Srbinovska and Srbinovska and Anor

[2015] FamCA 393

FAMILY COURT OF AUSTRALIA

SRBINOVSKA & SRBINOVSKA & ANOR [2015] FamCA 393

FAMILY LAW – PROPERTY SETTLEMENT – Application to set aside orders – Where the husband and the wife had entered into Consent Orders – Where the Consent Orders were subsequently set aside by orders made in the absence of the husband and the wife on the application of a third party prejudiced by the Consent Orders – Where the wife applied to set aside those orders – Where it was found the wife did not have an adequate explanation for her failure to participate in the proceedings where the Consent Orders were set aside – Where the Court was not satisfied that different orders would have been made had the wife appeared and presented her case in those proceedings – Where it was found that setting aside the orders would constitute significant prejudice to the third party respondent – Wife’s application to set aside the orders dismissed – Costs order made in favour of the third party respondent.

Evidence Act 1995 (Cth) s 91
Family Law Act 1975 (Cth) ss 28, 79A, 93A, 94, 117
Family Law Rules 2004 (Cth) rules 5.11, 7.02, 7.03, 7.12, 22.02, 22.03

Allesch v Maunz (2000) 203 CLR 172
Barbey & Tuttle [2013] FamCAFC 44
Botany Municipal Council v Secretary, Department of Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412
Buljubasic v Buljubasic (1999) FLC 92-865
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
In the Marriage of Kohan (1993) FLC 92
In the Marriage of Munday and Bowman(1997) FLC 92–784
JEL v DDF (Repayment on Appeal, and Costs) (2001) FLC 93–083
NMFM Property Pty Ltd v Citibank Ltd (No 11) [2001] FCA 480
Oshlack v Richmond River Council (1998) 193 CLR 72
Srbinovska & Srbinovska and Anor [2014] FamCA 592
Starkey v Starkey(2009) 41 Fam LR 177
Mr Ss v Mr Ss(2010) 44 Fam LR 117
Taylor v Taylor (1979) 143 CLR 1
Wentworth v Rogers [1999] NSWCA 403
.

APPLICANT: Ms A Srbinovska

1st RESPONDENT: Mr S Srbinovska

2nd RESPONDENT: Mr R Srbinovska

FILE NUMBER: SYC 1484 of 2010

DATE DELIVERED: 18 May 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 27 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jackson

COUNSEL FOR THE 1ST RESPONDENT: Mr Bevan

SOLICITOR FOR THE 1ST RESPONDENT: OneGroup Legal

COUNSEL FOR THE 2ND RESPONDENT: No appearance

SOLICITOR FOR THE 2ND RESPONDENT: No appearance

Orders

1. The application filed by Ms A Srbinovska on 3 September 2014 is dismissed.

2. The applicant, Ms A Srbinovska, is to pay the costs of Mr S Srbinovska, the first respondent, associated with his defending the application so dismissed. Such cost to be as agreed or as assessed in the absence of agreement.

3. Ms A Srbinovska and Mr R Srbinovska jointly and severally pay the costs of Mr S Srbinovska associated with his application filed in the Parramatta proceeding PAC 1824/2013 giving rise to the orders made on 30 July 2014. Such cost to be as agreed or as assessed in the absence of agreement.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Srbinovska & Srbinovska and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1484/2010 (including consolidated PAC1824/2013)

Ms A Srbinovska

Applicant

And

Mr S Srbinovska

First Respondent

And

Mr R Srbinovska
Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Before the Court is an Application in a Case filed by Ms A Srbinovska (“Ms A”) on 3 September 2014 seeking the following orders:

   1.That the orders of 30 July 2014, made by Justice Foster in PAC1824/2013 be set aside.

   2.That the respondent Mr S Srbinovska, and/or his legal representatives be injuncted from commencing any further proceedings in relation to PAC 1824/2013

   3.That the respondent Mr S Srbinovska, and/or his legal representatives be injuncted from having viewing or photocopying access to the Parramatta File PAC 1824/2013 and be restrained from releasing its contents to any other person.

   4.Any other order the Court deems appropriate.

2. The orders sought by Ms A are opposed by Mr S Srbinovska, the first respondent (“Mr S”). Mr S seeks further orders that Ms A and the second respondent, Mr R Srbinovska (“Mr R”) pay his costs of the proceedings PAC 1824/2013 (“the Parramatta proceedings”) on an indemnity basis. Mr S further seeks that Ms A pay his costs relating to this Application in a Case on an indemnity basis.

3. Mr R appeared in Court on 4 December 2014 and indicated his support for Ms A’s Application in a Case to set aside the orders of Foster J. However, Mr R has not filed any response or provided any evidence in the proceedings before me.

4. The Orders of Justice Foster on 30 July 2014 (“the Orders”), which Ms A seeks to set aside, provide:

   1.That compliance with any Family Law Rules 2004 (Cth) so as to facilitate the application being heard on an undefended basis is dispensed with.

   2.That the Orders of 7 May 2013 in the proceedings PAC1824/2013 be set aside.

   3.That the costs of the Applicant are reserved.

   4.That this file (PAC1824/2013) be transferred to the Family Court of Australia, Sydney Registry to be consolidated with the proceedings SYC1484/2010.

5. The Orders of 7 May 2013, which were set aside by Justice Foster in the Orders above, refer to consent orders made between Ms A and Mr R (“the Consent Orders”) in the Parramatta Registry of the Family Court of Australia.

6. Orders 1 -5 of the Consent Orders relevantly provide:

   IN THE FAMILY COURT OF AUSTRALIA

   AT SYDNEY   NO PAC 1824/2013

   BETWEEN

   [MS A SRBINOVSKA] (Applicant)

   And

   [MR R SRBINOVSKA] (Respondent)

   MINUTES OF CONSENT ORDERS

   BY CONSENT IT IS ORDERED

   Real Property

   1.Within 14 days of date of these Orders, both parties shall do all acts and things and sign all documents for the Respondent to Transfer to the Applicant all of his right, title and interest at law and in equity in:

   (a)   The property known as [B Street, Suburb M] in the state of New South Wales (the ‘[B Street] property’); and

   (b)  The property known as [E Street, Suburb M] in the state of New South Wales (the ‘[E Street] property’); and

   (c)  The property known as [G Street, Suburb M] in the state of New South Wales (the ‘[G Street] property’)

   2.Simultaneously with Order 1 herein, the Applicant shall indemnify and keep indemnified the Respondent with respect to all suits, actions, claims for sums of money and all other claims and/or liabilities arising from the [B Street] property, the [E Street] property or the [G Street] property after date of these Orders.

   3.It is declared that upon settlement of the Transfers referred to in Order 1 herein, the Respondent shall have no further interest at law or in equity to the [B Street] property, the [E Street] property or the [G Street] property.

   4.It is declared that from the date of these Orders, to the exclusion of the Applicant, the Respondent retains all right, title and interest at law and in equity in the interest that he holds as a joint tenant with [Mr S Srbinovska] in the property known as [K Street] and [H Street] being the whole of the land and improvements in Folio Identifier … (the ‘[K Street] property’).

   5.From [sic] date of these Orders, the Respondent shall indemnify and keep indemnified the Applicant with respect to respect to all suits, actions, claims for sums of money and all other claims and/or liabilities arising now or in the future from or in relation to the [K Street] property and/or his interest in the [K Street] property.

7. The Consent Orders were filed by Prime Lawyers, who acted for Ms A at that time. Mr R was unrepresented at the time of the making of the Consent Orders.

8. The Orders of Justice Foster setting aside the Consent Orders were made pursuant to an application by Mr S, who is Mr R’s brother.

Background

1. Paragraphs 9 – 28 of his Honour Foster J’s Judgement of 30 July 2014 (“the Judgement”) set out the history of the dispute between Mr S, Ms A and Mr R and they are reproduced here:

   9.        On 20 January 2006 [Ms N Srbinovska], the mother of the Applicant in the present application, [Mr S Srbinovska], and the Respondent husband in the present application, [Mr R Srbinovska], died. [Mr S] and [Mr R] are the only children of the deceased.

   10.      At the time of her death, the deceased owned the following property:

   a)        [B Street, Suburb M];

   b)        [D Street, Suburb M];

   c)        [E Street, Suburb M], owned jointly with [Mr R];

   d)        [K Street, Suburb M], owned jointly with both [Mr R] and [Mr S];

   e)        Money with the Commonwealth Bank; and

   f)        Superannuation

   11.      On 3 January 2006, contemporaneously with the making of a new will by the deceased, [Mr R] signed an acknowledgement in the following terms:

   I [Mr R Srbinovska] of [G Street Suburb M] solemnly declare and give my share of the property known as [K Street Suburb M], (ref: Lot …) to my eldest brother [Mr S Srbinovska] of [H Street Suburb M] in line with my mother’s (sic) last will.

