Pacek & Saltzer
[2024] FedCFamC1F 650
•20 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pacek & Saltzer [2024] FedCFamC1F 650
File numbers MLC 2954 of 2020 MLC 7293 of 2024 #...78 #...07 Judgment of WILSON J Date of judgment 20 September 2024 Catchwords FAMILY LAW – PRACTICE AND PROCEDURE – Chief Justice referring three applications in two proceedings in this court for determination on 30 September as discrete issues – subsequent to Chief Justice’s orders, Delaney J of the Supreme Court of Victoria cross-vesting two other proceedings for hearing and determination at the same time on 30 September 2024.
FAMILY LAW – JURISDICTION – Whether consent orders under s 81 finally disposed of proceedings – whether s 79A application properly invoked.
Legislation Corporations Act 2001 (Cth) s 9
Family Law Act 1975 (Cth) ss 79, 79A, 81
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited Akbar v Gandega (2023) 67 Fam LR 593
Aon Risk Services Australia Limited v Australian National University (2020) 239 CLR 175
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Jess & Jess (No 4) [2022] FedCFamC1F 530
John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1
Lin v Yew (2020) 62 Fam LR 242
Tepko Pty Ltd v Water Board (2001) 206 CLR 1
Division Division 1 First Instance Number of paragraphs 54 Date of last submission 17 September 2024 Date of hearing 17 September 2024 Place Melbourne In MLC 2954 of 2020 Counsel for the Applicant: Mr G Thompson with Mr W Newland Solicitor for the Applicant: ISAKOW Lawyers Counsel for the Respondent Litigant in person In MLC 7293 of 2024 Counsel for the Applicant: Mr G Thompson with Mr W Newland Solicitor for the Applicant: ISAKOW Lawyers Counsel for the Respondents: Mr McLeod (on 20 September 2024) Mr L. Magowan (on 17 September 2024) Solicitor for the Respondents: J and K Law In #...78 Counsel for the Plaintiffs Mr G Thompson with Mr W Newland Solicitor for the Plaintiffs ISAKOW Lawyers Counsel for the Defendant Mr McLeod (on 20 September 2024) Mr L Magowan (on 17 September 2024) Solicitor for the Defendant J and K Law In #...07 Counsel for the Plaintiffs Mr G Thompson with Mr W Newland Solicitor for the Plaintiffs ISAKOW Lawyers Counsel for the Defendant Mr McLeod (on 20 September 2024) Mr L Magowan (on 17 September 2024) Solicitor for the Defendant J and K Law ORDERS
MLC 2954 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MS PACEK
Applicant
AND MR SALTZER
Respondent
MLC 7293 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MS PACEK
Applicant
AND MR SALTZER
First Respondent
AND H PTY LTD
Second RespondentAND Q PTY LTD
Third RespondentAND W PTY LTD
Fourth RespondentAND V PTY LTD
Fifth RespondentAND E PTY LTD
Sixth RespondentAND SALTZER PTY LTD
Seventh Respondent
#...78 IN THE SUPREME COURT OF VICTORIA
BETWEEN H PTY LTD
First PlaintiffAND
SALTZER PTY LTD
Second PlaintiffAND Q PTY LTD
Third PlaintiffAND E PTY LTD
Fourth PlaintiffAND W PTY LTD
Fifth PlaintiffAND V PTY LTD
Sixth PlaintiffAND MS PACEK
Defendant
#...07 IN THE SUPREME COURT OF VICTORIA
BETWEEN H PTY LTD
First PlaintiffAND Q PTY LTD
Second PlaintiffAND E PTY LTD
Third PlaintiffAND V PTY LTD
Fourth PlaintiffAND MS PACEK
Defendant
ORDER MADE BY
WILSON J
DATE OF ORDER
20 SEPTEMBER 2024
THE COURT ORDERS IN ALL FOUR PROCEEDINGS THAT –
1.The applications on 30 September will be dealt with in accordance with these reasons.
2.Costs of all parties of and incidental to the hearing on 17 September 2024 are reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Pacek & Saltzer has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
Pursuant to orders made by Alstergren CJ on 7 August 2023, three applications in four separate pieces of litigation have been referred for my determination on 30 September 2024. All four pieces of litigation have a connection in that they involve, in one way or another, the husband and wife in a bitter property settlement dispute. In addition to the proceedings referred for my determination by Alstergren CJ, by orders of Delany J of the Supreme Court of Victoria made in August 2024 two further stand-alone pieces of litigation in that court have been referred to me to be dealt with under the provisions of the Jurisdiction of Courts (Cross-vesting) Act 1987.
