Pacek & Saltzer

Case [2024] FedCFamC1F 650


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 Respondent

AND

Q PTY LTD
Third Respondent

AND

W PTY LTD
Fourth Respondent

AND

V PTY LTD
Fifth Respondent

AND

E PTY LTD
Sixth Respondent

AND

SALTZER PTY LTD
Seventh Respondent

#...78

IN THE SUPREME COURT OF VICTORIA

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Details
AGLC
Pacek & Saltzer [2024] FedCFamC1F 650
Case
[2024] FedCFamC1F 650
Decision Date

CaseChat Overview and Summary

The case of Pacek & Saltzer involves multiple proceedings between Ms. Pacek and Mr. Saltzer, including applications in the Federal Circuit and Family Court of Australia and cross-vesting of cases in the Supreme Court of Victoria. The main issues revolve around the validity of consent orders made under section 81 of the Family Law Act, and whether Mr. Saltzer's application under section 79A was properly invoked to challenge those orders. The court was required to determine whether the consent orders had finally disposed of the proceedings, and if Mr. Saltzer's allegations of fraud were sufficient to warrant setting aside those orders.

The court held that proceeding #...07 was in its early stages, with a statement of claim served but little else. It was noted that the proceeding was not yet ready for trial, and the consent orders made by Bennett J appeared to have finally disposed of the proceedings. Mr. Saltzer's allegations of fraud were not particularised, and he had not provided sufficient evidence to support his claims. The court found that there was no operative claim on foot that would allow Mr. Saltzer to raise a section 79A allegation at this stage. The court also noted that the doctrine of functus officio, which would prevent the court from revisiting its previous decisions, had not been adequately argued by Mr. Saltzer.

The court ordered that the applications scheduled for 30 September 2024 will be dealt with in accordance with the reasons provided. Costs of all parties for the hearing on 17 September 2024 were reserved. The form of the order is subject to entry in the Court’s records and may be subject to review or variation in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

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 Respondent

AND

Q PTY LTD

Third Respondent

AND

W PTY LTD

Fourth Respondent

AND

V PTY LTD

Fifth Respondent

AND

E PTY LTD

Sixth Respondent

AND

SALTZER PTY LTD

Seventh Respondent

#...78

IN THE SUPREME COURT OF VICTORIA

BETWEEN

H PTY LTD

First Plaintiff

AND

SALTZER PTY LTD

Second Plaintiff

AND

Q PTY LTD

Third Plaintiff

AND

E PTY LTD

Fourth Plaintiff

AND

W PTY LTD

Fifth Plaintiff

AND

V PTY LTD

Sixth Plaintiff

AND

MS PACEK

Defendant

#...07

IN THE SUPREME COURT OF VICTORIA

BETWEEN

H PTY LTD

First Plaintiff

AND

Q PTY LTD

Second Plaintiff

AND

E PTY LTD

Third Plaintiff

AND

V PTY LTD

Fourth Plaintiff

AND

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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.