SCVG & KLD
[2018] FamCA 27
•24 January 2018
FAMILY COURT OF AUSTRALIA
| SCVG & KLD | [2018] FamCA 27 |
| FAMILY LAW – JURISDICTION – Inherent jurisdiction – Setting aside final orders - Fraud |
Family Law Act 1975 (Cth) ss 79 and 79A
Family Law Rules 2004 (Cth) r 17.02
Cameron v Cole (1944) 68 CLR 571
Guinness v Guinness (No. 2) [2008] FamCAFC 100
Jonesco v Beard [1930] AV 298
McCann v Parsons (1954) 93 CLR 418
McDonald v McDonald (1965) 113 CLR 529
Minjarez & Minjarez [2017] FamCAFC 222
Pawley & Pawley (No. 2) [2017] FamCAFC 136
R v Forbes; ex parte Bevan (1972) 127 CLR 1
Taylor v Taylor (1979) 5 Fam LR 289
| APPLICANT: | Mr SCVG |
| RESPONDENT: | Ms KLD |
| FILE NUMBER: | SYC | 4380 | of | 2008 |
| DATE DELIVERED: | 24 January 2018 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 22 January 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Self-representing |
| COUNSEL FOR THE RESPONDENT: | Mr A Stenhouse |
| SOLICITOR FOR THE RESPONDENT: | Macphillamy Lawyers |
Orders
Insofar as the Rules require the Application in a Case attempted to be filed by the Applicant on 4 December 2017 to be commenced by an Initiating Application, the Applicant is excused from compliance with the Rules.
The Application in a Case is taken as filed on 24 January 2018.
The proceedings are adjourned to 15 February 2018 at 10am for hearing.
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 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
The applicant sought to file an application in a case and supporting affidavit on 4 December 2017 to set aside a decision made by Justice Cronin on 20 August 2015 in respect of costs. On 5 December 2017 Registrar Payget refused to allow the application and affidavit to be filed. The applicant seeks a review of that decision.
The refusal set out the following reasons:
The Application in a Case seeks orders to set aside the orders made by Justice Cronin 20 August 2015.
You formally lodged a Notice of Appeal with the Eastern Appeals Registry on 15 September 2017 with respect to the orders made in 20 August 2015, file number EA156 of 2015.
On 24 May 2017 the Full Court of the Family Court made orders dismissing Appeal EA 156 of 2015. …
As this matter has already been dealt with by the Full Court of Australia your application has been refused for filing by the Registry.
I note that the nature of the application before me in respect of filing calls for a fresh determination of the matter without the requirement to demonstrate any error on the part of the Registrar. The above reasons however are informative of the reason why the filing is contentious in this instance.
Despite the fact that the case was both finalised before Cronin J, has been subsequently dealt with by the Full Court, the applicant calls in aid r 17.02(1)(b). Rule 17.02(1) sets out the following:
(1) The court may at any time vary or set aside an order, if:
(a)it was made in the absence of a party; or
(b)it was obtained by fraud; or
(c)it is interlocutory; or
(d)it is an injunction or for the appointment of a receiver; or
(e)it does not reflect the intention of the court; or
(f)the party in whose favour it was made consents; or
(g)there is a clerical mistake in the order; or
(h)there is an error arising in the order from an accidental slip or omission.
The applicant asserts in support of his application that the original costs order made by Cronin J was affected by fraud on the part of the respondent.
The respondent opposes the filing of the application in a case and seeks summary dismissal. It is premature to deal with the issue of summary dismissal until the question of filing is dealt with. The respondent accepted that the question of filing in this instance is connected to the question of jurisdiction. That is, if there is a jurisdiction to entertain the application, then the Court is required to exercise that jurisdiction. It is the question of jurisdiction that will determine whether or not the application may be filed in this instance. Issues as to the disposal of the proceedings, including as to summary dismissal will be dealt with subsequent to that determination.
