PARKE & PARKE

Case [2015] FCCA 1692


FEDERAL CIRCUIT COURT OF AUSTRALIA

PARKE & PARKE [2015] FCCA 1692
Catchwords:
FAMILY LAW – Property – whether financial agreement is a binding financial agreement – whether financial agreement should be set aside – fraud – inducement – burden of proof – evidentiary onus – unconscionable conduct – undue influence – uncertainty – repudiation and rescission.

Legislation:

Crimes Act 1900 (NSW), Part 15A

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth), ss.90B, 90G, 90K, 90KA, Part VIII, Part VIIIA

Federal Circuit Court of Australia Act 1999 (Cth), s.8
Property Relationships Act 1984 (NSW)

Ansett Transport Industries (Operations) Pty Ltd v Commonwealth of Australia (1977) 139 CLR 72
Black & Black (2008) FLC 92-357

Briginshaw v Briginshaw (1938) 60 CLR 336

Bromley v Ryan (1956) 99 CLR 362
Byrnes v Kendle (2011) 243 CLR 253

Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447
Demetrios v Gikas Dry Cleaning Industries Pty Ltd (1991) 22 NSWLR 561

Derry v Peek (1889) 14 AC 337
Fevia & Carmel-Fevia (2009) FLC 93-411
Fitzgerald v Masters (1956) 95 CLR 420
Garciav National Australia Bank Limited (1998) 194 CLR 395
Gould v Vaggelas (1984) 157 CLR 215
Hoult & Hoult  [2011] FamCA 1023
Hoult & Hoult [2013] FamCAFC 109

Johnson v Buttress (1936) 56 CLR 113
Jones v Dunkel (1959) 101 CLR 298
Koompahtoo Local Aboriginal Council v Sanpine Pty Ltd (2007) 233 CLR 115

Kostres v Kostres [2009] FamCAFC 222
Leggott v Barrett (1880) 15 Ch.D. 306
Louth & Diprose (1992) 175 CLR 621
Malpass & Mason (2000) FLC 93-061
Powell v Powell [1900] 1 Ch 243
Rohde & Rohde (1984) FLC 91-592
Saintclaire & Saintclaire [2013] FamCA 491
Shevill v Builders Licensing Board (1982) 149 CLR 620
Sindel v Georgiou (1984) 154 CLR 661
Smith v Kay (1859) 7 HL Cas 750
Stoian & Fiening [2014] FamCA 482
Suters & Suters (1983) FLC 91-365
Thorby v Goldberg (1964) 112 CLR 597
Tramways Advertising Pty Ltd v Luna Park (1938) 39 SR (NSW) 632
Turner v Windever [2003] NSWSC 1147
Weiss, MM v Barker Gosling (1993) FLC 92-399
Yurkey v Jones (1939) 63 CLR 649

Applicant: MR PARKE
Respondent: MS PARKE
File Number: BRC 6354 of 2014
Judgment of: Judge Howard
Hearing dates: 26 and 27 March 2015
Date of Last Submission: 24 April 2015
Delivered at: Brisbane
Delivered on: 19 June 2015

REPRESENTATION

Counsel for the Applicant: Mr Galloway
Solicitors for the Applicant: Family Law Solutions
Counsel for the Respondent: Ms Carew QC
Solicitors for the Respondent: Keating Lehn Lawyers

ORDERS

  1. That each party shall provide a copy of a proposed Final Order to each other party and to the Court by no later than 4:00pm on Monday 22 June 2015.

  2. Should the parties wish to make any submissions in relation to the matters referred in paragraph 109 of the reasons for judgment then they must do so in writing and such written submission shall be filed and served by no later than 4:00pm on Wednesday 24 June…

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AGLC
PARKE & PARKE [2015] FCCA 1692
Case
[2015] FCCA 1692
Decision Date

CaseChat Overview and Summary

This matter came before Judge Howard concerning a dispute between Mr Parke (the applicant) and Ms Parke (the respondent). The central issue revolved around the authenticity of signatures on various documents, particularly a letter dated 1 July 2009 addressed to the Parke Super Fund, which purported to be from Ms Parke and requested the cessation of her Transition to Retirement Income Streams.

The court was required to determine whether the signatures on the documents in question, specifically document number 13, were forgeries and, if so, whether the applicant, Mr Parke, was responsible for those forgeries. The court also considered the legal principles governing the burden of proof in civil proceedings, particularly in cases involving allegations of fraudulent misrepresentation and inducement.

Judge Howard accepted the expert opinion of Mr J, a forensic document examiner, who concluded that the signatures on document number 13 and other documents were false or simulated signatures not written by Ms Parke. Crucially, Mr J also opined that these questioned signatures were written by the same person who provided the specimen signatures of "Mr Parke" on other documents. The court found that Mr Parke's admission that his signature appeared above the name "Mr Parke" on document number 2, coupled with the unchallenged expert evidence, was sufficient to establish on the balance of probabilities that the forgeries were committed by the applicant. The court applied section 140 of the Evidence Act 1995 (Cth), which mandates that a case be proved on the balance of probabilities in civil proceedings, taking into account the nature of the cause of action, the subject matter, and the gravity of the matters alleged. The court also referenced established principles regarding the onus of proof in cases of fraudulent misrepresentation, noting that the plaintiff bears the ultimate onus of proving inducement.

The court ordered that each party provide a proposed Final Order to the other parties and the Court by 4:00 pm on Monday, 22 June 2015. Further written submissions regarding matters referred to in paragraph 109 of the reasons for judgment were to be filed and served by 4:00 pm on Wednesday, 24 June 2015. The parties were also directed to organise and attend a mediation within three months of the order, with mediator's fees to be paid jointly.

