Samuels and Shaw and Ors (Adjournment application)

[2008] FamCA 880

FAMILY COURT OF AUSTRALIA

SAMUELS & SHAW AND ORS (ADJOURNMENT APPLICATION) [2008] FamCA 880

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment application

APPLICANT: Ms Samuels

FIRST RESPONDENT:	Mr Shaw
SECOND RESPONDENT:	Mr P
THIRD RESPONDENT:	L Pty Ltd
FOURTH RESPONDENT:	D Pty Ltd
FIFTH RESPONDENT:	Ms E
SIXTH RESPONDENT:	Mr G
SEVENTH RESPONDENT:	Mr A
EIGHTH RESPONDENT:	Ms J
NINTH RESPONDENT:	Ms S
TENTH RESPONDENT:	Ms T

FILE NUMBER: SYF 5191 of 1993

DATE DELIVERED: 3 September 2008

PLACE DELIVERED: Sydney

JUDGMENT OF: Boland J

HEARING DATE: 20 August 2008

REPRESENTATION

ADVOCATE FOR APPLICANT:	Ms Samuels in person
SOLICITOR FOR THE 1ST RESPONDENT:	Mrs Ford
ADVOCATE FOR 2ND, 3RD & 4TH  RESPONDENTS:	Mr P in person

Orders

IT IS ORDERED:

1. That the wife’s application for settlement of property and for rehearing of the review application heard by Cohen J and remitted from the Full Court of this Court be referred to the Court Services Manager for allocation to a Judge’s docket other than Cohen J for hearing.

2. That the wife file and serve on or before 4.00 pm, 15 October 2008 any amended application for property settlement and/or spousal maintenance or other relief.

3. In the event the wife seeks a splitting order in respect of any superannuation entitlement she shall give notice to the trustee of such superannuation fund in accordance with the Family Law Rules 2004.

4. The wife shall file and serve one affidavit of evidence in chief to be relied on by her at the trial on or before 4.00 pm, 15 October 2008.

5. The wife shall file and serve an affidavit of any witness on or before 4.00 pm, 15 October 2008.

6. The wife shall file and serve a financial statement on or before 4.00 pm, 15 October 2008.

7. The husband shall file and serve an amended response on or before 4.00 pm, 5 November 2008.

8. The husband shall file and serve one affidavit of his evidence in chief on or before 4.00 pm, 5 November 2008.

9. The husband shall file and serve an affidavit of any witness on or before 4.00 pm, 5 November 2008.

10. The husband shall file and serve a financial statement on or before 4.00 pm, 5 November  2008.

11. That the husband and wife shall within two days of filing all documents required by these orders provide a copy of such documents to the wife’s trustee in bankruptcy.

12. The wife shall file and serve on or before 4.00 pm, 15 October 2008 a document entitled “Balance Sheet” setting out the assets, liabilities and financial resources of the parties as at that date.

13. In the event that the husband does not agree the Balance Sheet to be filed by the wife accurately sets out the parties’ assets, liabilities and financial resources he shall file and serve on or before 4.00 pm, 5 November 2008 a document entitled “Balance Sheet” setting out the assets, liabilities and financial resources of the parties for which he contends as at 15 October 2008.

14. In the event that any named second to tenth respondent to the proceedings seeks to be removed as a party such party shall file an application in a case, together with an affidavit in support on or before 4.00 pm, 1 December 2008, and such application may be dealt with by the trial judge as a discrete issue at a time and date to be notified to the parties or at the commencement of the hearing.

AND THE COURT NOTES:

(a)The wife is currently an undischarged bankrupt.

(b)The wife’s trustee in bankruptcy has declined to intervene in these proceedings, but did intervene in proceedings in the Supreme Court of New South Wales.

(c)That other than Mr P and L Pty Ltd (the 2^nd and 3^rd respondents) the remaining named respondents have not taken any steps or filed any material in the proceedings for several years. 

