Murphy and Murphy
[2009] FMCAfam 270
•24 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MURPHY & MURPHY | [2009] FMCAfam 270 |
| FAMILY LAW – Property – application to set aside financial agreement – advice purportedly given and certified by foreign lawyer – whether requirement for practitioner in Australian federal jurisdiction. |
| Family Law Act1975 as at June 2003, ss.79, 90K, 90KA, 90G Judiciary Act 1903; Part VIIIA, ss.55A, 55C, 86 Trade Practices Act 1974 Federal Justice System Amendment (Efficiency Measures Bill (No 1) 2008 |
| Black & Black [2008] FamCAFC 7 Melbourne Home of Ford Pty Ltd and Others v Trade Practices Commission and Another (1980) 31 ALR 519 Pyneboard Pty Ltd and Others v Trade Practices Commission and Bannerman (1982) 39 ALR 565 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Derry v Peak [1889]14 AC 337 |
| Applicant: | MS MURPHY |
| Respondent: | MR MURPHY |
| File Number: | BRC1420/2008 |
| Judgment of: | Coates FM |
| Hearing date: | 5 February 2009 |
| Date of Last Submission: | 5 February 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 24 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Brasch |
| Solicitors for the Applicant: | Butler McDermott Egan |
| Counsel for the Respondent: | Mr Blaxland |
| Solicitors for the Respondent: | Watson & Quinn |
ORDERS
Pursuant to s.90K(1)(b) of the Family Law Act 1975 (as at 10 June 2003), the financial agreement before marriage entered into by
Mr Murphy and Ms Murphy on 10 June 2003 is set aside for being void, voidable or unenforceable.
IT IS NOTED that publication of this judgment under the pseudonym Murphy & Murphy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC1420 of 2008
| MS MURPHY |
Applicant
And
| MR MURPHY |
Respondent
REASONS FOR JUDGMENT
This is an application by the wife to set aside a financial agreement purportedly made pursuant to s.90G of the Family Law Act1975 between herself and the husband.
The husband responds in seeking dismissal of the application.
If the agreement is set aside, further orders the parties seek will be determined under s.79 property settlement proceedings.
A copy of the agreement was in evidence. While it provides for a property settlement upon separation, the substantive terms are not relevant to the issue to be decided here.
The agreement was made on or about 10 June 2003.
There was agreement that the status of the financial agreement had to be determined under the law existing as at 10 June 2003.
The wife’s counsel provided a copy of s.90G existing as at 10 June 2003. It states:
“90G When financial agreements are binding
(1)A financial agreement is binding on the parties to the agreement if, and only if:
(a)the agreement is signed by both parties; and
(b)the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters:
(i)the effect of the agreement on the rights of that party;
(ii)whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement;
(iii)whether or not, at that time, it was prudent for that party to make the agreement;
(iv)whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable; and
(c)the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided; and
(d)the agreement has not been terminated and has not been set aside by a court; and
(e)after the agreement is signed, the original agreement is given to one of the parties and a copy is given to the other”.
Sub-sections (1)(b) and (c) are of particular importance in this matter because of the cases put forward by the litigants, as is the background to the agreement.
The husband proposed marriage to the wife when visiting her in the Philippines in June 2003.
Before proposing marriage, he received advice in Australia about a pre-marriage financial agreement from his solicitor, Mr Christopher Reeve, a solicitor practising in Queensland in the firm Chris Reeve & Co.
The husband executed what I will call his half of the agreement and certificate on 26 May 2003 while in Australia and provided the certificate required by s.90G(1)(c).
He said Mr Reeve advised him in terms of the section and that for the agreement to be binding the future wife must conform with the requirements of s.90G, that is, get advice and a certificate from an independent lawyer.
The husband said he presented a copy of the agreement to the future wife and told her that it was a financial agreement or a pre-nuptial agreement.
He said he told her that she did not have to sign the agreement but that if she did not sign it then he would not marry her.
He also advised her, he said, that the contracts were legal and binding in Australia and that he “was under no apprehension at all about whether the applicant understood or not what we were discussing. I say that she fully comprehended what we were discussing”.
