2011. The summary of her evidence is that she says over this period she assisted the respondent with money, that she assisted him in his travel when he lost his licence and perhaps more importantly that for an extensive period of time the respondent lived with her without making any financial contribution to the general housekeeping and household expenses. The submissions made on behalf of the applicant were to the effect that the Family Court was a “more appropriate venue for the resolution of the issues between the parties”. The Court had significant power under the Family Law Act to give proper recognition to the contributions of parties to de facto relationships and assuming that a relationship was established there could be an adjustment of property and an alteration of the property interests of the parties.
At paragraph 18 of the judgment of Rush J delivered 12 February 2014 being annexure B to the affidavit of the respondent filed 18 March 2014, the following appears:-
Why the defendant changed tack to issue Family Court proceedings is unexplained. In fact, upon the application before Lansdowne AJ on 17 December 2013, Mr McIntyre indicated the plaintiff would potentially make submissions concerning the parties contribution to the de facto relationship and the consequent entitlement of the defendant to funds held in Court based on the provisions of the Relationships Act2008. In answer to a question from Her Honour, Mr McIntyre stated as follows:-
It is not simply a matter of an equitable interest in these proceedings, your Honour. At the final hearing I will be addressing your Honour in relation to the provisions of the Relationships Act and how they apply.
The submissions made by the solicitor for the applicant detailed a strategy to cover the circumstance where the Court might find contrary to the applicant’s assertion of a de facto relationship with the respondent from 2006 to 2011, that if the evidence did not support that contention and that there was a relationship of less than two years then there would still be a remedy under the Relationships Act. A threshold issue under the Family Law Act is whether the relationship was to be found to be of two or more years duration.
At that stage there had been no formal application made to the Court under the Relationships Act. Lansdowne J made it clear that she would not hear any submissions as to interim property distribution until and unless such an application had been made. Ultimately Rush J did not consider it in the interests of justice to transfer the proceedings to the Family Court. His Honour was concerned that the Supreme Court “was to be in some way or another a potential backstop” to the Family Court application.
Payment out of sale proceeds – Constructive Trust
On 24 October 2014 Lansdowne J delivered judgment in respect of the plaintiff’s application that the balance of the proceeds of the sale of the B Street, Suburb C property be paid out of out of court to him.
Following the refusal of the transfer application by Rush J on 12 February 2014 the applicant commenced proceedings in the Supreme Court pursuant to the Relationships Act seeking the following orders:-
(1)Leave to bring the proceedings out of time.
(2)Declaration pursuant to Section 40 of that Act that she has an interest in the funds in Court.
(3)The consequential adjustment in respect of the funds in her favour.
Her Honour refused the applicant’s application under the Relationships Act that in addition to the payment out proceedings the Court also consider an alteration of property interests. It appears from her Honour’s reasons that the application for alteration of property was filed after the close of her case. The respondent had been cross examined on the basis of the applicant’s claim that she had an equitable interest in the Court retained funds.
Her Honour found that proceedings for alteration of property interests under either the Family Law Act or the Relationships Act were fundamentally different from the proceedings before her namely, that the applicant had acquired an equitable interest in the funds in Court arising from her contribution. The issue was not so much one of relationship namely, whether the parties were in a relationship or not, but whether the legal principles necessary for the Court to find an equitable interest arising out of a constructive trust had been established.
Her Honour noted that if it was claimed the parties were in a de facto relationship then the date of separation was critical as to which Court had jurisdiction. Put simply, if the relationship ended on or after 1 March 2009 then the Family Court acquired exclusive jurisdiction, whereas termination of a relationship before that date entitled the Supreme Court to retain its jurisdiction under the Relationship Act.
Ultimately her Honour concluded that the applicant did not avail herself of any opportunity to either cross examine the respondent in respect of his equity in the property at the commencement of the relationship, leaving the respondent’s contention that the equity remaining in the property at the end of the relationship was less than had existed at the commencement unchallenged.
Her Honour also found that the parties had a continuing personal relationship over and above some few months in 2006 and a further three weeks in February/March 2008. The evidence presented by the applicant was vague, general and her Honour appears to have had little hesitation in finding that it was unreliable. An opportunity was not taken up to cross examine the respondent in relation to his evidence denying that there was ever any de facto relationship.
Even on the applicant’s own case she agreed that after March 2008 the parties effectively had separate accommodation. To the extent that there was social interaction between the parties and whilst affectionate and probably intimate, her Honour could not find evidence of a marital like relationship and certainly there was insufficient evidence to support the contention of contribution.