(d)It is further noted that a summary of the proceedings in this Court and the issue of jurisdiction and power of the Court to deal with the purported claims against the fifth to ninth respondents is referred to in the judgment of the Honourable Justice Boland of 17 August 2007.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Boland delivered this day will for all publication and reporting purposes be referred to as Samuels & Shaw and Ors (Adjournment Application)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 5191  of 1993

Ms Samuels

Applicant

And

Mr Shaw

First Respondent

Mr P

Second Respondent

L Pty Ltd

Third Respondent

D Pty Ltd

Fourth Respondent

Ms T

Fifth Respondent

Mr G

Sixth Respondent

Mr A

Seventh Respondent

Ms J

Eighth Respondent

Ms S

Ninth Respondent

Ms T

Tenth Respondent

REASONS FOR JUDGMENT

Introduction

1. The substantive proceedings in this Court, being an application for adjustment of property interests under s 79 of the Family Law Act1975 (Cth) (“the Act”) were commenced by Ms Samuels (“the wife”) in July 1998 when, by consent, the wife was granted leave to commence proceedings for property settlement and spousal maintenance out of time.

2. The litigation between the parties has had a convoluted history in this and other courts.  I incorporate into these reasons my reasons for judgment delivered on 17 August 2007 and, in particular, the background facts set out in those reasons.  This matter has been before me for case management purposes since 18 June 2001.

3. On 18 June 2001 I recorded:

   It is noted that the applicant wife wishes to have the Supreme Court proceedings finalised before re-hearing of the application in relation to orders by Cohen J remitted from the Full Court of this Court for rehearing as well as the substantive proceedings, being her application for property settlement.

4. During the course of the matter being case managed by me I have heard and determined a number of interlocutory applications.  A brief history of those applications is recorded in my reasons for judgment delivered on 17 August 2007.

5. When the matter was before me on 30 April 2008 Mrs Ford appeared on behalf of the husband who had previously been unrepresented in the proceedings.  There was no appearance by or on behalf of any other party other than the wife.

6. At that mention I was informed that an application had been made to the Supreme Court of New South Wales by Mr P, the second respondent, that he be permitted to purchase the property known as B1 Property rather than that property being sold, to effect earlier orders made in the Supreme Court of New South Wales.

7. I pause here to note that the Supreme Court proceedings were proceedings initially commenced by the wife to resolve issues of entitlement of the parties to those proceedings in two properties at B1 and B2.  During the course of the Supreme Court proceedings the wife was declared bankrupt and her trustee in bankruptcy intervened in the Supreme Court proceedings on behalf of the creditors of her estate.  The trustee has declined to take part in proceedings in this Court.

8. Because of the uncertainty as to whether or not the property B1 Property would be sold or acquired by Mr P I further adjourned the proceedings before me until 20 August 2008.  I foreshadowed to the wife and Mrs Ford the orders I would propose making to enable the matter to be prepared for hearing and listed in a trial judge’s docket on that date.

9. On 20 August 2008 Mrs Ford appeared for the husband and Mr P appeared in person.  There was no appearance by or on behalf of any other respondent. 

10. Mrs Ford and Mr P sought that I make orders as foreshadowed on 30 April 2008. 

11. The wife opposed directions being made for hearing of her application and allocation to a trial Judge’s docket.  The wife sought that the matter be further adjourned indefinitely on two bases.  First, she submitted that the proceedings should be further adjourned as she was appealing against orders made by Hammerschlag J in the Supreme Court of New South Wales and she had filed a Notice of Motion seeking leave to appeal orders made by Flick J in the Federal Court of Australia on … July 2008.  As Mr P was unable to provide evidence to me on 20 August 2008 of finalisation of his application to the Supreme Court, I made orders that he provide to my associate a copy of the relevant Supreme Court order.  I also afforded the wife the opportunity to provide me with evidence of her proceedings in the Supreme Court of New South Wales and the Federal Court of Australia.

Concurrent proceedings in other courts

1. Mr P has provided me with a copy of an order made in the Supreme Court of New South Wales on … June 2008.  The order is in the following terms:

   The Court orders that:

   1.The costs of the valuation report are chargeable to the trust estate.

   2.Liberty to apply is granted to both the Official Trustee and [L] Pty Ltd.

   3.The costs of this application are to be paid from the trust estate.