The respondent asserts a lack of jurisdiction, in particular on the basis that this Court is functus officio having completed the proceedings both at first instance and on appeal. Accordingly, it is argued that there is no further jurisdiction in the Court to entertain this application.
The respondent says in relation to r 17.02, that the Court is restricted in its ability to deal with such application to orders that do not have any substantive effect. The respondent asserted that the Court becomes functus officio when orders are regularly entered, with the exception of the Court dealing with matters under the Slip Rule or as to machinery orders. In support of this contention the respondent relied upon the following cases being:
a)Guinness v Guinness (No 2) [2008] FamCAFC 100 [17]. Here Thackray J ruled, in reliance upon Taylor v Taylor (1979) 5 FamLR 289, that a property order is a “once and for all proposition” that cannot be amended save for particular exceptions. The court is functus officio following the making of the final order. The exceptions he dealt with related to corrections under the slip rule and machinery provisions. He stated that a court is not at liberty to vary an order to change the substantive rights conferred by it.
b)Minjarez & Minjarez [2017] FamCAFC 222 [29] where it was emphasised by Murphy J that substantive amendment is impermissible; and
c)Pawley & Pawley (No 2) [2017] FamCAFC 136 [55] where Thackray J said in relation to the slip rule:
Furthermore, the authorities make plain that the slip rule can be applied only where the amendment is one upon which no real difference of opinion can exist. Hence, it cannot apply where there is any question involving the exercise of discretion by the judge: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 390–391. This proposition is true not only at common law but applies also to matters in which rules equivalent to r 16.05 apply (for example, r 39.05 of the Federal Court Rules 2011 (Cth) and its predecessor, Order 35 r 7 of the Federal Court Rules 1979 (Cth)).
It may be seen from these authorities, which cover the ground of r 17.02(1)(e), (g) and (h) conclude that a court is regarded as functus officio following the making of final orders. The authority granted to a court to deal with such final orders is restricted to matters that do not impact the substance of the orders.
However, this does not end the matter.
Is there an arguable jurisdiction?
The applicant claimed there is jurisdiction to grant the orders he seeks to set aside the earlier final determination on the basis of fraud.
There is a specific jurisdiction contained in s 79A of the Family Law Act 1975 dealing with a Court at first instance setting aside orders including for reason of fraud or the giving of false evidence. However, the operation of s 79A is confined to orders made under s 79. Here, what is sought to be set aside is an order made by Cronin J on 20 August 2015 for costs in a parenting case. Such a matter does not fall within the ambit of s 79A.
The question then is whether it is a matter falling within the inherent jurisdiction of the Court. The respondent was asked to address the Court on whether a power to set aside a final order on the basis of fraud formed a part of the inherent jurisdiction of the Court. The respondent was unable to identify any authorities that dealt with such a matter. It is unsurprising as the matter is not straightforward.
The applicant asserted a jurisdiction to set aside final orders on the basis of fraud is available to the Court and pointed to the terms of r 17.02(1)(b) as being indicative of such a jurisdiction. It may be accepted that the balance of the matters set out at r 17.02(1) fall within the jurisdiction of the Court at first instance. For example, as was identified by the respondent in this case, the jurisdiction to correct orders without affecting a substantive change to them. Similarly, it is axiomatic that interlocutory orders may be set aside in the course of proceedings. The question is as to whether there is an inherent jurisdiction for a court at first instance to set aside on the basis of fraud.
It has long been recognised that where orders are made in the absence of a party, it falls within the inherent jurisdiction of the Court to set such orders aside. In Taylor v Taylor (1979) 5 FamLR 289, Gibbs J dealt with the issue of inherent jurisdiction. He accepted what was said by Menzies J in R v Forbes; ex parte Bevan (1972) 127 CLR 1, where he said
Inherent jurisdiction" is the power which a court has simply because it is a court of a particular description. Thus the Courts of Common Law without the aid of any authorizing provision had inherent jurisdiction to prevent abuse of their process and to punish for contempt. Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as "inherent jurisdiction", which, as the name indicates, requires no authorizing provision. Courts of unlimited jurisdiction have "inherent jurisdiction.
