Phillips and Phillips
[2009] FamCA 336
•5 May 2009
FAMILY COURT OF AUSTRALIA
| PHILLIPS & PHILLIPS | [2009] FamCA 336 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal – Wife provided insufficient particulars – Wife’s case has no reasonable likelihood of success and is abuse of process – Application dismissed – Taken at its highest Wife’s case not doomed to fail |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Beck v Beck [2004] FLC 93-181 Lancer & Lancer (2008) FamCAFC 112 |
| APPLICANT: | Ms Phillips |
| RESPONDENT: | Mr Phillips |
| FILE NUMBER: | BRC | 10818 | of | 2007 |
| DATE DELIVERED: | 5 May 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Barry J |
| HEARING DATE: | 8 December 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Page |
| SOLICITORS FOR THE APPLICANT: | Wiltshire Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Kirk of Senior Counsel with Mr S J Williams of Counsel |
| SOLICITORS FOR THE RESPONDENT: | Hirst & Co Solicitors |
Orders
The matter is adjourned for further hearing to 31 July 2009.
By 30 June 2009 the Wife is to file and serve full particulars as to what the Wife asserts was the nett value of the property pool at the time the consent orders were entered into and how such calculation is arrived at. Such particulars to include:
a. details of each item of property and the value of same which the Wife says should have been taken into account;
b. to the extent the Wife asserts the value for an item of property is different to that set out in the consent orders and/or the Binding Financial Agreement the basis upon which the Wife says such value was not correct;
c. details of each liability of the parties and/or company entities under their control as at the date of the consent orders and/or the date of the Binding Financial Agreement to the extent such liability differs from the liability expressed in the consent orders and the Binding Financial Agreement, the basis upon which the Wife asserts the liability was not correct;
d. details of any financial resources of the parties and/or any companies under their control as at the date of the consent orders and/or the Binding Financial Agreement and to the extent the value of such financial resources differs from the value expressed in the consent orders and/or Binding Financial Agreement, the basis upon which the Wife asserts the values of such financial resources were not correctly expressed;
e. full particulars of any property of the parties or either of them the Wife says the Husband has failed to disclose;
f. full particulars of any representation made by the Husband as to the value of such property which the Wife asserts was false with full particulars as to the impact the representation is said to have had on the value in question;
g. full particulars of any conduct of the Husband or anyone on his behalf in the course of the making of the consent orders and the Binding Financial Agreement which the Wife asserts was in the circumstances unconscionable.
IT IS NOTED that publication of this judgment under the pseudonym Phillips & Phillips is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 10818 of 2007
| MS PHILLIPS |
Applicant
And
| MR PHILLIPS |
Respondent
REASONS FOR JUDGMENT
On 11 September 2007, Ms Phillips (“the wife”) filed an application in the Brisbane Registry of this Court seeking to set aside consent orders for property settlement entered into by the parties in January 2002.[1] She also sought to set aside a Binding Financial Agreement dated 30 January 2002.[2] In the event the Court makes orders to set aside the consent orders and the Binding Financial Agreement she seeks orders by way of property settlement.[3]
[1] Application for Final Orders filed by the Wife on 11 September 2007 at ¶1.
[2] Application for Final Orders filed by the Wife on 11 September 2007 at ¶2.
[3] Application for Final Orders filed by the Wife on 11 September 2007 at ¶3.
The terms of the consent orders and the Binding Financial Agreement are to be found in the affidavit of the Wife filed on 27 November 2007.[4] The consent orders extend over some seven typed pages. Inter alia, they provide for the Husband:
· to pay to the Wife the sum of $1,480,000;[5]
· pay out the mortgage debt secured against a property at Mermaid Beach; and
· to transfer to the Wife various shares and half the proceeds of the sale of a stud property.
[4] Affidavit of the Wife filed 27 November 2007, Annexure HMP-1 and HMP-2 respectively.
[5] Affidavit of the Wife filed 27 November 2007, Annexure HMP-1 at ¶1.
I am informed, and, for present purposes I accept, that the amount the Wife received in a global sense was in the order of $4.48 million.[6] This amounted to about 32% of the property pool.
[6] Affidavit of the Wife filed 27 November 2007 at ¶22.
The Marital History
The parties married in the United States of America in December 1987.[7] Final separation occurred in late December 2001.[8] During the course of the marriage the parties resided on Queensland’s Gold Coast where the Husband was a property developer.
[7] Affidavit of the Wife filed 27 November 2007 at ¶7.
[8] Affidavit of the Wife filed 27 November 2007 at ¶10.
Prior to the first return date, the Husband filed an Application in Form 2 together with a supporting affidavit and a response to the Wife’s application for final orders.[9]
[9] Application in a Case filed by the Husband on 31 October 2007; Affidavit of the Husband filed 31 October 2007; Response to an Application for Final Orders filed by the Husband on 31 October 2007.
In an amended Application in a Case the Husband sought that the Wife’s application filed 11 September 2007 be struck out.[10] In the alternative, orders were sought:
[10] Amended Application in a Cased filed by the Husband on 11 December 2007.
“2. That in the alternative to Order 1:-
(a) The Wife file and serve, within fourteen days, full particulars of her claim in respect of:-
i. The Consent Order dated the 31st January 2001 being set aside;
ii. The Binding Financial Agreement dated the 31st January 2007 being set aside; and
[Both these dates are incorrect. The consent orders were dated 31 January 2002 and the Binding Financial Agreement was dated 30 January 2002].
(b)The Husband be relieved from compliance with the Family Law Rules in respect of filing any further material, including a Financial Statement, until the Wife complies with Order 2 (a) of this Application.
2A. That in the alternative to Order 1:
(a)the Wife file and serve on or before 16 March 2008 all expert valuation evidence upon which she shall seek to rely in respect of the alleged under-value by the Husband as at December 2001/ January 2002 of his interests in the following properties/assets, namely:
i. the [Y] Property referred to in paragraphs 311.1 to 311.50 of the Wife’s Affidavit sworn 27 November 2007 (“the Wife’s Affidavit”);
ii. the [G] Property referred to in paragraphs 312.1 to 312.37 of the Wife’s Affidavit;
iii. the [VW] Shares referred to in paragraphs 313.1 to 313.19 of the Wife’s Affidavit;
iv. the former Matrimonial Home referred to in paragraphs 314.1 to 314.2 of the Wife’s Affidavit;
v. the [N] Property referred to in paragraphs 315.1 to 315.13 of the Wife’s Affidavit;
vi. his interest in [V] Pty Ltd and the other Entities referred to in paragraphs 317.1 to 317.12 of the Wife’s Affidavit;
(b)That the Wife have permission to adduce expert evidence at the trial from the experts providing the evidence required by Order 2A(a) pursuant to Rule 15.51 of the Family Law Rules;
(c)That until further Order, the Husband be relieved from compliance with the Family Law Rules in respect of filing any further material including to file a Financial Statement;
(d)That this Application be otherwise adjourned to a date on or around 30 March 2008:
i. for further Hearing;
ii. for Directions to be made as to whether there ought be a preliminary determination/Trial on the Wife’s Application under s.79A of the Act;
iii. for the giving of other Directions generally.”