   The Court directs that:

   4.[L] Pty Ltd or [Mr P] is authorised to purchase part of the trust estate, being the property at [B1 Property] at a price to be determined as follows:

   i)a registered valuer be appointed, upon the joint instructions of [L] [sic] Pty Ltd and the Official Trustee, to produce a valuation of that property,

   ii)the valuer is to be instructed to express an opinion as to the present market value of the property prepared on 2 separate basis [sic]:

   a)taking into account the fact that the property was passed in at an auction held on 10 November 2007,and alternatively,

   b)Ignoring that circumstance.

   iii)[L] Pty Ltd and [Mr P] are entitled to purchase the property at the average of the 2 valuation figures.  That entitlement is to be exercised within 7 days of the receipt by the parties of the valuation report. 

2. The wife has provided me with a copy of an order made in proceedings No … of 2007 in the Supreme Court of New South Wales Court of Appeal in which she is the claimant.  The order is in the following terms:

   1.Adjourned to … February 2009 at 2.30pm call-over of leave with liberty to apply on 14 days notice. 

3. The wife has also provided me with a copy of her Notice of Motion filed in the Federal Court of Australia.  Attached to the Notice of Motion is a copy of the reasons for judgment of Flick J of … July 2008.

4. In his reasons for judgment Flick J traces the history of proceedings in the Federal Court and Supreme Court of New South Wales.  His Honour’s summary of the litigation is relevant to my consideration of the wife’s present application for an adjournment.  At paragraphs 13-15 of his reasons Flick J said:

   13 The Applicant and her ex-husband owned a matrimonial property at [M]. That property was apparently sold and the proceeds of sale used in the purchase of two properties: B1 and B2 Properties. The proceedings in the Supreme Court apparently sought orders that the purchase of those properties be set aside. Those proceedings were initially resolved by Palmer J: […]. The hearing occupied seven days. In refusing relief, his Honour observed at the outset of his judgment:

   [1] This is a tragic case for all who have been involved in it. The Plaintiff, Ms [Samuels], has developed a fixation that she has been a victim of a fraudulent conspiracy between her ex-husband, the First Defendant (“Mr [Shaw]”), and the Second Defendant (“Mr [P]”) whereby she has been cheated out of her home. She has commenced proceedings in the Family Court, in this Court and in the Federal Court, all of which she has conducted herself without legal assistance.

   [2] The reality is that, while Ms [Samuels’] share of the net proceeds of sale of her jointly owned former matrimonial property was invested in the properties the subject of these proceedings and her name did not appear on the title to those properties, Mr [Shaw] and Mr [P] have never denied that Ms [Samuels] had a beneficial interest in the properties commensurate with the proportion of her contribution to the parties’ equity in the properties. Indeed, at Ms [Samuels’] request Mr [Shaw] and Mr [P] signed an acknowledgement to that effect in July 1998, well before Ms [Samuels] commenced these proceedings.

   [3] As far as I am able to determine, these proceedings and the proceedings in the Family Court were never necessary in order to establish Ms [Samuels’] interest in the properties because that interest was not in contest.

   [4] Nevertheless, the Defendants have not been able to disentangle themselves from a nightmarish web of litigation in which Ms [Samuels] has enveloped them since 1998, not only in the Family Court and in this Court, but in the Local Court, the District Court and the Federal Court. There has been at least one application by Ms [Samuels] to the High Court and numerous applications by her to the Full Court of the Family Court and to the Court of Appeal.

   [5] The costs of this litigation to the present Defendants and others whom Ms [Samuels] has sought to join must be very substantial. A large number of costs orders have been made against Ms [Samuels] in the interlocutory proceedings in the various Courts. They are said to amount to about $150,000 and a final costs order will be made against her in these proceedings. Whether those costs can actually be recovered from Ms [Samuels] must be extremely doubtful.

   His Honour noted that the “reality” was that the Applicant was entitled to a share of the net proceeds of sale of her former matrimonial property, but that such a share had not been denied. On 27 August 2003 costs of Ms [GW] and Mr [AH] were awarded against Ms [Samuels] by Palmer J. Those costs were assessed and judgment entered in the sum of $155,522.69.

   14 On 3 June 2004 the decision of Palmer J came before the Court of Appeal. Leave to appeal was granted but limited to the form of the orders as made by the trial judge: […]. In doing so, Handley JA, with whom Sheller and Ipp JJA agreed, said:

   [14] The Court has heard Ms [Samuels] on her application for leave to appeal generally, and at greater length than would be allowed to a party who was legally represented. Despite her submissions, there is no reason to doubt the substantial correctness of the judgment of Palmer J of […] 2003, nor is there any reason to think that there has been any miscarriage of justice as a result of his Honour's rulings on evidence and procedure during the trial.

