Sigley & De Santis
[2022] FedCFamC1A 201
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Sigley & De Santis [2022] FedCFamC1A 201
Appeal from: Orders dated 28 September 2022 Appeal number: NAA 236 of 2022 File number: MLC 9296 of 2015 Judgment of: AUSTIN J Date of judgment: 9 December 2022 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Summary dismissal – Where the appeal was listed to raise the question of its competence with the appellant – Where the State Trustee was appointed as the appellant’s administrator due to her incapacity by the Victorian Civil and Administrative Tribunal – Where the primary judge made consent orders to which the State Trustee consented on the appellant’s behalf – Where the appellant purports to appeal from those orders – Where the appellant lacks capacity to bring the appeal and has no standing to prosecute it – Where even if the appellant had capacity and standing the appeal does not challenge the consent orders on the limited grounds upon which they can be attacked – Where even if the appeal was otherwise competent, it has no reasonable prospects of success – Appeal dismissed – No order as to costs. Legislation: Evidence Act 1995 (Cth) Ch 3, s 13
Family Law Act 1975 (Cth) ss 90H, 93A, 106B
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32, 35, 46, 69
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.31, 1.34, 3.12, 3.13, 3.16, 13.14
Guardianship and Administration Act 2019 (Vic) ss 3, 46, 50, 51, 64. 75
Cases cited: Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27
Public Guardian (Queensland) & Beasley & Ors (No.2) (2015); [2015] FamCAFC 201
State Trustees Ltd v Christodoulou & Ors [2010] VSCA 86
Number of paragraphs: 53 Date of hearing: 4 November 2022 Place: Determined on the papers The Appellant: Litigant in person The First Respondent: Deceased The Second Respondent: Did not participate Counsel for the Third, Fourth, Seventh, Tenth, Eleventh, Fourteenth, Fifteenth, Sixteenth and Seventeenth Respondents: Mr Lipshutz Solicitor for the Third, Fourth, Seventh, Tenth, Eleventh, Fourteenth, Fifteenth, Sixteenth and Seventeenth Respondents: Berry Family Law Counsel for the Fifth and Sixth Respondents: Mr Trichardt Solicitor for the Fifth and Sixth Respondents: Charles Fice Solicitors Counsel for the Twelfth Respondent: Mr Wilson Solicitor for the Eighteenth Respondent: Russel Kennedy Lawyers ORDERS
NAA 236 of 2022
MLC 9296 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SIGLEY
Appellant
AND: MR DE SANTIS
First Respondent
Q PTY LTD
Second Respondent
R PTY LTD (and others named in the Schedule)
Third Respondent
order made by:
AUSTIN J
DATE OF ORDER:
9 DECEMBER 2022
THE COURT ORDERS THAT:
1.The Second Amended Notice of Appeal filed on 25 November 2022 is dismissed.
2.The respondents’ applications for costs are dismissed.
3.The application for costs made by State Trustees Ltd is dismissed.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sigley & De Santis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
On 28 September 2022, a judge of the Federal Circuit and Family Court of Australia (Division 1) made orders to finalise proceedings brought seeking relief under the Family Law Act 1975 (Cth) (“the Act”), first commenced years ago between the appellant and the now deceased first respondent to enforce a financial agreement, but latterly involving a host of other respondents.
Relevantly, the appealed orders discharged some substantive orders previously made in the proceedings in November 2016 and July 2018, discharged past costs orders, dismissed all extant applications, and discharged formerly-given undertakings.
Several weeks before those orders were made, on 1 September 2022, an order was made in respect of the appellant by the Victorian Civil and Administrative Tribunal (“VCAT”) under the Guardianship and Administration Act 2019 (Vic) (“the Victorian Act”). In summary, the order appointed State Trustees Ltd (“the State Trustee”) as the appellant’s administrator due to her incapacity in relation to “financial matters” and expressly authorised the State Trustee to resolve the pending “family law proceedings” by her withdrawal with no order as to costs (“the administration order”).
