ORJIT and YADU - [2021] FCWA 204

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: ORJIT and YADU [2021] FCWA 204
CORAM: O'BRIEN J
HEARD: 5 NOVEMBER 2021
DELIVERED : Ex tempore
PUBLISHED : 23 NOVEMBER 2022
FILE NO/S: [REDACTED]
BETWEEN: MS ORJIT
Applicant
AND
MR YADU
Respondent

Catchwords:

PROPERTY AND INJUNCTIONS – Where final orders in property proceedings between the parties in South Africa provide for the wife to be the sole owner of all immovable property in Australia – Where the wife seeks injunctive relief compelling the husband to execute documents to transfer to her sole name a home in Australia still registered in joint names.

SUMMARY DISMISSAL OF PROCEEDINGS – Where the husband seeks orders pursuant to s 79 of the Family Law Act 1975 (Cth) when final orders for alteration of property interests have been made in proceedings between the parties in South Africa – Where wife's assertion of res judicata is rejected – Where cause of action estoppel is found – Where this court does not have jurisdiction to entertain the additional relief sought by the husband in the form of compensation or damages – Where there is no power to make the orders sought – Where new matters raised by the husband are contrary to positions adopted by him in previous proceedings both in this court and in the [South African Court] – Issue estoppel and Anshun estoppel – Where in any event the husband's response is an abuse of process – Husband's response summarily dismissed.

Legislation:

Family Law Act 1975 (Cth)
Family Court Rules 2021 (WA)
Matrimonial Property Act 88 of 1984 (South Africa)
Divorce Act (1979) (South Africa)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr D Klicker
Respondent	:	Self-Represented Litigant (by telephone link)

Solicitors:

Applicant	:	Beacon Family Law
Respondent	:	Self-Represented Litigant

Case(s) referred to in decision(s):

Anderson & McIntosh (2013) FLC 93-568
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Bain Pacific Associations & Ors and Kelly & Ors (2006) FLC 93-270
Beck and Beck (2004) FLC 93-181
Bigg v Suzi (1998) FLC 92-799
Clayton & Bant (2020) FLC 93-994
Consolaro v Consaloro [2002] WASC 92
Gong & Zao (2021) FLC 94-032
Guthrie and Guthrie (1995) FLC 92-647
Harris v Caladine (1991) 172 CLR 84
Henry v Henry (1996) 185 CLR 571
Jago v District Court (NSW) (1989) 168 CLR 23
Kennon & Kennon (1997) FLC 92-757
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
R v Dovey; Ex parte Ross (1979) 141 CLR 526
Reid v Lynch (2010) FLC 93-448
Ridgeway v The Queen (1995) 184 CLR 19
Ritter & Ritter and Anor (2020) FLC 93-957
Saba and Saba (1984) FLC 91-579
Spencer v The Commonwealth (2010) 241 CLR 118
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Tomlinson v Ramsay Food Processing Pty Ltd (2015) 256 CLR 507
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Walton v Gardiner (1993) 177 CLR 378
Webster v Lampard (1993) 177 CLR 598
Zetta Jet Pts Ltd v The Ship Dragon Pearl [No.2] (2018) 265 FCR 290

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Orjit and Yadu has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

1The litigation between [Ms Orjit] ("the wife") and [Mr Yadu] ("the husband") arising from the breakdown of their marriage has a long and unfortunate history both here and in South Africa. It is necessary to set out that history in some detail before turning to the relief presently sought by each party, to give context to what follows. Much of the summary below is extracted from my judgment published [in] 2016 ("the 2016 judgment").

Background

2The parties were married [in early] 2000 and separated in March 2011. They have three children, [Child A] born [in late] 2000, [Child B] born [in early] 2002 and [Child C] born [in] 2005 ("the children").

The initial proceedings in South Africa

3At the time the parties separated they were living in South Africa. The wife commenced divorce proceedings and final orders were made in the [relevant court in another jurisdiction ("the South African Court")] on 17 June 2011. In addition to the dissolution of the marriage, parenting and child maintenance orders were made.
4Relevantly, other orders ("the South African property orders") were also made. The wife was the plaintiff in the proceedings and the husband was the defendant. The husband says that the orders were made by consent; having initially agreed with that proposition, the wife corrected her position to state that the orders were made after the parties had discussions and agreed their terms, but that in a formal sense the orders were made by default as the husband did not defend the application. Nothing turns on the distinction.
5The South African property orders are in the following terms:
7That the parties proprietary claims be settled on the basis that:
7.1Plaintiff effects payment to Defendant of a capital sum of R500,000.00 (Five Hundred Thousand Rand) within 30 days of the granting of a Final Order of Divorce;
7.2The household furniture and effects situated at the former common home, being [the South African property] be divided equally between the parties;
7.3The Plaintiff be the sole owner of the immovable property in Australia to the exclusion of Defendant. (sic)
7.4Save for the aforegoing, each party retains all assets presently in their respective possession or under their control as his/her sole and exclusive property.

6The "immovable property in Australia" referred to in paragraph 7.3 of the South African property orders included a jointly owned property at [City A] ("[the City A property]"). That property remains registered in the joint names of the parties and the litigation initiated by the wife in this court has been directed towards its transfer to her sole ownership.

The further proceedings in South Africa

7After the making of the South African property orders, there were further proceedings between the parties in the South African Court, commenced by an application filed by the wife in July 2014, seeking orders to enable her to relocate to Australia with the children. Orders were made by that Court on 19 September 2014 permitting the relocation and requiring the wife to seek and obtain mirror orders in the Family Court of Australia, ensuring that her obligations under the South African parenting orders would be enforceable in this Court.
8There were then still further proceedings [in] South Africa. On 23 October 2014, the wife commenced proceedings in that Court seeking the enforcement of the South African property orders ("the South African enforcement proceedings"). The relief sought by the wife was specifically directed to the completion of the transfer of the City A property, in the following terms:
1.Ordering the Defendant to sign all conveyancing and transfer documentation and all other necessary documentation, including annexure "B", to effect transfer of the Defendant’s one-half share in the property, being [the City A property] into the name of the Plaintiff, failing which that the Sheriff of the Court, alternatively, that the Plaintiff herself be authorized to sign the transfer documentation and all other necessary documentation, including annexure "B", on behalf of the Defendant;
2.Costs of suit;
3.Further and/or alternative relief.

9It will be seen that included in the relief sought by the wife in the South African enforcement proceedings are orders of the same nature as those available pursuant to s 106A of the Family Law Act 1975 (Cth) ("the Act") in aid of enforcement of orders made by this Court.
10The wife sought to obtain summary judgment in the South African enforcement proceedings. That application was opposed by the husband. In support of that opposition, the husband swore an affidavit on 6 December 2014. Among other things, he claimed in that affidavit that he was not in breach of the South African property orders as there was no specific agreement that he would relinquish his interest in the City A property. Quite how that proposition sat with the terms of paragraphs 7.3 of the South African property orders is not apparent.
11On 10 December 2014, the wife’s application for summary judgment in the South African enforcement proceedings was dismissed. No reasons for decision in relation to that dismissal have been put into evidence in this court or provided to me.
12After the dismissal of the summary judgment application, the wife took no further steps in the South African enforcement proceedings. Those proceedings remained adjourned.