   12.      On 3 January 2006 the deceased sign her last will and testament.

   13.      The will provided, inter alia, that [Mr S] was to receive the deceased’s interest in the properties at [D Street, Suburb M] and [K Street, Suburb M]. As to the [K Street] property, the deceased in her will noted:

   [This property is currently under three (3) names, namely myself [Ms N Srbinovska], my son [Mr R Srbinovska] and my other son [Mr S Srbinovska].] In line with my wishes [Mr R Srbinovska] is to transfer his share in this property to his brother [Mr S Srbinovska].

   14.      The will further provided that [Mr R] was to receive the deceased’s interest in the properties at [B Street, Suburb M] and [E Street, Suburb M].

   15.      The deceased died without revoking her will dated 3 January 2006. Probate of the last will and testament of the deceased was granted by the Supreme Court of New South Wales on 25 June 2009.

   The dispute between [Mr S] and [Mr R]

   16.      The Applicant asserts that [Mr R] has refused to transfer his interest in the [K Street] property as provided for in the acknowledgement signed by [Mr R] and as contemplated by the deceased in her last will and testament.

   17.      As a consequence, [Mr S] commenced proceedings in the Supreme Court of New South Wales for provision out of the estate of his late mother under the Family Provision Act 1982 (NSW).

   18.      On 30 June 2009 [Mr S] and [Mr R] reached a compromise in relation to [Mr S’s] claim and a Deed of release was signed by them in conjunction with the executor of the deceased’s estate. The Deed, in summary, provided for [Mr R] to transfer to [Mr S] his interest in the property at [K Street, Suburb M] in consideration of a payment by [Mr S] to [Mr R] of the sum of $76,665 as security for the payment of Capital Gains Tax arising from the transfer and [Mr S] facilitating a release of [Mr R] from any liability arising from the mortgage secured over the property.

   19.      At the time of the Deed of release [Ms J] had registered a caveat over the property at [K Street, Suburb M], presumably asserting an interest in the property by reason of her pending property settlement proceedings against [Mr S] in the Family Court, Sydney.

   20.      Subsequent to the Deed of release [Mr R] procured a transfer to himself of the properties at [B Street, Suburb M] and [E Street, Suburb M].

   21.      The transfer of the [K Street] property to [Mr S] by [Mr R] contemplated by the Deed of release has not been completed, presumably as a consequence of the caveat by [Ms J] remaining on title.

   22.      In July 2011 [Mr R] intervened in the property settlement proceedings in the Family Court, Sydney between [Mr S] and [Ms J], asserting that he owned a one-half share in the [K Street] property, notwithstanding the terms of the Deed of release referred to above.

   23.      As a consequence, on 20 March 2012 [Mr S] commenced further proceedings in the Supreme Court of New South Wales seeking provision out of the estate of his late mother and leave to commence that application out of time.

   24.      A discrete hearing to determine the issue as to the validity of the Deed of release commenced on 29 October 2012 and on 16 November 2012 the Supreme Court held that the Deed of release was null and void and reinstated Mr S’s application for provision out of the estate of his late mother.

   25.      Subsequent to Supreme Court Orders on 16 November 2012, [Mr R’s] interest in the real estate properties [B Street, Suburb M] and [E Street, Suburb M] comprised in the estate of his late mother again became the subject of Mr S’s proceedings in the Supreme Court of New South Wales. [Mr R] has not retransferred those properties to the executor of the deceased’s estate pending outcome of the Supreme Court proceedings and they remain registered in his name. They comprise prospective notional assets of the estate.

   26.      Proceedings in the Supreme Court of New South Wales, including it appears a claim by [Ms J] for provision out of the estate of [Mr S’s] late mother, were listed for hearing for 4 days commencing 27 May 2013. Subsequently, for an administrative reason, the hearing in the Supreme Court was adjourned to commence on 26 August 2013.

   27.      On 24 January 2013 [Mr R’s] solicitors in proceedings in the Family Court, Sydney filed a Notice of Ceasing to Act, that notice recording [Mr R’s] residential address and his email address as “…”.

   28.      On 31 January 2013 [Mr R’s] solicitors in the Supreme Court proceedings filed a Notice of Ceasing to Act. At a direction hearing on 1 February 2013 [Mr R] appeared unrepresented and provided an email address for the service of documents as “…”.

2. On 2 May 2013, after Mr S had re-instituted proceedings in the Supreme Court and shortly before the 4 day hearing in the Supreme Court (see paragraph 26 above), Mr R and Ms A filed a joint application for Consent Orders in the Parramatta Registry asserting a separation date of March 2012 and purporting to give effect to a financial agreement between them. The Consent Orders provided for the transfer of Mr R’s interest in the properties located at B Street and E Street to Ms A and for Mr R to retain all his interest in K Street.

3. The Consent Orders were made by a Registrar of the Family Court in the Parramatta proceedings on 7 May 2013.

4. There was no requisition raised by the Registrar to the making of the Consent Orders despite the fact that Mr R and Mr S were already parties to other pending proceedings before the Family Court in the Sydney Registry and the Supreme Court of NSW. As outlined in paragraph 31 of Foster J’s judgment of 30 July 2014:

   31. On 7 May 2013 a Registrar made Orders by consent in terms of the orders sought in the Application. No requisition was raised by the Registrar in circumstances where:

   ·The application disclosed pending proceedings in the Family Court, Sydney SYC1484/2010 between [Mr S], his wife [Ms J] and [Mr R];

   ·A copy of documents in the SYC1484/2010 proceedings were attached to the Application for Consent Orders which clearly revealed a contest in relation to the property at [K Street, Suburb M], sought to be dealt by way of declaration in the proposed Consent Orders, that contest between [Mr S], his wife and [Ms J];

   ·The Application for Consent Orders disclosed that proceedings SYC1484/2010 had been stayed pending the outcome of Supreme Court of New South Wales proceedings between [Mr S] and [Mr R];

   ·The Supreme Court proceedings clearly involved the properties at [B Street, Suburb M] and [E Street, Suburb M], representing part of the notional estate of the deceased and subject to claim not only by [Mr S] but also by [Ms J]; and

   ·The Application for Consent Orders falsely asserted that there was no person who may be entitled to become a party under s 79(10) of the Act. Clearly, for the reasons discussed above, [Mr S] and his wife [Ms J] would be so entitled.

5. The properties located at B Street and E Street were transferred from Mr R to Ms A subsequent to the Consent Orders being made.

6. Mr S filed an Application in a Case on 19 August 2013 in the Sydney Registry of the Family Court (proceedings SYC 1484/2010) seeking to join Ms A to the proceedings and to set aside the Consent Orders made in the Parramatta Registry (PAC 1824/2013). He also sought orders that Ms A reconvey to Mr R the B Street, E Street and G Street properties.

7. On 23 August 2013 Mr S placed a caveat over the B Street and E Street properties. An application made by Ms A to the Supreme Court to lapse those caveats was dismissed.

8. The application filed 19 August 2013 first came before me on 30 August 2013. On that date, orders were made that Mr R, Ms A and Ms J (Mr S’s wife) file and serve their response to Mr S’s application in a case and the hearing of the application was adjourned to a later date.

9. On 13 December 2013 Mr S’s application to join Ms A to the proceedings was set down for hearing on 7 February 2014.

10. When that application was before me on 7 February 2014, I observed that the use of an application in a case in the Sydney proceedings to seek final orders in respect of the Parramatta proceedings was inappropriate having regard to the Family Law Rules 2004 (Cth) (“the Rules”). I anticipated at the time that one of the consequences of this observation would be that Mr S would file an initiating application in the Parramatta proceedings to set aside the Consent Orders. I made orders on 7 February 2014 that if Mr S and/or Ms J did not file an Initiating Application, with Ms A as the respondent, in the Sydney registry on or before 7 March 2014, they would be liable for payment of Ms A’s costs for her appearance in the Sydney registry on 7 February 2014.

11. On 2 April 2014, I noted the “problematic nature of having proceedings in two courts between the same parties”.

12. On 1 May 2014, I was advised by Mr S that he would be filing an application in the Parramatta Registry seeking to set aside the Consent Orders. I ordered that his application should be filed within 14 days and also noted that, should the Judge or Registrar who is allocated that matter consider it appropriate, those proceedings may be consolidated with the Sydney Family Court proceedings and be listed before myself.

