Redmond & Mullins
[2015] FamCAFC 69
•1 May 2015
FAMILY COURT OF AUSTRALIA
| REDMOND & MULLINS | [2015] FamCAFC 69 |
| FAMILY LAW – APPEAL – Leave to appeal – De facto relationship – Where the appellant is an undischarged bankrupt – Where the appellant seeks leave to appeal an order for summary dismissal – Whether the appellant has standing to bring the appeal – Where the trustee is not a party to proceedings – Where the appellant has multiple ongoing proceedings in other jurisdictions – Whether the primary judge correctly determined that the Court had no jurisdiction to make a de facto property order – Whether the primary judge erred in determining that the appellant made no “substantial contributions” as required by s 90SB of the Family Law Act 1975 (Cth) – Whether the primary judge erred in determining that no substantial injustice would result in the absence of an order – Whether the primary judge incorrectly considered the Trustee in Bankruptcy – Where the appellant alleges a denial of procedural fairness. Whether leave to appeal is necessary – (per May & Ainslie-Wallace JJ) leave may be necessary, in any event no substance in proposed appeal – (per Murphy J) leave is not necessary – Appeal should be dismissed. |
| Family Law Act 1975 (Cth) s 90SM(4) (a) (b) (c) (15) (16), s 90SB (c)(i), s 94AA Bankruptcy Regulations 1996 (Cth) reg 6.03, 6.03A |
| Australian Securities and Investments Commission v Lindberg (No 2) (2010) 265 ALR 517 Bain Pacific Associations and Ors & Kelly and Ors [2006] FLC 93-270 Bennett and Bennett (1991) FLC 92-191 Bienstein v Bienstein (2003) 195 ALR 225 Carr v Finance Corporation of Australia (No 1) (1980) 147 CLR 246 Cummings v Claremont Petroleum NL (1995) 185 CLR 124 Edwards v Noble (1971) 125 CLR 296 Friar & Friar [2011] FamCAFC 71 Guirguis v Guirguis (1997) FLC 92-726 Korsky v Bright and Anor (2008) 38 FamLR 106 Lee & Hutton [2013] FamCA 745 Mallet v Mallet (1984) 156 CLR 605 North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 O’Neill and O’Neill [1998] FLC 92-811 Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35 Re Luck [2003] HCA 70 Ricci & Jones [2011] FamCAFC 222 Salter Rex and Co. v Ghosh (1971) 2 QB 597 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 Tampion v Anderson (1973) 3 ALR 414 V and K [2005] FCWA 80 Wickstead v Browne (1992) 30 NSWLR 1 Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 |
| APPELLANT: | Mr Redmond |
| RESPONDENT: | Ms Mullins |
| FILE NUMBER: | BRC | 705 | of | 2014 |
| APPEAL NUMBER: | NA | 49 | of | 2014 |
| DATE DELIVERED: | 1 May 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Ainslie-Wallace & Murphy JJ |
| HEARING DATE: | 16 February 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 September 2014 |
| LOWER COURT MNC: | [2014] FCCA 2099 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
Orders
The application for leave to appeal the orders of Judge Purdon-Sully made on 11 September 2014 be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Redmond & Mullins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 49 of 2014
File Number: BRC 705 of 2014
| Mr Redmond |
Appellant
and
| Ms Mullins |
Respondent
REASONS FOR JUDGMENT
May and Ainslie-Wallace JJ
By Notice of Appeal filed on 16 September 2014, Mr Redmond (“the appellant”) appeals against orders made by Judge Purdon-Sully on
11 September 2014 in relation to property settlement proceedings brought by him against Ms Mullins (“the respondent”).
On 28 January 2014, the appellant commenced proceedings in the Federal Circuit Court seeking a declaration that he and the respondent lived together in a de facto relationship and, consequent on that declaration, sought final orders for property settlement orders.
In response to the appellant’s Initiating Application, the respondent filed an Application in a Case on 10 March 2014, seeking summary dismissal of the application.
