FEDERAL CIRCUIT COURT OF AUSTRALIA
| PARET & PARET & ORS | [2016] FCCA 3271 |
| Catchwords: FAMILY LAW – Summary dismissal – application for orders pursuant to s.106B and s.79 of the Family Law Act – applicant’s case not disclosing evidence of sufficient quality and weight to enable him to succeed at trial – no reasonable prospects of success – husband’s Initiating Application dismissed. |
| Legislation: Family Law Act 1975 (Cth), ss.79, 79(2) & 106B Federal Circuit Court of Australia Act 1999 (Cth), ss.17A & 17A(2) |
| Cases cited: Stanford & Stanford (2012) 247 CLR 108 Bevan & Bevan (2014) 51 Fam LR 363 |
| Applicant: | MR PARET |
| First Respondent: | MS PARET |
| Second Respondent: | MR MACOLD |
| Third Respondent: | MS MACOLD |
| File Number: | ADC 827 of 2016 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 6 September 2016 |
| Date of Last Submission: | 6 September 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 20 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Ms P Kari |
| Solicitors for the First Respondent: | Rosey Batt & Associates |
| Counsel for the Second & Third Respondents: | Ms M Ross |
| Solicitors for the Second & Third Respondents: | Mildwaters Lawyers |
ORDERS
The applicant’s Initiating Application dated 11 March 2016 is dismissed.
The first, second and third respondents have liberty to apply with respect to costs within 60 days.
All earlier orders in this matter, with the exception of the order that the husband pay the costs of the respondents for the attendance on 27 July 2016, are discharged.
IT IS NOTED that publication of this judgment under the pseudonym Paret & Paret & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 827 of 2016
| MR PARET |
Applicant
And
| MS PARET |
First Respondent
| MR MACOLD |
Second Respondent
| MS MACOLD |
Third Respondent
REASONS FOR JUDGMENT
This is an application by the first respondent wife that the applicant husband’s application for orders pursuant to ss.106B and 79 of the Family Law Act 1975 (Cth) (‘the Act’) be summarily dismissed. The second and third respondents make the same application. In the event that I do not make those orders, all three respondents seek to have the s.106B aspect bifurcated and an order made for security for costs.
The first respondent is the wife of the applicant husband. The second respondent is the wife’s son by her first marriage. The third respondent is married to the second respondent.
The Initiating Application filed by the husband seeks orders that the transfer of the property situated at Property A be set aside, pursuant to s.106B of the Act. He seeks final orders that there be…
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Details
- Case
- [2016] FCCA 3271
- Decision Date
CaseChat Overview and Summary
In *Paret and Paret and Ors*, Judge Heffernan of the Federal Circuit Court of Australia considered an application for summary dismissal of proceedings. The applicant sought this dismissal, and the respondents sought to have the application dismissed.
The central legal issue before the court was whether the applicant's Initiating Application had no reasonable prospect of success, thereby warranting summary dismissal pursuant to section 17A of the *Family Law Act 1975* (Cth) and rule 13.10 of the Family Law Rules 2004 (Cth). This required the court to assess the pleadings, evidence, and legal arguments presented by the parties to determine if a trial was necessary.
The court's reasoning was guided by the principles established in *Jefferson Ford Pty Ltd v Ford Motor Company of Australia*, which emphasised that summary dismissal is available for claims with no reasonable prospect of success, aiming to control costs and delay. The court noted that the onus is on the moving party to demonstrate this lack of reasonable prospect. If a prima facie case is made, the opposing party must identify specific factual or evidentiary disputes to necessitate a trial, rather than merely requiring formal proof. The court also clarified that the word "may" in the relevant legislation confers a power to be exercised when the stipulated conditions are met, not a general discretion. A real issue of fact will generally preclude summary judgment, but a real issue of law can be determined without a trial. All reasonable inferences are to be drawn in favour of the non-moving party.
The court dismissed the applicant's Initiating Application. The first, second, and third respondents were granted liberty to apply with respect to costs within 60 days. All earlier orders in the matter, except for the order that the husband pay the costs of the respondents for their attendance on 27 July 2016, were discharged.
The central legal issue before the court was whether the applicant's Initiating Application had no reasonable prospect of success, thereby warranting summary dismissal pursuant to section 17A of the *Family Law Act 1975* (Cth) and rule 13.10 of the Family Law Rules 2004 (Cth). This required the court to assess the pleadings, evidence, and legal arguments presented by the parties to determine if a trial was necessary.