He said he saw the applicant “read” the agreement and he had given the wife a full copy of the agreement which included his half of it.
On the morning of 10 June 2003 in Angeles City, the husband said he saw the future wife speak to a person at the reception desk at their hotel and as far as he was aware she had asked the person for the location of a lawyer and that he and the wife then travelled by tricycle taxi to a building which had a sign stating there was a lawyer on the top floor.
He said as far as he knew the applicant went to see the lawyer to have the documents signed and witnessed and that he did not interfere with the process to sign the document. The wife returned below and handed him a completed signed copy of the financial agreement, with the required certificate.
The wife’s version of events differs in that she states the husband said she had to sign the agreement and “we need to find a lawyer tomorrow, read it and sign it”. The disagreement as to what was said in itself is be a triable issue perhaps going to duress or unconscionability because it goes to questions of fact, however, such should not be decided without hearing evidence and there are other considerations.
The wife stated she saw a Ms Gomaz at the lawyer’s office, who took the agreement to a back room and came back with it signed by one Daniel B Liangco, a lawyer of the Angeles City Court of Philippines.
On its face, the 10 June 2003 agreement purports to conform with the requirements of s.90G(1)(b) in that it contains a statement that the wife has had independent legal advice as to the effect of the agreement on her rights and has what purports to be the relevant certificate as required by s.90G(1)(c).
The parties married in 2003 at Noosaville (this marriage was annulled because it was found the wife was still married in the Philippines and the parties remarried in 2005 – nothing turns on this in relation to the question now before the Court).
The parties separated in either February or May 2007 - the date is to be decided.
Wife’s case
The fundamental argument by the wife was that the lawyer Daniel B Liangco was not a legal practitioner recognised in s.90G(1)(b) and (c) in that he was not enrolled as a practitioner in Australia and so the agreement must be set aside.
There were subsidiary arguments to the effect that the wife did not receive advice from a lawyer and that he may not have been a lawyer at all and that the husband did not disclose all of the financial agreement to her, but if she is correct on the fundamental issue, then the other arguments need not be decided because the status of the legal practitioner is a threshold issue.
While s.90G(1)(b) refers to advice from a “legal practitioner”, in 2003 the Family Law Act had no definition of legal practitioner although the Act was subsequently amended in 2006 to define a lawyer as meaning a person enrolled as a legal practitioner of a federal court or a state or territory Supreme Court. Apart from defining lawyer and not perhaps a legal practitioner, the amendment being subsequent to the time under consideration, I need not take this fact further.
It is agreed that the lawyer Daniel B Liangco did not hold a certificate allowing him to practise as a lawyer in any Australian jurisdiction at the time his name and signature was placed on the document.
Counsel for the wife, Ms Brasch, submitted that the requirement under s.90G(1)(b) and (c) for a legal practitioner to give advice and sign a certificate could only apply to a lawyer who had a right to practice in the Australian federal jurisdiction.
She said that as at 2003 the definition of legal practitioners for the federal jurisdiction was contained in the Judiciary Act1903.
Section 2 then defined a legal practitioner as:
“…a person entitled, under an Act or a law of a State or Territory, to practise as one of the following:
a)A legal practitioner;
b)A barrister;
c)A solicitor;
d)A barrister and solicitor”
If that Act applies the word “entitlement” can be interchanged, in my view, with the concept of a legal right to practice.
Sections 55A and 55B added to the definition and particularised the right of practice in the federal jurisdiction. I note that there was reference in s.55B(3) and (4) to a lawyer’s name needing to appear in a Register of Practitioners. Again by inference, the Act referred to Australian jurisdictions, otherwise its provisions would have no sense.
I accept Ms Brasch’s submission that the wording of the Judiciary Act did not allow lawyers from foreign countries to practice in the Australian federal jurisdiction if they did not comply with the requirements of the Judiciary Act.
She also referred me to the Full Court of the Family Court’s decision in Black and Black [2008] FamCAFC 7, where strict compliance was insisted upon when agreements were reached to oust the jurisdiction of the court to make orders under s.79 of the Act.