13. On 2 May 2014 the Supreme Court proceedings were set down for a five day hearing commencing 27 October 2014.

14. On 16 May 2014 Mr S filed an Initiating Application in the Parramatta Registry of the Family Court seeking that the Consent Orders and the transfers of land affected pursuant to the Consent Orders be set aside. This application was tendered in the proceedings before me. The return date listed on the application is 21 July 2014. Mr R is listed as the first respondent to the application and Ms A is listed as the second respondent.

15. On 6 June 2014, Mr S’s solicitor, Ms I (“Ms I”), sent a number of emails to Ms A which attached a covering letter, two affidavits by Ms I sworn 14 May 2014 and 15 May 2014, and an affidavit of Mr S sworn 15 May 2014. The covering letter outlined that the matter was listed at the Parramatta Court (with the address provided) at 21 July 2014 at 9:30 am.

16. Ms A acknowledges receipt of an email dated 6 June 2014 into her inbox, but asserts that she only read the email on 13 December 2014. She says that there was no Initiating Application attached to the email. Whilst the covering letter stated that a “Sealed Initiating Application seeking to set aside the 2013 orders between [Ms A] and [Mr R]” was enclosed, Ms I acknowledges that by oversight, the Initiating Application was not attached to this email.

17. Ms I asserts that despite the email not enclosing the Initiating Application, the application and all other enclosures were sent with the covering letter by express post to Ms A’s home address on 6 June 2014. Ms A says that she discovered the express post parcel on 5 August 2014, and that the parcel only had two affidavits of Ms I, with no other documents, enclosed.

1. Ms I also sent emails to Ms A on 14 July 2014. The attached covering letter stated “We refer to the above matter and to the Initiating Application and supporting documents filed by our client on 16 May 2014, which were served on you on 6 June 2014.” In the letter, Ms I again confirmed the date, time and venue of the hearing and enclosed Mr S’s case information, outline of submissions, and list of authorities. She also stated “We note that you or your lawyer must appear in Court on the above allocated date, otherwise an order or orders may be made in your absence”. Ms I deposed that these documents were also sent by express post to Ms A on 14 July 2014.

2. Ms A did not, in her affidavits, address the issue of whether she received the letter of 14 July 2014 and enclosed documents, by email or by express post. In her oral evidence, Ms A said she did not receive the express post satchel. Ms A variously said that she “didn’t know” or “can’t recall” whether she received the documents by email. When asked whether she checked her email inbox in that period, Ms A said “probably”.

3. Mr S’s application to set aside the Consent Orders came before Foster J at the Parramatta Family Court on 21 July 2014. Mr Y attended as the solicitor for Mr S with Mr Bevan of Counsel. A transcript of the proceeding shows that the application was called before Foster J at 12:47 pm and that there was no appearance by the respondent husband and wife, being Mr R and Ms A. Foster J directed Mr Y and Mr Bevan to return at 2.15 pm and also directed that Mr Y send an email to Mr R and Ms A informing them of his Honour’s intention to hear the application at that time.

4. At 1.11 pm on 21 July 2014, Mr Y sent an email to Mr R and Ms A which stated:

   We refer to the above matter and we note that the Initiating Application filed on 16 May 2014 is listed for hearing today at the Parramatta Family Court at 2.15pm, Level 3, 1-3 George Street, Parramatta in Court 5.

   In the event that you fail to attend at 2:15pm, we will move the Court to have the hearing proceeded in your absence. Should you wish to be heard, you should attend.

5. Ms A says that she read this email for the first time on 5 August 2014.

6. The matter was called again before Justice Foster at approximately 3.00 pm and there was again no appearance by either Mr R or Ms A. Foster J directed that he would proceed with the hearing on that day.

7. In the Judgement delivered on 30 July 2014, Foster J set aside the Consent Orders despite there being no appearance by Mr R or by Ms A at the hearing of 21 July 2014.

8. Foster J stated at paragraph 3 of the Judgement that documents relating to the application had been sent to Mr R and Ms A by express post and email on 6 June 2014. His Honour continued at paragraph 4:

   4. There being no appearance by or on behalf of the Respondents and for reasons that will become apparent, compliance with any Family Law Rules (2004) (Cth) (“the Rules”) that would prevent the present application being heard on an undefended basis are dispensed with.

9. At paragraphs 39 – 43 of the Judgement, Foster J outlined his reasons for setting aside the Consent Orders pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”), namely that the conduct of Mr R and Ms A in entering into the Consent Orders constituted “fraud” pursuant to s79(1)(a):

Section 79A of the Family Law Act

39. Section 79A of the Act provides that the Court may, on the application of a party affected by an order in property settlement proceedings, have the order set aside (or varied) in certain circumstances. Section 79A(1)(a) provides for such an order where there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, (including the failure to disclose relevant information), the giving of false evidence or any other circumstance.

40. Section 79A is a remedial section intended to overcome miscarriages of justice. Because it is a remedial section, it should be construed liberally to reflect its intended purpose (see Gilbert v Estate of Gilbert (deceased) (1990) FLC 92-125). However, at all times, it is important to realise the exercise of the power of the Court under s 79A, that is to say, even if the Court finds that one of the grounds of s 79A(1) are established, it then has to consider whether or not in the exercise of its discretion to set aside or vary the original order (McIntyre & McIntyre (1994) FLC 92-468 and Patching & Patching (1995) FLC 92-585).

41.“Fraud”, for the purposes of the provisions of s 79A (1)(a), means “conscious wrongdoing or some form of deceit”; see Byrne & Byrne (1965) 7 FLR 342 at 343 and Taylor & Taylor (1979) FLC 90-674 at 78,589, 78,590, 78,594 and 78,595 and Kokl & Kokl (1981) FLC 91-078 at 76,557.

42.As discussed above, it is abundantly clear that Mr R and Ms A sought by subterfuge to obtain orders by consent as to property knowing full well that the subject properties were very much in dispute. They deceitfully failed to disclose the prospective and pending third party interest of [Mr S] and [Ms J] in the Application for Consent Orders and sought to undermine proceedings in the Supreme Court of New South Wales. The observations of Slattery J are most apposite.

43. On being satisfied that s 79A (1)(a) applies for the reasons given, it is appropriate that the discretion be exercised to set aside the impugned Orders.

1. After ordering that the Consent Orders be set aside, Foster J also made orders that the Parramatta file be transferred to the Sydney Registry of the Family Court of Australia to be consolidated with these proceedings.

2. By way of an Application in a Case filed on 3 September 2014 Ms A applied to set aside the Orders of Foster J.

3. When the application came before me on 4 December 2014, Ms A was shown by counsel for Mr S a copy of the email from Mr S’s solicitors dated 21 July 2014 to her email address. Ms A acknowledged the email was received into her email inbox; however, she said that she was not aware of it until some days later when she looked at her emails.

4. Ms A was also shown an email from Mr S’s solicitors dated 6 June 2014. She said that she did not receive that email. It appeared to me that there was some uncertainty by her in that statement and I consequently made directions on that day that Ms A notify the Court by email to my Associate and to Mr S by email to his legal representatives by 12 December 2014 as to whether the email of 6 June 2014 was received into her email inbox.

5. Ms A failed to comply with this direction. However, as outlined later in these Reasons, Ms A deposed in her affidavit of 13 February 2015 that she discovered this email in her account on 13 December 2014.

the evidence

Ms A

1. Ms A relied on two affidavits sworn on 28 August 2014 (“first affidavit”) and 13 February 2015 (“second affidavit”) in support of her application. Ms A was self-represented at the date of swearing her first affidavit and represented by counsel at the date of swearing her second affidavit.

The first affidavit

1. Ms A’s explanation for her failure to appear before Foster J is outlined at paragraphs 18 – 22 of her first affidavit where she states that:

   18. I was not served with an initiating application in the Parramatta proceedings PAC 1824/2013 as set out in accordance with the Rules of the Court.

   19. I had no notice of any timetable to respond to any initiating application. I had no notice of any directions made with regards to any initiating application.

   20. I had no notice of any hearing in the Parramatta registry which sought to set aside my orders in the Parramatta proceeding.

   21. I was not given an opportunity to respond or be heard.

   22. I was not afforded procedural fairness and am a person affected by the orders that were made on 30 July 2014.

2. In cross-examination, Ms A did not agree with the proposition put to her by counsel for Mr S that she implied, through the wording used above, that she was served with the Initiating Application but not in accordance with the Rules. Similarly, Ms A did not agree with the proposition that her evidence was directed toward compliance with the Rules rather than the fact of service. Ms A stated that she thought the evidence provided in her affidavit was that she had not been served with an Initiating Application.