The matter came before me in the duty list on 14 December 2007. The Wife had filed a lengthy affidavit with a separate folder of 32 annexures.[11]
[11] Affidavit of the Wife filed 27 November 2007.
On 14 December 2007, at the request of Counsel for the Wife, I adjourned the hearing of the Husband’s application for summary dismissal to 22 February 2008.
I was informed at that time that as early as August 2006 the Wife, through her solicitors, had written to the Husband alleging a miscarriage of justice in relation to the making of the consent orders by reason of certain properties being undervalued.
In response to the Wife’s allegations at that time the Husband obtained valuations from reputable valuers, valuing the various properties as at the date of the consent orders. It is common ground no valuations were obtained at the time of the making of the consent orders, though each party was legally represented.
The valuations obtained by the Husband in 2006, and forwarded to the Wife’s legal representatives, indicate the values relied on in the material filed for the purpose of the consent orders were not undervalued – indeed in some instances there was a significant overvalue.
The Husband’s legal representatives pressed the Wife’s legal representatives for particulars as to how it could be alleged there had been a miscarriage of justice in light of the valuations produced.
A letter from the Wife’s solicitors dated 27 April 2007 was tendered on
14 December. That letter in part reads as follows:[12]
“We confirm that we have now had the opportunity to review the material disclosed by your client and to make our own further investigations in relation to your client’s financial circumstances at the relevant time.
Based on the material disclosed by your client and our own investigations to date (particularly in relation to the [G] property), it is our view that our client’s application to set aside the consent orders and binding financial agreement will succeed.”
[12] Letter from Andrew Wiltshire to Philippa Power dated 27 April 2007, exhibit 1 in the proceedings of 14 December 2007, produced by H at ¶2 – 3.
On 14 December, the transcript reveals the following exchange taking place with counsel for the wife:[13]
“HIS HONOUR:…does your client have in her control at the present time valuations relating to the date the orders were made[?]…
MR BASTON: I don’t think so. I’ll have to get specific instructions about that. She hasn’t got valuations but what she relies upon at first instance, your Honour, is sales that followed not long in time after the consent orders were entered into.”
[13] Transcript of proceedings dated 14 December 2007 at p 2 – 3.
Counsel added:[14]
“Now, I don’t, in making that submission, suggest that the wife ought not at an appropriate time, on appropriate notice, and when she’s considered it, be forced to put on her case as to the experts and as to the basis upon which the valuation exercise will go, but she’s not in a position to meet that now…”
[14] Transcript of proceedings dated 14 December 2007 at p 4.
Counsel added:[15]
[15] Transcript of proceedings dated 14 December 2007 at p 5.
“…in adjourning both parties’ applications today to a date in mid February, by which time my client will have her response to his application, and it will probably be - for example, the application seeks that we - my client file her affidavit material such that the matter can be argued at the end of January. Even if we were able to say to the Court today – sorry, the end of March. Even if we were able to say to the Court today that we accept the gravamen - the complaint and would agree to do all of that, your Honour, I know from my own contemporary experience that you would be hard pressed to find a valuer to value the extent of these properties and be able to do so by 30 March.
There are practicalities. My client has got to go out - got to find out what timeframe the valuation exercise can be obtained in, find out what documents might assist the valuer and get those, if the Husband has them, from him… --
HIS HONOUR: …I find it staggering that she could have instituted these proceedings without obtaining the valuation evidence to back it up first. She would have to produce that evidence at some stage.
MR BASTON: Yes, your Honour, and she’s received advice - right, she’s received valuation advice”.
In acceding to the Wife’s application for an adjournment, I noted:[16]
“There is an old maxim in law, “he or she who asserts must prove”. The wife brings this application to re-open proceedings that were concluded back in 2002. I do not want to anticipate what the submissions or the issues will be on 22 February but I would tentatively express the view that before putting the husband to the considerable legal expense of preparing for trial, it is appropriate he be fully apprised of the case he has to meet.”
[16] Reasons for judgment of Justice Barry dated 14 December 2007 at ¶23.
The Hearing on 29 February 2008
(Matter could not proceed on earlier date)
The Husband’s legal representatives on this date filed two further affidavits, one from the Husband’s solicitor, Philippa Power, and one from an accountant, Mr O.[17]
[17] Affidavit of Philippa Power filed by leave on 29 February 2008; Affidavit of Mr O filed by leave on 29 February 2008.
The affidavit of Ms Power annexed correspondence passing between the respective legal practitioners since the date of the last hearing.[18]
[18] Affidavit of Philippa Power filed by leave on 29 February 2008, Annexure PMP 1 – PMP 6.
At paragraph 3 of her affidavit, Ms Power deposes as follows:[19]
“On 26 February 2008, I telephoned Andrew Wiltshire, the Wife’s Solicitor, requesting as to when we were likely to receive material from him. He said, in summary, I would receive it tomorrow and when I asked what would be received, he told me Peter Baston would pass on to Tom Kirk particulars and he would also have a copy and send them through to me. The particulars would be in a “pleading” format of what was raised in his client’s Affidavit, but more concise. He said that [Mr C] will be giving an overview of the matters he needs to value the business and
Mr Wiltshire assumed it would be put in an Affidavit. Mr Wiltshire then said that they were not disputing the values of the assets as we had given them, but that they would be viewing those as though they were “stock-in-trade” and what they wanted would be to value the business and that this goodwill was not disclosed by our client.”[19] Affidavit of Philippa Power filed by leave on 29 February 2008 at ¶3.
At this stage it was evident the Wife’s case had changed dramatically. She was no longer asserting the individual properties had been incorrectly valued, but was relying on a letter dated 27 February 2008 by a chartered accountant, Mr C.[20] Mr C suggested the companies operated by the Husband may have had “goodwill factors” which were not valued at the relevant date.
[20] Affidavit of Philippa Power filed by leave on 29 February 2008, Annexure PMP 3.
In relation to this claim, Mr O, in a letter of 28 February 2008 to the Husband’s solicitor observed as follows:[21]
[21] Affidavit of Mr O filed by leave on 29 February 2008, Annexure NCC 2.