Dealing in the same case with s 79A and the question of inherent jurisdiction, Mason J said:
Although the Family Court is a court created by statute it none the less possesses an inherent jurisdiction to set aside a judgment obtained by default. Three members of this Court (Latham CJ, Rich and Williams JJ) concluded in Cameron v Cole (1944) 68 CLR 571 at 586, 589 at 607, that the Federal Court of Bankruptcy had an inherent jurisdiction to set aside its orders, notwithstanding that it was a statutory court and, further, that it was a court of limited jurisdiction. A jurisdiction to set aside its orders is inherent in every court unless displaced by statute. In my opinion the jurisdiction extends not only to the setting aside of judgments which have been obtained without service or notice to a party… but to the setting aside of a default or ex parte judgment obtained when the absence of the party is due to no fault on his part. I can find no indication in the Act of an intention to displace this inherent jurisdiction.
Justice Gibbs went on to state that although the Family Court is a superior court of limited jurisdiction, it possesses a discretionary power, in its inherent jurisdiction, which has not been displaced by the Family Law Act, to, quoting from Rich J in Cameron v Cole
… ensure that trials before it are conducted in accordance with the principles of natural justice.
The question remains as to whether this inherent jurisdiction extends to a first instance court dealing with an issue of fraud alleged in respect of a previous final determination.
On the question of fraud, in Taylor, Mason J said:
Before the introduction of s 79A the Family Law Act contained no express power to set aside an order made under s 79 or, for that matter, any order for the settlement of property. Whether this Court or the Supreme Court of a State could set aside an order made under s 79 by the Family Court on grounds similar to those expressed in s 79A I need not explore. For present purposes it is sufficient to say that s 79A filled a gap in the statute.
However, he also noted that
At common law a judgement will be set aside if it has been obtained by fraud. In the exercise of this jurisdiction, it has been held that an applicant must show something more than mere perjury, i.e. new facts.
In dealing with the scope of the inherent jurisdiction of the Family Court Gibbs J stated in Taylor
… that any inherent power of the Family Court to set aside its own orders will not be conferred, expressly or by implication, by the provisions of the Family Law Act, although the Act may contain provisions which negative the existence of any inherent power, and although the Court would not have any inherent power except such as might be necessary to enable it to do justice within the limits of the jurisdiction which that Act confers on it.
The applicant relied upon the High Court case of McDonald v McDonald (1965) 113 CLR 529 in support of the idea that this Court has jurisdiction to set aside a judgment on the basis of fraud.
That case dealt with the grant of a new trial following a final determination of a matter and the distinction between the mere discovery of fresh evidence after the end of the first trial and the prospect that the first trial was tainted by fraud. Justice Menzies dealt with the consequences of fraud for a trial, citing with approval McCann v Parsons (1954) 93 CLR 418. He said:
But McCann v. Parsons goes further. Thus, there is to be found the following proposition: "So clear is it that fraud may be comprised in the ground consisting in the discovery of fresh evidence that a distinction is taken, depending on its presence, of the degree of probative force which the fresh evidence may have upon the relevant facts in issue". This proposition was based upon Lord Buckmaster's statement in Hip Foong Hong v. H. Neotia & Co [1918] A.C. 888: "If no charge of fraud or surprise is brought forward, it is not sufficient to show that there was further evidence that could have been adduced to support the claim of the losing parties; the applicant must go further and show that the evidence was of such a character that it would, so far as can be foreseen, have formed a determining factor in the result. Such considerations do not apply to questions of surprise, and still less to questions of fraud. A judgment that is tainted and affected by fraudulent conduct is tainted throughout, and the whole must fail".
