FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tsiang & Wu (No 2) [2023] FedCFamC1F 23
File number(s): SYC 1529 of 2016 Judgment of: ALTOBELLI J Date of judgment: 1 February 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife seeks leave to reopen and adduce further evidence – Where evidence was available but not relied upon – Where granting leave would be futile and not in the interests of justice – The wife’s application is dismissed.
FAMILY LAW – SECURITY FOR COSTS – Wife’s application for security for costs – Where the wife alleges there is a risk that the husband may dispose of the property – Where it is alleged the order would not be oppressive or stifle proceedings – Husband restrained from disposing of or dealing with the property.
FAMILY LAW – COSTS – Where husband seeks costs on an indemnity basis – Where the second respondent was wholly unsuccessful – Where the husband made multiple requests for document production – Where the requisite threshold for an award of indemnity costs has not been met – Costs ordered on a lump sum basis.
Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.02, 12.13, 12.17
Cases cited: Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 171; [1981] HCA 39
AMP Investments Pty Ltd v Trade Practices Commission and Ors (1983) 49 ALR 475; [1983] FCA 248
Colgate-Palmolive Company and Anor v Cussons Pty Limited (1993) 46 FCR 225; [1993] FCA 801
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish & Another (2005) 33 Fam LR 123; [2005] FamCA 158
Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116
Live Board Holdings Pty Ltd v Cody Live Pty Ltd [2017] NSWCA 302
Malcher & Malcher (security for costs) (2017) FLC 93-803; [2017] FamCAFC 202
McDermott & McDermott and Ors [2016] FamCA 613
Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157
Mitty & Mitty and Ors (2010) 45 Fam LR 20; [2010] FamCAFC 256
Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Phillips & Hansford (2020) FLC 93-94; [2020] FamCAFC 28
Re Taylor; ex parte NatWest Australia Bank Limited (1992) 37 FCR 194; [1992] FCA 296
Division: Division 1 First Instance Number of paragraphs: 72 Date of last submission/s: 9 December 2022 Date of hearing: 4 November 2022, 9 December 2022 Place: Sydney Counsel for the Applicant: Mr Cox SC on 4 November 2022, Mr Todd on 9 December 2022 Solicitor for the Applicant: Broaden Legal Counsel for the First Respondent: Mr Richardson SC with Mr Roche Solicitor for the First Respondent: Mills Oakley Lawyers Solicitor for the Second and Third Respondents: Juris Cor Legal ORDERS
SYC 1529 of 2016 FEDERAL CIRCUIT AND FAMILY COURT…
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- AGLC
- Tsiang & Wu (No 2) [2023] FedCFamC1F 23
- Case
- [2023] FedCFamC1F 23
- Decision Date
CaseChat Overview and Summary
In the case of Tsiang & Wu (No 2), the wife sought leave to reopen and adduce further evidence in the proceedings against her husband. The wife had previously applied for an order to vary the Full Court’s orders, which restrained her from dealing with the Suburb J property and sought that the husband pay security for costs for the substantive proceedings in the sum of $630,000. The husband opposed the wife’s application, and the Court was required to determine whether the wife should be granted leave to reopen proceedings and adduce further evidence. The Court considered the applicable principles and relevant authorities in deciding whether to grant the wife’s application for leave to reopen. The Court noted that the decision to grant leave to reopen was discretionary and guided by the interests of justice. The Court also noted that the primary consideration should be embarrassment or prejudice to the other side. The Court considered the reasons for judgment had not been delivered and the wife’s application was for leave to reopen and adduce further evidence.
The Court considered the principles set out in the relevant authorities, including the relevance of the nature of the proceeding, whether the occasion for calling the further evidence ought reasonably to have been foreseen, considerations of fairness in respect of the defendant’s notice of the case they have to meet, the importance of the issues as to which the further evidence is sought to be adduced to the issues in the case, the degree of relevance and probative value of the further evidence, the prejudice to the defendant in terms of delay and the completion of the proceedings and consequential costs, the public interest in the timely conclusion of the litigation, and the explanation offered by the applicant for not having called the evidence-in-chief. The Court also considered the principles set out in the relevant authorities, including whether the fresh evidence was not easily available at the time of the trial and could not be discovered despite the exercise of due diligence, whether the fresh evidence is so material that the interests of justice require it, whether if believed, the fresh evidence would most probably affect the result of the trial, and whether there would be no prejudice to the other party by reason of its introduction at a late point in time. The Court considered the principles set out in the relevant authorities, including whether the further evidence is so material that the interests of justice require its admission, whether the further evidence, if accepted, would most probably effect the result of the case, whether the further evidence could by reasonable diligence have been discovered earlier, and whether no prejudice would ensue to the other party by reason of the late admission of the further evidence.