3. Ms A also deposed at paragraph 13 of her first affidavit:

   …On 21 July 2014 there was a hearing apparently ex parte and on an urgent basis without notice to me which proceeded on an undefended basis…..

4. And at paragraph 16 of her first affidavit:

   On 30 July 2014, orders were made to set aside my final orders in PAC 1824/2013 in my absence, without my knowledge, without any opportunity to respond and without being heard.

5. I note that Foster J at paragraph 3 of his judgement stated:

   Documents relating to the present application were sent to the Respondents by email on 6 June 2014 and by express post to their residential address on the same day. There has been a long history of litigation between the parties.

6. In her first affidavit Ms A did not provide any evidence relating to whether or not she received the email or the letter noted in Foster J’s judgment.

7. In relation to her case against the making of the Orders, Ms A asserted in the first affidavit that Foster J was not able to make the orders sought by Mr S in circumstances where the Parramatta file had already been closed. Ms A says in her affidavit at paragraph 13:

   Despite being unsuccessful in exactly the same applications on previous occasions, [Mr S Srbinovska] made an initiating application in PAC1824/2013 when he was not a party to the marriage, or proceedings, without the consent of the parties, when the file was closed, and without notice. If I had proper notice of the application, I would have sought an injunction against [Mr S] commencing proceedings. Since 19 August 2013, [Mr S Srbinovska] has been “registry shopping” in an attempt to file his applications…

8. I note that despite Ms A’s evidence above, the Parramatta file was only consolidated with the Sydney proceedings following the orders of Foster J on 30 July 2014.

9. Further, whilst I had ordered on 7 February 2014, as outlined earlier in these reasons, that Mr S would be responsible for Ms A’s costs of attendance on that day should he not file an Initiating Application in the Sydney proceedings, I did not make any orders depriving him of his right to file the application to set aside the orders in the Parramatta Registry, should he decide to proceed in that manner. Indeed, on 1 May 2014, I made specific orders that Mr S file his application in the Parramatta Registry within 14 days. There was no requirement that this application be made with the consent of the other parties.

10. It appears that Ms A, who was unrepresented at the time of swearing her first affidavit, was under a misapprehension as to Mr S’s ability to make an application in the Parramatta registry proceedings between her and her husband Mr R, which proceedings were PAC1824 of 2013.

The second affidavit

1. In her second affidavit, Ms A deposed that on 5 August 2014 she read for the first time an email from Mr Y to her. The email, which was sent on 21 July 2014 at 1.11 pm, stated that the Initiating Application filed on 16 May 2014 was listed for hearing that afternoon at the Parramatta Family Court.

2. Ms A deposed that upon reading the email, she immediately telephoned the Court to address her concerns that a hearing may have taken place without notice to her. She attended the Court on that same day to make enquiries about whether a hearing had taken place on 21 July 2014 and to access the Parramatta file.

3. Ms A said that on 5 August 2014 she was informed by a Registrar that her matter had been adjourned and the only orders made were in relation to the transfer and consolidation of the Parramatta and Sydney proceedings.

4. Ms A deposed that upon returning home on 5 August 2014, she discovered an opened “post pack” on her doorstep, which contained two affidavits of Ms I affirmed on 14 May 2014 and 15 May 2014. Ms A stated that nothing else was in the post parcel.

5. Ms A said that it was only when she attended the Sydney Registry of the Court on 14 August 2014 to inspect her files that she realised orders had been made by the Court on 30 July 2014 setting aside the Consent Orders between her and Mr R.

6. Ms A then outlined that on 13 December 2014, she discovered an email in her account sent on 6 June 2014 from Mr S’s solicitors. She said that there was no Initiating Application attached to the email, nor was there any indication of the date of the hearing. Ms A stated that the only attachments were the two affidavits sworn by Ms I and an affidavit of Mr S sworn on 15 May 2014.

7. Ms A concludes her second affidavit stating that:

   I have never been provided with, nor even sighted, the Initiating Application filed on 16 May 2014 in the Parramatta Registry of this Court on behalf of [Mr S]. Upon inspection of the Court files, I sighted the initiating application on 14 August 2014.

8. In cross examination, counsel for Mr S pointed out the discrepancy to Ms A between her two affidavits, the first of which made no reference to Ms A’s receipt of the emails of 21 July 2014 or 6 June 2014, nor to her discovery of the post package on her doorstep. Ms A agreed that she had not given evidence to this effect in her first affidavit.

Mr S

1. Mr S relied on the following affidavits:

   ·Affidavit by him sworn 15 May 2014;

   ·Affidavits of Ms I sworn 14 May 2014, 15 May 2014 and 15 July 2014; and

   ·Affidavits of Mr Y (“Mr Y”) sworn on 3 November 2014 and 26 February 2015.

2. The affidavits which were before Foster J have been read in these proceedings but the evidence therein, which has already been subject of findings by his Honour, will not be re-canvassed in detail here.

3. The affidavits of Mr Y deposed to the sending of the following documents to Ms A by the firm for which he is employed:

   ·Several emails on 6 June 2014 attaching a covering letter advising Ms A of the filing of the Initiating Application, the hearing details and attaching the supporting affidavits (although omitting to attach the Initiating Application).

   ·A letter sent by express post to Ms A on 6 June 2014 which Mr Y deposed enclosed a covering letter, the Initiating Application and supporting affidavits.

   ·Three emails on 14 July 2014 attaching a letter referring to the letter of 6 June 2014, reconfirming the hearing details, advising Ms A that orders may be made in her absence if she fails to appear, and attaching Mr S’s case information, outline of submissions and list of authorities.

4. The letter attached to the email sent to Ms A by Mr Y said, by way of notice:

   For your convenience, we confirm that this matter is listed as follows:

   Date: Monday 21 July 2014

   Time: 9.30 a.m.

   Place: Parramatta Registry, Commonwealth Law Courts, 1-3 George Street, Parramatta NSW 2150.

   Your attendance on the above date is required.

5. The letter sent to Ms A on 14 July 2014 as an attachment to an email, included the following:

   We once again confirm that these proceedings are listed as follows:

   Date: Monday 21 July 2014

   Time: 9.30 a.m.

   Place: Parramatta Registry, Commonwealth Law Courts, 1-3 George Street, Parramatta NSW 2150.

   We note that you or your lawyer must appear in Court on the above allocated date, otherwise an order or orders may be made in your absence.

6. I note in relation to the notices provided by Mr S’s solicitor, Mr Y, to Ms A (as specified above), other documents attached to the emails clearly stated the suit number in the proceeding as PAC 1824/2013. Ms A knew from her previous involvement in the proceedings numbered SYC 1484/2010 that Mr S was seeking to set aside the orders entered into by her and her husband Mr R in proceedings PAC 1824/2013.

7. The court record in proceeding SYC1484/2010 shows that on 19 August 2013, whilst the matter was in court before me, leave was granted to Mr S to file in Court an Application in a Case. That application sought orders which included that Ms A be joined as a party and that the orders made in the proceeding PAC 1824/2013 on 7 May 2013 be vacated or rescinded. I made a direction requiring the application to be served upon Ms A and Mr R. I adjourned the matter to 30 August 2013. I ordered that service be affected on each of Mr R and Ms A as soon as possible. I ordered that Ms A be provided with a copy of the Application in a Case and notified of the adjourned date by email.

8. The court record shows that on 30 August 2013 Ms A attended before the Court represented by a lawyer. On that day I made orders which dismissed an application contained in a Minute of Order sought by Mr S and his wife Ms J for access to Family Court file PAC 1824/2013 (the Parramatta file). The balance of the Application in a Case was adjourned to a date to be fixed upon application by any of the parties. An order was made for Mr S to pay Ms A’s costs of $1,750 within 28 days. The application by Mr S to inspect the Parramatta file failed because I determined that any application to set aside orders in the Parramatta proceeding had to filed in that proceeding and determined in that proceeding. Consequently, as there was no application filed in the Parramatta proceeding to set aside the orders of 7 May 2013, there was no purpose in making the file available for inspection over the objection of Ms A. If there was any other basis upon which Ms A might be joined as a party to the Sydney proceedings it was necessary to file an amended Initiating Application detailing the orders sought which might affect her interests.

9. The court record shows that on 13 December 2013 I listed for determination at 9.00 am on 7 February 2014 that part of Mr S’s Application in a Case filed 19 August 2013 which sought to join Ms A as a party to the Sydney proceeding SYC 1484/2010. Ms A was present and represented in Court on 13 December 2013.