Accordingly, before me on 30 September 2024 are applications in four proceedings. Namely –
(a)MLC 7293 of 2024 in this court;
(b)MLC 2954 of 2020 in this court;
(c)#...78 in the Supreme Court of Victoria cross-vested to this court; and
(d)#...07 in the Supreme Court of Victoria cross-vested to this court.
One day had been allocated by the Chief Justice to hear and determine the contested issues on 30 September 2024. To better understand the magnitude of the task on 30 September 2024, I convened a directions hearing on 17 September 2024. The debate took a half day and was far ranging. The four pieces of litigation have been entered in the Major Complex Financial Proceedings List in my docket.
In essence, the wife seeks as her primary objective orders enforcing terms of settlement reached between her and the husband, recorded in consent orders made by Bennett J. Conversely, the husband asserts that prior to the consent orders being approved the wife engaged in conduct amounting to a breach of the fiduciary duties that she allegedly owed to companies she directed causing losses to those companies, such contraventions and losses thereby vitiating the consent orders. The husband said he wanted orders for the orderly advancement of all facets of all aspects of this litigation to trial where he can explore issues raised by him in the two Supreme Court proceedings especially the claim for pecuniary loss allegedly caused by the wife’s breaches of fiduciary duties. The husband’s counsel was unable to tell me when he envisaged that the totality of this litigation would be ready for trial, on his assessment. Conversely, the wife maintained that her application for the enforcement of consent orders could be dealt with fully on 30 September 2024.
Against that backdrop I provide this ruling as to the way forward in this complicated litigation.
OVERVIEW
For the reasons that follow in my judgment the wife’s enforcement application should be heard on 30 September 2024. The damages claims in one of the Supreme Court proceedings is not ready for trial. I see no reason why the wife should be shut out from her endeavours to recover the payment of sums and the performance of obligations agreed in the consent orders in circumstances where no attempt has been made to impugn the events surrounding the execution of the consent orders by alleging, for example, fraud in the events leading to and making of the consent orders.
A SHORT RECITAL OF THE APPLICATIONS PENDING
It is necessary to first narrate in chronological sequence the pertinent details of each proceeding returnable on 30 September 2024.
MLC 2954 of 2020
This proceeding was commenced earlier than were the other proceedings. In it, the husband and the wife sought orders altering property interests under s 79 of the Family Law Act. On 14 April 2022 that proceeding was settled when final property orders were approved by Bennett J. That proceeding had been commenced in what was then the Federal Circuit Court of Australia. On 4 April 2021 a judge of that court transferred the proceeding to what was then the Family Court of Australia by reason of the husband seeking relief under the Corporations Act.
The final property orders made by Bennett J by consent included paragraph 24. It was in the following terms –
“24 That to the extent required to give effect to these orders, the parties may join various entities within the [H] Group to give effect to these reasons.”
The phrase “the [H] Group” is not a defined term in the consent orders. In the construction of the wording of the consent orders dated 14 April 2022, it will be relevant to ascertain what entities are in fact within “the [H] Group” and whether the 10 companies defined as “the agreed [Saltzer] Entities” are different to the H Group.
Paragraph 30 of the consent orders provided that the parties intended that the consent orders finally determined the financial relationship between the parties in accordance with s 81 of the Family Law Act.
In her enforcement application, the wife has asserted that she has complied with the totality of the obligations that fell for her to perform in pursuance of the consent orders.
Leaving to one side for the moment the events in the two-year period between the making of the final consent orders (14 April 2022) and 29 April 2024 when the wife prepared her amended enforcement application, by her amended enforcement application in proceeding 2954 of 2020, the wife seeks six orders. The first is for the joinder of six companies, most of which are among the group of companies defined as “the agreed [Saltzer] entities” for the purposes of paragraph 3(ii) of the consent orders made 14 April 2022. In other words, the wife seeks the joinder of those six companies, pursuant to paragraph 24 of the consent orders –
“to give effect to these orders.”
