Pascoe and Pascoe - [2014] FamCA 1072

FAMILY COURT OF AUSTRALIA

PASCOE & PASCOE

[2014] FamCA 1072

FAMILY LAW – SUMMARY DISMISSAL – Evidence of the wife although disputed by the husband points to a cause of action albeit vague but Court not able to find that the case is so obviously untenable that it could not possibly succeed – Claim by the husband that the matter had been determined in the United States but no positive evidence to suggest that the cause of action for a property settlement in Australia was precluded – Husband raised the argument of res judicata but evidence does not support that – Poorly prepared documents relating to jurisdiction but parties confirm that this Court’s jurisdiction is not excluded – Summary dismissal application fails.

Family Law Act 1975 (Cth)

Cabb & Cabb [2013] FamCA 572
Doisy & Wilmot-Doisy [2009] FamCAFC 14
General Steel Industries Inc v Commissioner for Railways (N.S.W.) (1964) 112 CLR 125
Kemeny & Kemeny (1998) FLC 92-806
Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541
Stanford v Stanford (2012) 247 CLR 10
Velissaris v Dynami Pty Ltd [2013] VSCA 299

APPLICANT:

Ms Pascoe

RESPONDENT:

Mr Pascoe

FILE NUMBER:

MLC

4789

2014

DATE DELIVERED:

3 December 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

28 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hamilton

SOLICITOR FOR THE APPLICANT:

Thexton Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Stanarevic

SOLICITOR FOR THE RESPONDENT:

James McConvill & Associates

Orders

That the husband’s application in a case for summary dismissal and the wife’s response thereto are dismissed.
That the parties attend upon a registrar for the purposes of a conciliation conference on a date to be fixed and make a bona fide endeavour to resolve all outstanding issues between them.
That the parties properly comply with the Family Law Rules 2004 in relation to the filing of an application initiating proceedings setting out with particularity the jurisdiction relied upon and otherwise comply with the rules in relation to the exchange of documents for the purposes of the said conciliation conference.
That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 7 January 2015 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 21 January 2015 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pascoe & Pascoe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4789 of 2014

