SCVG and KLD (No. 3) - [2018] FamCA 392

FAMILY COURT OF AUSTRALIA

SCVG & KLD (NO. 3)

[2018] FamCA 392

FAMILY LAW – ORDERS – Stay of orders pending the resolution of an application to set aside a judgment on the grounds of fraud – Stay of orders pending the resolution of an application to set aside a judgment on the grounds of a party being absent during the proceedings.

Family Law Act 1975 (Cth)
Family Law Rules 2004 r 17.02

McCann v Parsons (1954) 93 CLR 418
SCVG & KLD [2018] FamCA 27

APPLICANT:

Mr SCVG

RESPONDENT:

Ms KLD

FILE NUMBER:

SYC

4380

2008

DATE DELIVERED:

31 May 2018

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

21 May 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self-representing

COUNSEL FOR THE RESPONDENT:

Mr A Stenhouse

SOLICITOR FOR THE RESPONDENT:

Macphillamy Lawyers

Orders

The two applications in a case filed by the Applicant on 9 May 2018 seeking that the Orders of Gill J of 14 September 2107 and of Cronin J of 20 August 2015 be stayed are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym SCVG & KLD (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 4380 of 2008

Mr SCVG

Applicant

And

Ms KLD

Respondent

REASONS FOR JUDGMENT

By two applications in a case filed 9 May 2018 Mr SCVG seeks stays of orders made in relation to costs awarded by Justice Cronin on 20 August 2015 and by myself on 14 September 2017.
These applications for stays are in the context of Mr SCVG’s applications to:
1.Set aside, pursuant to r 17.02 of the Family Law Rules 2004, the costs order made by Justice Cronin on the basis that was procured by fraud; and
2.Set aside, pursuant to r 17.02, the Orders made by me on the basis that they were made in the absence of Mr SCVG.
The procedural history includes an attempt to file an application in a case by Mr SCVG, which was refused, which sought the relief regarding the Justice Cronin Orders. Judgment was given on 22 January 2018 resulting in the application being taken as filed on 24 January 2018. At issue in those proceedings was the jurisdiction of the Court to entertain such applications. I identified then that there is a jurisdiction within the Court at first instance to deal with such matters.[1]
[1]SCVG & KLD [2018] FamCA 27.
The matter was then adjourned for hearing on 15 February 2018, then subsequently further adjourned to 30 July 2018 (noting that the July date has now been vacated in respect of being a substantive hearing date for the application, it now is set aside to deal with procedural and other issues raised by Ms KLD on 21 May 2018 by her application in a case filed 11 May 2018).
Neither application by Mr SCVG has yet been dealt with to finality. In particular, setting aside of my judgment of 14 September 2017 is delayed pending the determination of the Justice Cronin setting aside, as that will render the application to set aside my previous judgment otiose. My previous judgment in relation to costs was reliant upon the Justice Cronin Order as to costs.
At present then, there remain outstanding costs orders, unpaid.
Ms KLD previously agreed not to seek to enforce the costs orders without giving 28 days’ notice, such notice providing Mr SCVG with the option to pursue a stay of the Orders.
On 1 May 2018 Ms KLD gave notice that she would seek to enforce a series of costs orders. On 9 May 2018 Mr SCVG sought stays of the operation of the Justice Cronin Orders and my Orders as identified above.
In pursuing the stay Mr SCVG relied on the recital of law given by Justice Cronin in his 15 October 2015 judgment regarding a stay there applied for in relation to his costs orders at [28]. Ms KLD appeared to accept those as stating the law.
On the assumption that the jurisdiction to make a determination to set aside orders carries with it the power to grant a stay as inherently attached to such a power, I adopt Justice Cronin’s recital of the law governing stays as applicable in this case.
In particular, Mr SCVG noted there was no need for special or exceptional circumstances, asserted that he has strong prospects of success in respect of each of his applications and asserted that his applications will be rendered nugatory without a stay.
On the question of his applications being rendered nugatory he asserted that the results of the costs orders being in force would be that he would need to “trash” his superannuation to make the payment and even if he could later recover the monies, which he doubted, he would not be able to restore his superannuation account.
He, however, produced no evidence to support these propositions.
Mr SCVG pointed to Justice Cronin’s observation at [22] regarding a lack of a need for evidence in respect of stay proceedings. What His Honour actually said was:
Mr Macphillamy submitted that, as a starting point, there was no evidence provided to support the stay. As stays are generally determined on submissions primarily about the judgment and the grounds of appeal, there is nothing in that."