She also seeks a declaration that she has complied with paragraphs 3 to 9 of the final consent orders. The wife has asserted in her affidavit made 13 June 2024 that she has complied with each obligation by which she was bound in paragraphs 3 to 9 of the consent orders. The details in those paragraphs are complicated and involved. The wife has deposed to each obligation that fell upon her to perform and her discharge of each of those obligations. The husband has not filed any material in this proceeding challenging the wife’s performance of the obligations she said she performed.
In paragraph 3 of amended contravention application, the wife seeks orders enjoining the husband and the six companies that are proposed to be joined under paragraph 1 of the amended application from commencing a further proceeding in any court against the wife. That application may seem at first blush to go beyond a pin-pointed anti-suit injunction of the sort I canvassed in Lin v Yew[1] because the restraint sought is against the commencement of “a further proceeding in any court against” the wife. The point will need to be argued, however, I have reached no concluded view on the issue in the absence of debate.
[1] (2020) 62 Fam LR 242.
In paragraph 4 of the amended contravention application the wife seeks orders compelling the husband and the six defined companies to execute releases so as to discharge the wife from any claims the husband or the companies may have against her.
In paragraph 4A of the amended contravention application the wife seeks orders for her indemnification in respect of costs she has incurred in relation to the two proceedings in the Supreme Court of Victoria.
Paragraph 5 is alternative to paragraph 4A in that the wife seeks orders compelling the husband to pay the costs of the transferred Supreme Court proceedings.
In paragraph 5A of the amended contravention application, the wife seeks orders dismissing the transferred Supreme Court proceedings.
In debate before me on 17 September 2024, Mr Magowan of counsel informed me that he appeared for the husband in proceeding 2954 of 2020 although his appearance on behalf of other entities was more limited. At times his position was difficult to follow in respect of the instructions he held and from whom. Mr Magowan did not appear before the Chief Justice on 7 August 2024. On that occasion Mr Murphy of counsel appeared for the husband.
Be that as it may, on 7 August 2024 the Chief Justice made orders requiring the husband to do certain things prior to 30 September 2024 on the return of this enforcement application. Chief among those tasks was the husband’s requirement to file and serve any evidence and submissions on which he sought to rely and to do so by 16 September 2024. He failed to file and serve any evidence or submissions in accordance with the orders made on 7 August 2024. In debate on 17 September 2024, Mr Magowan informed me that the evidence on which his client relied (some dispute emerged about for whom he appeared) was reposed in the Supreme Court proceeding in which fraud allegations were made against the wife. He conceded that the husband could have, but had failed to, properly and regularly invoke s 79A of the Family Law Act if indeed the husband’s point in opposition to the enforcement application was that the consent orders were procured by fraud.[2] No court document filed by the husband in this proceeding enlivens or engages s 79A.
[2] Jess & Jess (No 4) [2022] FedCFamC1F 530.
Mr Magowan argued that in the Supreme Court proceeding in which the wife is sued for damages or equitable compensation for breach of fiduciary duties existing pleadings define the parameters of the allegations of fraud. Mr Magowan joined issue with the suggestion that pleadings are untested assertions and do not amount to “evidence and submissions” as the Chief Justice ordered in paragraph 3(b) of the 7 August 2024 orders.
Mr Magowan argued that the application for the enforcement of consent orders should not be permitted to go forward with disregard for the claims made by the husband and others in the claim advanced in the Supreme Court proceeding in which monetary compensation is sought for breaches of fiduciary duties. He said that to do so would amount to the determination of a preliminary hearing, a procedure reserved for cases in which the determination of the preliminary question is likely to bear upon the determination of the entire litigation.[3] Mr Magowan cautioned me against hearing and determining the amended enforcement application in isolation.
[3] Tepko Pty Ltd v Water Board (2001) 206 CLR 1 and Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334.
The wife has complied with orders and directions made by the Chief Justice. She is keen to have her amended enforcement application heard. It is ready to be heard, or at least several paragraphs of her amended enforcement application can be pressed.
