Scott & Munayallan (No 11)

Case [2023] FedCFamC1F 601

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Scott & Munayallan (No 11) [2023] FedCFamC1F 601

File number: SYC 59 of 2010
Judgment of: HENDERSON J
Date of judgment: 20 July 2023
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal – Where the first applicant sought various declarations relating to an undertaking given in the Supreme Court of New South Wales by himself and other parties and entities – Where the first applicant sought to appear for the second applicant company – Where the Court moved on its own motion to minimise costs with an intention to hear a summary dismissal application without the appearance of the respondent – Finding that this Court does not have jurisdiction to make the declarations sought – Finding further there was no prospect of success in prosecuting the application and it was an abuse of process – Application summarily dismissed – No order as to costs.
Legislation:

Corporations Act 2001 (Cth) ss 471B, 477.

Family Law Act 1975 (Cth) s 45A, 45A(2), 45A(4), 45A(5), 45A(6), 45A(7), 102QB, 102QB(3).

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 46, 67, 67(1)(b).

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.18, 2.24, 3.09.

Federal Court (Corporations) Rules 2000 (Cth) r 2.13(1)(a).

Vexatious Proceedings Act 2008 (NSW).

Uniform Civil Procedure Rules 2005 (NSW) rr 36.16, 36.16(3C).
Cases cited:

Amery & Kedrina (2021) 63 Fam LR 1; [2021] FamCAFC 79

Curtain & Curtain [2022] FedCFamC1A 134

Hearne & Hearne (2015) 53 Fam LR 454; [2015] FamCAFC 178

Klearchos & Klearchos [2021] FamCA 375

Lindon v Commonwealth (No 2) (1996) 136 ALR 251; [1996] HCA 14

Munayallan & Scott (No 5) [2021] FedCFamC1F 284

Munayallan & Scott (No 6) [2022] FedCFamC1F 345

Norton & Locke (2013) FLC 93-567; [2013] FamCAFC 202

Scott & Munayallan (2021) 62 Fam LR 504; [2021] FamCA 79

Scott & Munayallan [2021] FedCFamC1F 104

Scott & Munayallan (No 3) [2021] FedCFamC1F 121

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34.

Division: Division 1 First Instance
Number of paragraphs: 66
Date of hearing: 18 July 2023
Place: Sydney
The First Applicant: Litigant in person
The Second Applicant: Litigant in person (did not participate)
Solicitor for the Respondent: ERA Legal, Commercial, Insolvency and Litigation Lawyers (excused from attending)

ORDERS

SYC 59 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR M

First Applicant

CC PTY LTD

Second Applicant
AND:

MR AB IN HIS CAPACITY AS LIQUIDATOR OF I PTY LTD

Respondent

order made by:

HENDERSON J

DATE OF ORDER:

20 JULY 2023

THE COURT ORDERS THAT:

1.The Application in a Proceeding filed by Mr M and CC Pty Ltd on 6 July 2023 is summarily dismissed.

2.The oral application made by Mr M to be joined to the Application in a Proceeding filed by Mr Hatem on 8 May 2023 is dismissed.

3.There be no order as to costs.

Note:   The form of the order is subject to…

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AGLC
Scott & Munayallan (No 11) [2023] FedCFamC1F 601
Case
[2023] FedCFamC1F 601
Decision Date

CaseChat Overview and Summary

In the matter of Scott & Munayallan (No 11), the parties were involved in a dispute that required resolution in the Family Court of Australia. The primary legal issue was whether the Family Court had the jurisdiction to set aside or vary an order entered by another court, in this case, an order made by Sackar J in April 2022. This jurisdictional question arose from the application by Mr Scott to set aside a judgment that had been entered some 325 days prior, well beyond the 14-day limit prescribed by Rule 36.16(3C) of the Uniform Civil Procedure Rules 2005 (NSW). The court was tasked with determining whether the Family Court could entertain such an application despite the clear time limit specified in the rules.

The Family Court, drawing on a previous decision by Black J in the Supreme Court of New South Wales, found that the time limit for varying a judgment or order as outlined in Rule 36.16(3C) was indeed non-extendable. Black J had previously held that unless the consent order was set aside, the consent judgment delivered by Sackar J would remain in place and binding on the parties. This previous ruling reinforced the notion that the Family Court's jurisdiction was circumscribed by the specific provisions of the Uniform Civil Procedure Rules. The Family Court further reasoned that while it could exercise its own jurisdiction over issues arising before it, it could not undermine a judgment delivered by another court in respect of the same issues. This reasoning was pivotal in concluding that the Family Court lacked the jurisdiction to set aside the order in question.

In light of the above, the Family Court dismissed Mr Scott's application to set aside the order made by Sackar J. The court's decision underscored the importance of adhering to jurisdictional boundaries and the limitations set by procedural rules. The court held that the Family Court could not interfere with the judgment of another court in the absence of consent or other exceptional circumstances not present in this case. Consequently, the order made by Sackar J remained in effect, binding the parties to its terms.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) says the following:36.16 Further power to set aside or vary judgment or order (cf SCR Part 40, rule 9)(1)The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.(2)The court may set aside or vary a judgment or order after it has been entered if—(a)it is a default judgment (other than a default judgment given in open court), or(b)it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or(c)in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.(3)In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it—(a)determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or(b)dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.(3A)If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.(3B)Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered.(3C)Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B).(4)Nothing in this rule affects any other power of the court to set aside or vary a judgment or order. It is clear from sub-rule 36.16(3C) that the time limit for varying a judgment or order cannot be extended. Fourteen days was still within August 2022. The Mr M was filed on 6 July 2023, some 325 days after the order was entered. This issue of jurisdiction has already been considered by Black J in the Supreme Court of New South Wales, albeit on a different issue, where Mr Scott sought an order of Sackar J made in April 2022 be set aside. His Honour said the following:… That order is sought under a rule which applies in this Court and which is confined by the terms of that rule, UCPR r 36.16. Unless the consent order is set aside, then the consent judgment delivered by Sackar J remains in place, and binds the parties to it, and there is no basis on which that matter could be agitated in the Family Court in a way that would undermine a judgement delivered by this Court in respect of the relevant issues. That is not to say that the Family Court cannot exercise its own jurisdiction, in respect of issues arising before it. However, while that judgment remains in place, there is no potential for inconsistent findings as to the matters which it determines, as between the parties, as distinct from the matters which are properly determined by the Family Court in the exercise of its own jurisdiction.(As per the original with bold emphasis)

Ratio Decidendi

Legal Principle Established

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