Justice Menzies went on to say:
The foregoing authorities do, I think, justify the proposition that, if a new trial is sought upon the ground of the discovery of fresh evidence which, if believed, would show that a fraudulent case has been presented to the Court at the original trial, and if it is also shown that this evidence was not available at the original trial notwithstanding the exercise of reasonable diligence, then a new trial will be ordered if the case made out is such as to satisfy the Court that, in the interests of justice, the matter in question should be tried afresh. This proposition, which relates only to the granting of a new trial on the ground of the discovery of fresh evidence, leaves untouched the rule that, if by any means it be affirmatively proved that the earlier judgment was tainted by fraud, it will, without more, be set aside. Thus, for instance, to prove the bribery of a witness or a juryman at the earlier trial by a party would require a verdict given in his favour to be set aside without speculation upon the result of the bribery.
Some distinction is there drawn between a fraud upon the trial itself and the presentation of a fraudulent case. While in either case it may be said that the verdict is obtained through fraud. Justice Menzies drew a distinction between a case where fraud was proven and the case where upon a new trial a fraud might be proven by fresh evidence. The discretion to grant a new trial under such circumstances would depend in part upon the cogency of the further evidence. On that point Windeyer J, in the same case noted that:
In fact the court has said that except in very exceptional cases perjury is not a sufficient ground for setting aside a judgment.
Justice Menzies noted that a conflict in the evidence that resulted in matters previously accepted at trial, now being rejected would “fall short of establishing fraud on the part of the defendant”. The acceptance of the further evidence would not make out fraud in the sense that it would not show, in that case a conspiracy to pervert the course of justice by fabricating a story.
Taylor accepts that the denial of natural justice, as a fundamental component of the character of a trial, permits the exercise of an inherent power to set the judgment aside in order to do justice within the limits of its jurisdiction.
McDonald, as extracted above states that “(a) judgment that is tainted and affected by fraudulent conduct is tainted throughout, and the whole must fail". As with a denial of natural justice, this matter goes to the heart of the administration of justice within the trial process. Fraud and denial of natural justice share the common feature of deep inconsistency with the Court’s character in administering justice. The inherent power as described in Taylor above must be considered to extend to the Court’s capacity to correct for fraud.
The question arises whether it is a matter that falls within the work of the Court at first instance. It should be noted that McDonald was a case involving the court dealing with the matter in its appellate jurisdiction.
In Jonesco v Beard [1930] AV 298 Lord Buckmaster, with whom the balance of the bench agreed, in dealing with a new trial being ordered by the Court of Appeal, regarded the course taken, through the Court of Appeal as “irregular.” Rather, he stated:
It has long been the settled practice of the Court that the proper method of impeaching a completed judgement on the ground of fraud is by action in which, as in any other, as in any other action based on fraud, the particulars of the fraud must be exactly given and the allegation established by the strict proof such a charge requires…Flower v Lloyd, Cole v Langford and Baker v Wandsworth show that the right procedure for that purpose is by action.
While that particular case had come before the Privy Council on the basis of a procedure emanating from the Court of Appeal, despite such an approach not being by the right procedure, the matter continued in the Privy Council on this occasion as “the Board would be unwilling to defeat a case at its last stage on such a ground.” That is, it was the view of Lord Buckmaster that the proper testing of a question of fraud in the trial is by action. That is, before the Court at first instance. The caveat placed by him upon that view was that if it was a matter that proceeded through the appellate jurisdiction, it was to be accorded the same procedure as if it was conducted at trial.
This speaks strongly to the notion that such matters fall within the scope of the work of the Court at first instance (without suggesting that it does not also fall within the work of the Appellate Court).
In this case, there is an identifiable jurisdiction, within the Court at first instance for the application sought to be filed by the applicant. No issue has been raised as to whether it is proper that the action be commenced by an Application in a Case, as has been attempted here. It appears, as a fresh cause of action, that it is appropriate that it be commenced by an Initiating Application. In this case it would not be appropriate, given the scope of the dispute raised, to reject the filing on that basis. Insofar as the filing of an Application in a Case rather than an Initiating Application requires a dispensation of the Rules, it is appropriate to grant it rather than create further expense and expend further Court time by needless repetition.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 24 January 2018
Associate
Date: 24 January 2018
3
9
0