On 11 September 2014 the primary judge ordered that the application filed on 28 January 2014 and his Amended Response filed 12 March 2014 to the respondent’s Application in a Case be dismissed. Her Honour further directed that her orders and reasons for judgment be served on the appellant’s Trustee in Bankruptcy within seven days.
It is against these orders that the appellant brings the application for leave to appeal.
Standing
The appellant is an undischarged bankrupt.
Section 90SM(15) of the Family Law Act 1975 (Cth) (“the Act”) precludes a bankrupt from making submissions to the court in connection with any vested bankruptcy property where his or her trustee is a party without the leave of the court. Leave cannot be granted save in exceptional circumstances (s 90SM(16)). Here, however, the trustee was not a “party to the proceedings” as s 90SM(15) requires; the trustee had advised the court that he did not intend to participate at all in the proceedings and would abide by “any order of the Court”.
The orders sought by the appellant were in relation to property of the respondent, not vested property and those orders sought transfer of certain specified chattels, not a money order. An issue as to the appellant’s standing to appeal arises as a result of the decision of this court in O’Neill & O’Neill [1998] FLC 92-811.
In Cummings v Claremont Petroleum NL (1995) 185 CLR 124, the High Court considered whether two bankrupt parties had standing to defend, on appeal, a debt entered against them. Brennan CJ, Gaudron and McHugh JJ held [at 139]:
…[W]e would not regard the right to appeal as property of the respective bankrupt appellants…The bankruptcy of the appellants leaves them without such an interest in the judgment against them as would support their institution of an appeal in their own names…
Since then, the decision has been considered in some Family Court authorities to the effect that bankrupt parties do not have locus standi to make a claim to property shared under their previous spousal arrangement.
For example, that decision can be seen reflected in the decisions of this court in Guirguis v Guirguis (1997) FLC 92-726 and O’Neill (above). In the latter case, this court held at [89]:
However, and perhaps somewhat anomalously, the Full Court decision in Guirguis has established that in light of the High Court decision in Cummings, a bankrupt spouse cannot appeal property settlement orders unless he or she can establish some interest in the property which is the subject of the orders and such interests will not able to be established if the property which is the subject of the orders is vested or will vest on receipt in the trustee in bankruptcy.
Implicit in the passages quoted from both Cummings and O’Neill is the proposition that a bankrupt spouse can appeal relevant orders where “he or she can establish some interest in the property”. Logically such property in which a bankrupt has a continuing interest is of such a nature that it does not vest in the trustee upon bankruptcy. The appellant did not refer to either O’Neill or Cummings, but that contention represents the basis of his argument.
He contends that the action instituted by him, which can be described as seeking a declaration as to the existence of a de facto relationship and, contingent on that declaration an order for the settlement of property in a de facto financial cause, is a personal right. He seeks to support that contention by reference to the fact that the proceedings between him and the respondent relate to property which is exempt from the bankruptcy, due to its personal nature.
Again, while not referring to specific provisions, the appellant appears to be referring to what might be described as household and personal property for the purposes of s 116(2)(b) and s 116(2)(ba) of the Bankruptcy Act 1966 (Cth) and reg 6.03 and 6.03A of the Bankruptcy Regulations 1996 (Cth), respectively.
The court would plainly prefer to have considered submissions in respect of each and all of those matters. Here, however, the appellant represents himself (although he is a solicitor); the respondent represents herself; the Trustee in Bankruptcy does not appear; and the Trustee in Bankruptcy did not make any written submissions. Added to those considerations is the nature of the issues raised in the proceedings below and the narrow issues raised in this application for leave to appeal.
In light of those factors, we are content to proceed on the assumption advanced by the appellant so as to enable the court to consider the merits of his application.