The initial proceedings in this Court

13The wife then commenced proceedings in this Court. In her initiating application filed on 30 November 2015 ("the November 2015 application") she sought what were inaccurately described as "interim or procedural orders" in the following terms:
3.Pursuant to paragraph 7.3 of the Final Order of Divorce made in the South African Court on 5 July 2011, Mr Yadu is to (sic) all things and sign all documents as necessary within 14 days to transfer his interest in the property situated at the City A property to the applicant.
4.Pursuant to paragraph 7.3 of the Final Order of Divorce made in the South African Court on 5 July 2011, Mr Yadu is to (sic) all things and sign all documents as necessary to give effect to the applicant rolling out her member balance from the [Yadu] Self-Managed Superannuation Fund [ABN Omitted].
5.In the event that Mr Yadu does not comply with the Orders sought at paragraphs 3 and 4 herein, then 14 days thereafter and pursuant to section 106A of the Family Law Act 1975 (Cth) a Registrar of this Honourable Court be authorised and requested to sign all documents required to give effect to transfer of the respondent’s interest of (sic) the City A property to the applicant and to roll out the applicant’s member balance and resign as a trustee of the Yadu Self-Managed Superannuation Fund [ABN Omitted].

14As noted in the 2016 judgment, for reasons which were not adequately explained, the wife made no mention of the South African enforcement proceedings in her application filed in this Court, nor in the affidavit filed by her in support of it. Those proceedings were only brought to the attention of this Court during subsequent submissions by the husband, and details of them were only extracted by me pressing the matter with counsel. Eventually, I was advised that at the time the wife instituted proceedings in this Court, the South African enforcement proceedings had been in abeyance for nearly a year, neither party had taken any steps to prosecute them, and she had "regarded them as being abandoned and of no relevance".
15The husband filed a response on 2 January 2016, purporting to seek interim orders to "set aside" the wife’s application "until the final order of divorce has been complied with and also until the case that is ongoing in the [South African Court] case number [omitted] has been finalised". He also sought an order that the wife remove the caveat lodged by her over the City A property. During submissions it became clear that the husband in fact sought a stay of the proceedings commenced by the wife based on his assertion that this Court was a clearly inappropriate forum.
16After the wife filed the November 2015 application, the husband took steps to revive the South African enforcement proceedings. He contended that the property referred to in paragraph 7.3 of the South African property orders only referred to property in the name of the wife. He submitted that paragraph 7 of the South African property orders was "vague and embarrassing", and that there were "oral agreements in place between the parties".
17He took steps no later than June 2016 to move the South African enforcement proceedings towards trial, and it was anticipated by the parties that a trial date would be allocated within a year.
18When the proceedings commenced by the wife’s November 2015 application came on for hearing before me on 12 July 2016, the state of the South African enforcement proceedings was as just described. For the reasons set out in the 2016 judgment, I dismissed the relevant parts of the wife’s application and the husband’s response; in short, I was not persuaded to exercise the power to grant a mandatory injunction to give effect to the South African property orders in circumstances where the wife had not come to the court with ‘clean hands’, and there remained on foot proceedings commenced by her in the relevant South African court to enforce those orders.

Further South African proceedings commenced by the husband

19On 25 May 2017, the husband was granted leave to bring further proceedings in the South African Court. He was represented by lawyers. He sought an order "rectifying, alternatively, amending the Final Divorce Order by the deletion of paragraph 7.3 thereof" and an order directing the wife to return half the artwork she had removed from the home. In the context of those proceedings, he asserted that he was "not represented in the divorce proceedings nor did he oppose them". He asserted however that paragraph 7.3 of the orders did "not correctly record the agreement between the parties" by reference to negotiations leading up to the divorce proceedings. He made no suggestion that the orders were in any other sense invalid, or that Australian law should have been applied by the South African Court. The husband subsequently withdrew those proceedings on 14 December 2018.

The further proceedings in this Court

20The wife commenced fresh proceedings in this Court on 15 July 2019 ("the 2019 application"). She again sought orders for the husband to sign all necessary documents to transfer his interest in the City A property to her, and for a Registrar of the Court to be appointed to execute the documents if he failed to do so. In her affidavit filed in support of that application she set out relevant background, detailed the sale of various other properties, and summarised the effect of the South African property orders in terms of the wealth retained by each party.
21Relevantly, she said that in February 2017 she had withdrawn her application in the South African enforcement proceedings, and that the husband had also withdrawn. Accordingly, no South African proceedings remained on foot, and she sought to proceed in this court.
22The 2019 application came on before me on 4 November 2019. Submissions filed on behalf of the wife asserted that she sought relief pursuant to s 79 of the Act.[1] The husband was ordered to file responding documents. His response initially filed did not articulate with any clarity the relief he sought; on 28 January 2020 I made orders requiring him to file an amended response clearly stating whether he consented to any of the orders sought by the wife, specifying with precision the orders he proposed should be made in respect of the City A property, and "in any event, specifying with precision any orders he seeks, by articulating such relief in the precise words of orders capable of being made".
[1] Written submissions filed [in] 2019.
23The husband’s amended response subsequently filed did not properly comply with that order. It did, however, assert that the City A property "must remain in both parties’ names as it currently stands and the [wife] should perhaps buy the [husband’s] share of the property at the market valuation if [she] wants ownership of the entire property".
24The parties participated in a conciliation conference [in] August 2020 and no agreement was reached. Orders were made to progress the matter towards trial. At my direction, the proceedings were relisted before me [later in] 2020. At that hearing, counsel for the wife foreshadowed an application for "a potential summary judgment", asserting that the amended response filed by the husband had no reasonable prospect of success. He confirmed that the only orders sought by the wife were the transfer of the City A property and execution of documents to give effect to that.
25During that hearing, the husband indicated that he had contacted a particular firm of lawyers in Perth, who were going to "assist in the matter". Sensibly, counsel for the wife agreed that the matter should be adjourned in the hope that the engagement by the husband of local lawyers might assist in the resolution of the matter, or at the very least clarify the issues.
26Unfortunately, that did not transpire and the firm in question was not engaged by the husband.

The present application

27The wife filed an application in a case on 24 February 2021 seeking:
(a)summary dismissal, or alternatively the striking out, of the husband’s amended response;
(b)further or alternatively, the orders set out in the 2019 application;
(c)further or alternatively, leave to proceed on an undefended basis;
(d)further or alternatively, orders requiring the parties to "forthwith change the use of [the City A property] from commercial to residential", with supportive orders for relevant documents to be executed by a Registrar if the husband did not comply; and
(e)costs.