At paragraph 91 the following appears:-
It follows from all of the above that the defendant has failed to prove that she made a contribution to the plaintiff by reason of which she was able to retain the property at [B Street], such that she should be held to have an interest in the balance of the funds after its sale.
Other than the repayment of monies linked in the sum of $3,000 her claim for a distribution from funds held in Court was dismissed.
This entitled the balance of monies held in the sum of $112,641 to be paid to the respondent.
The following appears in her Honour’s orders at paragraph 100:-
The defendant’s claim for alteration of property interests remains. The first issue to be determined in respect of that claim, if it is pursued, is whether leave should be granted to allow it to be brought out of time. I will give the defendant the opportunity to consider these reasons and hear the parties as to what steps should then be taken in respect of that application.
Application pursuant to Relationship Act 2008 (Vic)
On 16 January 2015 Lansdowne J delivered Judgment in respect of the application of the applicant under the Relationships Act, firstly to extend time to bring such a claim and then to consider the merits of her application for adjustment of property interests.
Her Honour recorded that the plaintiff did not bring her application until eleven months after the time had expired which was two years after the alleged date of separation being 12 May 2011.
A preliminary matter for her Honour was to determine whether the jurisdiction of the Court under the Relationships Act was excluded. This issue arises in respect of definition of a de facto relationship in s 4AA of the Family Law Act namely, that for this Court to have jurisdiction the relationship must have ended on or after March 2009.
In the earlier proceedings Lansdowne J found that the parties did not have a “shared life as a couple” after March 2008. As a result of that finding her Honour was able to find that the Family Court would not have jurisdiction (the relationship broke down before 1 March 2009) and accordingly, jurisdiction remained with the Supreme Court.
The applicant was clearly aware of her Honour’s earlier findings. It would seem difficult to understand how she intended to establish a later separation date than had been the subject of her Honour’s earlier findings. The importance of this observation is that the applicant chose to proceed with her application under the Relationships Act with clear knowledge and understanding of the critical consideration namely, the date of separation. A further relevant finding is that the applicant was aware at all times that her Honour did not consider the contribution she had made to fall into the category of “substantial”. The relevance of this finding is that an adjustment of property under the Relationships Act may still be available even if the Court were to find that the parties did not live together in a domestic relationship for the requisite two years.
It is a clear finding by her Honour that the applicant sought relief under the Relationships Act 2008 (Vic). She contended that she was the “domestic partner” of the respondent and that they were living together on a genuine domestic basis.
Her Honour specifically considered the provisions of s 35 (2) of the Act which provides as follows:-
In determining whether a domestic relationship (other than a registered domestic relationship) exists or has existed, all the circumstances of the relationship are to be taken into account, including any one or more of the following matters as may be relevant in a particular case-
(a)the degree of mutual commitment to a shared life;
(b)the duration of the relationship;
(c)the nature and extent of common residence;
(d)whether or not a sexual relationship exists;
(e)the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
(f)the ownership, use and acquisition of property;
(g)the care and support of children;
(h)the reputation and public aspect of the relationship.
Her Honour found that the applicant was not able to establish the contributions as alleged by her namely, that she had provided the sum of $14,000 to the respondent by way of a series of cash withdrawals in a period between November 2006 and June 2008 and the provision of personal services to the respondent namely, by driving him around after he lost his licence. The applicant’s case in this regard was not established and her Honour found that if anything it was weakened by a paucity of evidence to support her contention of contribution during the relevant period.
Her Honour then considered whether notwithstanding a finding that the applicant’s case was weak it might be arguable whether she should grant the applicant for an extension of time to commence the proceedings for adjustment of property interests.
Her Honour found that the applicant had no existing equitable interest in the fund and that the doctrine of res judicata applies to the application for a declaration of an existing interest. A similar consideration was given to the doctrine of issue estoppel and her Honour’s position is summarised as follows:-
Accordingly, under either the doctrines of res judicata or issue estoppel, the parties are bound in this proceedings by my judgment on [Ms Morelli’s] claim of an equitable interest in the funds in Court case.
As I found in that case that [Ms Morelli] had no existing equitable interest in the fund and it was common ground that she had no legal interest, it follows that the same result must apply to an application for a declaration in this proceeding.
Accordingly, leave was refused and her originating application was dismissed.