I do not doubt the correctness of what was said by Justice Cronin there, but it was not directed specifically to the question of an application being rendered nugatory in the sense proposed by Mr SCVG in these proceedings. It is true that where argument focuses upon the judgment and grounds of appeal there will be no need for further evidence. However, where a factual proposition is put forward as here, that the financial impact of refusing the stay would mean that the application itself is rendered nugatory, then that factual circumstance needs to be established, and needs to be established on the balance of probabilities.
Mr Stenhouse, who appeared for Ms KLD, correctly identify the onus being on Mr SCVG to establish by evidence the notion his application would be rendered nugatory. Mr SCVG has not done so.
Mr SCVG’s primary other ground was as to his prospects, which he alleged are strong. Regarding the judgment of 14 September 2017 Ms KLD identified that part of Mr SCVG's complaint was that a portion of the underlying costs assessments were tainted by the failure of the Registrar who made the costs assessments to take into account submissions asserted to have been made by Mr SCVG in a settlement conference. While not having heard Mr SCVG regarding this particular matter comprehensively, it does not, at face value, sound as a strong ground of appeal. As was noted by Mr Stenhouse, settlement conferences are not places for submissions being made in relation to applications. The hearing of the application must be taken to have been separate to the settlement conference and so, at face value, this ground has little force.
The other matter pointed to by Mr SCVG in relation to strength of case, was as to his failure to attend the proceedings before me. He pointed to his failed attempt to communicate to the Court by email as to his inability to attend the date which had been specially set to accommodate his attendance. While this may present as an arguable matter to set aside the judgment, I am not currently able to identify it as a strong ground, even on Mr SCVG’s assertion that Mr Macphillamy, the solicitor for Ms KLD, was aware of Mr SCVG’s seeking of an adjournment. Ultimately, by argument, Mr SCVG may persuade me otherwise, but at present I am unable to assess it as strong, given that the communication with the Court marked a departure by Mr SCVG from his other communications (which were sent to a correct email address) and Mr SCVG had not received any correspondence from the Court confirming the receipt, or that action would be taken in respect of those emails, which ought to have placed him on notice of a potential difficulty.
As noted by Mr Stenhouse, even if these arguments prove sufficient to raise the question of the exercise of the discretion to set aside, it would still be necessary to persuade that the discretion ought to be exercised. This may not be an insurmountable hurdle but at least sets an added barrier to having the judgment set aside.
On the arguments put forward by Mr SCVG, I do not assess his prospects as strong.
Regarding the prospects concerning the setting aside of the Justice Cronin Orders, Ms KLD points to a lack of particularity in the complaint of fraud as undermining the notion that there are strong prospects to set aside the judgment of Justice Cronin. Without dealing with the question, currently awaiting further hearing, of the extent of the obligation upon Mr SCVG to provide particulars as to the fraud alleged, at present his identification of the alleged fraud is sufficient to allow the general question of prospects to be considered. The fraud, orally alleged by him previously, relates to an alleged misstatement of Ms KLD’s financial position on her application for costs before Cronin J.
While the previous judgment SCVG & KLD [2018] FamCA 27 found jurisdiction for the application, at the same time it noted what was said by Menzies J in McCann v Parsons (1954) 93 CLR 418 that:
except in very exceptional cases perjury is not a sufficient ground for setting aside a judgment.
That is, the mere presentation of false evidence is not necessarily sufficient to constitute a fraud on the trial resulting in the judgment being set aside. Not all such frauds are fundamental to the trial, in the sense that the suborning of a juror is. The exercise of the discretion to set aside is not automatically granted simply because false evidence is presented.
Even if the situation is as alleged by Mr SCVG, and even if that constitutes some fraud on the trial by reason of the presentation of perjured evidence, it is only in exceptional cases that the discretion would be exercised. This means that the case cannot be taken to be strong.
That assessment does not equate to a finding that the case of Mr SCVG will not succeed, but merely that it currently cannot be assessed as strong.
It does however mean that the application to stay the costs orders should be refused.

I certify that the preceding insert twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 31 May 2018.

Associate:

Date: 31 May 2018