28The matter was listed before me on 15 March 2021. I endeavoured at that hearing to clarify the positions of the parties. Counsel for the wife confirmed that the only orders sought pursuant to the 2019 application were orders to effect the transfer of the City A property, and costs. The husband confirmed that he proposed that the City A property should remain in joint ownership, and that the additional final relief sought by him was as follows:
(a)that the wife "refund" his share of the proceeds from the self-managed superannuation fund previously operated by the parties;
(b)that the wife either return half the furniture and contents of the family home to him, or pay him for his share of their value;
(c)that the wife either return his wine collection to him, or pay him for the cost of replacing it;
(d)that the wife pay him half of the proceeds of the sale by her of artwork which he asserted to be jointly owned; and
(e)that the wife return his car.

29The husband was ordered to file a response to the wife’s application in a case, and supporting affidavit, by 26 April 2021, failing which his amended substantive response would be dismissed and the wife would have leave to proceed with the 2019 application on an undefended basis. If the husband complied with the orders to file responding documents, the matter was to be listed for hearing and determination by me on 9 June 2021.
30The husband filed a response and supporting affidavit on 25 April 2021. He sought orders:
(a)that the City A property remain in joint ownership;
(b)that the wife refund "his share" of the proceeds from the superannuation fund, saying that the "sum total is $362,345.49";
(c)quantifying the amount he said the wife needed to pay him representing half the value of furniture and contents of the family home at $450,000;

(d)quantifying what he would say to be the value of the wine collection at $689,000;
(e)quantifying the amount sought in respect of the artwork at $339,000; and
(f)seeking that if the car could not be returned to him, he be paid the sum of $35,000, which he asserted to be the value of the vehicle "at the time of the divorce" in June 2011.

31The husband, through no fault on his part, could not be contacted by telephone for the hearing on 9 June 2021. The matter was therefore adjourned to 27 August 2021 for argument. Orders were made requiring each party to file and serve by 30 July 2021 a minute clearly identifying the head of power under which they sought the relief proposed in their respective applications and responses.
32The wife filed a minute in compliance with that order on 30 July 2021 stating that the relief she sought in relation to the City A property was grounded in the injunctive power in s 114 of the Act.
33The minute went on to propose that the husband be estopped from pursuing his claim in relation to the City A property and, curiously, that "if, and only if, the Honourable Court finds s 114 is not available then pursuant to [s]79" the husband be ordered to transfer his interest in the City A property to the wife. To use the vernacular, notwithstanding the clear terms of the orders made on 9 June 2021 the wife sought to ‘have two bob each way’.
34The wife otherwise sought summary dismissal of the husband’s response insofar as it sought orders relating to the superannuation, furniture, wine, art and motor vehicle or in the alternative that he "be estopped from pursuing [those] claims". Presumably that was intended to mean that the wife sought a permanent stay or dismissal of the husband’s response.
35The husband did not file a minute in compliance with the orders of 9 June 2021.
36The wife filed a further application in a case on 9 August 2021, which merely sought leave to rely on a particular affidavit at the August hearing.
37On 18 August 2021, the wife filed written submissions summarising the facts, and otherwise submitting:
(a)that the husband was seeking to relitigate matters already determined in the South African property proceedings;
(b)that she was "entitled to judgment" for the transfer of the City A property, and that the court has the requisite power to grant the mandatory injunction sought;
(c)that the husband’s claims should "be stayed and/or dismissed";
(d)that the South African property orders "determine finally all of the rights of the parties in relation to their property in South Africa and overseas"; and
(e)that the husband’s claim was doomed to fail, and that in any event he was estopped from asserting a right to an order inconsistent with the South African property orders.

38On 24 August 2021 the husband emailed the court seeking "a postponement for about a month" on the basis that he was suffering major depression and was not in a fit state to proceed. He enclosed a handwritten medical certificate from a general practitioner stating that he had been seen that day and was "suffering from an obvious bout of major depression". The doctor said that he did not "feel it wise for [the husband] to leave home for at least two weeks", saying that he "requires psychiatric follow-up".
39The wife did not consent to the proposed adjournment. The husband was advised of that by my staff by email on 25 August 2021 and told that the Court would contact him by telephone at the commencement of the hearing.
40At the hearing on 27 August 2021, two attempts were made to contact the husband by telephone without success. Orders were made adjourning the proceedings for hearing and determination on 29 September 2021, with the husband having liberty to participate in hearing by telephone without the need for formal application. A further order was made requiring the husband to file any written submissions he might choose to file, by no later than 22 September 2021.
41Notations were recorded on the face of the order that in the event the husband sought any further adjournment on medical grounds that application would need to be supported by sworn evidence from the relevant medical practitioner, that tender of a medical certificate would not suffice, and that if the husband did not participate in the hearing on 29 September 2021 that hearing would proceed in his absence and the matter would be heard and determined.
42The husband did not file any written submissions pursuant to those orders. He did however file an affidavit of a psychiatrist [Dr A] sworn on 24 September 2021. Dr A stated that while the husband was then presently unfit to present his case, he anticipated that he would be fit to appear in court in 30 days’ time. The husband participated in the hearing on 29 September 2021 and sought an adjournment for that period based on the evidence of Dr A. While the application was opposed, I granted it.
43During the hearing on 29 September 2021, I clarified a number of matters with counsel and the husband. I made it clear to the husband that a transcript of the hearing would be provided to him as soon as possible to assist him in his preparation for the next hearing.
44In response to queries from me, counsel for the wife:
(a)confirmed that the wife would submit that the South African property orders give rise to res judicata;
(b)confirmed that in the alternative the wife would submit that either cause of action estoppel, or issue estoppel, would operate to preclude the husband from pursuing relief in this court pursuant to s 79;
(c)confirmed that the wife’s submission would be that she was not similarly estopped, as the only relief she would seek pursuant to s 79 is relief consistent with the South African property orders;
(d)said that the wife would not submit that any Anshun estoppel arises;[2]
[2] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
(e)acknowledged that while the South African property orders were in evidence, the pleadings and affidavits if any from the South African property proceedings were not;
(f)acknowledged that in relation to her primary position the wife would need to establish:
(a)the matters in issue in the proceedings concluded by the South African property orders;
(b)the power of the South African Court to deal with property interests in Australia as between the parties; and
(c)the final and conclusive nature of the South African property orders;

(g)acknowledged that at the time of that hearing no admissible evidence had been provided to establish those matters, or for that matter which of the property regimes open under South African family law applied to these parties.