Her argument was to the effect that if Mr Liangco was not a legal practitioner entitled to practise within the Australian federal jurisdiction, then the statement of receiving advice and certificate could not comply with the strict requirements of s.90G and the agreement had to be set aside. I used the term “to the effect” because there was a submission that counsel had misconstrued the section. Given all of the submissions, I do not hold that to be the case.
Husband’s case
The husband sought to have the wife’s application dismissed. He relied on s.90KA of the Act, and relevantly under that section, “The question whether a financial agreement or a termination agreement is valid, enforceable or effective is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of the contracts and purported contracts…”
Counsel for the husband, Mr Blaxland, submitted then that the case was one in contract, not in statutory compliance.
He also said it was more than whether a legal practitioner had a right to practice in Australia because a party was entitled to rely on a certificate to avoid the possibility of fraud, in that a certificate may purport to be signed by a legal practitioner who in fact was not a legal practitioner.
He identified four grounds being argued by the wife in her evidence, being:
a)She received no independent legal advice;
b)She was given an incomplete copy of the agreement to execute;
c)The husband did not adequately disclose his position and
d)She did not receive a copy of the Binding Financial Agreement.
He said the husband was entitled to rely on the agreement because:
a)It was regular on its face;
b)He did not act unconscionably;
c)He relied on the binding financial agreement to enter into and maintain the marriage and/or the agreement was obtained by fraud or unconscionable conduct of the wife; and
d)The agreement satisfied the requirements of s.90G and all that was required was the attached certificate, otherwise there could be no reliance on such a certificate.
As to the ground that the wife received no legal advice, Mr Blaxland submitted that the certificate is clear and unambiguous to the effect she did receive legal advice and lawyer Daniel B Liangco’s signature also confirmed that. He also submitted that in any case, there was no requirement for advice to be given, merely a statement that it was given.
He said the husband as a lay person did not have to ensure for himself that the person signing the certificate was anything other than what the person purported to be, which was a legal practitioner.
He said the wife presented the husband with a certificate which complied on its face with s.90G and the husband was entitled to have the agreement then upheld.
He submitted that any argument that Mr Liangco was not qualified to give advice is irrelevant because the wife used the certificate to persuade the husband that she had received advice. He said on the wife’s own case the certificate is a fraud and she should not be permitted to rely on her own fraud to set aside the agreement.
As to the ground that the wife was not given a complete copy of the agreement, it was submitted that the wife is unreliable on her own evidence, that she does not state which pages she did receive, that she told a Ms Gomez (paragraph 20 of her affidavit filed 23 May 2008) she was happy with the money she would receive - the inference being that she read the then proposed agreement - and Mr Liangco makes no reference to having seen an incomplete document.
He said the husband had not acted unconscionably and there was an alternative argument to be considered, the wife acted unconscionably or fraudulently.
He said even if s.90G was not complied with such would not be enough to set the agreement aside, as the certificate was regular on its face and should be taken at face value.
As to the wife’s case that there was insufficient disclosure by the husband, it was submitted that such was irrelevant when the wife’s own credibility was in “tatters”. Further, the agreement sets out the husband’s financial position at recital C and there is no requirement that the agreement be fair and equitable.
As to the ground that she did not receive a full copy of the agreement after it was executed and only received it after separation, it was submitted that there was no requirement for her to receive such. As with the dispute about what was said, this would appear to be a triable issue.
Mr Blaxland also submitted that the wife was estopped from relying on s.90G because she presented the husband with the agreement and held out to him that it complied with the Family Law Act, causing him to act to his detriment by accepting the agreement. I must say, the alleged detriment was not identified and entry into a marriage based on s.90G, which marriage subsequently fails, is not necessarily to be classified as a detriment. If there was fraud or unconscionable conduct or something of that nature then the husband may well have suffered detriment.
If Mr Blaxland is correct, that this is a case in contract and not one of statutory compliance because of s.90KA, then his client may be in a position to succeed on the arguments put forward.
However, the steps taken by the parties on the husband’s version of events have to be examined in the order they occurred to assist in determining the issue.
It appears to me that I am asked to consider the bare facts of the steps taken as being:
a)That the husband received legal advice and a signed certificate while in Australia;
b)That he proposed to the wife conditional upon her signing an agreement;
c)That he travelled with the wife to a lawyer’s office in Angeles City, Philippines, and she went inside; and
d)That she came out and handed him her part of the agreement purporting to conform with s.90G.