10. On 7 February 2014 I made a costs order in favour of Ms A. The application to join Ms A as a party to the Sydney proceedings was not granted. Ms A was represented in Court on that occasion by counsel (Mr Jackson) the same counsel who represented her in the final stage of the application currently under consideration.

11. The Orders made on 7 February 2014 were as follows:

    IT IS ORDERED THAT

    I order that [Mr S] pay the costs of [Ms A], in the sum of $1750, however, I defer the requirement for payment of that sum until 30 days after the finalisation of proceedings between either [Mr S] and/or [Ms J] in the current proceeding against [Ms A]

    2. In the event of there not being filed in this Court on or before 7 March 2014 an Initiating Application or Amended Initiating Application where the applicant consists of either [Mr S] or [Ms J] and a respondent consists of [Ms A], the amount of the costs order above will be payable forthwith.

12. Mr Y, in his affidavit, also outlined the events which took place before Foster J on the 21 July 2014, including his Honour’s directions to email Mr R and Ms A in order to inform them that if they did not attend at the Court at 2.15 pm that day, the hearing would proceed. A copy of Mr Y’s email to Mr R and Ms A on 21 July 2014 was annexed in the affidavit and has been referred to earlier in these reasons.

13. Mr Y deposed, at paragraph 16 of his affidavit sworn on 26 February 2015 that, as far as he was aware, Mr S’s application to set aside the Consent Orders was heard on an undefended and not on an ex parte basis. He said that:

    I am satisfied that both [Mr R] and [Ms A] had adequate notice of the hearing and of the orders sought at it. I am satisfied that [Mr R and Ms A] each made an election not to appear on 21 July 2014.

THE APPLICABLE LAW

Jurisdiction

1. The preliminary issue in the proceedings before me is whether the Court has the jurisdiction to make the orders sought by Ms A to set aside the Orders of 30 July 2014.

2. Section 28(3) of the Act provides that “The jurisdiction of the Court in an appeal from a Judge of the Court or of the Supreme Court of a State or Territory shall be exercised by a Full Court.” Section 94(1)(a)(i) provides that an appeal from a decree made by the Family Court (other than a Full Court) exercising original or appellate jurisdiction under the Act lies to a Full Court of the Family Court. Section 93A(1)(a) provides that the Family Court has appellate jurisdiction with respect to the appeals referred to in s 94.

1. It is submitted on behalf of Mr S that, pursuant to the provisions referred to above, the Court does not have jurisdiction to set aside the Orders of Foster J as sought by Ms A. It is Mr S’s position that the Act gives exclusive jurisdiction to a Full Court to determine whether Foster J erred in setting aside the Consent Orders. Counsel for Mr S further submits that even if there was jurisdiction for a single Judge to determine an appeal from the decision of Foster J, there was no notice of appeal filed within 28 days in accordance with rules 22.02 or 22.03 of the Rules.

2. Counsel for Mr S also submits that even if a Full Court were rehearing Ms A’s application in a case as a properly constituted appeal, there would be no basis for reversing the orders of Foster J as there has been no pleaded allegation of an appealable error, there has been no attempt to engage the Court’s jurisdiction to set aside the orders of Foster J pursuant to s79A(1)(a) nor has there been an attempt to prove that the requisite miscarriage of justice occurred. It is asserted that Foster J made a finding of fact that Ms A had been served twice with the Application in a Case filed by Mr S and that finding has not been challenged in Ms A’s application.

3. Ms A submits that the making of the Orders by Foster J when she had no knowledge of the nature of the application was in breach of the requirements of natural justice and procedural fairness.

4. Ms A relies upon the High Court decision of Taylor v Taylor (1979) 143 CLR 1 (“Taylor”) in support of her submissions that the Court has the jurisdiction to set aside the orders in the circumstances deposed by her.

5. The background to Taylor, in brief, is as follows:

   ·The wife had brought property settlement proceedings in the Supreme Court and orders were made that the husband transfer his interest in the matrimonial home to the wife even though the husband, through no fault of his own, was not present or represented at the hearing;

   ·Upon hearing of the order the husband applied to the Family Court for a variation of the order and his application was successful even though the wife, through no fault of her own was neither present or represented at the hearing;

   ·The wife appealed to the Full Court of the Family Court which held that the trial judge had no power to make the variation order; and

   ·The husband appealed to the High Court.

6. The majority of the High Court in Taylor allowed the husband’s appeal and found that the Full Court of the Family Court should have set aside the orders of both the Supreme Court and the trial judge in the Family Court. The High Court held that where there is an order made against a party who did not have a reasonable opportunity to appear before a court and present their case through no fault of their own, the order should, in a proper case, be set aside. The High Court also found that the Family Court possesses an inherent jurisdiction to set aside an order made in default or ex parte.

7. His Honour Mason J at page 16 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 C.J., Rich and Williams ,JJ.) concluded in Cameron v. Cole (32) 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 (Craig v. Kanssen (33) 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 Family Law Act of an intention to displace this inherent jurisdiction.

8. His Honour Aikin J at page 22 stated:

   The principle that parties to litigation are entitled to be present and heard, either in person or by a duly authorized legal representative, is of fundamental importance and involves the consequence that, where through no fault of his own, a party is deprived of that entitlement, prima facie any order of a court made against him may be set aside by that court. I can see no basis for confining the application of that principle to cases where there has been a failure to serve the process or give other appropriate notice. No doubt in other cases it may often be that terms as to costs would be imposed on the applicant. There is nothing in the Family Law Act 1975 to deprive the Family Court of that inherent power save that s. 58 effectively limits the period within which an application to set aside a decree nisi may be made. The present case is unusual in that each party, through no fault of either, suffered the fate of having orders made in his or her absence. There is no circumstance which distinguishes one mishap from the other, and each order so obtained should be set aside.

9. As outlined by the High Court in the subsequent decision of Allesch v Maunz (2000) 203 CLR 172 (“Allesch v Maunz”) s 79A of the Act was amended after Taylor to empower the Court, pursuant to the Act, to set aside, vary or substitute orders where there has been a “miscarriage of justice” due to “fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance” (bold emphasis added). In the majority judgment of Gaudron, McHugh, Gummow and Hayne JJ, their Honours outlined at pages 181- 182 that this would include the circumstance where an order has been made in the absence of a party (bold emphasis added):

   The discretion to set aside an order made in the absence of a party

   25 There was discussion in the majority judgment of the Full Court as to whether the discretion to set aside the property settlement orders arose under the property settlement orders, themselves, pursuant to s 79A of the Act, or pursuant to the inherent power of the Family Court identified by this Court in Taylor v Taylor .  Section 79A has been amended since the decision in Taylor and, by sub-s (1)(a), the Family Court may now, in its discretion, set aside a property settlement order, if satisfied that "there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance" . There can be no doubt that the expression "any other circumstance" is wide enough to encompass the situation in which an order has been made in the absence of a party. Accordingly, s 79A must now be construed as applicable to that situation.

   26 Given that s 79A(1)(a) now confers power on the Family Court to set aside an order made in the absence of a party, it may be doubted whether there is any longer any scope for the exercise of inherent power in that regard. And even if the husband's application to set aside the property settlement orders was made pursuant to those orders rather than pursuant to s 79A of the Act, the orders could not be set aside on any basis other than that directed by that section, namely, that the Court was satisfied that there had been a miscarriage of justice. However, nothing turns on the nature of the application or the source of the discretion which Finn J was called to exercise and which the Full Court exercised in dismissing the appeal from her Honour's judgment. That is because there is nothing in s 79A of the Act to suggest that the discretion thereby conferred is to be exercised on any different basis from that applicable in the case of an inherent discretion.

10. Their Honours also outlined at pages 182 - 183 that ordinarily, there will be a miscarriage of justice if the person who is subject of an adverse order has adequately explained their failure to appear, unless a rehearing would not lead to a different result or would work an irremediable injustice to the respondent (bold emphasis added):

    28. The consideration which informs the power conferred by s 79A of the Act is that the court be satisfied that there was “a miscarriage of justice”. And whether exercising inherent power or a power of the kind conferred by s 79A, a court will, ordinarily, be satisfied that there has been a miscarriage of justice if a person has suffered an adverse order in circumstances where his or her failure to appear is adequately explained unless it also appears that no different result would be reached on a rehearing or that a rehearing would work an irremediable injustice to the other side. In this last regard, it should be noted that injustice will often be capable of remedy by the imposition of terms as to costs. However, where, as here, orders have been carried into effect, injustice may not be capable of remedy except on terms that those orders stand and that the matter be reopened only to a limited extent.