45The proceedings were therefore adjourned further to today, with both parties being given liberty to file and serve any further affidavit within 21 days, and any written submissions by 2 November 2021.
46To ensure procedural fairness, I raised for consideration by the parties, and to give submissions if appropriate, a possible disposition of the matter which neither had raised.[3] The substantive outcome sought by the wife was the transfer of the City A property into her sole name; she had no interest in continuing litigation beyond that point. Her arguments grounded in res judicata and estoppel were raised in support of the proposition that the husband could not seek to relitigate alteration of property interests in this court. Accordingly, I raised the possibility that any concern she might have as to further delay arising from any inactivity on the part of the husband might be addressed by the making of orders for the transfer of the City A property, but accompanied by an injunction restraining her from disposing of or encumbering that property for a period sufficient to enable the husband to take further steps to advance his claims, and for any argument as to res judicata or estoppel to be properly heard and determined. I also foreshadowed the possibility of a self-executing order dismissing the husband’s response if he did not take necessary steps within the specified timeframe.
[3] Guthrie and Guthrie (1995) FLC 92-647.
47I made it clear to the husband that I had not reached any conclusion, preliminary or otherwise, in relation to those matters but simply raised them as a logical possibility to afford both parties the opportunity to address them at the subsequent hearing both as to concept and, if orders of that nature were made, what would be an appropriate timeframe for any self-executing order that might be made. Neither party sought orders of that nature today.

The most recent material

48The wife subsequently filed two affidavits, one sworn by her and one by a South African lawyer [Mr B].
49In her affidavit, the wife recounted some of the historical matters already outlined. She said that at no time had she and the husband entered into "any prenuptial, nuptial or other contract or agreement of any kind whatsoever" and expressed her understanding that as no such agreement had been entered into, the law of community of property in South Africa applied to their divorce. She said further that after she had commenced the South African property proceedings the husband agreed that she should have the properties in Australia, and that he would retain the house in South Africa. On her evidence, the husband retained the South African house unencumbered, thereby retaining "the bulk of [the parties’] assets".
50The wife exhibited to that affidavit what she said were all the court documents in her possession in relation to the various court proceedings in South Africa relevant to the present dispute.
51In his affidavit, Mr B set out his qualifications and experience as a lawyer practising in Family Law in South Africa. He too set out in some detail the history of proceedings brought in South Africa, in which he had acted for the wife. Relevantly, he:
(a)confirmed that there had been no matrimonial contract between the parties;
(b)confirmed that "all of the assets of the parties were divided as set out in the Particulars of Claim annexed to the Divorce Summons";
(c)confirmed that in the absence of a matrimonial contract, community of property applied;
(d)annexed to his affidavit the relevant South African legislation, from which I note:
(i)section 20 of the Matrimonial Property Act 88 of 1984 (South Africa) relevantly provides that on the application of a spouse, the relevant court may "order the immediate division of the joint estate in equal shares or on such other basis as the court may deem just".
(ii)section 15 provides that absent such an order, a spouse may not without the written consent of the other spouse encumber any immovable property forming part of the joint estate, nor enter into any contract either to encumber, alienate, or confer rights in such property.

52The wife filed brief further written submissions as permitted by the orders made on 29 September 2021.
53On 3 November 2021, the husband filed:
(a)an application in a case, seeking that the hearing be "postponed to 15 December 2021 in order for [him] to appoint [lawyers in Perth], and that costs be reserved;
(b)an affidavit in support of that application; and
(c)an affidavit addressing the substance of the dispute.

54As the material filed by the husband makes clear, he has engaged lawyers in South Africa, and has taken preliminary steps to engage lawyers in Perth. Those steps do not extend to having formally engaged the Perth lawyers in question, who have made it clear that they are not prepared to commence acting without both a signed retainer agreement and funds in trust. In making that observation, I note that the husband advised me this morning that matters have advanced slightly from that position but nevertheless the lawyers in question are still not formally engaged.

The application for adjournment

55At the commencement of the hearing this morning, I heard and dismissed the husband’s application for an adjournment.

The legal principles

56The relevant legal principles may be briefly stated.
57The consideration of an application for an adjournment, whether at a late stage or otherwise, is a matter for the exercise of discretion. In the proper exercise of that discretion, applications for adjournment, are not to be considered solely by reference to whether any prejudice to the other party can be compensated by costs. Whatever costs may be ordered, there can be an irreparable element of unfair prejudice in unnecessarily delaying proceedings.[4]
[4] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
58In addition, the time of the court is a publicly funded resource. The public interest in the efficient and proper use of that resource, the need to maintain public confidence in the judicial system and the interests of other litigants in having their own cases heard in a timely manner are all properly to be taken into account.
59That said, case management is not an end in itself.[5] Justice is the paramount consideration in determining an application for adjournment and, save insofar as costs may be awarded, such an application is not the occasion for punishment of the party making it. I was required to consider the prejudice to the husband if the adjournment sought was not granted, and to weigh that against the prejudice to the wife if it was. I was entitled to take into account any question of the bone fides of the application, and the explanation proffered for any relevant delay. In considering the prejudice to the husband if the adjournment sought was not granted, self-evidently I could consider the purpose for which it was sought; if for example an adjournment is sought to permit time to pursue a clearly unmeritorious claim that is a relevant matter.

The husband’s evidence and submissions

[5] State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146.

60In his most recently filed affidavits, the husband relevantly says:
(a)that he is presently unemployed, and has legal representation in South Africa but does not yet have legal representation in Australia;
(b)that he has not yet been able to secure legal representation in Australia because of "the limited time available", the complexity of the issues, and the "reticence of Australian lawyers to engage under [those] circumstances";
(c)that he has on several occasions been refused Legal Aid;
(d)that his sister is now willing to lend him money to fund legal representation in Australia;
(e)that the parties’ marriage was not in community of property, and that "the Law of Australia applied to [the] divorce", stating further that the South African property orders are "invalid";
(f)that "while the South African Court possessed jurisdiction and was empowered to deal with the divorce", it "had no authority, on the basis of the papers before it, to deal with any proprietary consequences" of the divorce under South African law;
(g)that the relevant domicile of the parties at the time of their marriage was in Australia, and thus Australian law was to be applied to any property division;
(h)that the "divorce proceedings in South Africa were further defective for a number of procedural and substantive of reasons (sic) (in terms of South African law) which may have resulted in an incorrect order having been granted" and that he has been advised to, and intends to, "bring an application either for rescission of the order, or preferably for the variation thereof";
(i)that he accepts the accuracy of the statement of the law by Mr B in the letter annexed to his affidavit sworn on behalf of the wife;
(j)that he "avers" that the South African Court "has no jurisdiction over any property or proprietary rights and interests outside the borders of South Africa" but is unable to "provide authority on this aspect";
(k)that a South African order amending property rights in Australia is "invalid" in Australia;
(l)that once represented he intends "to challenge the fundamental issue of condonation of [this court] even hearing this issue at this late stage, initiated some eight years after the divorce order"; and
(m)having said that, he nevertheless seeks that the various claims he has made should be "adjudicated in terms of section 79".