“5. Goodwill
a) I note that Mr [C] considers that [V] Pty Ltd may potentially have some goodwill.
b) In as far as [V] Pty Ltd is concerned I am aware that the company was incorporated in 1994 to act as trustee of the [V] Trust which is an investment holding trust. I am informed by [the husband] that in about 1996 the company, as trustee, acquired three separate properties and over the years it tried to amalgamate and reconfigure the properties into an industrial development.
I am informed that prior to 31 January 2002 the company had not acquired any other properties or investments.
c) From date of incorporation until 30 June 2001 [V Pty Ltd] had no employees and had incurred losses in excess of $700,000.
d) … [Reveals company had accumulated losses for the period 1996 to 2001].
e) In view of these matters it is my opinion that at 31 January 2002 neither [V] Pty Ltd nor the [V] Trust had any enterprise goodwill because:
i) The company and/or trust were only a trustee and an investment vehicle;
ii) The company and/or trust had not carried on any operations nor did it have any repeat business;
iii) The company and/or trust were totally reliant on [the husband] for expertise and decision making;
iv) The company and/or trust had not proceeded to development.
f) I am further of the view that no goodwill attaches to the type of operations undertaken by [the husband], either at the enterprise level or at the personal level because:
i) Each property developments is a one off project; and
ii) Success of the developments is totally reliant on the skills, expertise and judgement of [the husband].”
During the course of the hearing, the following exchange took place:[22]
[22] Transcript of proceedings dated 29 February 2008 at p 4 – 5.
“HIS HONOUR:…in the fullness of time, which I would have thought would have been by today, there will be valuations filed by the valuers to whom you’ve spoken challenging the valuations?
MR BASTON: Yes, we had hoped that we would do that.
HIS HONOUR: And you still intend to?
MR BASTON: Yes, your Honour.
…
MR BASTON: Well, your Honour, if I could deal with it this way and that’s so that my client and my side we totally appreciate what is being done and I – this is a section 79A application. What brings us here is an application for particulars. An application, firstly, for particulars and then an application for strike out.
Now, in dealing with that my client in her material contests that the value of the property in respect of which she reached an agreement to settle with her former husband was understated or that the value wasn’t appropriately represented. Mr [C’s] report goes to this issue, that in circumstances where a developer holds land it’s really stock in trade and you value the developer’s business and… the business wasn’t valued.”
Counsel noted:[23]
“And I agree with your Honour that the typical and, in fact, regular course for a section 79A case is for a respondent to ask for and, if requested, absolutely appropriate to have to supply particulars, no contest with that.
What my client contends in this case is that her husband is and was and it’s his employment to be, both for others and on his own behalf, a property developer and that involves the holding of items of real estate, not just for investment in the traditional sense, but as stock in trade for which development occurs and that’s a process of obtaining development applications, having vision, foresight as to what a particular development might or might be or what a particular block of land may or may not be capable of doing.”
[23] Transcript of proceedings dated 29 February 2008 at p 8.
In the reasons for judgment delivered on 5 March 2008, I observed:[24]
[24] Reasons for judgment of Justice Barry dated 5 March 2009 at ¶7, 15 and 16.
“7.I was informed at the hearing on 14 December 2007 that the Wife disputed certain of the valuation reports the Husband had obtained. I was informed the Wife had not obtained written valuations from her own valuers, but oral advice had been received to this effect from a valuer or valuers. It now transpires the information was not obtained by the Wife's current legal representative but by another legal practitioner whose name the Wife does not wish to have disclosed.
…
15. Having regard to the submissions made on 29 February I somewhat reluctantly propose to accede to the request for more time. I accede to the Husband's application for the Wife to supply further particulars of her application. Indeed, Counsel for the Wife did not challenge that that was appropriate for such particulars to be provided with the caveat that occur once the documents they requested had been provided. It appeared common ground 21 days was an appropriate period to respond after the supply of the relevant documents.
16.I have to observe that the conduct of the Wife's case to date appears to be in the nature of what is referred to in law as a fishing exercise. It would seem the Husband is confident there are no fish in this particular pond. He says he is not opposed to providing informal disclosure”—
The matter was again before me on 12 June 2008. Orders were made then on 13 June 2008, those orders provided:[25]
“1. All parties be given leave to inspect subpoenaed documents within twenty-one (21) days.
2. Within twenty-one (21) days of inspection of the subpoenaed material the Wife’s legal representatives are to file and serve full particulars of her claim in respect of the section 79A application to set aside the consent orders dated 31 January 2002 and the Binding Financial Agreement dated 31 January 2002 pursuant to Section 90K.
3. The Husband is to be relieved from compliance with the Family Court Rules with respect to filing any further material until the Wife complies within paragraph 2 of this Order.”
[25] Orders of Justice Barry dated 13 June 2008, Orders 1 – 3.
In the course of the reasons for judgment delivered at that time, prior to making the above orders, I observed:[26]
“18.I accept the force of the submissions made by the Husband's Counsel, that the Wife's case has changed and changed significantly since the filing of the application back in September last year. Initially a claim of miscarriage of justice was mounted on the basis the valuations of real estate were below market value. As I understand the position, that approach is no longer pursued. The claim was then made by the Wife that the company, [V Pty Ltd], which as I understand the position, was the Husband's property development entity, was undervalued as at the time of the consent orders on the basis that no value was attributed to goodwill. The Husband immediately engaged a forensic accountant, [Mr O], who ventured the opinion that as the company had not made a profit for the three or so years prior to the date of consent orders, it was likely it had no goodwill.
19.The Wife's claim at the present time appears to have been succinctly summarised by Counsel for the Husband where he observed the Wife's case is now presented as a case to be inferred from the Husband's financial circumstances generally at the time of signing consent orders. What to make of the change of tack in the presentation of the Wife's case is not a matter I have to determine at this point in time, suffice it to say she is at liberty to re-plead and assert that this is the changed basis upon which she brings her application.”
[26] Reasons for judgment of Justice Barry dated 13 June 2008 at ¶18 and 19.
On 4 August 2008 written particulars were supplied by Counsel for the Wife.[27] I shall refer to those particulars in more detail when considering the submissions made at the hearing on 8 December 2008.
[27] Particulars of Claim supplied by the Wife on 4 August 2008.
On that date each of the parties was represented by Senior Counsel; both Counsel presented written submissions.
The Hearing of 8 December 2008
To succeed in her application for final orders, it is necessary for the Applicant to demonstrate that she received a lesser sum than her proper entitlement and that this result amounted to a miscarriage of justice, and was as a result of fraud, duress or any other circumstances as provided for in the legislation.
It is not uncommon for a party to feel guilty or generous and consent to orders more favourable to the other party than would normally be the case. If at a later point in time the litigant regretted the guilt or generosity one could look at the result and say that it was not just and equitable, but be unable to establish that the inequitable result arose from fraud, duress or any other circumstance (as that phrase has been interpreted).
