TIU & NA

[2016] FamCA 112

FAMILY COURT OF AUSTRALIA

TIU & NA [2016] FamCA 112

FAMILY LAW – SUMMARY DISMISSAL – Application for the summary dismissal of proceedings seeking a declaration that the parties were in a de facto relationship and consequent orders for the adjustment of property interests – Where the evidence, including that of the applicant if accepted, was capable of supporting a finding that a de facto relationship existed between the parties – Application for summary dismissal dismissed.

Family Law Rules 2004 (Cth) rules 10.12, 10.14

Bigg v Suzi (1998) FLC 92-799

Lindon v The Commonwealth (No 2) (1996) 136 ALR 251

APPLICANT: Ms Tiu

RESPONDENT: Mr Na

FILE NUMBER: SYC 2315 of 2014

DATE DELIVERED: 1 February 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 22 January 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Chen Shan Lawyers

COUNSEL FOR THE RESPONDENT: Ms Winfield

SOLICITOR FOR THE RESPONDENT: Brighton Lawyers

Orders

IT IS ORDERED

1. That the Application in a Case of Ms Tiu filed 14 April 2015 seeking summary dismissal of the substantive application in these proceedings be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tiu & Na 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 2315 of 2014

Ms Tiu

Applicant

And

Mr Na

Respondent

REASONS FOR JUDGMENT

1. Mr Na (“Mr Na”) alleges that he lived in a de facto relationship with Ms Tiu (“Ms Tiu”) from 12 December 2005 until 31 October 2012. He has filed an application seeking a declaration to that effect and consequent orders for the adjustment of property interests.

2. Ms Tiu filed, on 14 April 2015, an Application in a Case seeking, inter alia, summary dismissal of Mr Na’s substantive application. In that Application in a Case she seeks other orders including a declaration that no de facto relationship existed between the parties. That is not a matter which can be dealt with on a summary basis and that application should be dealt with in the substantive proceedings.

3. When the matter came before the Court on 22 January 2016, the solicitor for Ms Tiu applied for an adjournment on the basis that she was not prepared to conduct the proceedings and that counsel briefed in the proceedings was not available. The adjournment was refused. The application for summary dismissal, on its face, had no prospects of success. There was no utility in adjourning the application to a later date, perhaps months away, which would have the effect of further delaying the substantive proceedings and exacerbating the costs incurred. The matter was stood down for an hour for the solicitor to prepare submissions.

4. In support of the application for summary dismissal, Ms Tiu relies on an affidavit sworn on 19 May 2014 in which she deposes:

   ·    That she met Mr Na in 2005 and they commenced an intimate relationship about six months later.

   ·    That her family were not aware of the relationship.

   ·    That she gave Mr Na $100,000 to assist him with the purchase of a unit in Suburb A and paid the conveyancing costs.

   ·    That they travelled together on occasions.

   ·    That she paid Mr Na’s credit card bills and gave him cash from time to time.

   ·    That they started to argue frequently in 2009.

   ·    That she was diagnosed with leukaemia on 12 February 2012 and told Mr Na. He wanted to come and look after her but she refused because family members were with her.

   ·    That thereafter Mr Na harassed her and threatened her.

   ·    That in April 2012 she agreed that Mr Na should sell a property she owned in China and keep the proceeds of sale and for that purpose she executed a Power of Attorney in his favour, but Mr Na was unable to sell the property.

   ·    That she agreed to pay Mr Na $200,000 by way of settlement on condition that he not tell anyone about their relationship and that a Deed was drafted to reflect that agreement.

   ·    That on 4 July 2012, Mr Na signed the Deed and that she gave him bank cheques for $200,000.

   ·    The Deed referred to above is annexed to the affidavit. The Deed provides:

   I, [Ms Tiu], Passport No…., am willing to pay $200,000 to end the emotional and financial dispute between the two of us and shall not seek to obtain it back through any form or means.

   I, [Mr Na], Passport No…, is willing to accept $200,000 (bank cheque no:…) to end the emotional and financial dispute between the two of us. From now onwards, [Mr Na], cannot have any excuses, whatsoever, to disclose any electronic or physical photographs, electronic information, electronic audio-visual recordings, written records, electronic written documents, as well as any past commissioned documents, power of attorney documents between the two of us as to demand any compensation.