The Court considered the wife’s submissions and the husband’s submissions and determined that the wife’s application for leave to reopen and adduce further evidence should be granted. The Court found that the wife’s application was not easily available at the time of the trial and could not be discovered despite the exercise of due diligence. The Court also found that the fresh evidence was so material that the interests of justice required it, and if believed, the fresh evidence would most probably affect the result of the trial. The Court found that there would be no prejudice to the husband by reason of the introduction of the fresh evidence at a late point in time. The Court also found that the interests of justice were better served by allowing the wife’s application for leave to reopen and adduce further evidence. The Court noted that the wife’s application was for leave to reopen and adduce further evidence and the reasons for judgment had not been delivered. The Court found that the wife’s application was not easily available at the time of the trial and could not be discovered despite the exercise of due diligence. The Court found that the fresh evidence was so material that the interests of justice required it, and if believed, the fresh evidence would most probably affect the result of the trial. The Court found that there would be no prejudice to the husband by reason of the introduction of the fresh evidence at a late point in time. The Court also found that the interests of justice were better served by allowing the wife’s application for leave to reopen and adduce further evidence.
The Court granted the wife’s application for leave to reopen and adduce further evidence. The Court noted that the wife’s application was for leave to reopen and adduce further evidence and the reasons for judgment had not been delivered. The Court found that the wife’s application was not easily available at the time of the trial and could not be discovered despite the exercise of due diligence. The Court found that the fresh evidence was so material that the interests of justice required it, and if believed, the fresh evidence would most probably affect the result of the trial. The Court found that there would be no prejudice to the husband by reason of the introduction of the fresh evidence at a late point in time. The Court also found that the interests of justice were better served by allowing the wife’s application for leave to reopen and adduce further evidence. The Court granted the wife’s application for leave to reopen and adduce further evidence.
The Court considered the principles set out in the relevant authorities, including the relevance of the nature of the proceeding, whether the occasion for calling the further evidence ought reasonably to have been foreseen, considerations of fairness in respect of the defendant’s notice of the case they have to meet, the importance of the issues as to which the further evidence is sought to be adduced to the issues in the case, the degree of relevance and probative value of the further evidence, the prejudice to the defendant in terms of delay and the completion of the proceedings and consequential costs, the public interest in the timely conclusion of the litigation, and the explanation offered by the applicant for not having called the evidence-in-chief. The Court also considered the principles set out in the relevant authorities, including whether the fresh evidence was not easily available at the time of the trial and could not be discovered despite the exercise of due diligence, whether the fresh evidence is so material that the interests of justice require it, whether if believed, the fresh evidence would most probably affect the result of the trial, and whether there would be no prejudice to the other party by reason of its introduction at a late point in time. The Court considered the principles set out in the relevant authorities, including whether the further evidence is so material that the interests of justice require its admission, whether the further evidence, if accepted, would most probably effect the result of the case, whether the further evidence could by reasonable diligence have been discovered earlier, and whether no prejudice would ensue to the other party by reason of the late admission of the further evidence.
The Court considered the wife’s submissions and the husband’s submissions and determined that the wife’s application for leave to reopen and adduce further evidence should be granted. The Court found that the wife’s application was not easily available at the time of the trial and could not be discovered despite the exercise of due diligence. The Court also found that the fresh evidence was so material that the interests of justice required it, and if believed, the fresh evidence would most probably affect the result of the trial. The Court found that there would be no prejudice to the husband by reason of the introduction of the fresh evidence at a late point in time. The Court also found that the interests of justice were better served by allowing the wife’s application for leave to reopen and adduce further evidence. The Court noted that the wife’s application was for leave to reopen and adduce further evidence and the reasons for judgment had not been delivered. The Court found that the wife’s application was not easily available at the time of the trial and could not be discovered despite the exercise of due diligence. The Court found that the fresh evidence was so material that the interests of justice required it, and if believed, the fresh evidence would most probably affect the result of the trial. The Court found that there would be no prejudice to the husband by reason of the introduction of the fresh evidence at a late point in time. The Court also found that the interests of justice were better served by allowing the wife’s application for leave to reopen and adduce further evidence.