In another situation there may be unreasonable pressure brought to bear on a party, but if the orders in the end result can be said to be just and equitable the terms of s 79A are not invoked.
In the Marriage of H and R E Patching (1995) 18 FamLR 675 the Full Court (Nicholson CJ, Fogarty and Jordan JJ) held:[28]
“i)An application under s 79A involves four steps; whether there was a suppression of evidence or other circumstance, did that amount to a miscarriage of justice, should the court in its discretion vary or set aside the order, and whether another order should be made.
ii) it is generally preferable to deal with all the steps in one hearing.”
[28] In the Marriage of H and R E Patching (1995) 18 FamLR 675 at p 675.
I have been referred to a recent decision delivered in July last year in the matter of Lancer & Lancer (2008) FamCAFC 112. In that decision, the Full Court (Bryant CJ, Warnick and Thackray JJ) held that there was no error of principle in the trial Judge in determining whether the question of the suppression of evidence should or should not be dealt with as a preliminary and separate issue rather than as part of a trial involving all the evidence required for a determination, not just of whether a ground upon which an order may be varied or set aside existed, but if a ground was established, what order should then be made.
The Chief Justice observed:[29]
“34.It is pertinent in my view to note that section 79A itself contains two aspects. One is essentially a fact-finding exercise, that is whether the applicant can establish on the relevant evidentiary standard, namely the balance of probabilities, that there has been a miscarriage of justice by reason of one of the matters set out; in this case, suppression of evidence. That is often referred to as the threshold test.
35.The second part which follows from a positive finding about the first is a discretionary one, namely that the court may in its discretion vary or set aside the original order and, if appropriate, make another order. The decision in each case about whether to hold a single hearing, will, as Warnick J has said, be a matter to be determined by the trial judge in the exercise of discretion having regard to the circumstances of each case.”
[29] Lancer & Lancer (2008) FamCAFC 112 at ¶34 – 35.
particulars
As this matter has progressed it has focused on the provision of particulars of the allegations rather than moving to an all in one hearing.
In light of these observations, I turn to a consideration of the particulars supplied.
“1.1 The provision to the Wife in the order was so unreasonable that any Court would find that the Wife’s consent to the order was not freely given. In particular, of the value of assets disclosed by the Husband and based upon values attributed to that property by the husband, the Wife received 32% of such property.”[30]
Particular 1.1 consists of a bald assertion that the result agreed representing a division of 68%/32% was so unreasonable a Court could infer a lack of true consent. I do not find a submission in these terms to be helpful. The Wife’s case until recently was the assets were undervalued. Presumably if she was to receive 32% of the re-valued assets it would amount to a just and equitable result. The Wife was legally represented at all times prior to the making of the consent orders and entering into the Binding Financial Agreement. She at no time until the delivery of the particulars on 4 August 2008 complained the percentage division was inappropriate. Seemingly she and her legal representative accepted the 32% division was reasonable as at January 2002. In the letter from her solicitor to the Husband dated 7 August 2006 there is no complaint about the percentage division.[31] In that letter the Wife indicates she is seeking payment of a further $22 million which given the recent history has all the hallmarks of an ambit claim.
[30] Particulars of Claim supplied by the Wife on 4 August 2008 at ¶1.1.
[31] Affidavit of the Husband filed 22 January 2009, Annexure JNP1.
A litigant cannot apply to set aside consent orders other than through the mechanism of s. 79A. At all times the Wife’s case has been premised on
s. 79A1(a). In order to bring this section into effect it is necessary for the Wife to invoke the terms of the section by showing some undervaluing of assets,
non-disclosure of assets or such like.
Counsel for the Husband has noted the marriage was of fourteen years duration and the Husband introduced assets in excess of $5 million at the commencement of the relationship whilst the Wife introduced no assets.
The Wife’s evidence is that it was only when she had heard from a legal practitioner that certain properties were undervalued she now contends the settlement was not just and equitable. There has been no disclosure of the name of the solicitor or what basis he had for making such an assertion.
Paragraph 1.1 is in my view a mere assertion rather than a particular of the Wife’s claim.
a)“1.2 In the period leading up to the making of the consent order, the Husband provided to the Wife monthly allocations of funds which he knew were insufficient to enable the Wife to meet the expenses for which such allocation was intended. The Husband knew and expressed a view that a property settlement was necessary to overcome the difficulties which the Wife was experiencing.”[32]
In her affidavit the Wife notes that in the year 2000 she was receiving a monthly allowance of $5,000:[33]
“…from which I was required to pay for all shopping, entertaining and expenses for the three (3) children.”
[32] Particulars of Claim supplied by the Wife on 4 August 2008 at ¶1.2.
[33] Affidavit of the Wife filed 27 November 2007 at ¶35.
Paragraph 37 is in the following terms:[34]
“37.Following a number of arguments [the husband] agreed to double my monthly allowance to $10,000.00. However, from that point [the husband] expected me to pay for everything.”
[34] Affidavit of the Wife filed 27 November 2007 at ¶37.
Leaving aside the sufficiency or otherwise of a monthly allowance of $10,000 to run a household, the issue of undue pressure by the Husband is only relevant in the event the Applicant can establish the result of the orders was not just and equitable.
“1.3 In the period leading to the making of the consent order, the Husband represented to the Wife that he would provide the Wife with financial assistance in order for the Wife to develop a career path but that such assistance would be conditional upon there being a property settlement.
1.4 In the period leading to the making of the consent order, the Husband represented to the Wife that he would be willing to discuss their future relationship on the condition that a property settlement was entered into by the Wife.”[35]
Similar observations apply in relation to those made concerning paragraph 1.2.
[35] Particulars of Claim supplied by the Wife on 4 August 2008 at ¶1.3 and 1.4.
Particular 1.5:[36]
“1.5In the period leading to the making of the consent order, the Husband represented to the Wife that any property settlement would be on terms proposed by him. The terms were presented to the Wife by the Husband without any proper disclosure of the property or financial resources of the Husband and the Wife.”
[36] Particulars of Claim supplied by the Wife on 4 August 2008 at ¶1.5.
From a perusal of the consent orders and the terms of the Binding Financial Agreement I find it difficult to accept the assertion that the terms were presented to the Wife without any proper disclosure of the property or financial resources of the parties.[37] Such an assertion of itself is not helpful. The Husband has been unsuccessfully requesting particulars since 2006 of how the assets were said to be undervalued. As I understood the evidence presented on behalf of the Wife her complaint was not of a failure to disclose property and financial resources but that such property and financial resources were undervalued. The Wife’s legal representatives have at all times said they would comply with the directions for particulars. If Counsel for the Wife is referring to the issue of goodwill of the company, V Pty Ltd, the Wife has raised this as an issue but has failed to produce expert evidence to support the allegation.
