SCVG & Estate of KLD (Deceased) (No. 5)
[2020] FamCA 1065
•11 December 2020
FAMILY COURT OF AUSTRALIA
SCVG & Estate of KLD (Deceased) (No. 5) [2020] FamCA 1065
File number(s): SYC 5956 of 2016
SYC 4380 of 2008Judgment of: GILL J Date of judgment: 11 December 2020 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – orders for pleadings – striking out of pleadings - fraud Legislation: Family Law Act 1975 (Cth) Cases cited: Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165
Clone Pty Ltd v Players Pty Ltd (in liq) (2016) 127 SASR 1
SCVG & Estate of KLD (Deceased) (No. 3) [2020] FamCA 176
Number of paragraphs: 25 Date of hearing: 6 November 2020 Place: Canberra Solicitor for the Applicant: Self-representing Counsel for the Respondents: Mr Stenhouse Solicitor for the Respondents: Macphillamy’s ORDERS
SYC 5956 of 2016
SYC 4380 of 2008
BETWEEN: MR SCVG
Applicant
AND: THE ESTATE OF KLD
First Respondent
CHILD SUPPORT REGISTRAR
Second Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
11 DECEMBER 2020
THE COURT ORDERS THAT:
1.Mr SCVG’s Application in a Case in the matter of SYC5956/2016 regarding the Judge Scarlett matter filed on 3 November 2020 is dismissed.
2.Mr SCVG’s Application in a Case in the matter of SYC4380/2008 regarding the Cronin J matter filed on 3 November 2020 is dismissed.
3.The matter is listed for further direction at 9:30am on 12 February 2021 and the parties are to attend, unless otherwise directed, by Microsoft Teams.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym SCVG & KLD has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
The circumstances of this application are set out in a number of previous judgements. They concern pleadings in support of Mr SCVG’s applications to set aside judgements of Judge Scarlett and Justice Cronin that he asserts were procured by fraud.
Applicably to the current matter for determination, on 13 August 2020 I said:
The background to these proceedings is set out in previous judgments. The current issue concerns pleadings in relation to what have become known as the Cronin J matter and the Scarlett matter. In each case the Applicant seeks to set aside determinations made by those judicial officers on the basis that their judgments were procured by a fraud perpetrated by the late Ms KLD. Given the accusation made by the Applicant is one of fraud, orders were made on the application of the Respondent to have the Applicant plead his cases. In consequence of those directions the Applicant did so, following which orders were made striking out a number of the pleadings in each matter. Following the striking out the Applicant sought and received permission to amend his pleadings. The immediate issue then concerns an application by the Respondent to strike out the amendments made by the Applicant.
Those amendments were subsequently struck out in that judgment. Mr SCVG has now applied to re-plead the same issues a third time. That application is opposed.
The proposed Scarlett amendments
The original pleading of what was described as particular 12(b) was struck out on 20 March 2020. By that pleading Mr SCVG sought to assert that Ms KLD was aware at some point that a particular property was worth one million dollars. The pleading was unable to sustain such a factual contention and was struck out.
Mr SCVG was then permitted to re-plead, and sought to amend the original pleading, pleading a state of mind on the part of Ms KLD, and on the part of her solicitor, Mr MacPhillamy on the execution of a document in 2001. The proposed re-pleading was struck out for a number of reasons including immateriality, ambiguity, and the failure to identify facts to make out the state of mind alleged.
Mr SCVG also sought to justify the pleading on the basis that it demonstrated an exceptionality in the circumstances such as to justify the setting aside of the judgment of Judge Scarlett in the basis of false evidence. That exceptionality was said to be made out by the alleged involvement of the solicitor.
The most recent iteration of the pleading proposed by Mr SCVG is in the following terms:
Judge Scarlett matter
12(b) Exceptionality
Ms KLD's solicitor Mr Macphillamy had constructive knowledge commencing in December 2001 that Ms KLD's shares in L Pty Ltd were of sufficient value to her to justify protecting in her Binding Financial Agreement (Bf A) and from 2003 to 2013 that those shares and her interest in the T Trust were of sufficient value to her to be dealt with in the KLD family Estate Plan and her Wills prepared by him, and that she signed financial statements in 2012 which falsely stated that her shares in L Pty Ltd, K Pty Ltd and N Pty Ltd and her interest in the T Trust had zero value to her and Mr Macphillamy nonetheless caused those false financial statements to be relied upon in the judge Scarlett child support matter with the intention to have the Court accept the documents as true, to have the Court act on what he knew to be false details, to secure a more favourable child support for Ms KLD on the basis of what he knew to be false details.
Mr SCVG then identified a series of particulars in support of this pleading.
The proposed re-pleading appears under the heading “Exceptionality.”
