Vang & Chung (No 2)

Case [2024] FedCFamC1A 190

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Vang & Chung (No 2) [2024] FedCFamC1A 190

Appeal from: Vang & Chung (No 5) [2024] FedCFamC1F 432
Appeal number: NAA 183 of 2024
File number: SYC 1433 of 2020
Judgment of: ALDRIDGE, HARTNETT & RIETHMULLER JJ
Date of judgment: 21 October 2024
Catchwords:

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the wife seeks to appeal interim orders restraining the second respondent from dealing with proceeds of sale and otherwise dismissing the second respondent’s Application in a Proceeding – Where the wife seeks an order on appeal extending the restraint to the final hearing – Where the primary judge has already made an order in those terms – Where the subject matter of the Application in an Appeal had been dealt with – Proposed grounds of appeal are unmeritorious – Leave to appeal refused – Orders made as to written submissions on the issue of costs.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the wife sought leave to adduce further evidence – Further evidence is duplicative and redundant – Wife fails to identify the relevance of the material or why it was not adduced at trial – Application dismissed.

Legislation: Family Law Act 1975 (Cth) Part VIII
Cases cited:

Bonner & Chandler (2021) FLC 94-063; [2021] FedCFamC1A 81

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Goldsmith & Stinson (No 2) (2023) FLC 94-134; [2023] FedCFamC1A 25

Re Darley (No 2) (2023) 379 FLR 234; [2023] FedCFamC1A 112

Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35

Tael & Bonnard Equipment Pty Ltd & Liao (2008) FLC 93-379; [2008] FamCAFC 127
Number of paragraphs: 40
Date of hearing: 1 October 2024
Place: Sydney
The Applicant: Litigant in person (via videolink)
The First Respondent: No appearance
Solicitor for the Second Respondent: Mangioni Biggs + Co

ORDERS

NAA 183 of 2024
SYC 1433 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS VANG
Applicant
AND:

MR CHUNG
First Respondent

MR D
Second Respondent

ORDER MADE BY:

ALDRIDGE, HARTNETT & RIETHMULLER JJ

DATE OF ORDER:

21 OCTOBER 2024

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 16 September 2024 is dismissed.

2.Leave to appeal is refused.

3.The Notice of Appeal filed on 15 July 2024 is dismissed.

4.Within 14 days hereof, the second respondent file and serve written submissions as to costs.

5.Within 28 days hereof, the applicant file and serve written submissions as to costs.

6.Within 35 days hereof, the second respondent file and serve any written submissions in reply.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the…

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AGLC
Vang & Chung (No 2) [2024] FedCFamC1A 190
Case
[2024] FedCFamC1A 190
Decision Date

CaseChat Overview and Summary

In the matter of Vang & Chung (No 2), the wife, Ms Vang, sought to appeal certain interim orders made by the primary judge, which restrained the second respondent from dealing with proceeds of sale and dismissed the second respondent's application in a proceeding. The wife also sought an extension of the restraint to the final hearing and leave to adduce further evidence. The Federal Circuit and Family Court of Australia, in its appellate jurisdiction, was tasked with deciding whether to grant the wife leave to appeal and to adduce further evidence.

The legal issues before the court included whether the wife's appeal was meritorious and whether the proposed grounds for appeal had any prospect of success. Additionally, the court had to determine if the wife had discharged the onus of establishing the relevance and necessity of the further evidence she sought to adduce. The principles guiding the court's decision on the application to lead further evidence were well established by the High Court in CDJ v VAJ.

The court found that the wife's appeal was unmeritorious as the subject matter had already been addressed by the primary judge and no new or compelling grounds had been presented. The proposed grounds of appeal were deemed to be without merit. Furthermore, the further evidence the wife sought to adduce was considered duplicative and redundant, and the wife failed to demonstrate its relevance or why it had not been presented earlier. The court noted that the wife's affidavit was prolix and largely indecipherable, and the evidence sought to adduce was largely irrelevant or had already been considered.

Consequently, the court refused the wife leave to appeal and to adduce further evidence. The court concluded that the appeal served no useful purpose and was an attempt to relitigate issues already decided. The wife's concern that the primary judge might revise the orders was deemed an improper basis for proceeding with the appeal.

The court made orders dismissing the wife's application in an appeal, refusing leave to appeal, and dismissing the notice of appeal. The second respondent was directed to file and serve written submissions on costs within 14 days, followed by the wife within 28 days, and the second respondent's reply within 35 days. The form of the order was subject to review or variation as permitted by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

Orders

Orders of the court

NAA 183 of 2024

SYC 1433 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS VANG

Applicant

AND:

MR CHUNG

First Respondent

MR D

Second Respondent

ORDER MADE BY:

ALDRIDGE, HARTNETT & RIETHMULLER JJ

DATE OF ORDER:

21 OCTOBER 2024

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 16 September 2024 is dismissed.