[37] Affidavit of the Wife filed 27 November 2007, Annexure HMP-1 and HMP-2 respectively.
The Husband challenges this assertion and over a period in excess of two years has sought particulars of what property or financial resources were said to be undervalued in light of the valuations he produced. Such particulars have not been forthcoming.
In the Transcript of the hearing on 8 December 2008, Senior Counsel for the Wife submitted:[38]
“My submission is this, in relation to that which I have been through, that the wife raises, either by her own evidence or by the subpoenaed material that she’s had access to, significant issues in relation to representations made to her relating to the value not only of the shares but also the property. It is a fact that she does rely upon the misrepresentations made in relation to value and it is a fact that she has not produced evidence of the value that she would assert that the properties had at that time. And in that context I wouldn’t cavil with an order made that she do that before the husband (indistinct), in the form of the orders that my learned friend seeks. But it’s a different matter, in my submission, to say that that omission itself would cause the summary dismissal of her application.”
The passage that is indistinct, on my recollection, was a concession that before the Husband is required to plead his case, the Wife should be required to supply particulars.
[38] Transcript of proceedings dated 8 December 2008 at p 14.
Later in the submissions Senior Counsel for the Wife said:[39]
“But the fact is that she does raise, in my submission, prima facie evidence that assails the values that were asserted or the lack of them that were asserted and upon which she entered into this arrangement. That being so, then there can be alternative orders made to a summary dismissal which must, in my submission, on all authorities, be the remedy of last resort. Those aren’t the words that the cases have been used but it must be based on a finding that upon the evidence she has presented her application is doomed to failure and if there are factual issues to be determined that must be determined to affect (sic) a result that if it be dismissed then there needs to be a trial of those matters.”
[39] Transcript of proceedings dated 8 December 2008 at p 14.
In response to a query from myself as to why over the period of time the litigation had been in progress values have not been put forward by the Wife, Senior Counsel responded:[40]
“It hasn’t been done and in my submission there were intimations that should be done and it wasn’t done but the fact is that the evidence as it is does not support the application that’s made today. If, as my learned friend says, it’s appropriate then that alternatively there is a means of ensuring that that be done before he has to incur any further costs, that is that they be put on, that if there is now a prima facie case, that is sufficient not to warrant summary dismissal then orders can be made that protect the husband from his involvement in these proceedings and further costs and my learned friend has set those out and we accept that that should be done. I can’t put it any differently than that without obfuscating my way around what in fact has been the course of this matter. I don’t know about statements made to the Court that there were valuations made. I wasn’t counsel at the time.”
Whilst paragraph 1.5 of the particulars is strictly correct in the sense that valuations of the various properties were not obtained at the time of the making of the consent orders, it ignores the fact the Husband has now obtained such valuations and those valuations support his assertion that the values set out in the application for consent orders were accurate. The Wife leads no material to the contrary and indeed on my understanding of her position has resiled from her original claim that the properties had been undervalued.
[40] Transcript of proceedings dated 8 December 2008 at p 15.
Particular 1.6:[41]
“1.6In the period leading to the making of the consent order, the Husband refused to include in the consideration of the propriety of such settlement proposed by him, shares held in [VW] Pty Ltd and other property and business interests which he owned or in which he had an interest”.
[41] Particulars of Claim supplied by the Wife on 4 August 2008 at ¶1.6.
This submission does not accord with the evidence before the Court nor the terms of the consent orders and the Binding Financial Agreement.[42] I note that in the application for consent orders VW shares are valued at about $7,000,000.[43]
[42] Affidavit of the Wife filed 27 November 2007, Annexure HMP-1 and HMP-2.
[43] Affidavit of the Wife filed 27 November 2007, Annexure HMP-1 at p 7.
A letter dated 27 November 2001 was forwarded to the parties from ABN AMRO, stockbrokers valuing the VW shares.[44] Clearly the Wife was aware of the existence of the shares and of the number of shares. The Wife could have engaged accountants to value the VW shares as at January 2002 and demonstrate they were worth more than the 25 cents per share provided for in the Form 12A. The Wife could have done this, obviously, prior to the making of the consent orders, but certainly since she raised the s. 79A issue at any time since 2006. The reality is she has done nothing. Rather than engaging an accountant to value the VW shares as at the relevant date, she could have led evidence of the shares changing hands for a greater value in transactions around that time. Again she has not done so.
[44] Affidavit of the Wife filed 27 November 2007, Annexure HMP-31.
An interesting aspect of the ABN AMRO letter is that they recommend the shares be valued at 25 cents on the basis that if they were sold in bulk the market would be flooded and would push the value of the shares down.
Mr Page argues:[45]
“My submission is that that, in fact, is not a market value of the husband’s shares. it (sic) is a value that is placed upon the shares in the event that they were sold in block and that’s then reflected in the distribution of the shares to the parties…
…As against that if they were sold in smaller parcels or individually and that’s reflected in the distribution to the parties that was represented to the Court whereby the size of the parcel of shares that the husband retained were valued at 25 cents or it was asserted their value was 25 cents each and the wife who had a much smaller parcel as a result of the settlement, they were valued at 62… cents.”
[45] Transcript of proceedings dated 8 December 2008 at p 11.
The onus is on the Wife to adduce some evidence to support a mere allegation that the shares were undervalued for the purposes of the application for consent orders. She has failed to do so despite being invited to do so over a lengthy period of time.
Particular 1.7:[46]
“1.7On 28 June 2001 the Husband made it clear to the Wife that he would provide no future financial assistance to the Wife with regard to her career development unless an agreement was signed”.
[46] Particulars of Claim supplied by the Wife on 4 August 2008 at ¶1.7.
I proceed on the basis that the allegation made by the Wife may be credible. Such a claim by the Husband could amount to undue pressure or duress, but that of itself is not relevant unless the Applicant is able to demonstrate the result she achieved was not just and equitable.
Particular 1.8:[47]
“1.8In the period leading to the making of the consent orders, the Husband represented to the Wife that the property settlement proposed by him was just and equitable.”
It may well be it was not just and equitable, but as a particular asserted in this context I find it to be meaningless.
[47] Particulars of Claim supplied by the Wife on 4 August 2008 at ¶1.8.
Particulars pleaded in 1.9 and 1.10 are as follows:[48]
“1.9In the period leading to the making of the consent orders, the Husband insisted that there be a separation of the parties for the purposes of arriving at a property settlement which separation he knew placed considerable stress on the Wife.