11. His Honour Kirby J, who concurred with the judgment of the majority, outlined at pages 184- 185 the well-established principle that a person whose interests may be adversely affected must ordinarily be provided with the opportunity to present their case:

    35. It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.

12. Kirby J also outlined at pages 185 - 186 that all that is required is that the party be provided with an opportunity to be heard, and that a party’s failure to avail themselves of this opportunity does not mean that that the Court is obliged to indefinitely delay proceedings (bold emphasis added):

    38. … Having regard to the circumstances in which the initial proceedings took place in the absence of Mr Allesch (the appellant), it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.

    39. Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.

    40. Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has accepted) the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.

13. The above statements were relied upon by the Full Court in Barbey & Tuttle [2013] FamCAFC 44 (“Barbey & Tuttle”). The Full Court dismissed the appeal of the wife against orders of the Federal Magistrate, who had dismissed her application to set aside final property orders that were made in default of her appearance.

14. In that case, the evidence provided by the husband showed that the wife had consistently failed to comply with her obligations pursuant to previous court orders and that she had also failed to appear in person on the date scheduled for the final hearing two times before the hearing proceeded undefended. The wife conceded that although she had failed to provide an adequate explanation for her absence, the orders should be nevertheless set aside on the basis that she had an arguable case.

15. The Full Court found that the discretion to set aside orders made in default of a party’s appearance is unfettered, and that there was no error in the Federal Magistrate’s dismissal of the wife’s application to set aside the orders in the circumstances of that case. May J, with whom Kent and Murphy JJ agreed, outlined that (bold emphasis added): 

    90.      The discretion to set aside orders made in default of a party’s appearance is unfettered. Regard should be given to the explanation for a failure to appear, the possibility of a different result, and prejudice to the other party (and how this may be addressed). His Honour did consider each of these matters, and did not err in his approach. He was not bound to give one matter more weight than another, and was correspondingly entitled to place significant weight on the wife’s failure to establish a reasonable explanation for her failure to appear or to participate in the proceedings.

    91.      The arguable case consideration might have been established by contrary evidence in the wife’s material. That his Honour did not hear submissions on this did not prevent him from properly considering the point. The onus was on the wife to provide evidence, which she failed to do. No amount of submissions could have overcome the absence of evidence from the wife.

    92.      The evidence which formed the basis of the add-back, the only genuinely controversial matter in the updated response/orders sought by the husband, was from the wife’s own bank accounts, which had to be obtained under subpoena because of her own non-compliance. The wife gave no explanation for that expenditure in her affidavit in support seeking to set aside the orders.

    93.      It was not apparent on the material before his Honour, what alternative orders or distribution the wife sought, or would seek if successful in her application to set aside. Nor was it suggested in her material before the Federal Magistrate or before us on appeal that the 80/20 distribution was incorrect or manifestly unjust.

    94.      In these circumstances, His Honour could not have made, even with further oral submissions, a determination that the wife might obtain a different result, which the High Court expressed in Allesch v Maunz to be in effect a condition to the exercise of the discretion. He did, as was required of him, have regard to the issue. Accordingly, there can be no appealable error.

    95.      The issue of prejudice to the husband was not addressed at all by the wife. In the absence of evidence or argument from her, his Honour’s finding that the prejudice to the husband was significant and could not be sufficiently addressed by costs, was entirely justified in the circumstances of this case.

determination

1. In light of the abovementioned authorities, I find that, to make the orders sought by Ms A setting aside the judgement of Foster J, this Court must be satisfied, pursuant to s79A(1)(a) that there was a “miscarriage of justice” caused by the making of the Orders in her absence. The considerations informing my exercise of discretion will be whether Ms A has established:

   ·there was an adequate explanation for her failure to appear before Foster J on 30 July 2014;

   ·that different orders would have been made had she appeared and presented her case; and

   ·there will be no significant or “irremediable” prejudice caused to Mr S in having the orders set aside.

Has Ms A provided an adequate explanation for her failure to appear?

1. In support of her application for the Orders of Justice Foster to be set aside, Ms A refers to the requirement in Rule 7.03 of the Rules that an Initiating Application must be served by special service. Rule 7.05 stipulates that a document that must be served by special service must be personally received by the person served. On the evidence of all parties, the Initiating Application filed by Mr S was not served by special service on Ms A. Ms A’s evidence is that she never received, by any means, the Initiating Application filed by Mr S, but rather, that she came across the document upon making her own enquiries with the Court after the Orders had been made.

2. It is submitted on behalf of Mr S that the application which was heard by Foster J was an application in a pending proceeding, being the Parramatta proceedings PAC 1824/2013 which were on foot from the filing of the Consent Orders by Ms A and Mr R in May 2013 and that accordingly, his application in substance, despite the use of the Initiating Application form, an Application in a Case in the existing Parramatta proceedings and was not required to be served by special service.

3. Rule 7.03 (Item 12) of the Rules provides that special service is not required for an Application in a Case. Rule 7.12 (b) (iii) provides that if special service of a document is not required, the document may be served by sending it to the facsimile or e-mail address stated in the address for service by electronic communication addressed to the person. Rule 7.16 outlines the requirements for service by electronic communication.

4. It is Mr S’s and Mr Y’s evidence that the supporting affidavits to the application were emailed to Ms A on 6 June 2014 and that the Initiating Application was included in the express post parcel sent to Ms A the following day.

5. Counsel for Mr S further submits that even if personal service had been required, Mr R and Ms A waived their right to personal service when they sought and obtained a direction from myself on 13 December 2013 with the effect that their addresses for service would be their email addresses rather than their residential addresses.  I did order on that day that Ms A file and serve a Notice of Address for service within seven days. Ms A was represented by a solicitor on that day. I note the court record does not confirm this submission in that there is no notation to that effect recorded. However on 19 August 2013 I made an order as follows.

   I direct that service of the wife’s Response to an Application in a Case filed 16 August be effected by email addressed to each of [Mr R] and [Ms A Srbinovska] and providing a copy of the orders sought. I otherwise direct that the parties use all reasonable endeavours to effect personal service of the affidavit and Response to an Application in a Case.

6. I also note that Ms A filed no Notice of Address for service pursuant to the order made on 13 December 2013 requiring same.

7. It is submitted on behalf of Mr S that Ms A did not challenge Foster J’s order to dispense of any Rules which could have precluded the hearing of the application.

8. Counsel for Mr S relies upon rule 5.11 of the Rules in support of his contention that Foster J was entitled to determine the application filed by Mr S to set aside the Consent orders. Rule 5.11 provides that:

   Party's failure to attend   

   (1)  If a party does not attend when a hearing starts, the other party may seek the orders sought in that party's application, including (if necessary) adducing evidence to establish an entitlement to the orders sought against the party not attending.

   (2)  If no party attends the hearing, the court may dismiss the application and response, if any.

   Note:         A reference to application includes a reference to cross-application (see the dictionary).

9. Counsel for Mr S referred to the Full Court’s decision of Buljubasic v Buljubasic (1999) FLC 92-865 (“Buljubasic”). Buljubasic was an appeal by the husband against property orders made in his absence. In this case, the initial date that the matter was listed for trial was adjourned on the application of the husband and the matter was listed for a later date. The husband again sought to vacate the hearing date but the application was dismissed and the hearing date remained. The husband failed to appear on the hearing date and the trial judge stood the matter down to enable the husband to be contacted and let him know the matter was proceeding. The husband was unable to be contacted and the trial judge determined that he had notice of the proceedings and that there was no injustice in hearing the matter in his absence. The matter was heard on that day and judgement was reserved. The next day, a fax sent to the court registry by the husband the previous day came to the trial judge’s attention, stating that the husband would not be able to attend court because he had been unable to get some documents translated. The trial judge did not find this to be persuasive and delivered judgment. The husband argued on appeal that he had been denied natural justice.

1. The Full Court dismissed the husband’s appeal, finding that the trial judge had made no error of discretion in proceeding to hear the matter. His Honour Lindenmayer J, Finn and Warnick JJ agreeing, stated at paragraph 26 that:

   [The husband] was clearly aware of the hearing date and, indeed, the subsequent facsimile confirms that. If he failed to appear without any explanation, and failed to send anybody to represent him, then the trial Judge could do little but proceed with the matter on ex parte basis. The business of the court would come to an end if people could simply stay away from the court on the listed date for hearing and be assured that their matter would not proceed in their absence, and effectively obtain an adjournment, without merit, merely because the court felt constrained not to proceed with the matter in their absence.