The primary judge’s reasons
Her Honour observed that the respondent’s case, in seeking summary dismissal of the application, was that the court had no jurisdiction to make any property adjustment as between the parties because the relationship between she and the appellant was less than two years duration and there were no children of the relationship. Though the appellant contended their relationship commenced in January 2013 and the respondent contended it commenced in March 2013, it was apparently uncontentious that the parties lived together in 2013. The relationship ended on 25 December 2013.
Further, the respondent contended that the appellant had made no substantial contributions of the type to which s 90SM(4)(a), (b) or (c) of the Act refers and in that case, the court could not find that a serious injustice would occur if the order was not made [23].
The respondent contended, in the alternative, that if the court found it had jurisdiction to make a de facto property order as between the parties, it would find that it was not just and equitable to make such an order [24].
The appellant argued that he had made substantial contributions to the relationship and that if an order was not made it would result in a serious injustice to him [25].
The primary judge considered the evidence on which the appellant relied, such as the parties’ relative financial positions at the date of commencement of the relationship [26(a)] and at the date of swearing his affidavit [26(c)].
The appellant asserted that he and the respondent shared both living expenses and domestic tasks. He further contended that he made a financial contribution in the order of $52,000 being $10,000 paid towards the respondent’s business and the purchase of an engagement ring and other goods and furniture which, he said, amounted to $30,000. He said that he shared the cost of the rental bond on the premises he occupied with the respondent and contributed to the costs of holidays and outings and the like [26(b)].
Her Honour noted the appellant’s evidence that he was no longer able to work as a solicitor and was in receipt of a Centrelink allowance. Her Honour accepted his evidence that he was suffering a depressive adjustment disorder. The appellant asserted that during the time of the relationship the respondent was unemployed and in receipt of a Centrelink benefit and said that but for his contributions she “could not have survived” [27(c)].
In considering the effect of the appellant’s bankruptcy on the proceedings,
her Honour noted that the appellant’s Trustee in Bankruptcy took no part in the proceedings although noting that it was apparently agreed between the parties that the Trustee had been given notice of the proceedings: [8] and [31] to [32].
Her Honour accepted that the Trustee had been informed of the proceedings and thus proceeded with the hearing, however she indicated that she intended to have her orders and reasons for decision served on the Trustee [33].
As her Honour was considering the respondent’s application for summary dismissal of the appellant’s application, she turned to the question of whether the appellant’s application had reasonable prospects of success.
After referring to the relevant sections of the Act, her Honour said:
40. Accordingly, unless the Respondent is able to demonstrate that he made substantial contributions of a kind mentioned in
s. 90SM(4)(a), (b) or (c) and that a failure to make the order or declaration he seeks would result in a serious injustice to him, the Court would not be able to make a property distribution in his favour under s.90SM of the Act. His application would have no reasonable prospects of success.Her Honour then found that accepting the appellant’s assertions as to the nature of the relationship and his contributions to it, he had not made substantial contributions of the kind to which the legislation refers [43].
The primary judge further considered whether, in any event, a failure to make the order sought would unjustly enrich the respondent or otherwise result in a serious injustice to the appellant and concluded it would not [48].
In coming to that conclusion, her Honour considered and rejected the arguments advanced by the appellant as to the injustice that would accrue to him if an order was not made [50].
Although her Honour accepted that the appellant’s Trustee in Bankruptcy knew of the proceedings and elected to take no part in them, she observed that there was no evidence before her that, if the appellant did receive an order for payment of money from the respondent, he rather than the Trustee would receive the benefit of that payment.
The primary judge concluded:
54. As I am unable to make findings necessary to ground jurisdiction to enable the Court to make a property adjustment order in the Respondent’s favour, I find that the Respondent lacks reasonable prospects of success and that his application for property adjustment filed 28 January 2014 must accordingly fail and the application for summary dismissal must succeed.
The appeal
The appellant asserts four grounds of appeal in challenge to her Honour’s decision.
The appellant argued grounds one and two together and it is convenient if we consider them in the same way.