1.10In the period leading to the making of the consent orders, the Husband represented to the Wife that he would assist the Wife in the purchase of an apartment for her sister on the condition that the Wife agreed to the property settlement proposed by him.”
Similar comments may be made about particulars in such terms namely the conduct of the Husband can only be relevant insofar as it can be established the result arrived at was not just and equitable and that such unfair result was brought about by fraud, suppression of evidence or any other (relevant) circumstance. I accept undue pressure or inducements or promises may fall within the ambit of the subsection.
These again are particulars which simply reflect the evidence of the Wife as set out in her affidavit filed 27 November 2007. In my view they do not take the Wife’s application any further, in the absence of evidence that any undue pressure led to an adverse result.
[48] Particulars of Claim supplied by the Wife on 4 August 2008 at ¶1.9 and 1.10.
“1.11 On 6 November 2001 the husband caused solicitors instructed by him to inform the solicitor instructed by the wife particulars of the property, liabilities and financial resources relevant to the settlement proposed by the husband. In several respects information provided in that correspondence was false. Particulars of such evidence are: - -”[49]
Eight separate subsections from (a) to (h) are then particularised as follows:
[49] Particulars of Claim supplied by the Wife on 4 August 2008 at ¶1.11.
“1.11(a):
That the Husband caused to be represented to the Wife that the Wife had personal knowledge of most of the information relating to the financial circumstances of the parties when he knew that that was false.”
I find such a submission to border on the bizarre. I fail to see how a representation by the Husband that the Wife had personal knowledge of information concerning the parties’ financial circumstances would ever amount to a factor relevant to s.79A. The Wife had legal representation. The Wife surely knew the extent of her personal knowledge as to the financial circumstances of the parties. She was able to have enquiries made personally or through her lawyers if she was not aware of certain information
1.11(b):
“That the Husband caused to be provided an estimate of the value of the land at [Y] owned by [V] Pty Ltd that he knew to be false.”
This particular is quite misleading. The equity in the Y land, in the Form 12A document is shown to be $1.525 million.[50] I am informed from the Bar table, and for the present purposes I accept, that this amounted to a valuation by the Husband of $4.5 million for the Y land. The valuation obtained by the Husband in 2006 valued the land as at January 2002 at $4.3 million. The Wife has never sought to challenge that valuation by the Husband, she has not sought to produce evidence the value of the Y land exceeded that shown in the Form 12A document.
[50] Affidavit of the Wife filed 27 November 2007, Annexure HMP-1 at p 7.
n land – la pty ltd
1.11(c):
“In relation to vacant land at [N] registered in the name of [LA] Pty Ltd, the Husband represented that that land was currently unmarketable when he knew such representation to be false”.
In the Binding Financial Agreement the N land is described in the following terms:
“Vacant land at [N] registered in the name of [L] Pty Ltd, being Lots […] on SP […] and Lots […] on SP […]. The property is held in a joint venture with […]. It is currently unmarketable due to flood levels. $565,000 is owing to the vendor Mortgagee and $1.4 million costs is owing to associated entities in acquisition costs. The project has an unrealised loss of approximately $2 million.”
In the consent orders under the listing of “Property Liabilities and Financial Resources” the N land is not shown as an asset but in fact as a liability of
$2 million.[51] Page 10 of the letter from the Wife’s solicitor, Andrew Wiltshire to the Husband of 7 August 2006 indicates in paragraph a – d thereof that the Wife had thoroughly researched the transactions involving the company LA Pty Ltd.[52]
[51] Affidavit of the Wife filed 27 November 2007, Annexure HMP-1 at p 7.
[52] Affidavit of the Husband filed 22 January 2009, Annexure JNP1 at p 11.
Annexure JNP8 to the Husband’s affidavit filed 22 January 2008 is the valuation relating to the N land. The valuation was carried out by D Valuers. It attributes a market value to the property as at December 2001 of $330,000:[53]
[53] Affidavit of the Husband filed 22 January 2009, Annexure JNP8 at p 294.
“…assuming an “in one line” sale inclusive of GST.”
The valuer conducting the valuation was Mr M who is a certified practising valuer. Annexed to the detailed valuation are locality maps, title searches, photographs of the subject property, a flood study, the conditions imposed by the local Council and a survey plan.
The matter has not been the subject of any follow up in the intervening period by the Wife’s legal representatives.
In his affidavit (paragraphs 5.4 and 5.4.3) the Husband says:[54]
[54] Affidavit of the Husband filed 22 January 2009 at ¶5.4 and 5.4.3
“5.4Again, [the wife] made several allegations, essentially that the value was deliberately understated by me. These were answered by my solicitor’s letter and, in addition, valuations from independent experts were provided as follows – [Reference is made to Annexure JNP8]
…
5.4.3Again, I responded to [the wife’s] contentions of deliberate undervaluing by me, by obtaining independent expert valuations but [the wife] maintains the allegation without obtaining any independent expert evidence to support her contention or refute the valuations I provided.”
In the letter from the Husband’s then solicitor, Philippa Power dated
6 November 2001, reference is again made to the project having an unrealised loss of approximately $2 million.[55] This reflects the representations made in the Recitals to the Binding Financial Agreement.[56]
[55] Affidavit of the Wife filed 27 November 2007, Annexure HMP-6 at Recital G(i).
[56] Affidavit of the Wife filed 27 November 2007, Annexure HMP-2 at Recital R(i).
Further particulars may be advanced by the Wife’s legal representatives on this issue but to date they have not done so.
1.11(d):
“That the Husband represented that the value of property at [S] was approximately $160,000 when he knew that that representation was false”.
The Husband has obtained a valuation to say that the land in question at the relevant time was valued at $200,000. The Wife has not challenged this valuation. The difference is $40,000 which is less than half a percent of the overall assets of the parties. The difference is balanced by other properties having a lesser value than allowed for in the Form 12A.
1.11(e):
“That the disposal value of the shares of the parties in [VW] Pty Ltd was estimated at $6.910m when the Husband knew that the value of such shares was well in excess of that figure.”
I have previously canvassed this aspect and made my observations and comments having regard to the letter obtained by both parties from ABN AMRO. [57] The letter from ABN AMRO appears to be in the nature of a single expert report.
[57] Affidavit of the Wife filed 27 November 2007, Annexure HMP-31.
1.11(f):
“That the cost of acquisition of land by [V] Pty Ltd at [Y] was represented to be $5.3m which the husband knew to be untrue”.
The cost of acquisition of the land is not greatly relevant. What is relevant is the value as at January 2002. The Husband has provided a valuation and that valuation has not been challenged despite continued requests and orders for particulars.
1.11(g):
“That there were ongoing and costly legal disputes over approvals in relation to the development of the [Y] land when the husband knew such diputes (sic) had then been resolved”.