But these do not take into account all of the facts which are relevant.
Other relevant evidence is:
a)The husband advised the wife that the agreement was a legal document and enforceable in Australia;
b)That his agreement was signed by Christopher Reeve, who identified himself as a solicitor of the Supreme Court of Queensland and the agreement itself stated the governing laws and jurisdiction were those of the Commonwealth of Australia and Queensland.
c)That the husband knew, because he was there, that the wife was taking the agreement document he supplied to a lawyer in Angeles City in the Philippines;
d)That he paid for the advice for her;
e)That he then accepted the agreement handed to him;
f)That the parties travelled to Australia and did not marry for some five months after arriving; and
g)That at no time did the husband advise that the wife receive legal advice in Australia. I use the word advise, because he advised her when in the Philippines of the legal status of the agreement and that she needed independent legal advice.
I raised the issue with both counsel as to whether the certificate was in fact notice of the advice given, that is, could it be questioned?
Mr Blaxland said it was notice but that his client was not required to do anything further and could rely on the document as showing the wife complied with the section and received the appropriate advice.
I do not think on the facts that argument can be sustained.
Section 90G(1)(b) is very specific, that for an agreement to be binding “:… the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters…(i)the effect of the agreement on the rights of that party…”
The notice then is not simply about the specific issues stated in the sub-sections (ii to iv) following this wording, otherwise an accountant or financial planner or other person holding any legal qualifications may be meet the criteria. The section purposely refers to “independent legal advice from a legal practitioner” relating “the rights of that party”.
The word “rights” can only refer to legal rights. A right, as defined in an older edition of Osborn’s legal dictionary (5th edition), is “An interest recognised and protected by the law…(Salmond) and “A capacity residing in one man of controlling, with the assent and assistance of the State, the actions of others (Holland)”. Mozley & Whiteley’s legal dictionary, 11th edition, says a right is “a lawful title or claim to anything”. Non-inclusive language aside in the Holland definition, the word “rights” in s.90G must refer to those interests which arise, exist or occur under the governing jurisdiction of the agreement, which in this case was stated to be the Commonwealth of Australia and Queensland.
A legal right then is an entitlement at law and is something which is justiciable before the courts or within a jurisdiction’s legal framework. As a legal right, it was open to both parties under s.90G of the Family Law Act to sign the financial agreement which is the subject of this application. That they had the legal right to sign and did sign also brought their agreement within the jurisdiction of a competent court in the event of a dispute, whatever the nature of their litigation.
A competent court in this matter is a court invested with the power to determine matters under the Family Law Act.
Although there are some exceptions, the laws of various Australian jurisdictions give a litigant the right to be represented by a legal practitioner, that is, a person qualified to practise law in the particular jurisdiction.
Both the Commonwealth and the State of Queensland enact laws restricting who qualifies as a legal practitioner and who then can give legal advice on legal rights, as well as providing representation of a party in court, that is, the laws allow for those who can practise law.
As at 10 June 2003 the Commonwealth’s Family Law Act referred to legal practitioners but gave no definition of such practitioners.
As at 10 June 2003, the Commonwealth’s Judiciary Act referred to barristers and solicitors as legal practitioners and set requirements allowing them to practise within the Australian federal jurisdiction.
As at 10 June 2003, a solicitor of the Supreme Court of Queensland, such as the husband’s solicitor, Mr Reeve, had the right of practice and more importantly, the right to practise in the federal jurisdiction under s.55B of the Judiciary Act. Giving advice pursuant to s.90G was part of his right to practice because the advice is “legal advice”. There was no section identified in that Act which would allow Mr Liangco to practise in the Australian federal jurisdiction and give legal advice to a person on their rights under the Australian Family Law Act, such an activity being reserved to legal practitioners who met the requirements to practise under the Judiciary Act.