61Self-evidently, a number of those contentions are inconsistent with each other. Several other matters may be readily observed.
62First, as noted earlier in these reasons, the proceedings were previously adjourned at the request of the husband at a hearing on 27 September 2020 based on his assurance that he had contacted and was about to engage a particular law firm in Perth. At that hearing, he told me that he had recently obtained financial assistance from a relative to enable him to instruct that firm. That firm was not instructed. The husband’s most recent evidence that he has only now secured financial assistance from a relative to instruct a different firm may be viewed against the background of his assurances to me in the same terms over a year ago.
63Similarly, counsel appeared briefly as a courtesy to the court at a hearing on 27 August 2021 and advised that he had been approached by a number of firms to accept a brief on behalf of the husband, but that no satisfactory arrangements had been made and he had accordingly advised the husband that he would not act.
64The husband’s argument that an adjournment is justified to enable him to instruct local lawyers and make good on his expressed commitment to "finalising this matter soonest" is, against that background and the broader history of the litigation, unpersuasive.
65Secondly, the now raised assertion that the South African property orders are "invalid", and that the rights of the parties in relation to Australian property should be determined by this court pursuant to s 79 of the Act is inconsistent with the position previously asserted by the husband.
66It is common ground that under South African law:
(a)the domicile of a husband at the time of entering into the marriage determines the matrimonial regime to be applied by the South African courts;
(b)even if the marriage takes place outside South Africa, where a husband regards South Africa as his domicile, South African law will be applied in any proceedings in that country;
(c)the marriage is automatically in community of property in the absence of an antenuptial contract; and
(d)where the domicile of a husband at the time of entering into the marriage was another country, the law of that country will be applied in any proceedings before the South African courts.

67The husband now appears to assert that he was domiciled in Australia in the relevant sense at the time of the marriage, and accordingly Australian law should have been applied by the South African Court at the time of the divorce and the making of the South African property orders.
68There are several difficulties with that proposition.
69Firstly, in the initial proceedings in this court commenced by the November 2015 application, the husband made no such assertion. He asserted that this court was a clearly inappropriate forum to determine any dispute between the parties in relation to their property. He expressed his "vigorous objection" to the wife’s "attempt to include the property" in proceedings in this court, as the matter was "currently already before the [South African Court]"[6] He sought to enforce the South African property order, and to rely upon it in this court, with the only issue raised being as to its proper interpretation.

[6] Husband’s affidavit sworn 2 January 2016 at paragraph 52.
70Secondly, the combined summons by which the wife commenced the divorce proceedings (including seeking parenting and property orders) was served on the husband and service was proved to the satisfaction of the South African Court. The particulars of claim annexed to the summons noted that the parties had been married in Western Australia, but stated further that they had been "ordinarily resident in the Republic of South Africa since 2007 and [were] domiciled within the jurisdiction". The issue of domicile may be inferred to have been determined by that court. Even if it was not, the husband had the opportunity to, but did not, raise in the South African proceedings his present contention that at the time of the marriage he was domiciled in Australia, and that accordingly the South African Court should have applied Australian law in determining the property rights of the parties. He could reasonably have been expected to do so. Questions of issue estoppel, or if that is not established Anshun estoppel clearly arise.
71Thirdly, in his substantive response filed in this Court and dated 7 January 2020, the husband "request[ed] that this Honourable Court instruct and order the [wife] to abide by the terms of the [South African property orders]". He confirmed that request in his affidavit filed in support of the response. The issue which he raised in resistance to the proposition that the City A property should be transferred to the wife was to the effect that there was a separate verbal agreement between the parties, "annotated on paper in the [wife] handwriting" that the City A property would "be kept rented and ownership shared as this would provide funds for the children’s schooling from the rental monies received". Again, he sought to compel compliance with the South African orders in their terms and raised no issue as to their validity.
72Further, in his affidavit in opposition to the wife’s application for summary judgment in the South African Court, the husband denied failing to comply with the South African property orders, again suggesting that there was "no specific agreement" that his interest in the City A property would be transferred to the wife. To the contrary, he contended that he had complied with the South African property orders, and the wife had not. He raised no issue as to domicile, applicable law, or the like. In a subsequent affidavit, he referred to the South African property orders as having been made by consent, while contending that paragraph 7.3 of those orders only referred to property in the name of the wife.
73In the proceedings commenced by him in the South African Court in 2017, at a time when he was represented by South African lawyers, the husband made no suggestion that the orders were in any sense invalid, or that Australian law should have been applied when the primary orders were made. Again, he sought to vary the orders to reflect what he alleged to be an underlying agreement but raised no other issue when he had the opportunity and might reasonably be expected to do so. As earlier noted, he subsequently withdrew those proceedings.
74The matters just outlined underpin my absence of satisfaction as to the bona fides of the husband’s application for an adjournment. They also give context to an assessment of any asserted prejudice to the husband arising from a denial of his request for an adjournment; where an adjournment will do no more than afford a better opportunity to advance clearly unmeritorious arguments, there is no real prejudice.
75The prejudice to the wife if the matter is still further delayed is self-evident, and not limited to issues of costs. That prejudice is real; the prejudice asserted by the husband is illusory.
76For those reasons, I dismissed the husband’s application for an adjournment.

The issues requiring determination

77By the convoluted and protracted process outlined above, the issues requiring determination have finally emerged. Notwithstanding the way the case has progressed, there is a logical sequence in which those issues should be determined. That sequence is to ask:
1.Is it open to the husband to seek relief pursuant to s 79, that being the head of power upon which he apparently relies?
2.If so, should his response nevertheless be summarily dismissed as having no reasonable prospect of success?
3.If it is not open to the husband to seek relief pursuant to s 79, is any element of the relief sought by him competently sought under some other head of power?
4.If so, should his response nevertheless be summarily dismissed as having no reasonable prospect of success or for any other reason?
5.Those questions having been answered, should the discretion to grant the mandatory injunction sought by the wife be exercised?

78I do not ignore the fact that the wife purports to seek relief herself pursuant to s 79 "if and only if" the injunctive relief she seeks is not granted. As will emerge, I do not consider it necessary to determine whether it is open to the wife to seek such relief.
79I note as a preliminary matter that s 44(3) does not operate to preclude the commencement by either party of proceedings seeking relief pursuant to s 79, notwithstanding the passage of time since their divorce, as the divorce was granted by a foreign court.[7]
[7] Anderson & McIntosh (2013) FLC 93-568.
80The first question noted squarely raises issues of res judicata and estoppel.

Is it open to the husband to seek relief pursuant to s79?