Mr Magowan indicated his client will argue what he called a jurisdictional issue in opposition to the wife’s amended enforcement application. Aside from the fact that no submissions have been filed by Mr Magowan’s client to lay the forensic foundation for any such submissions, he informed me that on 30 September 2024, if the debate in these cases moves as far forwards as dealing with the enforcement application, then he will rely on the decision of the High Court in John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd.[4] In essence, he argued that in that case it was held that any person against whom orders are sought must be first made a party to the proceeding so that the party knows the relief being sought against him, her or it. Mr Magowan argued that the six companies whose joinder is sought were not parties to the consent orders and therefore they have no standing to be joined so as to “give effect to these orders” as paragraph 24 of the consent orders provides.
[4] (2010) 241 CLR 1.
Whether that argument is valid remains to be seen. An anterior issue arises, however. Should the husband be permitted to agitate contentions he has failed to identify in compliance with directions previously given? In my judgment the answer to that is in the negative. To permit the husband to do so is inimical to the overarching purposes of the Federal Circuit and Family Court of Australia (Family Law) Rules, especially the need to get to the essence of the matter as cost effectively and time efficiently as may be done.
Conversely, parts of the wife’s amended enforcement application admit of tolerably simple proofs, especially her assertions (not contradicted) that she has complied with the regime set out in paragraphs 3 to 9 of the consent orders. It will be necessary to construe paragraph 1 of the consent orders. The restraint sought in paragraph 3 had not been the subject of detailed submissions by the wife, self-evidently, nor submissions by the husband. The wife’s application to dismiss the Supreme Court proceedings will require argument about whether all causes of actions and all lis pendens merged in the making of the consent orders.
The wife sought an indication before me on 17 September 2024 to the effect that her enforcement application should proceed first. The orders of 7 August 2024 prescribe no sequence for the conduct of the applications on 30 September. If the husband seeks to introduce material at the eleventh hour, he is likely to be met with an argument founded on Aon Risk Services Australia Limited v Australian National University.[5] Whether that emerges remains to be seen, however.
[5] (2020) 239 CLR 175.
Having regard to the manner in which Mr Magowan addressed on 17 September 2024, the wife’s application in her enforcement proceeding for the dismissal of the two Supreme Court proceedings transferred pursuant to the orders of Delany J in late August 2024 is likely to be hotly contested. The husband wishes to agitate factual matters that are in a state of fluidity. Mr Magowan told me, eventually, that “expert evidence” to prove losses allegedly sustained consists of a draft report which is not in the form of a single expert report as is required in this court. It seemed to me that it may be arguable that the totality of the evidence in at least one of the Supreme Court proceedings may not yet be fully formed, properly adduced or in an admissible form.
Mr Magowan argued that the two Supreme Court proceedings were transferred with considerable speed in late August 2024 when Delany J learned that Alstergren CJ had made orders on 7 August for these applications to be returnable on 30 September 2024.
One of the issues of relevance to the wife’s application for the dismissal of the two Supreme Court proceedings was whether justice can be done between the parties if the wife’s enforcement application is determined, leaving extant, to be addressed at some indefinite future time the husband’s Supreme Court claims. Naturally, other additional considerations apply. I will need to hear debate about the proposition.
Proceeding MLC7293 of 2024
This proceeding was commenced on 18 June 2024, that is to say, after both Supreme Court proceedings were filed. The 2024 proceeding was filed “as an adjunct to the enforcement application in order to seek relief connected with the final settlement orders”.[6] Precisely how this proceeding is said to be “an adjunct” to another existing proceeding in which the same relief is being sought was not stated. Whether that gave rise to a debate about a duplication of litigation or to an abuse of process was not fully explored before me during the application on 17 September 2023.
[6] These were the words used by the wife’s counsel in their 16 September 2024 written submissions at paragraph 22.
The response to the initiating application in proceedings 7293 of 2024 raises the issue of the propriety of the inclusion of the second to seventh respondents (incorrectly called defendants) as parties to the proceeding. In other words, by paragraph 1(a) of the orders made 7 August 2024, Alstergren CJ specifically contemplated the debate on 30 September 2024 to incorporate issues about the validity of the proposition raised by the husband to the effect that entities identified in paragraph 3(a) of the consent orders made 14 April 2022 should not be parties to proceedings 7293 of 2024 for the simple reason that they were not parties to the consent orders made 14 April 2022.