Not many acts require a person to state they obtained legal advice before embarking upon a course of action. At the time of the agreement, the Family Law Act very specifically required such a statement in a certificate in order to comply with s.90G and for good reason, a person surrendering the right to seek a decision of a court as to a property settlement should only do so on an informed basis, especially in relation to the effect of the agreement on the rights of that party” (s.90G(1)(b)(i)), that is, their rights at law within the Australian jurisdiction.
The husband was aware he needed to seek advice and he did so from Mr Reeve, who identified himself as a solicitor of the Supreme Court of Queensland and who gave notice on the certificate of his qualification to give advice under s.90G.
While statutory interpretation often focuses on the meaning of words, logically, the context of usage is a fundamental requirement to the comprehension of an Act. To this extent, the Federal Court has held that the wording of notices issued pursuant to provisions of the Trade Practices Act 1974 should be “reasonably, not preciously, construed and the terms used in the notices will ordinarily take their meaning from the commercial circumstances in which the notices are given”, per Brennan, Keely and Fisher JJ in Melbourne Home of Ford Pty Ltd and Others v Trade Practices Commission and Another (1980) 31 ALR 519 at 531. In Pyneboard Pty Ltd and Others v Trade Practices Commission and Bannerman (1982) 39 ALR 565, at 570, Northrop, Deane and Fisher JJ followed Melbourne Home of Ford, stating: “Artificial dissection, in the cause of determined obfuscation, can introduce an argumentative element of uncertainty into words which, when read reasonably in context, are adequate to convey a plain and clear meaning. Provided a notice makes it reasonably clear, in the circumstances in which it is given and on a fair reading of its terms, what information or documents are required, the requirements of s155(1) as to clarity will be satisfied. In this regard, the mere parsing and analysis in the artificial atmosphere of the courtroom can lead to the identification of a number of latent ambiguities will not invalidate what, as a matter of common sense, is reasonably clear”.
While the Court was dealing with notices issued under an Act and not directly with the wording of the Act itself, the reasoning applied considered the usage of words within the legal framework and I cannot see why such reasoning should not be applied to the meaning of words in an Act of Parliament. This appears to be supported in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, where it was unanimously stated by the High Court that: “It is well settled that at common law, apart from any reliance upon s.15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute intended to remedy”.
The second reading speeches applicable to both s.90G of the Family Law Act and The Judiciary Act as they then stood made no reference to the question now before the Court but if the Judiciary Act did not apply to the Family Law Act, then the words legal practitioner in s.90G were not needed and a person could seek advice from anyone.
While in some cases there actually needs to be a special meaning applied to words in an act, to imply that the words legal practitioner would apply to a lawyer such as Daniel B Liangco would be a construction which is unreasonable or precious and a return to interpretations of acts resulting in a ludicrous outcome. Such an outcome is not apparent here. The rights of people are at issue here and so it follows that the s.90.G words legal practitioner are not superfluous, they mean and can only mean a person qualified or defined within the terms of the Judiciary Act1903 as a legal practitioner, qualified to practise in the Australian federal jurisdiction.
In my opinion the certificate is a notice to the other party and is a vital component of the financial agreement. Only after it is held to conform to the section, can it be relied on for what it states on its face. It is open to challenge for not complying with s.90G.
The husband set out to surround himself with a protective regime for his property if the marriage failed by obtaining advice in the jurisdiction which he himself would invoke if there was an issue.
He presented the wife with the form of agreement and as he was entitled to do allegedly said he would not marry her if she did not sign it. He now says he is entitled to rely on the agreement and on her acts in relation to the execution of that agreement.
It can hardly be the case that the husband can rely on fraud or unconscionability or estoppel in this matter as he knew the circumstances in which the wife went to obtain legal advice in Angeles City, Philippines. He knew the circumstances because he accompanied her to the front door. He knew the circumstances and he accepted the document she handed to him.
He received advice from a solicitor of the Supreme Court of Queensland. He had notice from the wife’s part of the agreement that she received advice from a lawyer of the Angeles City Court of Philippines. Before being handed that certificate containing the notice, he had given the wife legal advice, that these agreements were enforceable in Australia but at no time, knowing she was a foreigner, did he advise her to seek legal advice while in Australia and before marriage. The husband created the circumstances which saw the document signed in the Philippines and in those circumstances he cannot rely on fraud or unconscionability to defeat the wife’s application.