THE CURRENT APPLICATION
The applicant now seeks to re-excite her Amended Initiating Application seeking a s 90RD declaration and if granted, adjustment of property orders pursuant to s 90SM of the Family Law Act. From a consideration of the orders sought in the Application in a Case filed 29 January 2015, it is obvious that the applicant understands the difficulty that she now faces. It is axiomatic upon a consideration of paragraph 1 – 4 in the said application that the applicant understands that the decisions of Lansdowne J on 24 October 2014 and 16 January 2015 effectively dismissing the various applications of the applicant are potentially fatal to the current proceedings.
Following the delivery of her Honour’s reasons the applicant filed a further affidavit on 29 January 2015 which attempted to set out further evidence upon which the applicant would seek to rely and to explain why the new evidence (although available at all material times) was not relied upon in the Supreme Court. Whilst the affidavit lacks any cohesion, it appears that the applicant alleges her failure to supply further evidence was to do with poor legal advice and her inability to concentrate on her case.
Cause of Action Estoppel
In Halsbury’s Law of Australia Volume 12 at page 359, 021:-
In essence, estoppel prevents a party to litigation from relying on or asserting as true a particular proposition of fact or law whether or not the proposition is true. There is no single principle to explain the complex array of rules spanning various categories embraced by the term “estoppel”
There are three categories of estoppel to be considered including Res Judicata, Issue Estoppel and Anshun Estoppel.
Res Judicata
In Jackson v Goldsmith (1950) 81 CLR 446 at 466 Fullagar J found:-
The rule as to res judicata can be stated sufficiently for present purposes by saying that, where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy…
Does the plaintiff have a cause of action and if not, is the continuation of that claim potentially an abuse of process.
A further annunciation of the principle of res judicata estoppel is state in Spencer Bower, Turner & Handley – Doctrine of Res Judicata (third edition) at paragraph 9:-
Where a final judicial decision has been pronounced on the merits…a…judicial tribunal with jurisdiction over the parties and the subject matter, any party to such litigation, as against any other party, is estopped in any subsequent litigation from disputing such decision on the merits, whether it be used as the foundation of an action or as a bar to any claim,…affirmative defence or allegation, provided the party entitled raises the power at the proper time. This rule is sometimes expressed in the maxim res judicata pro veritate accipitur.
The same learned authors at para 19 set out with some clarity the principle elements:-
(i)the decision was judicial in the relevant sense;
(ii)it was in fact pronounced;
(iii)the tribunal had jurisdiction over the parties and the subject matter;
(iv)the decision was –
(a ) final; and
(b) on the merits;
(v)it determined the same question as that raised in the later litigation; and
(vi)the parties to the later litigation were either parties to the earlier litigation or their privies, or the earlier decision was in rem.
Further, in order to find the application of res judicata estoppel it is not necessary that the decision in the earlier proceedings be correct as a matter of law or fact. It is the aspect of a final determination in circumstances where it is against public policy for the same issue to be re-litigated.
In the present case it is clear that the two decisions of Lansdowne J were judicial in the relevant sense and brought finality to those matters. It involved a consideration of whether at first instance the applicant could satisfy the Court that she had an equitable interest in the subject property and then, the net proceeds following sale. In the second instance, consideration was given to the extent, if any, of the applicant’s contribution that might firstly establish grounds for a constructive trust, but also for the purposes of establishing a claim under the Relationships Act. Her Honour had little difficulty in finding that the purported contribution of the applicant was without substance.
Of relevance to the current determination is the finding by her Honour that there was not a marital-like relationship as between the parties and importantly, that if a relationship did exist it had come to an end by March 2008. If her Honour was not entitled to make that finding, the applicant understood that the Supreme Court would lack jurisdiction. With the clear knowledge that such a finding had been made in the earlier proceedings, the applicant elected to proceed with her application pursuant to the Relationships Act presumably in order to ensure that if the Court found that there had been a relationship, but it was less than two years duration (a necessary pre-requisite under s 90RD) then a remedy may still be available to her. The proceedings therefore had as its central pivot a determination of whether a de facto relationship existed and if so whether there had been sufficient contribution made by the applicant to justify an order.
The Supreme Court clearly had jurisdiction over the parties and the subject matter. Whilst the issues determined in the payment of funds decision were different to the considerations that apply under the Relationships Act, those proceedings could be said to relate to the same question and issues as between the parties. The significant difference appears to me to relate to the date of separation. Whilst the finding of Lansdowne J that the parties de facto relationship (if it existed in any event) occurred prior to March 2009 and not in 2011 as asserted by the applicant, it is relevant that she submitted to the jurisdiction.
I am of the view therefore that the proceedings in this Court seek to determine the same question that was considered and determined with finality in the Supreme Court.