Ground 1
The Judge erred in that she provided inadequate reasons to support her decision.
Ground 2
The judge erred in her determination that the appellant did not make substantial contributions of the kind mentioned in paragraph 90SM(4)(a)(b)or (c) of the Family Law Act 1975; and that a failure to make the order or determination would result in serious injustice to the appellant.
The appellant argued that in coming to the conclusion that he had not made substantial contributions as contemplated in s 90SB of the Act, her Honour erred and failed to give sufficient reasons for that finding.
The thrust of the argument in respect of these two grounds is that
her Honour failed to take into account and properly consider the meaning of “substantial”. The appellant contended that the determination of what is “substantial” and whether a “serious injustice” may be caused if an order was not made is to be determined by reference to the particular circumstances of the case. The appellant argued that where the value of the property the subject of proceedings was small – as he conceded it was here – it was particularly important for the court to consider contributions in qualitative as well as quantitative terms when determining whether they were “substantial” as the Act requires. The appellant suggested that it should be accepted that “substantial contributions” as used in s 90SB is not synonymous with “substantial direct contributions” or “substantial financial contributions”. Such an interpretation is entirely consistent with the treatment of non-financial contributions of all types in authorities pertaining to marriages since the decision of the High Court in Mallet v Mallet (1984) 156 CLR 605 and with the decisions of this court in respect of s 90SM. The appellant further argued that her Honour’s reasons were inadequate to demonstrate that she considered the issue in this way.
In her reasons [26], her Honour recorded the appellant’s assertions that:
·At the start of the parties’ cohabitation, the appellant was working as a solicitor earning $42,000 per annum and had net assets worth about $91,000 composed of chattels, superannuation, a car and cash. Her Honour also found he had a credit card debt of $10,000. Further, the respondent’s financial circumstances were worth significantly less than the appellant’s, having assets worth about $13,000 and liabilities that exceeded the value of those assets;
·During the relationship the parties shared expenses;
·The appellant attended to domestic duties including caring for the respondent’s children while the respondent was absent building her business;
·The appellant made financial contributions in the order of $52,000 being made up of the purchase of an engagement ring, provision of $10,000 to purchase equipment for the respondent’s business, furniture, kitchen equipment and other items and paid half of the rental bond and for joint holidays;
·At the time of the hearing he had assets of $32,965 made up of household effects, superannuation worth $25,000, a car and cash. He had a credit card debt of $70,000.
·The respondent had at the time of hearing assets worth $27,000 comprising furniture, car worth $10,000, camera equipment worth $10,000 and kitchen goods. She had a debt of $15,000 in relation to her car; and
·The appellant is suffering from a condition which renders him unable to work and is presently in receipt of a Centrelink allowance.
In determining the question of whether the appellant had made substantial contributions her Honour referred to the decision of V and K [2005] FCWA 80 in which Holden J considered that “substantial” meant something more than usual or ordinary and is aimed at more exceptional circumstances where serious injustice may be caused [42]. Her Honour also considered the decision of Lee & Hutton [2013] FamCA 745 regarding the meaning of “substantial” and said:
43. This is not a case where it can be said that the [appellant’s] contributions under various guises, including his homemaker and contributions to the family, were more than usual or ordinary or that the circumstances and nature of such contributions presented as exceptional where serious injustice may result to the [appellant].
Her Honour continued and found at [44]-[46] that:
·The parties’ contributions were productive of little worth in the building of assets during the relationship;
·They acquired no real property and lived in rental properties during the relationship;
·There was no evidence of substantial superannuation acquired during the relationship and, although the appellant’s superannuation increased during the relationship, the increase was modest;
·The majority of assets brought into the relationship by the appellant were kept by him;
·There was no evidence of the acquisition of substantial or remarkable chattels despite the expenditure of sums as asserted by the appellant; and
·The expenditure by the appellant on holidays and dining were to the benefit of both of them.