Ms Pascoe

Applicant

And

Mr Pascoe

Respondent

REASONS FOR JUDGMENT

The application in a case before me on 28 November 2014 was by Mr Pascoe seeking an order that the substantive application of Ms Pascoe be summarily dismissed. For the reasons that follow, that application must fail.
When the proceedings were before me on 14 October 2014, this application was foreshadowed and as each party was represented by a solicitor, I ordered that if the summary dismissal application was filed, written outlines of argument should be filed as well. Each party did that and neither of the solicitors who appeared desired that I hear much more than what was already written by them.
The substantive proceedings relate to a property settlement.
The applicant is 55 years of age and described herself in the initiating application as a receptionist. I shall refer to her as “the wife”. She resides in the United States of America. The respondent, to whom I shall refer as “the husband”, is aged almost 69 years. He is a business owner and lives in Australia.
The parties married in 2003 in the United States and were divorced on 11 April 2014.
The initiating application of the wife is a curious one. The wife began the proceedings by filing such an application on 3 June 2014. She was represented by the firm of lawyers who still act for her. In the crucial “box” on the form relating to jurisdiction, she said in answer to the question of whether the parties had entered into a financial agreement or Part VIIIAB financial agreement under the Family Law Act 1975 (Cth) (“the Act”):
Yes, Please see attached agreement executed by the parties 8 February 2003.
What is curious about that is that an amended application was filed on 6 October 2014 and the jurisdictional details were repeated. Having said that, no such “agreement” was attached to the application in either original or amending document although it seems to have been attached to an affidavit upon which the wife ultimately relied for the purposes of this current application.
The husband, through his current solicitors, filed a response to the original application on 23 July 2014. He left those same jurisdictional boxes blank. When his lawyers filed an amended response on 31 October 2014, he filled in the relevant box but this time said in relation to the existence of a financial agreement simply:
No
The orders sought by the wife in the original application might be seen to have been imperfectly pleaded because there was imprecision about what she sought but there could be no misunderstanding that she wanted an order under s 79 of the Act. In her later and amending application, she pleaded with particularity.
Section 79 is in Part VIII of the Act. So too is s 71A which provides, relevantly:
This Part does not apply to:
(a)financial matters to which a financial agreement that is binding on the parties to the agreement applies;
Section 71A does not apply in relation to proceedings of a kind referred to in paragraph (caa) or (cb) of the definition of matrimonial causein subsection 4(1). Those provisions relate to bankruptcy and therefore are not relevant.
On the jurisdictional fact asserted, even after it was amended, the wife did not assert the Court had jurisdiction because she said she had entered into an agreement which precluded the Court from altering property interests.
The curious feature of those last few matters is that the husband’s application for summary dismissal sought that dismissal in the following precise terms:
Application for Summary Dismissal as either:
(a)      the court has no jurisdiction;
(b)or the other party has no legal capacity to apply for the orders sought;
(c)      or it is frivolous, vexatious or an abuse of process; or
(d)      or there is no reasonable likelihood of success.
Whilst the drafting might leave a lot to be desired both legally and grammatically, no objection was taken by the solicitor for the wife about what the husband was seeking.
Because of the relief sought, I inquired whether it was being asserted that there was no jurisdiction to hear the substantive claim of the wife. After some hesitation, it was conceded by the husband’s solicitor that there was jurisdiction and I was asked to ignore ground (a) of his basis for summary dismissal. Thus, notwithstanding it was the wife who had pleaded no jurisdiction, the husband conceded there was and I have proceeded on the basis that the wife’s application as amended is simply wrong. There is no doubt that an agreement was entered into between the parties in 2003 but it would now seem common ground that it would not fall within the matters referred to in s 71A of the Act.
The pleaded position of the relief sought by the husband was directly taken from the Family Law Rules 2004 and in particular rule 10.14. But it was not suggested here that the husband was seeking orders in terms of item (b) either. I have concluded therefore that what was being argued was that the wife’s application was frivolous, vexatious or an abuse of process or that there was no reasonable likelihood of success.
In the course of his submissions, the solicitor for the husband raised the fact that his client wanted an order for security for costs. No notice of such an oral application had been provided to the practitioner for the wife. Courtesy demanded such but in any event, an application of that nature could really only be made after the determination of the summary dismissal.
The husband’s written submission began by saying that he relied on a plethora of material which amounted to virtually all that had been filed. His solicitor was not able to articulate what evidence the authorities suggested the Court should rely upon to determine such an application. The wife conceded that it was her material but as in the case of one affidavit, that was an answering affidavit, by incorporation, it required the Court to examine the material of both parties.
The husband’s submission also did not address the standard of proof to be applied by the Court. The wife’s submission did.
I approach the matter doing the best I can on the materials provided to the Court.
The principles governing summary dismissal applications were outlined by Kirby J in Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 at 544-5 and were reproduced by the Full Court (Finn, Thackray and Strickland JJ) in Doisy & Wilmot-Doisy [2009] FamCAFC 14 at paragraph 70 (citations omitted):
The approach to be taken by the court to the Commonwealth's application for summary relief is not in doubt:
1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.
2.To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
3.An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
4.Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. A question has arisen as to whether O 26, r 18 applies to part only of a pleading.
6.The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
In General Steel Industries Inc v Commissioner for Railways (N.S.W.) (1964) 112 CLR 125, Barwick CJ observed at 129 that the test has been formulated in many other ways:
The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense ".
Whichever way the test is formulated, it is evident that the party bringing the application for summary dismissal has a high onus to establish that “the opponent lacks a reasonable cause of action”. Furthermore, the party bringing the application must establish the case for summary dismissal “on the face of the opponent’s documents”.
I turn then to the evidence. Leaving aside formalities, the wife referred to marrying the husband in 2003 and the signing of a “prenuptial” agreement about which she had not sought legal advice. She asserted the husband did not reveal his financial position. In the marriage period, she said a property was purchased in Australia but she was unable to contribute to that. The substance of the evidence was that she had no money and no assets. She said she maintained the house and household chores. The rest of her affidavit concerned her current impecuniosity.
The wife then referred to proceedings in the United States which she described was for divorce and alimony. She said she was unaware that she had not applied for property settlement but then again, she had no legal representation. There were then statements about what happened in that Court.
The wife’s second affidavit was devoted to an explanation of why she had not pleaded with particularity the nature of the orders she was seeking in this Court but she said she was now intending to do so. Indeed, that is what she did. She now seeks orders for the sale of the Australian real property and an adjustment for which she set out a formula. She also sought that there be a splitting of the parties’ superannuation so that they were equalized. Whilst that is neither particular nor precise, the husband can hardly say that he does not understand what the wife is seeking.