As was remarked upon by Rush J, his Honour considered that the filing by the applicant of proceedings in the Family Court in addition to the Supreme Court was intended to be a fall-back strategy. If the applicant was unsuccessful in one Court, she considered she would be able to pursue the same remedy in a different Court. I respectfully agree with his Honour’s consideration.
ISSUE ESTOPPEL
In Blair v Curran (1939) 62 CLR 464 Dixon J restated the principle of issue estoppel at 531:-
A judicial determination directly involving an issue of fact or of law disposes once for all of the issues, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negative. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J in R v Inhabitants of the Township of Hartington Middle Quarter the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.
The applicant would seek to challenge the findings of Lansdowne J as to matters of relationship, date of separation and contribution. On any considered view it is demonstrable that unless the applicant can establish that she made a meaningful contribution to the property of the parties, but in particular the respondent’s house and the net proceeds of its sale, that there was a separation in 2011 following the de facto relationship of greater of two years duration, she could not possibly succeed to seek the declaration under s 90RD and if made, orders pursuant to s 90SM of the Act. Both fundamental requirements have been the subject of clear and considered determination.
The applicant should be estopped from again asserting evidence relevant to those considerations.
It might be argued by the applicant that the evidence sought to be relied upon and as contained in her unwieldy and poorly constructed affidavit of 29 January 2015 produces a different factual matrix to that which was present in the Supreme Court.
If that is the applicant’s contention, it is rejected. Whilst it difficult to separate potential evidence from submission, supposition and inadmissible material, all of it able to be presented in the Supreme Court. Issue estoppel is as relevant to the lack of evidence presented as it is to the existence of new evidence. The applicant could or should have included the matters contained her affidavit in the earlier proceedings. She did not do so and she should now be estopped from seeking to present a purportedly different case.
ANSHUN ESTOPPEL
In Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, the Court found that a party can be prevented from bringing a claim which could or should have been pursued in former proceedings. That is, if it is now sought by the applicant to raise matters that should or could have been raised in the earlier proceedings without good reason, she should be estopped from doing so now.
There is little doubt that the applicant has attempted to have a fall-back position. The Family Court proceedings were effectively suspended whilst she prosecuted her claim both as to equitable remedy and relief and then when unsuccessful, an order for property division under the Relationships Act. It is only following the dismissal of the latter proceedings that these proceedings were re-agitated.
The difference between anshun estoppel and res judicata and issue estoppel is that with anshun estoppel a party can lose the right to pursue an action that has never been raised before but was within reasonable contemplation and should have been raised.
Its application in this case may well provide further support for the rejection of evidence contained in the applicant’s affidavit of 29 January 2015 in circumstances where it was reasonable for those matters (subject of course to their admissibility) in the current proceedings.
CONCLUSION
I consider that the applicant should be estopped from pursuing the orders sought in the Amended Initiating Application filed 3 March 2014. The conduct of the applicant in attempting to reserve a fall-back position if she should be unsuccessful in the Supreme Court raises the clear issue of whether her conduct would amount to an abuse of process.
I do not consider that I need to explore that issue given my finding that the application of the doctrines of res judicata and issue estoppel are a complete bar to the current proceedings.
I have however also given consideration to the elements necessary to found an application for summary dismissal.
The power to order the summary dismissal of an application was discussed by Nygh J in Aldred & Aldred (1986) FLC 91-753 and subsequently considered by the Full Court in Spellson & Spellson (1989) FLC 92-046.
In Aldred (supra) Nygh J commenced his consideration of the power to dismiss an application by reference to the provisions of the then High Court rules. The ability to dismiss an application or to stay proceedings arises in circumstances where there is not a reasonable or probable cause of action or suit, the proceedings are vexatious, oppressive or an abusive process. See also Bigg v Suzi (1998) FLC 92-799.
A further relevant consideration is that there is unlikely to be any proceeds of sale remaining. When this was put to the applicant her response was that she wanted “justice”.
For the reasons already given I have formed the view that even with the most generous assessment of the evidence presented on behalf of the applicant, her case has no reasonable likelihood of success but conceptually satisfies even the higher standard namely, that there is no probable cause of action and is therefore doomed to fail.
Accordingly, I make orders as appear at the commencement of these reasons.
I certify that the preceding seventy four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 18 February 2015.
Associate:
Date: 18 February 2015.
Key Legal Topics
Areas of Law
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Civil Procedure
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Family Law
Legal Concepts
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Stay of Proceedings
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Abuse of Process
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Procedural Fairness
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