Her Honour further took into account [47]:
·That although the appellant purchased, for $6,500, an engagement ring for the respondent he conceded that it would have a market value of less than half of that sum;
·The appellant’s non-financial contributions, including contributions to the welfare of the family which included the respondent’s children;
·The nature of the assets brought by the respondent to the relationship and which remain in her possession; and
·The nature of the assets sought to be retained by the appellant.
Thus, her Honour concluded that the appellant had not made substantial contributions in the relevant sense.
In argument on the appeal the appellant contended that her Honour did not properly consider the determination of substantial contributions in that she did not, in assessing the contributions, consider whether a serious injustice would be caused if an order was not made.
We reject that argument. Her Honour said:
28. In summary, it is the [appellant’s] case that he made substantial contributions to the relationship and it would be a serious injustice if the Court failed to make an order in his favour as the [respondent] has not only “…taken all that I owned” and “I have been left with no furniture, no bedding, no cooking equipment, or anything to make my daughter and me self-sufficient”.
(Citation omitted and emphasis in original)
Further, after considering the nature of the appellant’s contributions to the relationship, her Honour turned to a consideration of whether a substantial injustice would be caused and, after noting the appellant’s contention that the retention of his chattels and books by the respondent prevented him from being self-sufficient found that [50]-[52]:
·The asserted claim by the appellant that he would be entitled to 100 per cent of the net assets of the parties was not established;
·While the appellant’s Trustee might have no interest in the provision to him of household items, there was no evidence that any cash ordered to be paid to the appellant would not vest in the Trustee;
·In relation to his provision to the respondent of equipment for her business, the appellant’s contention of its value being worth more than $3,600 means that the court could not find that it would not vest in his trustee;
·The appellant had obtained, in association with a Temporary Protection Order in his favour, an order that the respondent return certain household and other items to him. There was no evidence that the appellant could not enforce that order to secure the return of the items;
·The evidence did not enable a finding to be made that to fail to make the order would have a negative effect on the appellant’s capacity to care for his daughter. Rather, it was the bankruptcy that had led to his “indigent and constrained circumstances”; and
·Given the composition of the net pool of assets, there was no evidence to support the appellant’s contention that if he obtained property settlement orders against the respondent he could have been able to pay his debts and avoid bankruptcy.
Thus, her Honour concluded that if an order or declaration was not made, the appellant would not suffer a serious injustice.
As to the question of whether adequate reasons were given, there is no doubt that a judge is required to give reasons for a decision so as to enable a party, and indeed an appeal court, to discern either expressly or by implication the path of reasoning to the ultimate conclusions (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 and Bennett and Bennett (1991) FLC 92-191). Though not required to spell out every detail of their process of reasoning to a finding (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156), judges must reveal their reasons for resolving a point critical to the contest between the parties (North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435).
Her Honour’s reasons clearly demonstrate the basis on which she came to her conclusion and the path of reasoning leading to that conclusion. They also reveal how her Honour resolved the point critical to the parties’ dispute, namely whether the appellant made substantial contributions to the relationship of a kind mentioned in s 90SM(4)(a), (b) or (c) and whether a failure to make an order or declaration would result in serious injustice to him. Further, as the reasons make clear, her Honour made the determination of this issue clearly within the context of the facts of this case.
To a degree, this ground challenges her Honour’s fact finding. Fact finding on the evidence is the preserve of the primary judge and will not be disturbed by an appeal court unless the appeal court is convinced that the finding is wrong. If the finding is reasonably open on the evidence, it will not result in appellate intervention (see Edwards v Noble (1971) 125 CLR 296).
Based on the evidence that was before her Honour, it was reasonably open to find that the appellant’s contributions were not substantial in the relevant sense.
There is no substance to these grounds.
Ground 3
The judge erred in that it [sic] gave undue weight to a party, the trustee in bankruptcy, who were [sic] not party to the proceedings.
The appellant contended that in “considering the interests of the Trustee in Bankruptcy” the primary judge erred (submissions paragraph 25).
