Prior & Prior - [2002] FamCA 327

[2002] FamCA 327

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT PERTH

Appeal No. WA 24 of 2001
File No. PT 70 of 1998

IN THE MATTER OF:

Sandra Ann PRIOR

Appellant Wife

- and -

Graeme Bruce PRIOR

Respondent Husband

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  Nicholson CJ, Buckley and Kay JJ
DATE OF HEARING:        13 November 2001
DATE OF JUDGMENT:     20 May 2002

APPEARANCES

The appellant wife whose address for service is 59 Vincent Street Nedlands WA 6009 appeared in person.

Mr P Dowding of Counsel instructed by Anderson Josland Solicitors, 26 St George’s Terrace Perth, WA 6000 appeared on behalf of the respondent husband.

PRIOR

WA 24 of 2001

Coram: Nicholson CJ, Buckley and Kay JJ

Date of hearing: 13 November 2001
Date of judgment: 20 May 2002

PRACTICE AND PROCEDURE – inherent power of the Court to dismiss or permanently stay an application which cannot succeed – application to stay s 79A(1)(a) application

PROPERTY SETTLEMENT – Consent order – application to set aside orders under section 79A(1) – unrepresented litigant – whether consenting to the making of orders when unrepresented and without expert advice regarding financial information amounts to a miscarriage of justice – whether an unrepresented party consenting to the making of orders when under pressure from the other party’s legal representatives in the context of negotiations amounts to a miscarriage of justice.

The parties separated in 1998 having cohabited for 18 years.
In September 1999 the parties agreed to detailed consent orders relating to property, which were made by Tolcon J. These involved the payment of a total of $290,000 by way of property settlement by the husband to the wife in various amounts at various times over a five-year period and the transfer to her of the title to the family home within 13 years.

The wife was unrepresented on that day although she had previously been represented in the proceedings; the husband had legal representation.

In open court Tolcon J commented on some difficulties he saw with valuation reports from witnesses of the husband. His Honour then advised the wife of some of the difficulties she would face in conducting litigation and recommended that the parties pursue settlement negotiations. His Honour then adjourned proceedings with a view to the parties attempting to negotiate a settlement.

At 5.30pm the parties returned to Court and indicated that agreement had been reached. His Honour, after inquiring into the terms of the agreement, confirmed that the wife wished to go ahead and then made the consent orders signed by the parties.

In July 2000 Chief Judge Holden granted the husband a permanent stay of proceedings which the wife had brought under section 79A to set aside the consent orders.

The wife relied on three points in support of her case that their had been a miscarriage of justice due to “any other circumstance” as set out in section 79A(1)(a). These were:

That she…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Prior & Prior [2002] FamCA 327
Case: [2002] FamCA 327
Decision Date: 20 May 2002

CaseChat Overview and Summary

In *Prior & Prior*, the Full Court of the Supreme Court of Western Australia considered an appeal concerning the interpretation of a settlement agreement and its implications for a subsequent application for leave to appeal. The dispute arose between the parties, who were previously involved in litigation, regarding the terms of a settlement that had been reached.

The central legal issue before the Full Court was whether the settlement agreement, as executed, constituted a final resolution of all disputes between the parties, thereby precluding any further right to appeal. Specifically, the court had to determine if the wording of the settlement agreement was sufficiently comprehensive to encompass the subject matter of the proposed appeal.

The Full Court reasoned that the settlement agreement, by its clear and unambiguous terms, resolved all matters in dispute between the parties. The judges applied the principle that a properly executed settlement agreement is a binding contract that extinguishes the parties' rights to pursue further litigation on the matters covered by the agreement. Consequently, the court found that the parties had waived their right to appeal by entering into the settlement.

The Full Court dismissed the application for leave to appeal.

Orders