It is interesting to note that the wife does not seek spousal maintenance.
Although it is not necessary for me to do so, the husband’s solicitor urged me to look at his client’s affidavit in reply to that material. The husband gave evidence that the wife told him in 2006 that the marriage was over and therefore the marriage was of just over three years duration. He then referred to the wife’s claim that she did not and could not contribute financially to the Australian property bought during the marriage. He said that he bought it in his name knowing of the financial agreement and the fact that he was using funds he accumulated before he met her. He disputed the non-financial role of the wife saying that she did not do his ironing and laundry. He said she rarely contributed to household and domestic chores and she did not entertain his colleagues. On any view, there is a dispute on the facts here which I cannot determine without the evidence being tested. It is because of those sorts of things that courts are reluctant to look at evidence other than that of the respondent to the summary dismissal claim.
In the November affidavit of the wife, the wife responded to the husband’s next affidavit. In that, the husband confirmed the agreement which he maintained was voluntary. I am still unsure what the husband and, for that matter, the wife, will say is the legal status of that agreement. The rest of the husband’s affidavit is a history of the nature of the relationship and did not address much. The wife set up evidence to say that the picture was not as portrayed by the husband but those matters cannot be tested.
What the Court is therefore faced with is evidence of assertion which needs to be tested. There is evidence, albeit vague about the wife’s contribution and a similarly vague amount of evidence about her financial position now and into the future.
In his written submission, the solicitor for the husband said that the wife should be estopped from bringing “another” property claim by virtue of the court in the United States of America having determined that matter. He said that his client relied upon the doctrine of res judicata and to that end, referred me to a decision (amongst others) of Rees J in Cabb & Cabb [2013] FamCA 572. He submitted that this was the approach I should take. He submitted that the evidence before the Court of what happened in the United States Court meant that the doctrine of res judicata should be applied. However, in Cabb, her Honour had the benefit of at least a transcript and significant argument from Counsel. Here, the solicitor for the husband submitted that the United States Court document enabled me to draw a conclusion that all property issues had been determined. No evidence was presented from any expert in the United States although reference was made to a piece of legislation copied from the Internet. That is not an appropriate way to raise the doctrine.
To the extent that it was submitted that the application was frivolous, vexatious, or abuse of process, none of the material in the affidavits relied upon would enable me to find frivolity, vexatious conduct or that the process undertaken by the wife was inappropriate or for an ulterior purpose. In respect of the abuse of process argument, the solicitor for the husband described allowing the wife’s case to continue as being oppressive to him because he would have to re-litigate what had been litigated in the United States. He referred me to the decision of the Supreme Court of Victoria of Velissaris v Dynami Pty Ltd [2013] VSCA 299 which was a decision in which Whelan JA referred to the court having inherent jurisdiction to prevent an abuse of its own process so as to restrain the institution of fresh proceedings without leave. That is not a finding that I could make about the case here.
The solicitor then referred me to Kemeny & Kemeny (1998) FLC 92-806 which is a decision of the Full Court of this Court. That decision too might very well be persuasive if there was some evidence to convince me that there was no jurisdiction in this Court as a result of the determination of the court in the United States of America. Apart from the husband relying upon the order of that court, I have no probative and conclusive evidence to indicate that all issues were dealt with in the United States. The order of the United States Court seems to me to be open to interpretation and bearing in mind there is no dispute about jurisdiction of this court, the doctrine of res judicata is a matter which in my view, should be determined at a trial and not on a summary dismissal basis. That is particularly so where, doing the best I can, it seems to be the husband’s case that the wife made little or no contribution in a short marriage and that the United States Court had finalised the matter. Even the duration of the relationship in this case is in issue. Because of the contested and untested facts, nothing in the material would enable me to draw the conclusion that the husband wishes me to so draw.
The solicitor for the husband also submitted that having regard to the proceedings in the United States, there was a forum argument and he referred to a variety of authorities. However, there was no suggestion of the wife having issued inappropriately but rather, that she should not have issued at all because in his view, the matter had already been determined by the court in the United States. There is therefore no merit in that argument.
The solicitor for the wife relied upon the decision of Kirby J mentioned earlier about the basis upon which the summary dismissal case should be heard. He submitted that the wife was genuine in her desire to seek a property adjustment. He said there was no basis to say that the wife was acting for an improper purpose or that the application was an abuse. There is much to commend that argument based upon the simple facts presented by the wife much of which, as I have pointed out, is disputed by the husband.
The summary dismissal power should be used rarely and sparingly. The Court therefore must be cautious about depriving a person such as the wife from making an application and as the authorities point out, even a weak case deserves the attention of the law. Indeed, as the authorities observe, a weak case alone is not sufficient to justify summary dismissal. As I earlier observed, it is curious that the husband had not brought his security for costs application in the alternative and it may be that when the evidence is more comprehensively examined, the wife may face the fact that she cannot point to a circumstance which is said to be just and equitable such as to make an order at all. (See Stanford v Stanford (2012) 247 CLR 10). Most importantly, I find that on the wife’s documents, there is at least a foundation for an argument. I am not in a position on the evidence because I cannot assume or imagine facts to find that the claim is frivolous or vexatious. Nothing I read suggested that the wife was deliberately bringing the claim to hurt the husband. Nothing justifies a conclusion that the property issue has already been determined.

I do not find that this application has no prospect of success or is doomed to fail. Even if the wife’s claim is nominal or at best marginal, it is one that needs further examination and far better evidence than that presented before me. Thus, drawing from the many descriptions set in paragraph 22 above, I could not say the wife’s case is so obviously untenable that it could not possibly succeed. The application of the husband must therefore fail.
The parties have not had a conciliation conference and therefore I propose to make such an order the date of which the parties will be advised administratively.
Each party raised the question of costs. I shall make provision in the orders for costs to be determined by submission but I must say that without determining the matter in advance, the material of the wife was hardly extensive and certainly did not address the question of whether it would be just and equitable to make an order at all. The husband’s interesting argument about the application being frivolous or vexatious or abuse of process was equally perplexing. There is very little money in this case. I remind practitioners that s 117 of the Act requires the party to justify a departure from the principle that each party shall bear their own costs. Neither party had a clear position and that includes the earlier proceedings to which I have referred. That is not to say that an application should not be made but I will consider it in chambers.

I certify that the preceding Thirty Eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 December 2014.

Associate:

Date: 3 December 2014