The reference to exceptionality relates to the issue of whether or not exceptionality in the perjury alleged to have perpetrated a fraud upon the court is required.
While both of the parties asserted that there is no requirement for exceptionality, this is a matter to be resolved following full argument. It should be noted that the High Court in Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165 (Mr SCVG referred to Clone Pty Ltd v Players Pty Ltd (in liq) (2016) 127 SASR 1 in the Supreme Court of South Australia – it should be noted that decision was overturned on appeal to the High Court) appeared to accept at [53] the requirement for exceptionality where perjury is relied upon as justifying the setting aside of a perfected judgement on the ground of fraud.
The subject matter of the pleading appears to be directed to establishing that the solicitor had “constructive knowledge” from December 2001 until 2013 that particular shares held by Ms KLD were of “sufficient value” to warrant particular actions, and “constructive knowledge”, and that Ms KLD’s interest in a settlement was of “sufficient value” to warrant particular actions, and that the solicitor caused financial statements executed by Ms KLD in 2012 which falsely nominated zero value in relation to those interests, to be relied upon in the matter before Judge Scarlett.
At face value, the pleading, reliant upon “constructive knowledge” and “sufficient value” is both embarrassing in the sense identified in SCVG & Estate of KLD (Deceased) (No. 3) [2020] FamCA 176 and incapable of relevantly establishing a state of mind as to fraud in the necessary sense, even if the participation of the solicitor could be considered to be relevant to the case of fraud against the late Ms KLD.
Under these circumstances, the application to re-plead this aspect should be refused.
The proposed Cronin J amendments
The original pleading at [34] was struck out on 20 March 2020. By that pleading, Mr SCVG sought to assert that Ms KLD and her solicitor Mr Macphillamy were aware that statements made on a financial statement and affidavit filed 16 March 2015 in the proceedings before Cronin J were materially false.
The pleading was struck out as embarrassing, as Ms KLD “was left to piece together what was referred to in order to form a necessary connection between the solicitor and the alleged fraud.”
Mr SCVG was then permitted to re-plead, and sought to amend the original pleading, to assert that the solicitor “knowingly perpetrated a fraud upon the court, in helping her complete and place before the court Ms KLD’s false financial statements.” Mr SCVG then identified eighteen particulars to establish the state of mind of the solicitor.
The proposed re-pleading was struck out as not material, on the basis that it was Ms KLD’s state of mind rather than that of the solicitor that was material.
It was also asserted to make out exceptionality in the case (if such is required).
A second basis for striking the pleading out was that, even if material, it relied upon a “secondary set of assertions of state of mind” and conclusory facts asserted to constitute the state of mind of the solicitor.
The most recent iteration of the pleading proposed by Mr SCVG is in the following terms:
Cronin J matter
Exceptionality
Ms KLD’s solicitor Mr Macphillamy had constructive knowledge commencing in December 2001 that Ms KLD’s shares in L Pty Ltd were of sufficient value to her to justify protecting in her Binding Financial Agreement (BFA) and from 2003 to 2006 that those shares and her interest in the T Trust were of sufficient value to her to be dealt with in the KLD Family Estate Plan and her Wills prepared by him and that she signed financial statements in 2012 and 2015 which falsely stated that her shares in L Pty Ltd, K Pty Ltd and N Pty Ltd and her interest in the T Trust had zero value to her and that she owed a debt to her mother of $650,000(in 2015) and Mr Macphillamy nonetheless caused those false financial statements to be relied upon in both the judge Scarlett child support matter and the Cronin J costs application matter, with the intention to have the Courts accept the documents as true, to have the Court act on what he knew to be dales details, to secure a more favourable child support and costs order for Ms KLD on the basis of what he knew to be false details.
Mr SCVG then identified a series of particulars in support of this pleading.
The subject matter of the pleading appears to be directed to establishing that the solicitor had “constructive knowledge” from December 2001 until 2013 that particular shares held by Ms KLD were of “sufficient value” to warrant particular actions, and “constructive knowledge”, and that Ms KLD’s interest in a settlement was of “sufficient value” to warrant particular actions, and that the solicitor caused financial statements executed by Ms KLD in 2012 which falsely nominated zero value in relation to those interests, to be relied upon in the matter before Judge Scarlett.
At face value, the pleading, reliant upon “constructive knowledge” and “sufficient value” is both embarrassing in the sense identified in SCVG & Estate of KLD (Deceased) (No. 3) [2020] FamCA 176 and incapable of relevantly establishing a state of mind as to fraud in the necessary sense, even if the participation of the solicitor could be considered to be relevant to the case of fraud against the late Ms KLD.
Under these circumstances, the application to re-plead this aspect should be refused.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 11 December 2020
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