That the appellant is an undischarged bankrupt was a matter of importance as her Honour clearly recognised. Her Honour at [29] raised the necessity of the appellant giving notice of the proceedings to the Trustee in Bankruptcy, and accepted that while no formal notification had been given, the Trustee in Bankruptcy was aware of the proceedings [31]. The primary judge correctly considered notice to the trustee as an important matter in determining whether to conduct the hearing in the absence of the Trustee.
The primary judge made several references to the appellant’s Trustee in Bankruptcy in her consideration of whether the appellant had made substantial contributions and, in particular, made reference to the test posited by Holden J in V and K where his Honour said at [21] of that case that “substantial” was “…aimed at more exceptional circumstances where serious injustice may be caused”. Her Honour observed that in any event, on the appellant’s evidence it was likely that the camera and other equipment purchased for the respondent’s business “would vest in his Trustee in bankruptcy [sic]” [45]. Further her Honour noted that if any cash payment was ordered there was no evidence that the appellant would necessarily receive the benefit of any order made [50(b)].
It is difficult to discern what appealable error is said to found this ground. Reference to the appellant’s written argument suggests that error lies in what her Honour said at [50](b) of the Reasons. It is plainly incorrect for the appellant to assert that her Honour was “considering the interests of the trustee” in the manner asserted. The point her Honour was making – at [50](b), in the balance of the sub-paragraphs of [50], and elsewhere in the judgment – was that in considering the issue of “serious injustice”, a centrally important issue was that the property that might vest in the appellant pursuant to the s 90SM order he sought which might then, by reason of the bankruptcy, vest in the trustee. Not only was her Honour correct to consider that issue, the provisions of the Bankruptcy Act and the relevant provisions of s 90SM effectively mandated its consideration. Clearly if the appellant’s position was to remain the same, whether or not an order was made, because of the vesting of property in his Trustee in Bankruptcy, it is material to a determination of substantial injustice.
As to so much of the submissions that assert that her Honour erroneously considered that the personal assets of the appellant would vest in the Trustee, her Honour clearly indicated that she could not find that items such as the equipment which on the appellant’s own evidence was worth more than $3,600 and any order for payment to him of cash, would not vest in the trustee rather than be of benefit to the appellant: [50(b)] and [50(c)].
Moreover, as we have earlier said, although not referred to by her Honour similar considerations needed to be taken into account in considering s 90SM(15) and (16) and the question of the appellant’s standing more generally.
There is no substance to this challenge.
Ground 4
The judge erred in that it [sic] did not afford the appellant procedural fairness to test the evidence before it.
The appellant contended that the primary judge was obliged to take his evidence at its highest but because there was no opportunity to “test” the evidence in the matter she erred.
This ground asserts a lack of procedural fairness. The appellant’s written argument is not about procedural fairness at all. Despite the terms of the ground, the central argument is, in fact, that her Honour erred in law by failing, contrary to authority, to approach the question of summary dismissal by reference to the appellant’s case taken at its highest.
The argument has no substance. Her Honour expressly acknowledged the correct test and plainly applied it. That is, her Honour did, as she said, accept “…the accuracy of every fact asserted in the [the appellant’s] sworn evidence…” [41].
The appellant’s argument is again referenced in [50](a) of her Honour’s reasons:
50. …
a) The basis upon which the [appellant] could claim 100% of the net assets has not been made out. On his evidence the [respondent] had some assets at the commencement of their relationship including a motor vehicle, she is the mother of four children, three of whom the [appellant] concedes live with her and her assets presently consist of a car worth $10,000 over which there is a debt of $15,000, an engagement ring now worth about $3,500 and household and business chattels;
The complaint appears to be that the values referred to were not tested (see paragraphs 27 to 30 of the appellant’s written argument). Neither [50(a)] nor any other part of her Honour’s judgment are suggestive of
her Honour giving “significant weight to untested and disputed evidence but forward by the respondent” or her Honour determining “on an interim basis ‘on the papers’” the value of contributions. The findings at [50(a)] and those which precede and follow it are illustrative of an entirely open – and, we respectfully venture, entirely correct – broader finding that there was no “serious injustice” within the meaning of s 90SB. Furthermore, and importantly, as we have pointed out, those matters inform a finding which it was not essential for her Honour to make, her Honour having earlier – and in our respectful view, correctly – found that the appellant had not established the making of “substantial contributions” as required by s 90SB(c)(i).