The orders made by the primary judge on 28 September 2022 were premised upon the consent given by all parties to the proceedings, including that of the State Trustee given on behalf of the appellant in accordance with the express terms of the administration order. Since the orders were made by consent, no reasons for judgment were delivered.
Evidently dissatisfied with the terms upon which the family law proceedings were resolved, without any apparent reference to the State Trustee, the appellant purported to appeal from the orders made on 28 September 2022 by filing a Notice of Appeal on 25 October 2022.
The appeal was listed for directions on 4 November 2022 for the purpose of raising with the appellant the question of her capacity and standing to bring and prosecute the appeal.
In the meantime, on 3 November 2022, some (but not all) of the respondents to the appeal filed an Application in the Appeal seeking the summary dismissal of the appeal. The application enjoyed the support of the other respondents, but also the State Trustee who was not formally joined as a party to the appeal.
Directions were consensually made for written submissions about the competence of the appeal to be filed and served by the parties and also by the State Trustee, with that question to then be determined on the papers in chambers.
Following those orders being made, but before the submissions were actually filed, the appellant filed an Amended Notice of Appeal on 8 November 2022. Then, following her service with the submissions filed by the respondents and the State Trustee, the appellant filed a Second Amended Notice of Appeal on 25 November 2022. Neither amendment of the appeal cured the inherent defects.
The time for filing the draft appeal index expired on 22 November 2022 without it being filed. However, the appeal should not be deemed abandoned (r 13.14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)) because the parties’ attention was diverted to the disposition of the summary dismissal application and their compliance with the procedural orders made on 4 November 2022. Pursuant to the power reposing in r 1.34 of the Rules, the appellant is retrospectively relieved from compliance with r 13.14 so the fate of this appeal is determined by lack of substantive merit rather than by procedural irregularity. The appellant deserves an explanation for why the appeal cannot be maintained and could not succeed. The following reasons explain why the appeal must be summarily dismissed.
Although the appellant (like the respondents and the State Trustee) was directed to file written submissions addressing the summary dismissal application, she chose to instead file two affidavits on 30 November 2022, which together comprising some 161 pages. Each affidavit begins by reciting it is “provided” by the appellant pursuant to s 93A of the Act “in support of” the Second Amended Notice of Appeal filed on 25 November 2022.
The two affidavits do not advance the appellant’s cause and are of no assistance in determining the summary dismissal application.
First, s 93A of the Act was repealed on 1 September 2021 and replaced by s 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”).
Secondly, s 35(b) of the FCFCA Act only pertains to the possible admission of further evidence in the appeal. At this point, the appeal is not being heard. Only the interlocutory application to summarily dismiss the appeal is being heard.
Thirdly, even if further evidence could potentially be admitted in the interlocutory application, the appellant’s proposed “evidence” ranges far beyond factual observations and propositions which would be permissible under Chapter 3 of the Evidence Act 1995 (Cth), which is to say nothing of the doubt which must exist over the appellant’s capacity and competence to give such evidence (s 13).
Fourthly, no amount of further evidence could save the appeal. The summary dismissal application is determinable by principles of law, unaffected by underlying evidence given by the appellant about her perception of the history of the proceedings.
The uncontroversial facts and circumstances
The State Trustee was initially appointed as the administrator for the appellant pursuant to an order made under the Victorian Act on 11 May 2022.
The State Trustee subsequently applied to VCAT, pursuant to s 64 of the Victorian Act, for advice about the scope of the administration order made on 11 May 2022. That application resulted in a fresh administration order being made on 1 September 2022, incorporating the advice which had been sought.
Relevantly for present purposes, the administration order:
(a)was granted to the State Trustee;
(b)was made because the appellant lacked capacity, due to disability, to make decisions about “financial matters”;
(c)expressly granted powers to the State Trustee under s 51 of the Victorian Act in respect of the appellant’s “financial matters”, including “to bring and defend actions and other legal proceedings”; and
(d)expressly advised the State Trustee in these terms:
VCAT approves the administrator’s proposal to pursue and if possible enter a settlement agreement concerning the [appellant’s] family law proceedings, on the basis that she withdraw from those proceedings with no order as to costs.