2. As outlined earlier in these Reasons, Ms A provides differing explanations for her failure to appear before Foster J in her first and second affidavits.

3. In her first affidavit, Ms A deposed that she was not served with an Initiating Application “in accordance with the Rules of the Court”, that she had no notice of any timetable or hearing and that she was not given an opportunity to be heard.

4. In her second affidavit, Ms A deposed that on 5 August 2014 she discovered Mr Y’s email of 21 July 2014 informing her that the hearing was to proceed that afternoon. Ms A also deposed in her second affidavit that on this same day she discovered an express post parcel on her doorstep enclosing two affidavits from Mr S’s solicitor sworn by Ms I. 

5. There was no evidence of Ms A’s discovery of the letter or the email provided in her first affidavit sworn on 28 August 2014, which was shortly after the items allegedly came to her knowledge on 5 August 2014. Similarly, Ms A does not depose in her first affidavit, as she does in her second affidavit sworn in February 2015, that she telephoned the Court immediately upon reading the email to make enquiries about the hearing of 21 July 2014.

6. Ms A conceded in cross examination that she had not provided evidence to the effect of her second affidavit in her first affidavit.

7. It was also put to Ms A during cross examination that the evidence set out in her second affidavit about the email of 21 July 2014 (she deposed that she only read the email of 21 July 2014 email on 5 August 2014) contradicted what she said to the Court on 4 December, namely, that: “This email was there but I opened it a day or two later.” Ms A denied that she said this”. In relation to this last assertion the court record for 4 December 2014 includes my note as follows:

   I note that [Ms A Srbinovska] today has been shown a copy of an email dated 21 July 2014 to her email address (amongst others) which she acknowledges was received in into her email inbox on that date, however, she says that she was not aware of it until some days later when she looked at her emails.

8. The written and oral evidence of Ms A as to her receipt of the documents by email and post is, at best, equivocal, and, in some respects inconsistent and consequently potentially unreliable.

9. However, it does not appear to be disputed by Mr S that the Initiating Application was inadvertently not attached to the email from his solicitors to Ms A on 6 June 2014. It is the evidence of Mr S’s solicitor that the Initiating Application and all supporting affidavits were express posted to Ms A on this same day. This correspondence was also followed up by further correspondence from Mr S’s solicitor via email and post regarding the application on 14 July 2014 and then on 21 July 2014. Each communication was met with no response from Ms A, and, on Ms A’s evidence, she did not read any of the letters or emails until after the Court date.

10. At paragraph 3 of Foster J’s judgement, his Honour found that (emphasis added):

    Documents relating to the present application were sent to the Respondents by email on 6 June 2014 and by express post to their residential address on the same day.

11. In light of the evidence of Ms I and Mr Y in the proceedings before me, it is clear that the application referred to by Foster J above was never sent by email to Ms A, on 6 June 2014. It is not apparent that this was brought to his Honour’s attention before he determined to hear the application that same day on an undefended basis. 

12. It is not in dispute by Mr S or Ms A that her address for service was the same email address which was used by Mr S’s solicitor when sending the above correspondence. It is also agreed that Ms A specifically informed the Court that she did not want her address for service to be her residential address. This is outlined in Mr S’s submissions in reply (bold emphasis added):

    10….[Mr R] and [Ms A] alike waived their right to personal service under Rules 7.03 item 1 and 7.05 when they sought, and obtained, a direction from Le Poer Trench J on 13 December 2013 that their addresses for service henceforth be their email addresses and not personal service at their residential addresses because neither wished to disclose a residential address nor be served personally with process..

    18. In this case the Family Law Act permits such service because the Court ordered on 13 December 2013, on the application of Mr and Mrs [Srbinovska], that their address for service was their respective email addresses (see paras 10 and 11 above), thereby permitting service by email (which occurred on the dates of posting in each case, according to [Ms I’s] evidence), and any further service, such as service by post, was merely confirmatory of service by email. Australia Post evidence in 1REOD proves the ordinary course of post for Express Post items is the business day following posting.

13. Rule 7.12 of the Rules provides (bold emphasis added):

    If special service of a document is not required, the document may be served on a person:

    (a) by any method of special service;

    (b) if the person has given an address for service:

    (i) by delivering it to the address in a sealed envelope addressed to the person;

    (ii) by sending it to the address by post in a sealed envelope addressed to the person; or

    (iii) by sending it to the facsimile or e-mail address stated in the address for service by electronic communication addressed to the person (see rule 7.16);

    (c) if the person has not given an address for service:

    (i) by handing it to the person;

    (ii) by delivering it to the person's last known address or place of business in a sealed envelope addressed to the person; or

    (iii) by sending it by post in a sealed envelope addressed to the person at the person's last known address or place of business;

    (d) if a lawyer representing the person agrees, in writing, to accept service of the document, by sending it to the lawyer; or

    (e) if the person's address for service includes the number of a lawyer's document exchange box, by delivering it in a sealed envelope, addressed to the lawyer at that box address, to:

    (i) that box; or

    (ii) a box provided at another branch of the document exchange for delivery of documents to the box address.

14. Whether the relevant application relied upon by Mr S in the proceeding before Foster J was effectively served is possibly debateable. However I am satisfied of the following matters.

    ·Ms A knew well before the proceedings commenced by Mr S at the Parramatta registry of the Court (suit number PAC1824/2013) that Mr S was seeking to set aside the Consent Orders made in that registry on 7 May 2013.

    ·I am satisfied that Mr S, through his solicitor, took sufficient steps to bring to Ms A’s notice that orders were sought by him in proceedings PAC1824/2013. She knew that the Parramatta file number only dealt with a proceeding between her and Mr R to have consent property orders made. She knew Mr S wanted those orders set aside.

    ·Ms A chose herself not to look at the email from Mr S’s solicitor dated 6 June 2014.

    ·I am satisfied, on the balance of probabilities, that Ms A chose to not attend at the hearings listed in the proceedings numbered PAC1824/2013.

    ·I am satisfied she was on notice that there were proceedings in the Family Court of Australia at Parramatta which could affect her interests. I am satisfied she could reasonably predict what that action was about given her involvement in the proceeding in the Family Court of Australia at Sydney as I have outlined in these reasons.

15. If I am correct in this determination then Ms A has failed in her application to set aside the orders based upon the decision in Taylor. If I be in error in that determination and assuming she seeks to proceed under s 79A of the Act I now turn to consider the following.

Would different orders have been made if Ms A had appeared and presented her case?

1. As outlined by the majority of the High Court in Allesch v Maunz at paragraph 28, in exercising its powers to set aside a property settlement order conferred by s 79A, “a court will, ordinarily, be satisfied that there has been a miscarriage of justice if a person has suffered an adverse order in circumstances where his or her failure to appear is adequately explained unless it also appears that no different result would be reached on a rehearing or that a rehearing would work an irremediable injustice to the other side.” (emphasis added).

2. I am not satisfied, on the evidence before me, that a different result would be reached had Ms A appeared before Foster J on 21 July 2014 to defend the application by Mr S. The properties at B Street and E Street transferred from Mr R to Ms A pursuant to the Consent Orders were the subject of Supreme Court proceedings which were on foot at the time of the making of the Consent Orders. The documents attached by Mr R and Ms A to the application for Consent Orders clearly revealed a dispute between Mr R and Mr S regarding K Street property, which was also the subject of a declaration pursuant to the Consent Orders. Further, it was falsely asserted in the application for consent orders that there was no other person who may be entitled to become a party under s 79(1) of the Act.

3. Further, Ms A has offered no evidence to inform the Court what case she would have relied upon to oppose the orders sought by Mr S. She appeared to be suggesting that Mr S was estopped from seeking any orders in the Parramatta proceeding because of orders I had made when he sought to set the Parramatta proceeding aside through the vehicle of the Sydney proceeding. I do not accept that he was estopped on the basis she puts forward.

4. When the reasons of Foster J are read it is difficult to see how Ms A could have provided evidence which would have satisfied him that the Parramatta orders should not be set aside had she chosen to participate in that hearing.

5. In these circumstances, I cannot find that a different result would be reached on rehearing justifying the setting aside of Foster J’s Orders. 

Will there be no significant or irremediable prejudice caused to Mr S in having the orders set aside

1. Nothing in Ms A’s affidavit addresses the prejudice that would be caused to Mr S if Foster J’s orders are to be set aside.

2. The properties at B Street and E Street, which were transferred to Ms A pursuant to the Consent Orders, are, and were at all relevant times, the subject of Mr S’s proceedings for family provision out of his late mother’s estate. As found by his Honour Foster J at paragraph 25 of his judgement, they are the prospective notional assets of the estate pending the outcome of the Supreme Court proceedings.