Orders

Orders of the court

1.

That each party shall provide a copy of a proposed Final Order to each other party and to the Court by no later than 4:00pm on Monday 22 June 2015.

2.

Should the parties wish to make any submissions in relation to the matters referred in paragraph 109 of the reasons for judgment then they must do so in writing and such written submission shall be filed and served by no later than 4:00pm on Wednesday 24 June 2015.

3.

The parties shall organise and attend (personally and with their legal representatives) at a mediation to be conducted within three (3) months of the date of this Order. The mediator’s fees shall be paid jointly by the parties.

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

The question of the burden of proof becomes relevant at this point in time. As Wilson J stated in Gould v Vaggelas from page 237:-“However, decisions of this Court leave no room to doubt that the ultimate onus of proving inducement rests upon the party seeking relief in respect of the fraudulent misrepresentation. In Holmes v. Jones (1907) 4 CLR, at p 1706, O'Connor J. makes it plain that before the plaintiffs can succeed in an action of deceit “[t]hey must show, not only that the representation was fraudulent, but also that that fraudulent representation induced the contract which was afterwards entered into”. Isaacs J., in the same case, was even more direct. He said, at p. 1710:"The plaintiffs have the onus of proving that therepresentations they complain of were material, andthat they were induced to act upon them."Likewise, in Potts v. Miller (1940) 64 CLR 282, at p 296, Dixon J. observed that the circumstances of the case were such as to place a heavy burden on the plaintiff in satisfying the jury that the false statement formed an operative inducement. There is no reason to doubt the correctness of these statements. They accord with sound principle, namely, that a plaintiff carries the burden of establishing every element of his cause of action. At the same time, one can readily understand why it is in cases of deceit that a tribunal whose duty it is to find the facts may require a defendant to make some answer to the case that is put against him. Such cases are of a kind where in the general experience of mankind the facts speak for themselves. Where a plaintiff shows that a defendant has made false statements to him intending thereby to induce him to enter into a contract and those statements are of such a nature as would be likely to provide such inducement and the plaintiff did in fact enter into that contract and thereby suffered damage and nothing more appears, common sense would demand the conclusion that the false representations played at least some part in inducing the plaintiff to enter into the contract. However, it is open to the defendant to obstruct the drawing of that natural inference of fact by showing that there were other relevant circumstances. Examples commonly given of such circumstances are that the plaintiff not only actually knew the true facts but knew them to be the truth or that the plaintiff either by his words or conduct disavowed any reliance on the fraudulent representations. It is entirely accurate to speak of an onus resting on a defendant to draw attention to the presence of circumstances such as those I have described in order to show that the inference of the fact of inducement which would ordinarily be drawn from the fraudulent making of a false statement calculated to induce a person to enter into a contract followed by entry into that contract should not in all the circumstances be drawn. But it is no more than an evidentiary onus - an obligation to point to the existence of circumstances which tend to rebut the inference which would ordinarily be drawn from the primary facts. When all the facts are in, the fact-finding tribunal must determine whether or not it is satisfied on the balance of probabilities that the misrepresentations in question contributed to the plaintiff's entry into the contract. The onus to show that they did is a condition precedent to relief and rests at all times on the plaintiff.”

Ratio Decidendi

Legal Principle Established

In relation to the said “Trustees Declaration” at page 93 of Mr J’s report I note the question and answer from page 68 of the transcript of 26 March 2015 line 46:-“Ms Carew QC: Do you see a signature above the name, Mr Parke?Mr Parke: Yes, that’s my signature.” Mr J provided his opinion that the respondent’s signatures on various documents were forgeries. In particular I note the document which is numbered 13 (which appears on page 113 of Mr J’s second report). That document is a letter dated 1 July 2009 addressed to the Parke Super Fund. It is a letter which purports to be from the respondent, Ms Parke. The letter purports to be signed by Ms Parke. The letter states, inter alia:-“I hereby request that my existing Transition to Retirement Income Streams(s) being paid from Parke Super Fund be stopped, the proceeds combined with the balance in my accumulation account (if any) and then my benefit entitlement converted to a new pension entitlement, as detailed below.……” In the opinion of Mr J the signature contained on document number 13 (which purports to be the signature of Ms Parke) is a “false signature”. I note paragraph 20 of Mr J’s second report. I also note paragraph 1 on page 76 of his second report where Mr J states:-“With respect to A1. The questioned signatures “Mr Parke” [original and copy] contained on documents 01 to 19 are false [simulated] signatures not written by the specimen provider – Ms Parke.” Hence, Mr J’s conclusion is that the purported signature of the respondent on document number 13 is a false signature. Further, I note paragraph 6 of the opinion of Mr J contained on page 76 of his second report where he notes:-“With respect to B6. The questioned signatures “Mr Parke” contained on the group 4 documents (13 to 19) were written by the writer of the “specimen” signatures “Mr Parke” contained on documents 02 and 13 to 19.” On the same point, Mr J states his opinion in paragraph 22:-“There is an abundance of evidence present to conclude that the questioned signatures identified as “group 4” are written by the author of the uncontested “specimen” signatures “Mr Parke” as described.” I note the admission by Mr Parke (the applicant) that his signature appears above the name, “Mr Parke” on document number 2. It was submitted on behalf of the applicant that the admission by the applicant that the signature on the document numbered 2 was his signature – is insufficient evidence for this court to conclude that the forgery was committed by the applicant. I disagree. For that submission to have any weight that question should have been put to Mr J. It was not. Mr J was not required for cross examination. Mr J’s opinion has not been challenged. I accept the evidence of Mr J and I accept his opinions. In coming to this conclusion I am mindful of s140 of the Evidence Act 1995 (Cth). That section states: – “140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.”