Several provisions of the Victorian Act were pertinent to the State Trustee’s performance of statutory duty but, rather than set them out in full, it will suffice to summarise their effect.
The State Trustee was empowered to make decisions in relation to the appellant’s “financial matters” (s 46(1)(a)), for which purpose “financial matters” is defined to include any “legal matter that relates to the financial or property affairs” of the appellant (s 3).
The State Trustee’s administrative powers are defined both generically (s 50) and more specifically (s 51(1)).
In relation to the conduct of legal proceedings for the appellant (s 51(1)), it was not necessary for the State Trustee to be appointed as the appellant’s litigation guardian under the Rules which govern procedure within the court in which the litigation was conducted (s 51(2)).
In light of those statutory provisions, there could be no doubt the resolution of the proceedings before the primary judge on 28 September 2022 fell within the scope of the State Trustee’s remit and power.
Any decision made, action taken, consent given, or thing done by the State Trustee under the auspices of the administration order took effect as though it was made, taken, given or done by the appellant herself (s 46(4)).
Capacity and standing to institute the appeal
By reason of her continuing disability and the breadth of the operative administration order, the appellant lacks capacity to bring the appeal and hence has no standing to prosecute it.
The administration order grants the State Trustee the power to “bring and defend actions and other legal proceedings” on behalf of the appellant, which means the appellant has no right to institute legal proceedings herself. The Victorian Act provides that any “dealing” by the appellant in relation to a “financial matter” that is subject to an administration order, including legal proceedings in relation to her property, is void and of no effect (s 75(2)).
An appeal from consent orders
Even if the appellant had capacity and standing to bring and prosecute the appeal, it being an appeal from consent orders, there are limited grounds upon which the orders can be attacked. Consent orders may only be impeached on grounds that vitiate the anterior agreement between the parties or the legality of the orders (Harvey v Phillips (1956) 95 CLR 235 at 244).
Although the appellant may believe the appealed orders were not made with her consent, they were made with the consent of the State Trustee given on her behalf. The decision made by the State Trustee to accede to orders in those terms took effect as if it was a decision made by the appellant herself. None of the grounds of appeal pleaded within the Second Amended Notice of Appeal attack the agreement reached between the parties to the proceedings on vitiating grounds such as fraud, mistake, or coercion. The appellant’s recent complaints of the State Trustee’s exertion of undue influence upon her and of acting unconscionably have no bearing upon the agreement independently reached between the State Trustee and the respondents, reflected in the consent orders. Nor do the grounds contest the primary judge’s jurisdiction or power to make the orders. It follows that the appeal is incompetent on that basis alone.
The grounds of appeal
Even if the appeal was otherwise competent, it would be liable to summary dismissal because it has no reasonable prospects of success (ss 46(2) and 69(4)(a) of the FCFCA Act), as a brief examination of the grounds will reveal.
The grounds of appeal have already been pleaded in three different iterations, but will be addressed as they appear in the Second Amended Notice of Appeal.
Grounds 1, 5, 10, 11, 12, 13, 14 and 15 no longer exist.
Ground 2 contends the primary judge erred in “pre-judging” the issues at hand. There was no pre-judgment because there was no forensic contest to decide. The primary judge simply made orders with the consent of all parties to the proceedings.
Ground 3 contends the primary judge erred by making the orders when they were not approved by the appellant or by any litigation guardian appointed on her behalf.
The appellant lacked capacity to give informed consent. The State Trustee was authorised to represent her interests, even though not formally appointed as the appellant’s litigation guardian. The State Trustee was both empowered and duty-bound to resolve the proceedings for the appellant in the manner advised by VCAT, which statutory fiduciary duty does not commonly apply to all litigation guardians. Hence the precautions usually taken when considering the appointment of a litigation guardian who is not bound by any statutory fiduciary duty owed to the litigant. If the appellant is troubled by the actions taken on her behalf by the State Trustee, it is a matter she might take up with VCAT. No complaint about the performance of the State Trustee taints the orders made by the primary judge.