Res judicata

81The submission of the wife that the South African property orders "determine finally all of the rights of the parties in relation to their property in South Africa and overseas" seeks to evoke the principle of res judicata. That principle has been explained in the following terms:
An exercise of judicial power, it has been held, involves "as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons". The rendering of a final judgment in that way "quells" the controversy between those persons. The rights and obligations in controversy, as between those persons, cease to have an independent existence: they "merge" in that final judgment. That merger has long been treated in Australia as equating to "res judicata" in the strict sense.[8]
[8] Tomlinson v Ramsay Food Processing Pty Ltd (2015) 256 CLR 507 at 516 [20] (citations omitted).

82A consent judgment intended by the parties to finally dispose of the relevant proceedings will give rise to a res judicata. Res judicata may operate even when no investigation of the merits of the previous proceedings has been made by the court; [9] for example, a judgment in default of appearance will give rise to a res judicata as it is made on the basis of the available evidence, the respondent having foregone the opportunity of putting forward a defence.[10]
[9] Consolaro v Consaloro [2002] WASC 92.
[10] Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508.
83The relevant rights in the present case are the statutory rights of the parties to seek orders under s 79(1). Prima facie, the parties each have those rights, as the relevant proceedings are in relation to a relevant matrimonial cause and the wife meets the requirements of s 39(3).[11] Those rights "cannot ‘merge’ in any judicial orders other than final orders of a court having jurisdiction under the Act to make orders under those sections", and "continue to have separate existence unless and until the powers to make those orders are exercised on a final basis and thereby exhausted".[12]
[11] Definition of matrimonial cause (ca) at s 4 of the Family Law Act 1975 (Cth).
[12] Clayton & Bant (2020) FLC 93-994.
84To the extent it was submitted on behalf of the wife that the South African property orders gave rise to a res judicata in the relevant sense, I reject that submission.

Cause of action estoppel

85The associated submission of the wife was that the husband is estopped from asserting a right to an order inconsistent with the South African property orders. That submission is grounded in what has been variously described as "cause of action estoppel" or "claim estoppel". A cause of action estoppel can clearly arise from a foreign judgment. To establish the estoppel, it is necessary to show that the relevant foreign judgment:
(a)was by a court of competent jurisdiction;
(b)was final and conclusive;
(c)was on the merits;
(d)was between the same parties; and
(e)determined the same cause of action.[13]
[13] Ibid at [52] and the authorities there cited.

86It is common ground that the South African Court was and is a court of competent jurisdiction, and self-evident that the relevant action was between the same parties.
87On the wife’s evidence, the proceedings in the South African Court were commenced by her on 30 May 2011. The South African property orders were made on 17 June 2011. The wife’s initial evidence did not expressly state whether the orders were made by consent; that said, in an affidavit sworn by the husband in the South African enforcement proceedings, and placed into evidence in this court by the wife, he referred to those orders as having been made by consent.[14] At the hearing on 29 September 2021 counsel for the wife confirmed that to be the position; as noted above he sought to further clarify that matter in his most recent submissions, saying that in fact the orders were made in default of any defence on the part of the husband.
[14] Wife’s affidavit filed 26 July 2016, at page 36 of the exhibits.
88Commonly with circumstances giving rise to res judicata, nothing turns on the question of whether the orders were made by consent. A consent judgment intended by the parties to finally dispose of substantive proceedings will give rise to res judicata if that would be the result of the same judgment following a contested hearing.[15] Similarly, the "operation of consent orders working an estoppel is an exception to the principle that there must be a decision on the merits". Consent orders "absolve the court from the duty to make a decision on the merits" (other than, for example, in a property case under the Act achieving the requisite level of satisfaction that the orders are just and equitable)[16] and "convert an agreement into a judicial decision".[17]
[15] Clayton & Bant (2020) FLC 93-994 at [52], Zetta Jet Pts Ltd v The Ship Dragon Pearl [No.2] (2018) 265 FCR 290 at [51].
[16] Harris v Caladine (1991) 172 CLR 84.
[17] Reid v Lynch (2010) FLC 93-448 at [229].
89The wife bears the onus to establish "a factual foundation for the operation of" the estoppel asserted, so as to prove that the South African property orders "had the meaning and determinative operation" for which she contends.[18] On their face, the orders dealt with the Australian property and it has at all times prior to the filing of the husband’s most recent affidavit been common ground that the court had power to do so. As earlier noted, in his most recent affidavit the husband acknowledges that he cannot point to any authority to support the belated departure by bald assertion from what was common ground; again, it may be noted that he has had the benefit of advice from South African lawyers.
[18] Gong & Zao (2021) FLC 94-032 at [28] citing Clayton & Bant (2020) FLC 93-994 at [30].
90The matters to be established by the wife, therefore, as the party relying on the asserted cause of action estoppel are the final and conclusive nature of the South African property orders, and commonality of cause of action.
91It is clear both on the face of the South African property orders, and by the husband’s own evidence given in subsequent enforcement proceedings in South Africa that the orders are properly characterised as final, and conclusive as to the rights of each of the parties to any alteration of property interests under South African law.[19]
[19] Affidavit of the husband sworn on 6 December 2014 at exhibit LLR 10.2 to the affidavit of the wife filed on 27 October 2021.
92The husband expressly admitted that the relevant paragraph "of the Final Order of divorce sets out the settlement of the parties’ proprietary claims". The only relevant assertion he made in opposition to the wife’s attempts to enforce the orders in the South African Court was to the effect that the reference to "immovable property in Australia" in those orders only referred to property registered in the sole name of the wife; no such interpretation is open on the face of the orders themselves.
93As already noted, in the further proceedings commenced by him in the South African Court in 2017 the husband sought an order "rectifying, alternatively, amending the Final Divorce Order by the deletion of paragraph 7.3 thereof". The husband claimed that the relevant paragraph did not correctly record the agreement between the parties, asserting that at no stage did he agree to relinquish his share in the City A property. In response the wife contended that the South African Court was functus officio, and that there was no jurisdiction to set aside the consent order. She noted that there had been no appeal against the final divorce order.
94The husband then abandoned the relevant action on 14 December 2018 and has taken no further steps of the nature described.
95I am satisfied as to the final and conclusive nature of the South African property orders. I am also satisfied, by reference to the relevant South African law, as to the relevant commonality of cause of action.
96I accordingly find that a cause of action estoppel applies, and that it is not open to the husband to now seek orders for alteration of property interests pursuant to s 79 of the Act.
97Before turning to the subsequent questions that arise, it is convenient to summarise the relevant legal principles in relation to summary dismissal.

Summary dismissal - the relevant legal principles

98Sections 45A(2) and 45A(3) of the Act, which were inserted with effect from 1 September 2018 but are applicable to proceedings instituted before and after that date,[20] are in the following terms:
[20] Family Law Amendment (Family Violence and Other Measures) Act 2018 (Cth), s 15.
45A Summary decrees
No reasonable prospect of successfully prosecuting proceedings
(2)The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:
(a)the first party is defending the proceedings or that part of the proceedings; and
(b)the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.