This assertion does not appear to be challenged by the Husband, but the assertion is not greatly relevant. Regardless of whether there were ongoing disputes, the Y land was valued at a given figure in the Form 12A document.[58] The Husband has obtained a valuation to show at the relevant time that the valuation was, in fact, less than the figure provided for in the consent document.
[58] Affidavit of the Wife filed 27 November 2007, Annexure HMP-1 at p 7.
1.11(h):
“That developers, […], were endeavouring to subdivide the property in [G] when the husband knew that approval for the subdivision had then been approved”.
It matters little what stage the subdivision was at.
The Husband gave a certain value for the G land, at a little over
$1 million. In the valuation provided, Deloittes provided a letter that the Phillips Company’s share of the equity of this project was $898,000.[59] This valuation has not been challenged.
[59] Affidavit of the Husband filed 22 January 2009, Annexure JNP6 at p 258.
1.18 (this should be 1.12) the particular given is:
“That in the period leading to the making of the consent order, the Husband failed at any time to provide the Wife a value of his shares or interest in [V] Pty Ltd when he knew that such shares or interest had value at the time and when he had the resources available to provide a value”.
There is unchallenged evidence from Mr O produced by the Husband that V Pty Ltd’s shares had no value other than as represented by the assets of the company at that time—that is to say that the company had no goodwill for the reasons given by Mr O.[60] Mr C supplied a document to the effect that there may be goodwill but at no time has the Wife adduced any evidence in furtherance of this claim.[61]
[60] Affidavit of Mr O filed by leave on 29 February 2008, Annexure NCC 2.
[61] Affidavit of Philippa Power filed by leave on 29 February 2008, Annexure PMP 3.
In the particulars the Wife asserts that she seeks to have the financial agreement set aside on the grounds of fraud and unconscionable conduct.[62] No particulars have been given and no evidence adduced by the Wife to support such serious allegations.
[62] Particulars of Claim supplied by the Wife on 4 August 2008 at ¶2.
In relation to the particulars supplied Senior Counsel for the Husband in written submissions observed:[63]
“If closely scrutinised, the particulars now provided by the Wife really do little more than repeat previous assertions which the Husband has already responded to by undertaking the exercise of obtaining valuations from independent experts and deposing to those matters contained in his affidavit filed 11 December 2007. Of greater concern, she now appears to challenge abandoned valuation issues (see particulars 1.11(b), (c), (d) and (e) without any expert evidence, notwithstanding Your Honour’s direction that such challenges needed to be established with proper evidence.”
I accept the force and accuracy of this submission. The particulars provided do no more than recite the Wife’s claims in her affidavit. They do not amount to particulars at all as that term is widely understood.
[63] Outline of Argument on Behalf of the Husband dated 8 December 2008 at ¶3.1.
outline of submissions by counsel for the wife
Senior Counsel for the Wife in submissions adduced at the hearing on
8 December 2008argued:[64]
[64] Outline of Submissions by the Wife dated 8 December 2008 at ¶7, 8, 29 and 30.
“7.As will be detailed below, it is submitted that a combination of the affidavit and the particulars provided established that there is a considerable number of issues of fact relevant to the setting aside of both the financial agreement and the order, each of which require determination by trial.
The Law
Applications for Summary Dismissal
8.It is submitted that this Court will be careful to ensure that a right to litigate particularly an application made pursuant to s.90K will not readily be removed from a party. This is particularly so if the Court considers the distinction between a financial agreement and consent order. A Binding Financial Agreement is an agreement entered into between the parties the purpose of which is to exclude the operation of Part VII of the Family Law Act. Its essential foundation and basis is in contract and private rights. In contrast, a consent order has its essential basis in an order of the Court and whether miscarriage of justice has been caused by various circumstances or there has been in the broad sense an abuse of process, such that the exercise of the Court’s discretion in making the order has been in some way tainted, vitiated or affected, it is the gravamen of s.79A. As Altobelli FM said in S v S[65] at para 17:
[65] [As quoted in Outline] “(2007) FMCA fam 272 (3 May 2007)’.
“Even though the grounds for setting aside an order under s.79A(1) and setting aside a binding financial agreement under s.90K(1) have some similarity, the essential nature of those sections is entirely different.”
9.It is this difference that, in my submission, raises the barrier for summary dismissal to a higher level that (sic) that expressed by the Court to date in respect of applications under s.79A. The fact is that a consider order has the imprimatur of a Court. In contrast, a Binding Financial Agreement has its essential foundation and basis in contract.
…
29.In order to bring herself within the provisions of s.90K and s.79A, the Wife must assault the integrity of the process by which the orders were made. It is this that is done in the particulars that are provided upon the evidence which was subsequently received that indicated to the Respondent the likelihood of misrepresentations made in the course of the making of the orders and hence her assault upon the integrity of the process.
30.The Wife relies upon, within the provisions of s.90K(1), the following:
(a)Fraud by the Applicant by reason of non-disclosure or by representations known to be false; and
(b)conduct in the course of the making of the Financial Agreement that was in all of the circumstance unconscionable.”
Outline of argument on behalf of the husband
Senior Counsel for the Husband made submissions in the following terms:[66]
[66] Outline of Argument on Behalf of the Husband dated 8 December 2008 at ¶3.5.
“3.5Rule 10.12 of the Family Court Rules provides for the making of summary orders. By letter dated 1 August 2008 (annexure JNP2 to affidavit of Husband filed 4 December 2008), the Wife was advised the Husband would be applying to strike out the Wife’s application. To satisfy the wide discretion that Your Honour is empowered with, the Husband need establish that what the Wife seeks:
“(c) …is frivolous, vexatious or an abuse of process;
(d)…(has) no reasonable likelihood of success.”
In an article entitled “Is the current law on summary dismissal appropriate for the Family Court?” Anthony Dickey QC makes the following observations:[67]
“There is surely a fundamental problem with the current law on the summary dismissal of an application in the Family Court. Indeed, not to put too fine a point on it, the present law is surely so inappropriate that it must be wrong.
The current law is not in doubt; it has been made clear by the Full Court of the Family Court on several occasions: see Bigg v Suzi [1998] FLC 92-799 at 84,974-5, and Pelerman v Pelerman [2000] FLC 93-037 at 87,582, to name but two. The basic rule is that the Family Court will summarily dismiss an application before it only if it has no chance of success. As the Full Court put it in Pelerman (at 87,582):
The parties seeking summary dismissal must show that the application is “doomed to fail” or as has been otherwise described “that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.