Whether or not in reliance upon the response to the initiating application in proceeding 7293 of 2024, the husband’s contention that the second to seventh respondents are not proper parties may be beside the point because no submissions were filed on point in pursuance of paragraph 3(b) of the Chief Justice’s orders. As matters presently stand, the response in proceeding 7293 of 2024 proceeds without particulars, without evidentiary support and without submissions. That is a most unsatisfactory way to conduct litigation in the Major Complex Financial Proceedings List in this court. The very purpose of the Chief Justice’s 7 August 2024 orders was to give advance notice to the other parties and their legal practitioners of the contentions being advanced by all parties in respect of each application mentioned in paragraph 1 of the Chief Justice’s orders. No such information has been given, particularly in the nature of submissions, about the respondents’ response to the initiating application in proceeding 7293 of 2024. Whether the respondents can persuade me on 30 September to permit viva voce submissions to be adduced as a substitute for the requirement for advance written submission remains to be seen. It may be fairly anticipated that opposition, underpinned by Aon[7] considerations, will be raised on behalf of the wife.
[7] Aon Risk Services Australia Limited v Australian National University (2020) 239 CLR 175.
Proceeding MLC 2945 of 2020 was settled on 14 April 2022 upon final consent orders under s 81 of the Family Law Act being ordered by Bennett J.
Proceeding #...78
Then followed litigation in the Supreme Court of Victoria. The first was commenced in November 2022. The first plaintiff was H Pty Ltd. Five further plaintiffs were parties to the originating motion in proceeding #...78. The wife was the single defendant. Aside from an application for costs and a plea for such other orders as the court considered appropriate, all six plaintiffs sought an order that the court direct the wife to forthwith provide to the plaintiff all books within in the meaning of s 9 of the Corporations Act and any other property of the plaintiffs that she then had in her possession, power or control.
In her affidavit made 13 June 2024 in proceeding MLC7293 of 2024, the wife deposed that she returned all and any documents she had to Ms AC on 13 June 2022, prior to the settlement reached on 17 June 2022, and that the wife actually performed the handover of the documents at an address she then occupied in Suburb AD, Victoria. The wife exhibited to her affidavit a list of documents she said she handed Ms AC on 13 June 2024.
Nevertheless, despite the wife deposing to handing to Ms Fraietta all documents on 13 June 2022, on 16 November 2022 the sixth plaintiffs commenced proceeding #...78. The wife deposed in her affidavit made 13 June 2024 that she filed a summons seeking judgment for the dismissal of the originating motion on the basis that it was an abuse of process. An associate justice of the Supreme Court dismissed the wife’s motion for judgment for the dismissal of proceeding #...78.
On 17 September 2024, I asked Mr Magowan whether his client’s application for the return of various books, records and property of the six plaintiffs was being pursued. He said his clients pursued only costs associated with the efforts to produce the books and records.[8]
[8] Transcript 17 September 2024, T 42, L 23.
Accordingly, in proceeding #...78, the six plaintiffs only pursue a question of costs, according to Mr Magowan. It may be debatable whether that is a matter proper for my determination or whether a costs registrar of this court should attend to that.
There is no doubt that proceeding #...78 was properly transferred to this court by order of Delany J in the exercise of powers conferred on his Honour under the Commonwealth Jurisdiction of the Court (Cross-Vesting) Act 1987. His Honour gave extensive reasons in support of the ruling made to transfer two pieces of litigation in the Supreme Court to this court (and to me in particular). His Honour’s ruling included the following–
(a)paragraph 6 of the consent orders made by Bennett J imposed an obligation to produce certain books, yet instead of the husband initiating enforcement proceedings in the Family Court, the companies under his control chose to institute proceeding #...78 in the Supreme Court of Victoria;
(b)the companies controlled by the husband seek declaratory relief to the effect that the wife failed to produce books and financial records of the plaintiffs as well as declaratory relief that the wife converted the books and financial records of the companies;[9]
[9] A claim to conversion is a tort thereby enlivening this court’s accrued jurisdiction and an issue emerged whether any such conversion claim is part of the single justiciable controversy in this litigation: Akbar v Gandega (2023) 67 Fam LR 593.