When there is no reasonable prospect of success
(3)For the purposes of this section, a defence or proceedings or part of proceedings need not be:
(a)hopeless; or
(b)bound to fail;
to have no reasonable prospect of success.

99Rule 163 of the Family Court Rules 2021 ("the Rules") is in the following terms:
163Application for summary orders

A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a)the court has no jurisdiction;
(b)the other party has no legal capacity to apply for the orders sought;
(c)it is frivolous, vexatious or an abuse of process; or
(d)there is no reasonable likelihood of success.

100Rule 165 provides (while expressly not limiting the powers of the Court) that on an application under r 163 the Court may dismiss any part of the case, decide an issue, or make a final order on any issue.
101The principles applicable to the consideration of summary dismissal are long standing and well-established. Save in one respect, as outlined further below, they are unchanged by the introduction of s 45A.
102Those principles may be summarised as follows:[21]
1.It is a serious matter to deprive a person of access to the Court for the determination at trial of their claim. Accordingly, the power to summarily dismiss an application is "rarely and sparingly provided";[22]
2.The party seeking summary dismissal must show that it is clear on the face of the other party’s documents that he or she "lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious";[23]
3.A perception by the Court, at that preliminary stage, that the substantive application is unlikely to succeed, or that the case is weak, is not sufficient to justify summary dismissal;[24]
4.If there is a serious legal question to be determined it should ordinarily be determined at trial, as the proof of facts may assist the Court to understand and apply the law that is invoked;[25]
5.If the substantive claim is inadequately pleaded, but "it appears that [the claimant] may have a reasonable cause of action" which is not yet in proper form, the court will ordinarily allow that party to "reframe" the pleading;[26] and
6."The guiding principle is… doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit".[27]
[21] See Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251; Bigg v Suzi (1998) FLC 92-799.
[22] Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251, 256.
[23] Ibid (omitting citations).
[24] Ibid.
[25] Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251.
[26] Ibid.
[27] Ibid.

103The reference above to a clear finding that the relevant proceedings are "doomed to fail" must be read in context of the subsequent legislative provision in s 45A(3) which expressly provides that the substantive application in question need not be "hopeless" or "bound to fail" to have "no reasonable prospect of success" for the purposes of the court making a decree pursuant to either s 45A(1) or s 45A(2). The test is now clearly less stringent, and it is "dangerous to seek to elucidate the meaning of the statutory expression" ‘no reasonable prospect of success’ by reference to earlier cases applying the more stringent test.[28]
[28] Spencer v The Commonwealth (2010) 241 CLR 118 at [56].
104Nevertheless, a perception by the Court, only that the substantive application is unlikely to succeed, or that the case is weak, is insufficient to justify summary dismissal.[29] The earlier cautions against the "too ready inclination to summarily dispose of proceedings" remain apposite.[30]
[29] Ritter & Ritter and Anor (2020) FLC 93-957 at [48].
[30] Gong & Zao (2021) FLC 94-032 at [16].
105As is clear from the reference to the need for the party seeking summary dismissal to demonstrate a lack of merit in the application "on the face of the [other party]’s documents",[31] an application for summary dismissal based on the proposition that an application has no reasonable likelihood of success can only succeed if the assessment of that likelihood is based exclusively on the evidence of the respondent to the application for summary dismissal,[32] provided that evidence is not inherently incredible,[33] and on relevant non-contentious facts.[34]

The relief purportedly sought by the husband pursuant to s 79

[31] Gong & Zao (2021) FLC 94-032.

[32] Beck and Beck (2004) FLC 93-181.

[33] Webster v Lampard (1993) 177 CLR 598.

[34] Bain Pacific Associations & Ors and Kelly & Ors (2006) FLC 93-270, at [21].

106While I have concluded as noted above that it is not open to the husband to pursue relief in this court pursuant to s 79 because of the operation of cause of action estoppel, further observations may be made.
107Firstly, in my view Anshun estoppel applies to preclude the husband from making the contentions he now seeks to make as to the validity of the South African property orders by reference to issues of domicile and applicable law.
108Secondly, in my view issue estoppel applies to preclude the husband from seeking relief in this court pursuant to s 79 when he has previously contended that this court is a clearly inappropriate forum to entertain any such claim.
109Thirdly, even if I am wrong in the conclusions already expressed, I find that even taking the evidence of the husband at its highest there is no reasonable prospect of this court being satisfied as required by s 79(2) that it is just and equitable to make an order under s 79. There is, accordingly, no reasonable likelihood of success in such a claim and on that basis it would appropriately be summarily dismissed.
110Further, the delay in the husband seeking to raise new contentions as to the validity of the South African property orders some 10 years after they were made, and in the context of the litigation history already outlined, would in my view clearly "produce a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court’s process",[35] such as to attract summary dismissal on that basis alone. Proceedings "should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings".[36]

The next question - is any element of the relief sought by the husband competently sought under another head of power?

[35] Jago v District Court (NSW) (1989) 168 CLR 23.

[36] Walton v Gardiner (1993) 177 CLR 378.

111The question then arises as to whether any of the relief sought by the husband might appropriately be sought without reliance on s 79 - that is, whether notwithstanding my findings just made, all or part of the husband’s response nevertheless competently seeks relief.

The relief sought in relation to the superannuation fund

112The South African property orders made no express reference to the superannuation entitlements of the parties. Rather, paragraph 7.4 of those orders provided for each party to retain "all assets presently in their respective possession or under their control as his/her sole and exclusive property".
113Section 7 of the Divorce Act (1979) (South Africa) provides that the "pension interest of a party" is deemed to be "part of his assets". The definition of "pension interest" captures the superannuation entitlements of these parties. Paragraph 7.4 of the South African property orders accordingly provided that the husband and wife would each retain their own superannuation entitlements.
114It is common ground that the parties were the trustees and members of the Yadu Self-Managed Superannuation Fund. It is also common ground that the fund has been wound up.
115On the wife’s evidence, the fund was non-compliant, and the husband would not cooperate in winding it up; she says that the ATO removed the husband as a trustee, the assets of the fund were sold to pay outstanding legal and accounting fees, and the husband’s remaining member entitlement was paid to the ATO lost super account, where presumably it would remain accessible to a claim by him.
116On the husband’s evidence, he was not informed by the wife of steps taken by her in relation to the fund. He admits that the fund was wound up and no longer exists. Taking his evidence at its highest the relief he seeks, therefore, is best characterised as some form of damages or compensation he would claim is payable by the wife to him by virtue of her actions in relation to the fund. Given that the fund no longer exists, it cannot be said that he seeks "enforcement" of paragraph 7.4 of the South African property orders in so far as they related to superannuation, nor alteration of the relevant interests.
117While married persons may sue each other in contract or in tort,[37] the fact that parties to a dispute are or were spouses does not of itself mean that there are relevant "circumstances arising out of the marital relationship" such as to meet the definition of matrimonial cause (e) in s 4(1) of the Act.[38] For example, the Full Court has consistently held that a claim by one spouse against the other for damages for assault will not meet the relevant definition, and can only be litigated in this court through the process of cross vesting and attachment to a claim within the original jurisdiction of the court.[39]
[37] Family Law Act 1975 (Cth), s 119.
[38] R v Dovey; Ex parte Ross (1979) 141 CLR 526.
[39] Kennon & Kennon (1997) FLC 92-757.
118Section 119 of the Act removes obstacles to the bringing of a tortious claim by one spouse against the other; it does not invest the Family Court with jurisdiction to deal with those matters.[40]
[40] In the Marriage of Saba (1984) FLC 91-579.
119I conclude that the court does not have jurisdiction to entertain the husband’s claim in relation to the superannuation fund, nor the power to make the order he seeks. Self-evidently in those circumstances, that aspect of his response has no reasonable prospect of success in the relevant sense.

