ROOKS & GENNER

Case [2018] FCCA 2054

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROOKS & GENNER [2018] FCCA 2054

Catchwords:
FAMILY LAW – Section 79A – where the wife makes an application to set aside final property consent orders – alleged miscarriage of justice – where husband applies for summary dismissal – reasonable prospects of success.

EVIDENCE – Evidence of negotiations to settle a dispute – allegations of abuse of power.

Legislation:

Family Law Act 1975 (Cth) ss.79, 79A
Federal Circuit Court Rules 2001 (Cth) rr.13.10, 16.05
Federal Circuit Court of Australia Act 1999 (Cth) s.17A

Federal Court of Australia Act1976 (Cth) s.31A

Evidence Act 1995 (Cth) ss.11, 131

Cases cited:

Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256
Barker & Barker [2007] FamCA 13; (2007) 36 Fam LR 650
Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd [2006] FCA 1352;(2006) 236 ALR 770
Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) [2006] FCA 1416
Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955
Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401
Hocking v Bell [1947] HCA 54; (1947) 75 CLR 125
In the marriage of Holland (1982) 8 FamLR 233
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60
Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401
Petrolink Pty Ltd; Smith v Bone [2014] FCA 1024
Pullman & Pullman (2013) 50 Fam LR 460; [2013] FCCA 31
Re Mulsanne Resources Pty Ltd (in liq) [2013] NSWSC 358
Ryder v Frohlich [2006] NSWSC 1324

Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Applicant: MR ROOKS
Respondent: MS GENNER
File Number: SYC 3779 of 2014
Judgment of: Judge Harper
Hearing date: 18 June 2018
Date of Last Submission: 18 June 2018
Delivered at: Sydney
Delivered on: 1 August 2018

REPRESENTATION

Counsel for the Applicant: N/A
Advocate for the Applicant: In person
Counsel for the Respondent: Ms Kennedy
Solicitors for the Respondent: Biddulph & Salenger

ORDERS

  1. Pursuant to Rule 13.10 of the Federal Circuit Court Rules, the Initiating Application filed 28 March 2018 be dismissed.

  2. I DIRECT this matter be removed from the active case list.

IT IS NOTED that publication of this judgment under the pseudonym Rooks & Genner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3779 of 2014

MR ROOKS

Applicant

And

MS GENNER

Respondent

REASONS FOR JUDGMENT

  1. On 22 May 2015, proceedings were commenced in this Court by the husband, Mr Rooks (“the husband”), filing an Initiating Application seeking property adjustment orders.

  2. On 2 November 2017, these property proceedings were listed for final hearing on 7 February 2018, with an estimate of two days. 

  3. On 7 February 2018, the parties entered into final consent orders (“Final Orders”). 

  4. In broad terms the Final Orders required the sale…

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AGLC
ROOKS & GENNER [2018] FCCA 2054
Case
[2018] FCCA 2054
Decision Date

CaseChat Overview and Summary

The wife applied to set aside final property consent orders, alleging a miscarriage of justice. The husband sought summary dismissal of her application, arguing she had no reasonable prospects of success.

The court was required to determine whether certain communications made during settlement negotiations were admissible as evidence, notwithstanding the general rule against admitting such communications under section 131 of the Evidence Act 1995 (Cth). Specifically, the court had to consider whether these communications fell within an exception to the rule, namely where a person knew or ought reasonably to have known that the communication was made in furtherance of a deliberate abuse of power. The court also considered its general powers to control proceedings and deal with abuse of process under section 11(2) of the Evidence Act.

The court reasoned that while section 131 generally protects settlement communications, this protection is lost if the communication was made in furtherance of a deliberate abuse of power. Drawing on authorities such as *Van Der Lee v New South Wales* and *Petrolink Pty Ltd; Smith v Bone*, the court held that the concept of "abuse of power" includes abuse of process and that evidence of such abuse may be admitted. The court found that the wife's allegations of abuse of power were central to her case and that, in the context of an application for summary dismissal where the husband bore the onus of proving no reasonable prospects of success, certain communications might be admissible if they provided grounds for concluding an abuse of power had occurred.