3. It seems at the very least that until the orders of Foster J were made Mr S could not progress his proceeding in the Supreme Court. At the very least if the orders of Foster J were set aside Mr S would suffer a longer delay in being able to proceed with his Supreme Court case. He has already suffered significant delay because of the consent orders being made between Ms A and Mr R in the Parramatta court.

4. I am satisfied that there would be a significant prejudice to Mr S if the Orders of Foster J are set aside that is not capable of remedy by the imposition of terms as to costs.

S91 OF THE EVIDENCE ACT 1995 (CTH)

1. Ms A submits that she did not have an adequate opportunity to argue against the admissibility of the Judgement of the Supreme Court of New South Wales, pursuant to s 91 of the Evidence Act 1995 (Cth), in the proceedings before Foster J. The basis of this submission is that Ms A was not afforded adequate notice of the proceedings before Foster J on 21 July 2014.

2. The opportunity for Ms A to argue this aspect of her case was, in my view, lost upon her determination to ignore the notice she received of the proceedings in the Parramatta court.

3. Further, this point which Ms A seeks to argue is, in my view, a matter which really is one for an appeal rather than the pathway Ms A has sought to take as outlined above. Ms A could have lodged an appeal against the decision however she clearly chose not to do so. She became aware of the Orders of the Court well within the time prescribed for the filing of an appeal.

THE ORDERS TO BE MADE

1. I propose to dismiss Ms A’s application filed 3 September 2014.

COSTS

1. Mr S seeks orders for indemnity costs against Ms A and Mr R for the Parramatta proceedings.

2. He further seeks orders that Ms A pay the costs relating to the Application in a Case before me on an indemnity basis.

Costs of the Parramatta proceedings which gave rise to the orders of Foster J on 30 July 2014 be paid by Ms A and Mr R

1. Mr S seeks an order for the costs of the proceeding determined by Foster J. He seeks that order be made against both Ms A and Mr R jointly and severally. The Orders of Foster J reserved the question of costs. It is expedient for me to hear this application rather than the matter being remitted to Foster J to hear.

2. When the application filed 3 September 2014 was before the Court and heard on 16 September 2014 Mr R was present in Court and participated in that proceeding by stating that he supported Ms A’s application. Mr R did not participate in the further hearing of the application when I called for further submissions on 17 October 2014 and 4 December 2014.

3. The Court has to consider any application for costs pursuant to section 117 of the Act, in particular section 117(2A), which specifies the matters to be considered.

4. Mr S relies upon the following matters to ground an order for costs. He seeks that order should be made on an indemnity basis.

   ·Foster J found Ms A and Mr R acted in a deceitful manner in obtaining the consent orders in that they failed to disclose the interest of Mr S in the property the subject of the consent orders.

   ·Where fraud is found by the court orders for costs ought be made on an indemnity basis (see Oshlack v Richmond River Council (1998) 193 CLR 72 at 89 [44]; Wentworth v Rogers [1999] NSWCA 403.)

5. Section 117(2A) requires that the Court shall have regard to the matters set out therein when considering what order (if any) should be made under sub-section (2). I now turn to consider those matters.

6. Although there are not precise financial details of the parties before the Court I can have regard to the fact that the proceedings relate to a number of pieces of Real estate. I know that Mr S and Mr R have considered the property to be sufficiently valuable to engage in proceedings in the Supreme Court over a lengthy period of time. Likewise, Ms A has engaged lawyers to appear for her in the hearing before me and had on previous occasions engaged lawyers to act for her in the Sydney proceeding as outlined herein.

7. There is no evidence any of the parties are in receipt of legal aid.

8. The conduct of Ms A and Mr R in deceiving the Registrar of the Parramatta Registry in order to obtain the Consent Orders is said to be the conduct which would justify the Court making a cost order against both of those persons. Further, neither of Ms A or Mr R appeared before the Court to oppose the orders being made. Mr R, for his part, offers no evidence as to why the Orders made by Foster J should be set aside.

9. Mr S was wholly successful in the proceeding before Foster J.

10. Having regard to those findings I conclude there should be an order for Ms A and Mr R to pay the costs of Mr S.

Should the order be for payment of indemnity costs?

1. In the Marriage of Kohan (1993) FLC 92–340 (“Kohan”) and In the Marriage of Munday and Bowman(1997) FLC 92–784 (“Munday and Bowman”) are the leading authorities on indemnity costs in the Family Court. In these cases the Full Court of the Family Court emphasised that it should not lightly depart from the ordinary rules relating to costs between parties and that the circumstances justifying the departure “should be of an exceptional kind”, indemnity costs being “still an exception in this and other jurisdictions” (see Kohan at 79,614).

2. The authority of Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248 is discussed in Munday and Bowman and gives the following examples where indemnity costs might properly be awarded at [250]:

   (xii) The question must always be whether the particular facts and circumstances of the case warrant the making of an order for payment of costs other than on party and party basis. Circumstances warranting the exercise of the discretion to award indemnity costs include:

   (a)  Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts: see Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd(1988) 81 ALR 397 .
   (b)  Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud: see Fountain Selected Meats (Sales) Pty Ltd .
   (c)  Evidence of particular misconduct causing loss of time to the court and to other parties: see Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (Fed C of A, French J, 3 May 1991, unreported).
   (d)  The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions: see Ragatta Developments Pty Ltd v Westpac Banking Corporation (Fed C of A, Davies J, 5 March 1993, unreported) .
   (e)  An imprudent refusal of an offer to compromise.

3. These principles have also been followed in JEL v DDF (Repayment on Appeal, and Costs)(2001) 28 Fam LR 119; FLC 93–083 and Starkey v Starkey(2009) 41 Fam LR 177.

4. An example of the Full Court’s reluctance to order indemnity costs is seen in Mr Ss v Mr Ss(2010) 44 Fam LR 117; [2010] FamCAFC 172. At [73] the Full Court relevantly said:

   An order for costs may be made on an indemnity basis, subject to a judicial determination capable of being made that there ought to be a departure from the usual basis that costs be payable on the party and party basis.

5. At [118] the Full Court discussed the Federal Court decisions of Botany Municipal Council v Secretary, Department of Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412; 27 ALD 481 at 484 (“Botany Municipal”) and NMFM Property Pty Ltd v Citibank Ltd (No 11) [2001] FCA 480 (“NMFM Property”). .

6. In Botany Municipal at 415 Gummow J stated that "I accept that the discretion conferred by s43 [of the Federal Court of Australia Act 1976 (Cth)] is not so circumscribed that an order of this character [for indemnity costs] may be made only against an ethically or morally delinquent party."

7. Lindgren J qualified this statement in NMFM Property at [54] by stating that “His Honour [Gummow J] was saying only that the presence of ethical or moral delinquency is not an essential condition of a valid exercise of the discretion.” The Full Court noted that Lindgren J made clear at [56]: “The conduct of a party that is relevant to the issue of indemnity costs is the party’s conduct as litigant.”

8. Having regard to the above authorities I would not exercise the discretion of the Court to order indemnity costs in this determination. I propose to order costs be paid as agreed or as assessed on a party and party basis.

1. I propose to order both Ms A and Mr R to pay the costs of Mr S. Mr R is equally responsible for the Registrar making the Consent Orders he and Ms A entered into on 7 May 2013 and that arose because of the failure of each of Ms A and Mr R to disclose the interest of Mr S in the orders they were asking the Court to make.

Costs of this proceeding hereby determined

1. Mr S seeks a costs order against Ms A for the determination of her application filed 3 September 2014 on an indemnity basis.

2. In relation to Mr S’s application for costs I need to address the matters set out in s 117(2A) of the Act. I repeat what I have said in relation to the parties’ financial circumstances relevant to the costs order sought in relation to the Parramatta proceedings. Neither party has advised the Court they have received a grant of legal aid for this proceeding.

3. Ms A has been wholly unsuccessful in her application.

4. Given the circumstance in which the application arose and given the findings I have made I consider this is a case in which a costs order should be made against Ms A.

5. The application of Ms A was supported by Mr R. He did not actively participate in the proceeding and had Ms A not pursued the application, there is nothing to indicate that Mr R would have pursued the orders she pressed for.

6. I do not consider this order should be for indemnity costs. I would not so order.

7. I propose to order that Ms A pay Mr S’s costs of the application filed 3 September 2014.

I certify that the preceding one hundred and fifty four (154) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 18 May 2015.

Associate: 

Date:  18 May 2015