2. Leave to appeal is refused.

3. The Notice of Appeal filed on 15 July 2024 is dismissed.

4. Within 14 days hereof, the second respondent file and serve written submissions as to costs.

5. Within 28 days hereof, the applicant file and serve written submissions as to costs.

6. Within 35 days hereof, the second respondent file and serve any written submissions in reply.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

His Honour described the wife, in the material as filed by her, to be engaging in an “apparent attempt… to thrash the water to foam yet again on the same issues which have been the subject of earlier interlocutory determination” (at [10]). His Honour, in the interest of finality of litigation as applied to interlocutory applications, and the application of valuable Court resources, was not persuaded that the wife’s response should be permitted to progress any further and, accordingly, he refused the wife leave to file her response (the orders made 15 September 2023 requiring the wife to seek such leave).BACKGROUND The operation of Order 1 made by the primary judge on 18 June 2024 was extended to 4.00 pm on 5 September 2024 by an undertaking given by the second respondent. On 5 September 2024, the primary judge further extended the operation of Order 1 by making an order preserving the restrained 50 per cent of the balance of the sale proceeds of the E Street property pending finalisation of the proceedings or further order of the Court. At the hearing of this appeal on 1 October 2024, the wife indicated she had lodged an appeal against the orders made 5 September 2024. The position of the second respondent remains that the registered mortgage held by him over the E Street property was valid and that he provided the funds secured by and in consideration of which the mortgage was granted. APPLICATION IN AN APPEAL TO ADDUCE FURTHER EVIDENCE The principles which apply to an application to lead further evidence upon questions of fact on appeal are well settled by the High Court of Australia in CDJ v VAJ (1998) 197 CLR 172. The majority of McHugh, Gummow and Callinan JJ stated at [116]:The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section. The wife sought leave in respect of a vast array of documents which she sought to have admitted into evidence. The second respondent resisted the application for leave to adduce further evidence. The onus is on the wife to establish the relevance of the matters raised in her affidavit and documents exhibited thereto. We are not persuaded the wife discharged that onus. Further, we do not conclude that any of such evidence would have produced a different result if it had been adduced at the interlocutory hearing, which indeed some of it was. On an examination of the material, we agree with the argument of the second respondent that the further evidence sought to be adduced by the wife is “duplicative and redundant” and that the wife’s affidavit filed 18 September 2024 is “prolix and largely indecipherable” (second respondent’s Summary of Argument filed 20 September 2024, paragraphs 5 and 6).

Evidence

Evidence Before The Court

The position of the second respondent remains that the registered mortgage held by him over the E Street property was valid and that he provided the funds secured by and in consideration of which the mortgage was granted. APPLICATION IN AN APPEAL TO ADDUCE FURTHER EVIDENCE The principles which apply to an application to lead further evidence upon questions of fact on appeal are well settled by the High Court of Australia in CDJ v VAJ (1998) 197 CLR 172. The majority of McHugh, Gummow and Callinan JJ stated at [116]:The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section. The wife sought leave in respect of a vast array of documents which she sought to have admitted into evidence. The second respondent resisted the application for leave to adduce further evidence. The onus is on the wife to establish the relevance of the matters raised in her affidavit and documents exhibited thereto. We are not persuaded the wife discharged that onus. Further, we do not conclude that any of such evidence would have produced a different result if it had been adduced at the interlocutory hearing, which indeed some of it was. On an examination of the material, we agree with the argument of the second respondent that the further evidence sought to be adduced by the wife is “duplicative and redundant” and that the wife’s affidavit filed 18 September 2024 is “prolix and largely indecipherable” (second respondent’s Summary of Argument filed 20 September 2024, paragraphs 5 and 6). The wife’s affidavit does not set out the relevance of some of the additional evidence to be adduced to any issue in this appeal, nor why material available and known to the wife on the date of the hearing at first instance was not adduced at the hearing before the primary judge. Otherwise, and overwhelmingly, the wife seeks to adduce evidence already included in the Appeal Book and other evidence before the primary judge on 5 September 2024. Much of it is irrelevant, dealing with matters already dealt with in the proceeding without addressing the specific matters raised by the making of those orders the subject of leave to appeal. The wife’s filing of such material appears to be an attempt by her, on appeal, to relitigate matters which the Court has already addressed at first instance and on appeal as already heard and determined. Accordingly, the wife’s application for leave to adduce further evidence and rely upon the further proposed material is refused. APPLICATION FOR LEAVE TO APPEAL

Decision

Reasons for decision

Given our conclusions as otherwise stated above, there is no need to consider further the merits of the appeal.CONCLUSION We conclude there is no utility in the bringing of this appeal by the wife. When asked by the Court why she was proceeding with the appeal in the face of the matters raised above, the wife stated that she was worried that the primary judge would “change his mind” and revise the orders to her dissatisfaction. That concern is not a proper basis for the bringing of this appeal before the Court. Leave to appeal is refused.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.