   [15] I would, therefore, refuse general leave to appeal and grant leave to appeal limited to the formal orders made by Palmer J on […] 2003.

   15 Ms [Samuels] has pursued her claims beyond the Court of Appeal and has proceeded to the High Court on a number of occasions. One of those occasions was when she sought a stay of orders made by Giles J in respect to costs: […]. That application came before McHugh J. During an exchange between Ms [Samuels] and the Court, McHugh J made the following observations:

   Let me just give you this piece of advice. I am sure you will not accept it, but please give serious thought to the cost that you are incurring and the costs that are being ordered against you. The other side in this case are asking that you pay not only costs, but costs on what is called an indemnity basis, which means you have to pay all the costs that they incur.

   The High Court has also refused an application for special leave in respect to the decision of the Court of Appeal dismissing an application for leave to appeal to that Court against the orders made by Palmer J: […]. In doing so, Hayne J observed that there was no “reason to doubt the correctness of the decisions in the courts below”. 

5. His Honour then turned to and recorded a history of the bankruptcy proceedings and other proceedings in the Federal Court before turning to the application which was before him.

6. His Honour found that the applications which the wife sought to agitate were based on submissions made by the wife:

   … that she has been improperly deprived of monies owing to her and the belief that, if she obtained those monies, she would be able to pay her debts.  A belief repeated a number of times during the hearing was that monies to which she was entitled were still being retained by Mr [P] and that the Official Trustee was failing in its duty to recover those monies.  But this very belief was previously advanced by Ms [Samuels] before Palmer J and again before a Federal Magistrate – on at least one occasion […].  It is that belief which Palmer J characterised as “a fixation that she has been a victim of a fraudulent conspiracy between her ex-husband … and the second defendant (‘Mr [P]’)”. 

7. At paragraph 43 of his Honour’s reasons he said:

   The annulment of the bankruptcy was acknowledged by Ms [Samuels] as a primary claim for relief. But, and as was pointed out to her during the proceeding, the issues which she now wishes to pursue have previously been the subject of judicial determination. The observation as made by Palmer J in 2003 is equally as apposite today as it was in 2003. The tortuous path of litigation which has been pursued by Ms [Samuels], involving both herself and others, is truly “tragic”. But at the end of the day there is a need for finality in litigation, and the issues presently sought to be pursued have either previously been resolved, or are so closely aligned with issues previously resolved that Ms [Samuels] should not now be permitted to relitigate afresh the issues encompassed by her Amended Application: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.

Discussion

1. The proceedings in this Court have been on foot for an inordinate length of time. The wife has had the opportunity to pursue litigation against third parties, including Mr P, in the Supreme Court of New South Wales and has exercised her appeal rights. A determination of the various parties’ equities in the B1 and B2 Properties has been the subject of judgment which has quantified the monies due to each of the husband, wife and Mr P. I am satisfied that the issues in dispute about identification of the parties’ assets and liabilities insofar as the properties B1 and B2 are concerned, have been the subject of proper adjudication and that a trial Judge should now be in a position to determine the assets of the husband and wife and, if appropriate, make such adjustment under s 79 as is just and equitable.

2. I note that the wife’s trustee in bankruptcy has declined to take part in the proceedings in this Court, notwithstanding that the trustee intervened in the proceedings in the Supreme Court of New South Wales.  Thus I do not specifically in this application take into account any adverse impact on the trustee in bankruptcy in further delay in proceedings in this Court, although I have regard to the goal of achieving finality to litigation in a timely manner. 

3. On balance I am satisfied, weighing up any possible prejudice to either party, that the prejudice to the husband and Mr P in failing to make directions for this matter to be heard and determined now in a timely way outweighs any prejudice to the wife.  In making this determination I take into account the history of the litigation in this and other courts and, in particular, the findings of Flick J in his reasons for judgment of … July 2008.

Orders to be made

1. The wife, the husband’s solicitor and Mr P were each informed of the orders I proposed to make in relation to the further conduct of the matter.  Other than the wife’s assertion the matter should be further adjourned, no issues were raised in respect of the proposed orders and I accordingly intend to make orders in terms of the orders foreshadowed to the parties.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland.

Associate: 

Date:    3 September 2008