The appellant swore to the facts which he said supported his application for orders for property settlement against the respondent. The primary judge accepted the accuracy of each of them but concluded that the appellant had not established the evidentiary foundation to invoke the court’s jurisdiction under s 90SM.
The appellant contended that the primary judge, rather than accepting his evidence, accepted unsworn evidence from the bar table. In illustration of this point, the appellant referred to her Honour’s discussion at [47(a)] where she said that in concluding that the appellant had not made a substantial contribution and that no serious injustice may occur if an order was not made, she had taken into account:
47. …
a) The engagement ring purchase by the Respondent for $6,500 which he conceded would have a market value of not much more than half the purchase amount. In this regard the submission of [counsel for the respondent] was that her client would resolve the matter on the basis of the return of the ring.
As her Honour’s reasons demonstrate, whether or not the respondent retained the engagement ring, her determination that the appellant had not made a substantial contribution rested on her finding based on his evidence and no error has been shown in her Honour’s findings in that regard.
Leave to appeal
The issue of whether the appellant requires leave to appeal her Honour’s summary dismissal of his application or whether his appeal lies as of right is not without controversy. As the issue was not raised in the hearing and no argument was directed to it, we propose to leave the resolution of that issue to another day. However we observe that whether or not leave is required for the appellant to appeal, given our conclusions that no merit is found in the proposed grounds of appeal, leave would not be granted.
Costs
The appellant and respondent appeared without legal representation. Neither party applied for costs orders. No order as to costs is required.
Murphy J
Leave to appeal is sought in the Notice of Appeal prepared by the legally-trained, but self-represented appellant. For the reasons which follow, I do not consider that leave to appeal is necessary and that the appellant appeals by way of right.
I agree with their Honours’ reasons in respect of the challenges made by the appellant. The consequence of my differing view as to leave means, however, that I differ in the order I would make (although the practical effect of the order is the same). I would order that the appeal be dismissed.
While the aridity of a discussion about what is, or is not, an interlocutory order, can be acknowledged, it is, nevertheless one which is maintained in the Act and the Family Law Regulations 1984 (Cth) (s 94AA; Regulation 15A) and as a consequence, ought to be addressed when it arises. In a statement whose truth continues to resonate some thirty-five years after it was made, Gibbs CJ said that “[t]he question of whether a judgment is final or interlocutory is one productive of much difficulty” (Carr v Finance Corporation of Australia (No 1) (1980) 147 CLR 246, at 248). The difficulties are not confined to this country. Lord Denning had earlier said in Salter Rex and Co. v Ghosh (1971) 2 QB 597 at 601:
This question of “final” or “interlocutory” is so uncertain that the only thing for practitioners to do is to look up the practice books and see what has been decided on the point. Most orders have now been the subject of decision. If a new case should arise, we must do the best we can with it. There is no other way.
Unfortunately, where the relevant order is an order for “summary dismissal”, the decision is, at least as it seems to me, not so easily made.
First, reference to the decisions of this court in respect of “summary dismissal” (emanating, of course, from differing factual bases) do not reveal uniformity. As examples: each of Friar & Friar [2011] FamCAFC 71; Korsky v Bright and Anor (2008) 38 FamLR 106 and Ricci & Jones [2011] FamCAFC 222 all proceeded on the assumption that leave was not necessary. In Bain Pacific Associations and Ors & Kelly and Ors [2006] FLC 93-270 it was assumed that leave was necessary.
