SCVG & Estate of KLD (No 8)
[2023] FedCFamC1F 806
•13 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
SCVG & Estate of KLD (No 8) [2023] FedCFamC1F 806
File number(s): SYC 4380 of 2008
SYC 5956 of 2016Judgment of: GILL J Date of judgment: 13 September 2023 Catchwords: FAMILY LAW – PROPERTY – APPLICATIONS IN PROCEEDINGS – Where there are applications seeking appointment of a valuer, filing of a financial statement, answer to a notice to produce, and admission of a party’s opinion as an expert valuation – Where there is no adequate justification to depart from the rules on expert valuation – Where there is a history of extended proceedings and abuse of process – Where the steps proposed are not justified in the circumstances – All applications refused Legislation: Family Law Act 1975 (Cth) – s 117 Division: Division 1 First Instance Number of paragraphs: 11 Date of hearing: 13 September 2023 Place: Canberra Solicitor for the Applicant: Litigant in Person Counsel for the First Respondent: Mr Cox, SC, with Ms Seric Solicitor for the First Respondent: Macphillamy’s Solicitor for the Second Respondent: Mr Eskerie, Sparke Helmore ORDERS
SYC 4380 of 2008
SYC 5956 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SCVG
Applicant
AND: ESTATE OF MS KLD
First Respondent
CHILD SUPPORT REGISTRAR
Second Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
13 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The applications in proceedings by Mr SCVG seeking the appointment of a valuer, the filing of financial statement by the Estate, answer to a notice to produce, and the admission of his own opinion as an expert valuation, are refused.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
GILL J
In these proceedings there are a number of preliminary issues to be dealt with prior to embarking on a substantive consideration of the costs application and the vexatious litigant application. Those matters involve an application by Mr SCVG to appoint a person to conduct a valuation of corporate entities for which the Estate holds a number of shares, for the Estate to file a financial statement, for Mr SCVG to produce to the court his own opinion in relation to the value of the corporate entities in the event that a valuer is not appointed, and for the Estate to comply with a notice to produce served upon the Estate by Mr SCVG for the production of various financial documents.
Each of these matters is directed to, primarily but not solely, the financial circumstances of the Estate. I accept that in determining the costs application that financial circumstances are a mandatory consideration. Mr SCVG also asserts that they form a consideration in determining the conduct of the Estate, presumably on the basis that variation of the Estate’s assertions as to the value of the corporate entities it holds, with other evidence, will reveal wrongdoing on their part in respect of the proceedings.
The requirement to consider the financial circumstances of the parties as set out in s 117 must be understood to be a requirement to consider that to the extent relevant to the particular proceedings, and the manner of consideration of those matters is dependent upon the significance of them in relation to the individual costs application. For example, here the suggestion is made by Mr SCVG that he is in poor financial circumstances with such suggestion introduced by him as a potential answer or part answer to the costs claim brought by the Estate. That claim as to his financial circumstances that is raised by him as a relevant consideration as to why a costs order should not be made against him is a matter that is contested, and properly the subject of assessment. The balance of the applications that remain to be resolved relate, however, to the financial circumstances of the Estate, where the Estate presents limited evidence as to the value of what is held by the Estate with such limited evidence being the subject of challenge by Mr SCVG, in particular in relation to the corporate entities held in part by the Estate.
In order to challenge the evidence of the Estate, both in relation to the cost application and particularly in relation to the financial circumstances and conduct elements Mr SCVG makes a number of proposals by way of application. His fall-back position is that by purported evidence given by himself he provide a value of the corporate entities held by the Estate. It may be observed that the evidence that he has filed to fulfil such a purpose is non-compliant with the rules. Accepting, as I did previously in these proceedings that there are little to no prospects of the parties ever coming to commonality about the appointment of a single expert it may be observed that what is produced by Mr SCVG is otherwise non-compliant with the rules. Further, on its face material provided by him is absent the proof of any qualification on his part to give evidence relevant as opinion. Under those circumstances there is no good reason to depart from the rules and no adequate justification to grant a departure from the rules such as to admit the expert evidence generated by Mr SCVG himself.
The primary proposal made by Mr SCVG is that there be experts appointed. That application is made under circumstances where there is no report produced to the Court as yet, but the application is for permission to engage in a process that would ultimately generate a report. It is of course not known at this stage in any measure whether there will be any conflict between what might be produced by the report and the current evidence of the Estate. Mr SCVG asserts that the production of the report will require the disclosure of financial records by the Estate and is likely to cost in the realm of $20,000-$30,000. No provision is identified to fund such a report.
Mr SCVG further seeks that the Estate produce, in accordance with a notice to produce that has been served on the Estate, and/or that a financial statement be filed by the Estate. The Estate resists those steps in particular, the production of financial material on the basis of concerns raised as the potential abusive use of that material by Mr SCVG. It might also be thought that the production of a financial statement by the Estate progresses the understanding of the financial circumstances of the Estate little to no further than the evidence that the Estate has already provided by way of material provided in relation to the probate proceedings in the New South Wales Supreme Court and filed by the Estate.
In considering whether or not to take any of these steps it is important to consider the significance of the Estate’s financial position in the proceedings, and whether the steps are then warranted. The steps are each put forward to challenge the financial position put forward by the Estate. However, it should be understood that the Estate does not contend that its finances bear upon the orders that it seeks. Rather it asserts that a costs order is justified in its favour by other matters, in particular matters relating to the conduct of the proceedings by Mr SCVG. That is, the Estate does not say either that low finances on its part nor high finances on its part justifies any cost award.
Mr SCVG contends that the Estate’s financial position is better than it asserts it to be. However, it is unclear how this will impact as a consideration for a costs case as presented by the Estate. In relation to the financial aspects of the parties it can only be at the very best at the very periphery of any costs dispute given that the claim by the Estate is based upon, for example, the lack of success on the part of Mr SCVG, the abuse of process features of his applications and the features of his applications that involve the pursuit of relief where there were no prospects for such.
If it is supposed that the Estate’s financial position is much better than it has asserted it is difficult to see any significance in respect of the financial positions of the parties in the face of the claim made by the Estate for costs that will assist Mr SCVG to resist their case, assuming that they are successful in pursuing it otherwise.
Further, and bearing upon both the significance of the financial position of the Estate for the consideration of the financial circumstances of the parties, and the consideration of that matter in relation to the conduct of the Estate in the proceedings, it is important to note that this matter was front and centre throughout the trial in the presentation of Mr SCVG’s case. The value of the underlying corporate entities was a core contention that he unsuccessfully litigated and pursued during the substantive proceedings.
Accordingly, his pursuit of that matter now has the appearance of the re-litigation of that which he failed at in respect of the substantive proceedings, where his conduct in the substantive proceedings, including the pursuit of a number of issues that forms an abuse of process, for example, the Cronin matter, the court should guard its processes against such a use. Further, given the peripheral nature of the matters relating to the Estate’s finances, the steps proposed by Mr SCVG do not justify firstly, the expense of any such steps, secondly, the deferral of the proceedings that have already suffered an extended history, thirdly, that for example, the filing of a financial statement would not take the matter beyond where it currently lies and fourthly, the involvement of the party that has previously been exposed to an abuse of process to further potential exposure. Under those circumstances these matters are sufficient to warrant, in the exercise of the discretion as to procedural steps, the refusal of each of those steps that have been proposed by Mr SCVG. Accordingly, the applications in proceedings by Mr SCVG seeking the appointment of a valuer, the filing of financial statement by the Estate, answer to a notice to produce, the admission of his own opinion as an expert valuation, are refused.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 20 September 2023
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