While it is true the Rules do express the need for the appointment for a litigation guardian when a litigant lacks capacity (rr 3.12 and 3.13(1)) and that did not occur here, the appellant is mistaken to think the procedural anomaly amounts to an error of law which invalidates the appealed orders. The State Trustee was certainly eligible under the Rules for appointment as the appellant’s litigation guardian (r 3.16), but did not seek formal appointment as such by the primary judge, which omission the Victorian Act expressly authorised (s 51(2)). His Honour was not obliged to rigorously apply the Rules (r 1.31), so it cannot be reasonably contended it was obligatory for his Honour to do so and therefore an appealable error not to do so.
In circumstances that were not too dissimilar, and hence positively unhelpful to the appellant, another Full Court allowed an appeal against a judge’s decision refusing to dispense with the Rules when a public guardian appointed under State legislation sought to be relieved of the need to be appointed as litigation guardian for a litigant (Public Guardian (Queensland) & Beasley & Ors (No.2) (2015) FLC 93-673 at [92]–[105]).
The appellant’s reliance upon a Victorian appeal decision (State Trustees Ltd v Christodoulou & Ors [2010] VSCA 86) as binding authority fortifying her position is misplaced. In that appeal, the Victorian Court of Appeal held State Trustees Ltd should not be granted leave to appeal from a costs order made in proceedings brought by it as an administrator to recover an asset, which claim failed. State Trustees Ltd was not appointed as the plaintiff’s litigation guardian, but contended the trial judge was misinformed it had been appointed as such and so contended the discretion in making the costs order against it had miscarried. The Court of Appeal observed it was “arguable” that State Trustees Ltd ought have had itself appointed as litigation guardian (at [21]), but the failure to do so was not material and made no difference (at [23] and [29]).
Ground 4 contends for error by the primary judge in making the appealed orders, which are asserted to be not “just and equitable”. The appellant cites “former Section 85(1)” and “current Section 106B(1)” of the Act as authority for the proposition.
The complaint is without foundation because neither statutory provision has any bearing upon the appealed orders. The former provision did not exist when the appealed orders were made and could have had no application. The latter provision pertains to applications made to set aside transactions in respect of property which are likely to defeat orders adjusting property interests, but the appealed orders were neither made under s 106B of the Act, nor did they affect any former order made under that provision.
Ground 6 contends as follows:
6.The primary judge erred in concluding the proceedings due to a death of a party to the Binding Financial Agreement where the Agreement remained operative (Section 90H of the Family Law Act 1975).
(As per the original)
The complaint is misconceived because s 90H of the Act was not engaged. That provision is irrelevant to the appealed orders as it simply states how parties to financial agreements continue to bound by the terms after death, but the binding force of a financial agreement is always subject to any order made by the Court. While one of the appealed orders discharged a former order made in November 2016 declaring the enforceability of one part of a financial agreement struck between the appellant and the deceased first respondent in in October 2013, s 90H of the Act did not operate so as to preclude the discharge order from being made.
Ground 7 attacks some notations to the appealed orders, made by the primary judge in these terms:
G.the administrator (State Trustees Limited) represented by its agent Mr Smith gave assurances to me to the effect that nothing in the making of these consent orders will cause [the appellant’s] home to be [at] risk (with which all parties agreed); and
H.Mr Lipshultz gave an assurance to the court that the respondents have no claim in relation to [the appellant’s] home;
The assertion within the ground of appeal that the primary judge erred by making “findings” in those terms is misconceived. Notations are not findings, but merely record what the respondents told the primary judge. No appeal lies from notations as they do not form part of the Court’s “judgment” and it is only the judgment of the primary judge which is under appeal. The appellant’s fear of losing her home seems to underpin the appeal, but the available material provides no objective basis for such apprehension by reason of some threat posed by any future act or omission of the respondents.