(c)in a second proceeding in the Supreme Court (#...07) filed in mid-August 2023, various companies controlled by the husband asserted that the wife was liable to them for equitable compensation arising from breaches of fiduciary duties owed by the wife to those companies;
(d)the wife sought orders staying that proceeding or judgment in that proceeding, which relief was refused in April 2024;
(e)four business days later, the wife commenced her enforcement application;
(f)the husband’s contention about jurisdiction in respect to the enforcement application is that the Family Court is functus officio and has no power to deal with the enforcement application;
(g)the corporate plaintiffs sought a freezing order against the wife in support of which they relied on a report dated 22 June 2023, more than 12 months out of date;
(h)in addition to contending that this court is functus officio from hearing the enforcement application, the companies will argue that the final consent orders were procured by fraud;
(i)the natural jurisdiction (his Honour’s words) to determine disputes between parties to a marriage involving conduct during the marriage is the Family Court;
(j)the freezing order is refused;
(k)it is desirable to transfer these proceedings to the Family Court;
(l)proceeding #...07, to be successful will require the court to set aside all or part of the final consent orders for fraud; and
(m)a transfer of both Supreme Court proceedings should be ordered.
Proceeding #...07
Some of the allegations in proceeding #...07 have already been narrated by reason of my examination of the ruling of Delany J transferring that proceeding to this court. As emerged from debate on 17 September 2024, the so-called expert evidence to support the damages claim in that case is reposed in a report that is 12 months old (or more) and it is not in a form admissible in this court by reason of it not being a single expert report.
It is readily apparent that proceeding #...07 is in an embryonic state, a statement of claim having been served but little else. In the Supreme Court, that case would have proceeded through the pleadings phase, then discovery, all time-consuming activities. It is fair to say that in my estimation the proceeding is nowhere near ready for trial.
CONSIDERATION
In these reasons it is not appropriate to progress very much beyond an indication of the way the hearing of the various applications ordered by Alstergren CJ should progress on 30 September 2024.
At its core, the husband seems to be contending that the consent orders were procured by fraud within the contemplation of s 79A of the Family Law Act. He has not filed any process in which he or the companies he controls give details of the fraud that is said to impugn the final consent orders made by Bennett J. He has not particularised the so-called fraud. Instead, he argues that the wife breached various fiduciary duties she owed various companies. He has not said how any of those breaches of fiduciary duties, even assuming they were proved, were operative in the events leading to the making of the consent orders. Instead, the husband advances a claim for a very large sum of damages, yet in support of that, he relies on a report which has been called out of date and is not in a form acceptable in this court.
The proceeding described as being for the recovery of the company’s books and records is all but over, save for a costs dispute.
The husband’s challenge to the enforcement proceeding is twofold. The first is that this court is functus officio. The second is that the consent orders were obtained by fraud. Having already observed that no operative claim is currently on foot pursuant to which the husband even asserts let alone particularises his contentions that s 79A applies, it seems peculiar that the husband could be permitted now, without substantially recasting his case, to raise a s 79A allegation. Whether he should be permitted to do that at this stage of pitch litigation that has been on foot for four years is another matter.
The husband’s proposition that the court is functus officio could be agitated on 30 September 2024. However, he has filed no submissions in support of any such contention. There is a considerable body of authority about the doctrine “functus officio” which I have examined in many early cases. None has been relied on by the husband. Whether he should have leave to do so is another matter.
The debate about the enforcement proceeding involves, in part, a construction of the terms of the consent orders. Whether the John Alexander[10] point features is presently unknown because the husband has not filed submissions. As things presently stand, it does not feature in this case.
[10] John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1.
Accordingly, there is no s 79A application presently on foot so it is difficult to see how an application can be sensibly advanced for the setting aside of the consent orders for fraud. But even if a properly formulated s 79A application were on foot, such a case usually takes the form of a contested trial. Therefore it will not be agitated on 30 September 2024.
The enforcement application is likely to involve a discrete collection of legal submissions amenable to hearing on 30 September 2024.
The two Supreme Court proceedings can be dealt with by saying that the claim for costs in respect of the document production litigation is a matter for a taxation registrar. The claim for breach of fiduciary duty is a triable issue, not amenable to determination on 30 September 2024.
In these circumstances, I propose to hear the enforcement application and the functus officio contentions at the same time, being the applications in paragraphs 1(a) and 1(b) of the orders of Alstergren CJ made on 7 August 2024.
Naturally, I will hear all parties on anything else they wish to agitate on 30 September 2024.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 20 September 2024
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