The court ordered that the wife's Initiating Application be dismissed and directed that the matter be removed from the active case list.

Orders

Orders of the court

1.

Pursuant to Rule 13.10 of the Federal Circuit Court Rules, the Initiating Application filed 28 March 2018 be dismissed.

2.

I DIRECT this matter be removed from the active case list.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The husband took objection to part of paragraph 12, part of 13 and 15, 16, 17, 18, 19, 20, 21, 22, 23, part of 24 and 25. The objections were all based upon s.131 of the Evidence Act 1995 (Cth) (“the Evidence Act”), as being communications made between persons in dispute in connection with an attempt to negotiate a settlement of the dispute. However, apart from paragraph 12, I allowed the paragraphs because, in my view, they may have provided grounds for concluding, within section ss.131(2)(k) of the Evidence Act, that a person, being the husband, knew or ought reasonably to have known that the relevant communication was made in the furtherance of a deliberate abuse of power. Abuse of power was a fact put in issue by the wife. In truth it was at the heart of her argument. The question of admissibility of the paragraphs objected to was to be determined in the context of an application for summary dismissal pursuant to s.17A, where the husband bore the onus of establishing the wife had no reasonable prospects of success. In addition to s.131, s.11(2) of the Evidence Act is also relevant to the question of admissibility. S.11 is in the following terms:“11 General powers of a court(1) The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment.(2) In particular, the powers of a court with respect to abuse of process in a proceeding are not affected.” Hodgson JA (with whom Mason P and Santow JA agreed) in Van Der Lee v New South Wales [2002] NSWCA 286 at [62] explained the operation of the these two sections as follows:“... I think s.11(2) does have the effect that, when evidence is tendered that could be evidence of an abuse of process, albeit evidence of without prejudice settlement negotiations, the Court may receive that evidence on voir dire; and then, if that evidence does either by itself or in combination with other evidence establish an abuse of process, the Court may rule the evidence admissible and make appropriate orders to deal with that abuse of process. In my opinion, the powers of a court with respect to abuse of process include its powers to receive evidence, and in my opinion the authorities relied on by the claimants show that, at common law, communications evidencing abuse of process will not be protected by without prejudice privilege. I do not think that s.131 provides otherwise, either expressly or by necessary intendment, particularly if s.132(2)(k) does not apply in cases of abuse of process.” In Van Der Lee at [68] Santow JA held that abuse of “power” included abuse of process. In the matter of Petrolink Pty Ltd; Smith v Bone [2014] FCA 1024 at [34]-[35] the issue was the admissibility of letters. Wigney J considered the authorities concerning the operation of ss.11 and 131(2)(k), including Van Der Lee, as follows:[34] It should be noted that, in addition to s 11(2) of the Evidence Act, s 131(2)(k) of the Evidence Act provides that s 131(1) does not apply when one of the persons in dispute knew or ought reasonably to have known that the communication was made “in furtherance of a deliberate abuse of power”. Section 131(4) provides that, for the purposes of s 131(2)(k), if the abuse of power is a fact in issue and there are reasonable grounds for finding that a communication was made in furtherance of the abuse of power, “the court may find that the communication was so made”. The balance of authority is that the reference to “power” in s 131(2)(k) includes a power to make an application to a court: Van Der Lee at [68] (Santow JA) and [24] (Mason P); Ryder v Frohlich [2006] NSWSC 1324 at [11]; Re Mulsanne Resources Pty Ltd (in liq) [2013] NSWSC 358 (Mulsanne Resources) at [5].[35] It follows that, if there are reasonable grounds for finding that the relevant correspondence here was made in furtherance of the alleged abuse of power, the letters can be admitted despite s 131(1) of the Act.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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