The husband’s claims in relation to the furniture and contents of the family home, the wine collection and artwork, and the car

120As earlier noted, the South African property orders provided for the "household furniture and effects situate at the former common home" to be "divided equally between the parties" and for each party to otherwise retain "all assets presently in their respective possession or under their control as his/her sole and exclusive property".
121The husband appears to contend that:
(a)the wife removed all, or at the very least more than her share, of the furniture and effects from the home;
(b)the wife has retained, or sold, various artworks to which he would claim to be entitled;
(c)the wife has sold or otherwise disposed of wine which he would assert was nevertheless in his possession or under his control in terms of the South African property order; and
(d)the wife sold a motorcar registered in his name and retained the proceeds.

122He variously seeks either the return of items, or significant payments from the wife.
123The payments sought by the husband can, again, only be characterised as some form of compensation or damages. The observations already made as to the relief of that nature sought in relation to the superannuation need not be repeated; there is no jurisdiction to entertain the claim, nor power to make the orders sought.
124To the extent that it might be argued that the relief sought by the husband in the form of return to him of various items might be granted under the injunctive power, two observations may be made.
125First, it is common ground that many, if not most, of the items in question are no longer in the possession or control of either party. They are not capable of being returned; in that regard, that aspect of the husband’s claim clearly has no reasonable prospect of success.
126Second, to the extent that any of the items might still be retained by the wife, continuation of the proceedings in this court seeking their return would in my view clearly be both oppressive and vexatious in the relevant sense,[41] such as to call into question whether this court is a clearly inappropriate forum.[42] It is noteworthy that, notwithstanding the lengthy continuation of proceedings in South Africa subsequent to the making of the South African property orders, no relief of the same nature was sought (other than at one point in relation to artwork) and the proceedings were discontinued in any event.
[41] See Deane J in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 247-248; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 564; Henry v Henry (1996) 185 CLR 571 at 587.
[42] As earlier contended by the husband in responding to the November 2015 application.
127The latter point, coupled with the passage of over 10 years since the making of the South African property orders, reinforces a conclusion that regardless of issues of forum, the relevant part of the husband’s substantive response is frivolous, vexatious and an abuse of process. While there are no hard and fast definitions of what is vexatious or oppressive or otherwise constitutes an abuse of process,[43] it is clear that the concept of abuse of process extends to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging" or "productive of serious and unjustified trouble and harassment", whether or not they are commenced for an improper purpose. Rule 163(c) simply reflects that long established principle and acknowledges the power of the court to summarily dismiss rather than stay applications or responses of that nature.

Conclusion in relation to the husband’s substantive response

[43] Ridgeway v The Queen (1995) 184 CLR 19 at [74-75].

128For all the reasons set out above, I conclude that the husband’s amended substantive response should be summarily dismissed.

The final question - should the discretion to grant the mandatory injunction sought by the wife be exercised?

129Section 114 provides that the Court may, in proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), "make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate".
130The power to grant injunctions pursuant to s 114 is not limited to the enforcement of existing rights. However, the Court may only grant such injunction as it considers "proper" such that to grant the injunction is reasonable and just in the particular circumstances of the case. The power is discretionary and is not to be exercised lightly. Equitable principles concerning the grant of injunctive relief are applicable to the extent that they are consistent with the Act.
131Section 106A of the Act permits the appointment of an officer of the Court or other person to execute a deed or instrument required to be executed pursuant to "an order under this Act". The relief sought by the wife pursuant to s 106A is only, therefore, available to her if the mandatory injunction sought by her is granted and the husband refuses or neglects to comply with that order.
132My conclusions as to the effect of the South African property order need not be repeated. On the wife’s evidence:
(a)she has requested that the husband sign the necessary transfer of land in relation to the City A property, and he has refused;
(b)the certificate of title for the City A property is either lost or in the husband’s possession; and
(c)in those circumstances, Landgate will only register a transfer of the property if appropriate orders are made by an Australian court.

133Other than to state that the certificate of title is not in his possession, the husband did not dispute the evidence just outlined. Rather, as earlier noted, he denied any obligation to transfer the property.
134I am comfortably satisfied that it is appropriate to exercise the discretion to grant the injunction sought. It is now over 10 years since the South African property orders were made. The turgid history of the litigation between the parties since then does not require repetition. Having concluded as I have as to the effect of the South African property order, the granting of the requested injunction to finally give effect to that order is clearly appropriate.
135Given the history of the matter, the making of the requested supportive order for the execution of documents by a Registrar if the husband does not comply is also clearly appropriate.

Orders

136There will be the following orders:
1.The wife must provide to the husband all documents required to be executed by him to give effect to the transfer to the wife of all of his right, title, estate and interest in the property situated at [City A] ("the [City A] property").
2.Within 56 days of receipt by him of the documents to be provided pursuant to the immediately preceding order, the husband must execute the said documents and return them to the solicitor for the wife.
3.Should the husband fail to comply with the immediately preceding order, the Principal Registrar is appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute on behalf of the husband all documents required to be executed by him pursuant to these orders.
4.All outstanding applications and responses, other than as to costs, be and are hereby dismissed.
5.If either party seeks orders for costs, that party must file and serve written submissions within 28 days from the date hereof.
6.The respondent to any such application for costs must file and serve any written submissions in response within 28 days thereafter.
7.Each party have liberty to seek a relisting for the making of oral submissions in relation to questions costs, such request to be made within 14 days after the expiry of the time for the filing of any responsive written submissions pursuant to the immediately preceding order.
8.In the event that no request for a relisting is received pursuant to paragraph 7 of these orders, any costs application stand to be determined by the presiding Judge in chambers, and on the papers, with reasons to be delivered and orders pronounced from chambers without the necessity for any further appearance, and without further notice to the parties.

These reasons are the reasons for decision delivered on

5 November 2021, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
GA
Associate to the Judge
10 NOVEMBER 2021