The current law in the Family Court follows the principles enunciated by Kirby J in Lindon v Commonwealth [No 2] (1996) 70 ALJR 541 at 544-545. The crucial point about the account of law in this case, however, is that the question of whether there was a reasonable cause of action could be determined by a consideration of the Statement of Claim. In the Family Court, however, and indeed in all courts where proceedings are controlled by the Family Law Rules, there is no requirement of a Statement of Claim, and there never has been.
Take a typical case where a party to a marriage might want summarily to strike out a former partner’s application in the Family Court. This is where the former partner has applied to have a property settlement order set aside under s.79A(1)(a) of the Family Law Act 1975 (Cth), on the ground that the order was obtained by a miscarriage of justice. A strike-out application in such a case is almost certainly doomed to fail because there is usually insufficient information before the Court at the hearing for a Judge to conclude that the s.79A application is doomed to fail. Consider what is before the Family Court in a strike-out application. There is the application itself which sets out the orders sought. Particulars pertaining to the orders sought might be given, but this is not equivalent to a Statement of Claim. There is usually also an affidavit by the applicant for relief under s.79A, but this also does not usually set out his or her entire case. There is thus always the possibility that when the matter comes up for trial, further evidence will be presented that will support even a tenuous-looking application. To make matters worse for the party seeking summary dismissal, he or she is precluded from presenting evidence in support of the dismissal application because under current law the court may have regard only to the opponent’s documents: see Beck v Beck [2004] FLC 93-181 at 79,053.
The practical consequence of the current law on summary dismissal of an application in the Family Court is that any disgruntled spouse can have property settlement orders reviewed under s.79A with relative ease. This is contrary to the principle that a property settlement order finally determines the property entitlements of parties to a marriage. This is, however, an inevitable consequence of the current law adopted by the Full Court of the Family Court and of the provisions of the Family Law Rules.”
[67] Anthony Dickey QC (2009) 83 ALJ 17.
In Beck v Beck [2004] FLC 93-181 the Full Court (Ellis, Finn and Chisholm JJ) held:[68]
“…an application for summary dismissal must be determined on the basis only of the material put forward by the Respondent (to that application).”
The Court also noted:[69]
“Regard should also be had to paragraph 6.31 of the judgment in Bigg v Suzi [ [1998] FLC 92-799] where the Full Court referred to the fact that the Wife, who was the Applicant for the summary dismissal of a s 79A application by the husband, “had no right to adduce any evidence at that summary hearing to contradict the evidence of the Husband or to seek to contradict any inference which it might be submitted should be drawn from that evidence.””
In the present case, there was no challenge on behalf of the Wife’s legal representatives to the fact that the Husband had filed valuation reports in relation to the various real estate holdings of the parties. In the circumstances it would be artificial in the extreme to consider this matter without having some regard to the fact that that material has been filed when there was a clear obligation on the Wife to present some material to counter that produced by the Husband.
[68] Beck v Beck [2004] FLC 93-181 at ¶20.
[69] Beck v Beck [2004] FLC 93-181 at ¶21.
However, I am bound by the Full Court’s decision in Beck v Beck and have to observe that whilst not agreeing with all of the commentary by Anthony Dickey QC quoted in the previous paragraph I accept that it is extremely difficult in this jurisdiction for an application for summary dismissal to succeed given the law at it presently stands.
conclusion
Rule 4.01 provides that when filing an Application for Final Orders a litigant is required to include full particulars of the orders sought.[70]
[70] Family Law Rules 2004 (Cth), r 4.01.
As both Senior Counsel have acknowledged it is commonly ordered for an applicant relying on s.79A to provide full particulars detailing how it is said the terms of that section are invoked.
Rule 11.1 provides the Court may exercise any of the powers mentioned in Table 11.1 to manage a case to achieve the main purpose of the Rules.
So far as is relevant the Table under Rule 11.1 provides as follows:[71]
“ Table 11.1 Court’s powers
[71] Family Law Rules 2004 (Cth), r 11.1.
| Item | Subject | Power |
| -- | ||
| 2 | Case development | (a) consolidate cases; (b) order that part of a case be dealt with separately; (c) decide the sequence in which issues are to be tried; (d) specify the facts that are in dispute, state the issues and make procedural orders about how and when the case will be heard or tried; (e) refer a particular case or a part of a case for special management by a judicial officer; (f) with the consent of the parties, order that a case or part of a case be submitted to arbitration; (g) order a party to provide particulars, or further and better particulars, of the orders sought by that party - -” |
Rule 11.02(2) provides:[72]
[72] Family Law Rules 2004 (Cth), r 11.02(2).
“—If a party does not comply with these Rules, the Regulations or a procedural order, the court may:
(a) dismiss all or part of the case - -”
As previously quoted at the hearing on 8 December 2008 Counsel for the Wife noted:[73]
“It is a fact that she has not produced evidence of the value that she would assert that the properties had at that time. And in that context I wouldn’t cavil with an order made that she do that before the husband (indistinct) in the form of the orders that my learned friend seeks.”
[73] Transcript of proceedings dated 8 December 2008 at p 14.
In In the Marriage of AS and R Pelerman (2000) 26 Fam LR 505, the Full Court stated:[74]
[74] In the Marriage of AS and R Pelerman (2000) 26 Fam LR 505 at p 511.
“It is well established that the following principles apply as were recently reviewed and stated in Bigg v Suzi [[1998]FLC 92-799] at FLC 84,974–5:
(a) the power for summary dismissal is a discretionary one;
(b) relief “is rarely and sparingly provided”;
(c) the parties seeking summary dismissal must show that the application is “doomed to fail” or has been otherwise described “that the opponent lacks a reasonable cause of action or is advancing a claim that is purely frivolous or vexatious”;
(d) a weak case or one that is unlikely to succeed is not “sufficient to warrant termination”;
(e) “if there is a serious legal question to be determined it should ordinarily be determined at a trial”;
(f)“if notwithstanding the defects of pleading, 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 pleadings.””
I am not prepared to make an order for summary dismissal of the Application for Final Orders at this point in time, although this is not to say the Wife’s conduct in the presentation of her case is free from serious criticism. Notwithstanding the procrastination of the Wife and/or her legal advisors to date. Notwithstanding the ongoing failure to properly comply with the procedural orders already made, I am unable to conclude the Wife’s case is “doomed to fail”.
That is not to say, however, that the Wife’s conduct has escaped the attention of the Court. I regard a failure to properly present a case to which the Husband may answer as a disregard for the authority and process of this Court.
I propose to put in place an order in the clearest terms what it is the Wife is required to do. In the event an order in such terms is not complied with I am prepared to entertain an application on the adjourned date for the Wife’s Application for Final Orders to be dismissed for repeated failure to comply with procedural orders.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.
Associate:
Date: 5 May 2009
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Consent
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Discovery
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Reliance
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Procedural Fairness
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Appeal
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