The court's reasoning was guided by the principles established in *Jefferson Ford Pty Ltd v Ford Motor Company of Australia*, which emphasised that summary dismissal is available for claims with no reasonable prospect of success, aiming to control costs and delay. The court noted that the onus is on the moving party to demonstrate this lack of reasonable prospect. If a prima facie case is made, the opposing party must identify specific factual or evidentiary disputes to necessitate a trial, rather than merely requiring formal proof. The court also clarified that the word "may" in the relevant legislation confers a power to be exercised when the stipulated conditions are met, not a general discretion. A real issue of fact will generally preclude summary judgment, but a real issue of law can be determined without a trial. All reasonable inferences are to be drawn in favour of the non-moving party.
The court dismissed the applicant's Initiating Application. The first, second, and third respondents were granted liberty to apply with respect to costs within 60 days. All earlier orders in the matter, except for the order that the husband pay the costs of the respondents for their attendance on 27 July 2016, were discharged.
Orders
Orders of the court
1.
The applicant’s Initiating Application dated 11 March 2016 is dismissed.
2.
The first, second and third respondents have liberty to apply with respect to costs within 60 days.
3.
All earlier orders in this matter, with the exception of the order that the husband pay the costs of the respondents for the attendance on 27 July 2016, are discharged.
Background
Background to the litigation
With respect, the most useful guidance on the practical aspects of determining whether to grant an application seeking summary dismissal pursuant to s.17A of the FCCA Act and r.13.10 of the Rules is to be found in the judgment of Gordon J in Jefferson Ford Pty Ltd v Ford Motor Company of Australia:[19][19] Ibid at [125]-[132]. It should be noted that this case dealt with s.31A of the Federal Court Act which is in identical terms to s.17A of the FCC Act.“[125]… In modern litigation, cost and delay are two prominent features of the legal landscape: Gleeson CJ (1998) Commentary on Paper by Lord Browne-Wilkinson (Supreme Court of New South Wales Judges’ Conference) http:// speeches/cj/ cj_cj2.htm (viewed 26 November 2007) (stating that “civil litigation is far too expensive” and “there should be an increased emphasis on summary disposal of proceedings which are amenable to such treatment”). Section 31A is a provision which permits, and assists, the court to manage proceedings and therefore assists in controlling the cost of, and delays in, resolving proceedings by summarily dismissing claims which have no reasonable prospect of success. At the same time, it is a provision that ensures that no injustice is done to a party. The mechanism adopted to achieve these objectives is that before judgment is entered, the claim or part of the claim must have “no reasonable prospect of success”. [126]Second, assessment of whether a proceeding or a part of a proceeding has no reasonable prospects of success will necessarily require: (1)identification of the cause of action pleaded; (2)identification of the pleaded facts said to give rise to that cause of action; (3)a review of the evidence (if any) tendered in support of the claim for judgment; (4)identification of the defence pleaded; (5)identification of any facts pleaded which are said to give rise to the defence; and (6)a review of the evidence (if any) tendered in defence of the claim. The method by which such a claim or part of a claim will be assessed will vary depending on the nature of the cause of action, the identity of the parties, the pleaded facts and the evidence, if any, tendered. [127]Third, each case must be considered separately. No particular hard and fast rules can be set down, only general principles. One principle is that the moving party bears the onus of persuading the court that the opponent has no reasonable prospect of success: see Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328 at 333; 162 ALR 119 at 123–4. As noted earlier, however, s 31A has lessened the standard that must be met. In that regard, it must be emphasised that once a moving party has established a prima facie case that the opponent has no reasonable prospect of success, the opposing party must respond by pointing to specific factual or evidentiary disputes that make a trial necessary; general or non-particularised denials will be insufficient to defeat the motion: see Fortron Automotive Treatments Pty Ltd v Jones; [2006] FCA 1401 at [22]. In other words, it is inappropriate in defence of a claim for judgment under s 31A of the Federal Court Act to seek to defend by merely putting a claimant to formal proof: Vans, Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 at [12]. This is not a new concept. It finds earlier reflection in ss 190(4) and 191 of the Evidence Act 1995 (Cth) and Os 33, 34 and 34B of the Federal Court Rules. [128]Another, fourth principle, is that the trial court’s decision to grant summary judgment is to be made as a question of law and reviewed as such by the appellate court. Although s 31A(1)–(2) states that the court “may” give summary judgment, the word “may” is used here in its empowering sense, not in a discretionary sense: Leach v R (2007) 230 CLR 1 ; 232 ALR 325 ; [2007] HCA 3 at [38] ; Finance Facilities Pty Ltd v FCT (1971) 127 CLR 106 at 134–5 and Automotive, Food, Metals Engineering, Printing and Kindred Industries Union v Mechanical Engineering Services Pty Ltd [2007] FCA 1736 at [21] (collecting cases where the use of “may” in a statute was “to confer a power and not a discretion”). As the High Court explained in Mitchell v R (1996) 184 CLR 333 at 345–6; 134 ALR 449 at 457; [1995] HCA 59 (footnotes omitted):It is true that [the statute] states that the court “may” order that the prisoner in question is not to be eligible for parole. The power thus reposed in the court is conditioned upon a determination by the court that it considers that the making of the order “is appropriate”. But it does not follow that, if the court has concluded that such an order is appropriate, the court then has a discretion in the matter. The point may be illustrated by reference to the following passage from the judgment of Windeyer J in Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134–35 . His Honour said of the question of whether a permitted power must be exercised if the stipulated conditions be fulfilled: This does not depend on the abstract meaning of the word “may” but [on] whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised — so that in those events the “may” becomes a ‘must’. Illustrative cases go back to 16[93] … But I select one … reference out of a multitude: MacDougall v Paterson (1851) 11 CB 755 [138 ER 672]. There Jervis CJ said in the course of the argument. “The word ‘may’ is merely used to confer the authority: and the authority must be exercised, if the circumstances are such as to call for its exercise”. And, giving judgment, he said: We are of opinion that the word “may” is not used to give a discretion, but to confer a power upon the court and judges; and that the exercise of such power depends, not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises. In MacDougall v Paterson, the Court of Common Pleas held that the word “may” as used in The County Courts Act 1850 (UK), which provided that in certain cases the court or a judge might by rule or order direct that the plaintiff recover costs, was used not to give a discretion but to confer a power, the exercise of which depended upon the proof of the particular case out of which the power arose. See also Leach v R at [38] and following. [129]As in the cases cited, s 31A must be read as conferring a power while indicating the circumstances in which it is to be used, that is, when there is “no reasonable prospect of success”. To construe the statute otherwise would give judges discretion to allow even hopeless cases to proceed, which could not have been within the contemplation of a legislature that intended to make summary judgment easier to obtain. Therefore, to the extent that previous decisions of the Federal Court may be understood as suggesting that s 31A confers a general discretion (for example, Boston Commercial Services at [45] ), such a construction of the statutory language is rejected. [130]A fifth principle is that where there is a real issue of fact relevant to a pleaded cause of action, it is unlikely that that part of the proceeding has no prospect of success: see Boston Commercial Services at [44] . So, for example, if the pleadings, affidavits, and other materials considered in connection with the summary judgment motion, reveal a factual dispute and that factual dispute must be resolved to determine whether or not the claim succeeds, it cannot be said that the claim has “no reasonable prospect of success”: see Fortron Automotive Treatments at [20] (stating that summary judgment should be made by reference to the pleadings, affidavits, and other evidence as appropriate under the circumstances) and (bank omitted) of Australia v ACN 000 247 601 Pty Ltd (in liq) [2006] FCA 1416 at [32] . On the other hand, if the factual contest is unnecessary to the resolution of the cause of action pleaded, then in the absence of other relevant material, there is nothing to prevent the court entering judgment on that claim. [131]By contrast, the existence of a real issue of law does not necessarily preclude summary judgment. This is so because, assuming that there is no relevant factual dispute (or if the relevance of the factual dispute depends, as in the instant case, on the resolution of the legal dispute), the court can generally hear and decide a disputed point of law without the need for a trial or evidentiary hearing. In such cases, the proper course for the court would be to accept submissions and hear argument from the parties in connection with the notice of motion hearing. Even under the earlier, different and more stringent test, “argument, perhaps even of an extensive kind” was permitted “to demonstrate that the case of [a party] is so clearly untenable that it cannot possible succeed”: General Steel Industries at CLR 130; ALR 638–9. Once the court resolves the issue or issues of law, it will then be clear whether the opposing party has reasonable prospects of success and summary judgment can be granted or refused accordingly. [132]I now come to a final, sixth principle, which is that in determining whether a real issue of fact exists such as to preclude summary judgment, the court must draw all reasonable inferences — but only reasonable inferences — in favour of the non-moving party: (bank omitted) of Australia at [30] ; Boston Commercial Services at [45] . I emphasise “reasonable” because it is on this point that the lowering of the bar effected by s 31A becomes clear. By distinguishing between “hopeless” cases and those without reasonable prospects for success, the statute makes clear that the court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference.”(emphasis added)
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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