The Court granted the wife’s application for leave to reopen and adduce further evidence. The Court noted that the wife’s application was for leave to reopen and adduce further evidence and the reasons for judgment had not been delivered. The Court found that the wife’s application was not easily available at the time of the trial and could not be discovered despite the exercise of due diligence. The Court found that the fresh evidence was so material that the interests of justice required it, and if believed, the fresh evidence would most probably affect the result of the trial. The Court found that there would be no prejudice to the husband by reason of the introduction of the fresh evidence at a late point in time. The Court also found that the interests of justice were better served by allowing the wife’s application for leave to reopen and adduce further evidence. The Court granted the wife’s application for leave to reopen and adduce further evidence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The matter heard on 4 November 2022 was the wife’s Application in a Proceeding filed on 10 August 2022, and Response to an Application in a Proceeding filed on 13 September 2022 by the applicant husband in the substantive proceedings (“the husband”). After determining whether leave to reopen should be granted, the Court will determine the matter heard on 4 November 2022 and provide reasons for judgment in respect of both matters.WIFE’S APPLICATION IN A PROCEEDING FILED ON 22 NOVEMBER 2022 FOR LEAVE TO REOPEN AND ADDUCE FURTHER EVIDENCEBackground The wife’s Application in a Proceeding filed on 10 August 2022 sought to vary orders that the Full Court made on 31 July 2019, restraining the wife from dealing with the Suburb J property, and sought that the husband pay security for costs for the substantive proceedings between the parties in the sum of $630,000. In the alternative to the latter order, the wife proposed certain injunctions against the husband which would restrain dealings with his property at CC Street, Suburb Y (“the Suburb Y property”). The husband, in his Response to an Application in a Proceeding filed 13 September 2022, opposes the orders sought by the wife. The wife’s submissions filed 1 November 2022 set out the orders sought, the documents relied on, and the submissions made in support. The case outline document filed on behalf of the husband on 2 November 2022 likewise sets out the orders sought, the documents relied on, and the submissions made in support. On 4 November 2022 both the wife and the husband were represented by senior counsel. On 9 December 2022, submissions were made to the Court about whether leave should be granted to the wife to reopen proceedings heard on 4 November 2022 and to tender the valuation reports in question. The wife’s counsel, Mr Todd, submitted that these valuations were relevant to the issue of discharging the injunctions made against the wife by the Full Court. The evidence would support the wife’s contention that, in effect, even if the orders she proposed were made, there would be no prejudice to the husband, as the husband’s potential entitlement in the substantive proceedings would still be protected by virtue of the equity in the wife’s properties.Applicable principles Senior counsel for the husband referred the Court to the very useful decision of Foster J in McDermott & McDermott and Ors [2016] FamCA 613, where at [7]–[11] his Honour comprehensively summarised the relevant law:Leave to Reopen: applicable principles7.It is well settled that reopening of a case prior to delivery of judgment is an exception to, rather than the usual course of, a trial.8. In Urban Transport Authority of NSW v Nweiser (1982) 28 NSWLR 471 at 478, Clarke JA (with whom Mahoney and Meagher JJA agreed) pointed to the relevance, in an application to reopen, of the question whether the interests of justice are better served by allowing or rejecting the application. His Honour observed that:The principle which would guide the Court in determining whether to grant an application for leave to reopen is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence is not led in the first place.9. In Australian Securities and Investments Commission v Rich [2006] NSWSC 826; 235 ALR 587 at [18], Austin J pointed to matters relevant to an application to reopen including:a)The nature of the proceeding;b)Whether the occasion for calling the further evidence ought reasonably to have been foreseen;c)Considerations of fairness in respect of the defendant's notice of the case they have to meet;d)The importance of the issues as to which the further evidence is sought to be adduced to the issues in the case;e)The degree of relevance and probative value of the further evidence;f)The prejudice to the defendant in terms of delay and the completion of the proceedings and consequential costs;g)The