The decisions in Re Luck (2003) 203 ALR 1 and Wickstead v Browne (1992) 30 NSWLR 1 are examples of cases not decided under the Act which suggest that “actions for summary dismissal” might, by reason of fitting that description alone, be interlocutory. There is, I think, little doubt that authority suggests that to be so in a large number of such cases.
However, in some cases, probably a small minority, an order for summary dismissal can, in my view, be seen as a final order by reason of the order finally determining the rights of the parties in a cause. In my view, this is such a case.
The “test for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties”. The court must “… have regard to the legal, rather than the practical effect of the judgment” (Carr, at 248 per Gibbs CJ). In the same case, Mason J (as His Honour then was) referred to an order being interlocutory “… because the order does not deal directly with the rights in contest in the action …” (at 256). A judgment or order is not final where “the unsuccessful party could make a further application for the same relief, even though such an application might have very little prospect of success” (Bienstein v Bienstein (2003) 195 ALR 225, at [25] per McHugh, Kirby & Callinan JJ).
In Australian Securities and Investments Commission v Lindberg (No 2) (2010) 265 ALR 517, at [21], the Victorian Court of Appeal recognised that “[a]n order striking out, dismissing or staying a proceedings [as] an abuse of process is generally regarded as interlocutory” – a proposition emanating from, among other authority, the decision of the Privy Council in Tampion v Anderson (1973) 3 ALR 414. However, their Honours in the Victorian Court went on to recognise that “in Anshun … Gibbs J said that Tampion had nothing to say about a case in which the abuse of process lies in an attempt to litigate an issue which is res judicata”. Their Honours are there referring to what was said by Gibbs J (as the His Honour then was) in Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35 at 38. The availability of the plea of res judicata emanates of course, from the rights in the cause having been already finally been determined.
In the instant case, as her Honour recognised at [40], the court has no power to make an order for settlement of property pursuant to s 90SM unless the conditions prescribed by s 90SB of the Act are met. It is uncontroversial that the relationship here was less than two years in total (s 90SB(a)) and that there is no child of the relationship (s 90SM(b)). Accordingly, before the primary judge had power to make an order, her Honour needed to be satisfied that the appellant had made “substantial contributions” (s 90SB(c)(i)) and that the failure to make the s 90SM order would result in “serious injustice” to the appellant (s 90SB(c)(ii)).
As was, with respect, the correct approach in respect of an application for summary dismissal, her Honour took the appellant’s case at its highest.
Her Honour determined (at [41]) that the appellant had not made “substantial contributions” as the sub-section required. The use of the conjunctive “and” between ss 90SB(c) (i) and (ii) renders correct, with respect, her Honour’s conclusion (at [48]) that the finding just referred to rendered it unnecessary to consider “serious injustice”. Nevertheless, her Honour did so, lest her conclusion as to “substantial contributions” was erroneous (at [48] - [53]).If her Honour’s decision is not disturbed by the instant appeal, the appellant is in my view precluded from bringing further proceedings against the respondent for the s 90SM relief he seeks because facts which condition the exercise of, relevantly, the s 90SM power have been decided against him. That is, if the appellant sought to re-agitate the issue of relief pursuant to s 90SM, given that no other basis for satisfaction of s 90SB can exist, res judicata could be pleaded successfully in defence of any such claim.
Accordingly, although framed as an order dismissing (summarily) the appellant’s application, its legal effect is, in my view, to finally determine the rights of the appellant to seek relief against the respondent pursuant to s 90SM. As such, her Honour’s order is a final order in respect of which leave is not required.
The consequence is that the appellant appeals as of right. Because I agree that there is no merit in the appeal, it follows that the order which should be made is that the appeal be dismissed.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ainslie-Wallace & Murphy JJ) delivered on 1 May 2015.
Associate:
Date: 1 May 2015
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