On the facts here, the legal practitioner referred to in s.90G is a legal practitioner holding a relevant practicing certificate for the Australian federal jurisdiction. Sub-section 90G(1)(b) and (c) then have functionality and the husband, when observing the status of the legal practitioner signing the certificate, was on notice that there was non-compliance with the section as a whole.
If the application of the Judiciary Act to the Family Law Act is wrongly based, that does not escape the fact that legal advice is advice about the law and that must be with regard to the law of a particular jurisdiction. Under s.90G, legal advice is given contemplating an agreement made within the framework of the Family Law Act 1975. The advice referred to in section 90G is about rights determinable in the jurisdiction which created the section under the Family Law Act, which is the Australian federal jurisdiction and this was strengthened as the agreement stated the jurisdiction, being that of the Commonwealth and Queensland. Advice about rights are justiciable within the jurisdiction which adjudicates on those rights. No other purpose appears on the face of the legislation or by inference in the agreement, in my view, than for advice to be given by a legal practitioner who could practice in the jurisdiction. It appears then that the purpose of the section is to ensure that a certificate is provided by a legal practitioner qualified to practise in the Australian federal jurisdiction. Section 90G is to be read with the other sections pertaining to such agreements and those sections clearly contemplate that relevant disputes may be brought into court. It would be illogical that a person could call themselves a legal practitioner, but with no qualification to practice in the Australian federal jurisdiction and give the certificate required, because the rights are legal rights recognised and governed within the Australian federal jurisdiction.
I could not take judicial notice of a claim, as submitted, that many Australians might go overseas and execute such agreement in the same manner. Although I am aware that in the light of the decision of Black and Black, the Federal Government has indicated that the Federal Justice System Amendment (Efficiency Measures Bill (No 1) 2008 is amending provisions to allow for substantial compliance in relation to such agreements, this matter falls outside the issue of substantial compliance because there has not been any compliance with the section. Even if the wife knew what the discussion was about as the husband claims – which is hearsay or opinion evidence – it cannot be said that there had been substantial compliance so that she would or could make a decision on an informed basis as to her legal rights. That is a situation to which the husband contributed.
I think it is less a case of fraud and unconscionable conduct and more a case of the husband’s lack of proper planning where he contributed to the circumstances as to where the wife received “legal” advice, signed and then produced a certificate, out of jurisdiction, supporting the financial agreement. On the same basis the husband cannot rely on some form of estoppel operating to prevent the agreement being set aside. The evidence is that he planned the steps to be taken. He perhaps did not seek advice on the qualifications of the legal practitioner who could sign the certificate. I could not imagine that had that been asked, even out of an abundance of caution, a legal practitioner in Australia would have advised that the certificate be signed by a legal practitioner qualified for practice in Australia. Both parties under the Act are entitled to come to an agreement which results in the “extreme asset protection” for one party, as counsel for the wife put it, if that is an informed decision, the purpose of compliance with s.90G.
The result of the husband’s haste then is an agreement which pursuant to s.90K(1)(b) is void, voidable or unenforceable. In stating that, I think the agreement was actually void, that is, it never effectively existed because the wife’s certificate did not comply with the requirements of s.90G.
For completeness, Mr Blaxland argued that the Judiciary Act stipulated that the definitions were confined to that Act. I noted that s.55B is headed “Right to practise as barrister or solicitor in federal courts and courts exercising federal jurisdiction” and the section itself refers to practise in federal courts. Because of that, I do not find that the Judiciary Act definitions are confined to that Act.
I should also say that fraud, if such a certificate were concocted, would be an entirely different situation and the then s.90K(1)(a) allowed for an agreement to be set aside for fraud. I was not satisfied that there was evidence of fraud by the wife where she was to profit because of some deceitful act or omission on her part in the Derry v Peak ([1889]14 AC 337) sense, where a representation was made knowingly, without belief in its truth, recklessly and careless whether it was true or false.
I have also not dismissed the disagreement about what was said with regard to signing the certificate being a triable issue, at paragraphs 15 to 19 above.
The matter must then be set for trial.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Coates FM
Associate: Tracey Lewis
Date: 24 April 2009
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