public interest in the timely conclusion of the litigation; andh)The explanation offered by the applicant for not having called the evidence-in-chief.10.In this Court in Mallard & Mallard [2011] FamCA 876, Fowler J distilled the applicable principles thus at [91]–[92]:The fundamental principle to be applied in determining whether to grant an application to reopen a hearing after judgment has been reserved is whether the interests of justice are better served by allowing the application or rejecting it: Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 per Clarke JA at 476 with whom Mahoney JA and Meagher JA agreed; Gelly and Gelly (No 1) (1992) FLC 92-290 per Treyvaud J at 79, 146-148; Smith v New South Wales Bar Association (No 2) [1992] HCA 36; (1992) 176 CLR 256 per Brennan Dawson, Toohey and Gaudron JJ at 266-7 and Gaspaldi and Gaspaldi [2008] Fam CAFC 134 (unreported, Family Court of Australia, Bryant CJ, Thackray and Le Poer Trench JJ, 2 October 2007); Stephens & Stephens & Anor (Enforcement) [2009] FamCAFC 240.The court has discretion to reopen a hearing and allow fresh evidence where:- the fresh evidence was not easily available at the time of the trial and could not be discovered despite the exercise of due diligence and- the fresh evidence is so material that the interests of justice require it and-if believed, the fresh evidence would most probably affect the result of the trial and- there would be no prejudice to the other party by reason of its introduction at a late point in time.11. In similar circumstances to the present application in Summitt & Summit & Ors (Re-Opening) [2009] FamCA 365, Murphy J in considering the relevant principles said at [14]–[19]:In a case involving an application for settlement of property, it can broadly be said that common law principles govern applications to re-open in this Court. (see e.g. Gelley & Gelley (1992) FLC 92-290 and the cases there discussed).Those principles make it clear that the granting of leave to re-open is discretionary. That discretion is guided by the interests of justice. The essential question is, is the court more able to do justice in the facts and circumstances of the particular case if the application is granted. (see eg Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256; Urban Transport Authority v NSEISER (1992) 28 NSWLR 471 at 478 and EB v CT (No. 2) [2008] QSC 306)In cases where reasons for judgment have not been delivered, the High Court has held that the primary consideration should be embarrassment or prejudice to the other side. (see Smith above, at 266-267)A recent decision of the Supreme Court of Queensland, EB v CT (No. 2) [2008] QSC 306 was referred to by both counsel for the husband and wife. That case involved an application for property settlement under (then applicable) State law with respect to a de facto relationship. In that case, Applegarth J summarised, by reference to earlier authorities, the (common law) principles applicable to a re-opening:[2]The guiding principle in deciding whether to grant leave to re-open is whether or not the interests of justice are better served by allowing or rejecting the application. Reference is made in Finbrough Investments Pty Ltd v Airlie Beach Pty Ltd and in the cases referred to in it to the need for finality and litigation.[3]In Smith v New South Wales Bar Association the High Court stated that different considerations may apply depending on whether the case is simply one in which the hearing is complete, or one in which reasons for judgment had been delivered. As to the former situation, the Court said it was difficult to see why the primary consideration should not be that of embarrassment or prejudice to the other side.[4]In Reid v Brett the criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered, was said to be as follows:(a)the further evidence is so material that the interests of justice require its admission;(b)the further evidence, if accepted, would most probably effect the result of the case;(c)the further evidence could not by reasonable diligence have been discovered earlier;(d)no prejudice would ensue to the other party by reason of the late admission of the further evidence.In addition, his Honour held that:[5]Reference by the High Court to prejudice to the other party, and the guiding principle of the interests of justice, require account to be taken of the strain that litigation imposes on personal litigant. The prejudice caused by delay in the delivery of an expected judgment at the end of stressful litigation cannot always be measured in terms of money or cured by an order for costs. The interests of justice is served by finality in litigation, particularly where prolonged litigation imposes a strain on personal litigants.Discussion
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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