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
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
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- AGLC
- Pacek & Saltzer [2024] FedCFamC1F 650
- Case
- [2024] FedCFamC1F 650
- Decision Date
CaseChat Overview and Summary
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
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Decision
Reasons for decision
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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.