Ground 8 contends for error because “Contravention of Orders were overlooked”, but it is not elaborated in any meaningful way and is an incompetent complaint in that form. Scrutiny of the Court record reveals that no Application-Contravention was outstanding at the time the appealed orders were made.
Ground 9 contends for error by the primary judge failing to provide sufficient reasons for the appealed orders. In fact, no reasons at all were given for the appealed orders, but none were needed because the orders were made by consent.
Ground 16 contends the State Trustee’s “unconscionable conduct” towards the appellant and its “undue influence” of her led to the primary judge making the appealed orders and caused a “miscarriage of justice”. The complaints are futile in the appeal. As earlier indicated, any allegation of unconscionable conduct by the State Trustee should be taken up elsewhere. In the proceedings conducted before the primary judge, the State Trustee acted in the manner advised by VCAT. There could not have been any material undue influence of the appellant by the State Trustee in the proceedings before the primary judge because it acted in the appellant’s place and did not need to influence her to do or abstain from doing anything to resolve the pending proceedings.
None of the grounds of appeal has any reasonable prospect of success.
Disposition
The Second Amended Notice of Appeal filed on 25 November 2022 is summarily dismissed.
The order for summary dismissal of the appeal may be made by a single judge (ss 32(3)(b) and 32(5) of the FCFCA Act), even though the appeal would, if permitted to proceed, necessarily be heard by the Full Court (s 32(1)(b) of the FCFCA Act).
The respondents sought the payment of their costs on an indemnity basis, or in the alternative, on a party/party basis. All of the respondents sought their costs of the dismissed appeal from the appellant, though a selection of the respondents also sought that the costs order be made jointly and severally against the person who presumed to act as the appellant’s McKenzie Friend without any such formal appointment.
The costs applications are dismissed. The appeal was listed before the Court of its own motion little more than a week after it was filed to raise the question of its competence with the appellant. The respondents’ application for the summary dismissal of the appeal looked very much like an attempt to jump on the bandwagon once it was already rolling. Regardless of the costs actually incurred by the respondents within the very short time the appeal was on foot (the quantum of which they assessed in surprisingly generous sums), only minimal costs could reasonably have been incurred in them giving the appeal the cursory initial consideration it deserved. Their subsequent written submissions could not reasonably have added much to the expense. No submission made by the respondents persuaded any deviation was justified from the ordinary position under s 117(1) of the Act, requiring the parties to bear their own costs.
The State Trustee also applied for costs against the appellant on an indemnity basis, which application is dismissed. The State Trustee was not a party to the appeal, but was still permitted to appear and make written submissions, which submissions added nothing to those made by the respondents. When not already privy to the appeal, the State Trustee had no need to formally intervene, nor even informally participate, once alerted to the identical position adopted by the respondents in opposition to the appeal. Under the operable administration order, the State Trustee is entitled to remuneration paid from the appellant’s assets for the work it does on her behalf, for which purpose the appellant’s title in a parcel of real property is charged as security for the State Trustee’s remuneration. An additional order for costs in the State Trustee’s favour against the appellant would be excessive, if not egregious.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 9 December 2022
SCHEDULE OF PARTIES
NAA 236 of 2022
MLC 9296 of 2015Respondents
Fourth Respondent:
MR S DE SANTIS
Fifth Respondent:
MR T
Sixth Respondent:
MR U
Seventh Respondent:
DE SANTIS FAMILY INVESTMENTS
Eighth Respondent:
REMOVED AS RESPONDENT
Ninth Respondent:
REMOVED AS RESPONDENT
Tenth Respondent:
X PTY LTD
Eleventh Respondent:
E6 PTY LTD
Twelfth Respondent:
MS DE SANTIS
Thirteenth Respondent:
E PTY LTD
Fourteenth Respondent:
MR AA DE SANTIS
Fifteenth Respondent:
MS EE
Sixteenth Respondent:
MS DD
Seventeenth Respondent:
MS AA DE SANTIS
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