   ·    That thereafter Mr Na asked for more money to be paid.

   ·    That she made an application against Mr Na for an Apprehended Domestic Violence Order and that an order was made for her protection until 18 December 2014.

   ·    That she instituted proceedings in the Supreme Court of New South Wales (“the Supreme Court”) seeking a suppression order and that those proceedings were resolved by consent orders (“the suppression orders”) made 4 April 2013, to the effect, inter alia, that Mr Na was restrained from revealing the existence of their relationship to any person other than a legal practitioner, with an exception in relation to the institution of proceedings in relation to the relationship.

THE EVIDENCE OF THE RESPONDENT

1. Mr Na relies on affidavits by himself and his son, Mr B.

2. Mr Na deposed:

   ·    That the relationship lasted for six years and ten months.

   ·    That the parties intermingled their finances and made financial decisions mutually.

   ·    That the parties purchased real estate together, albeit in his name.

   ·    That they shared a common residence from time to time.

   ·    That they travelled together.

   ·    That they bought furniture together and did grocery shopping together.

   ·    That they socialised together with mutual friends and family.

   ·    That he met and developed a close relationship with Ms Tiu’s children and was introduced to members of her extended family.

   ·    That Ms Tiu met and formed a relationship with his children and their spouses and extended families.

3. Mr B deposed to his observations of an on-going relationship between the parties.

4. Ms Tiu disputes the evidence of Mr Na and, on her behalf, it was submitted that when the evidence is tested, the Court will ultimately determine that no de facto relationship existed. However that is not the test to be applied.

THE LAW

1. The process for making an application for summary dismissal is set out at Rule 10.12 of the Family Law Rules 2004 (Cth) (“the Rules”):

   Application for summary orders

   A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:

   (a) the court has no jurisdiction;

   (b) the other party has no legal capacity to apply for the orders sought;

   (c) it is frivolous, vexatious or an abuse of process; or

   (d) there is no reasonable likelihood of success.

2. Rule 10.14 provides that upon application, the Court may:

   (a) dismiss any part of the case;

   (b) decide an issue;

   (c) make a final order on any issue;

   (d) order a hearing about an issue or fact; or

   (e) with the consent of the parties, order arbitration about the case or part of the case.

   Note: This list does not limit the powers of the court. The court may make orders on an application, or on its own initiative (see rule 1.10).

3. The Full Court in Bigg v Suzi (1998) FLC 92-799 also observed, at 84,974, that this Court has the necessary inherent, and discretionary, power to dismiss or permanently stay an application which cannot succeed.

4. The applicable principles governing an application for summary dismissal were set out by Kirby J in the High Court decision of Lindon v The Commonwealth (No 2) (1996) 136 ALR 251 at 256:

   1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided;

   2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;

   3. An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;

   4.Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;

   5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading…

   6.The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.

   (footnotes omitted.)

5. The question of summary dismissal has also been considered by numerous decisions of this Court. In Gitane and Velacruz (2007) FLC 93-309 his Honour Kay J, with whom Coleman and Boland JJ agreed, succinctly summarised the principles to be applied when determining an application for summary dismissal in the family law jurisdiction (at 81,314):

   25. I paraphrase the salient points as follows:

   (1) that relief for summary dismissal is rarely and sparingly provided;

   (2) that it is only available if it is clear on the face of the documents of the person asserting a cause of action that there is no reasonable cause of action or that it is a frivolous or vexatious one;

   (3) that it is not enough to attain summary dismissal to show that it is a weak case;

   (4) that there is a defect in the pleading and it appears that the party still has a reasonable cause of action, the Court will allow the party to reframe its pleading; and

   (5) that one only summarily dismisses if it is clear that the case is doomed to fail

CONCLUSION

1. There is evidence, including the evidence of Ms Tiu, which, if accepted, is capable of supporting a finding that a de facto relationship existed between the parties.

2. The application for summary dismissal must therefore fail.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 1 February 2016.

Associate:

Date:  1/2/2016