Vang & Chung (No 2)
[2024] FedCFamC1A 190
•21 October 2024
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 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS VANG
ApplicantAND: MR CHUNG
First RespondentMR 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vang & Chung has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, HARTNETT & RIETHMULLER JJ:
INTRODUCTION
Before the Court are property proceedings under Part VIII of the Family Law Act 1975 (Cth) between the applicant wife and the first respondent husband. The second respondent was formally joined to the proceedings by order of the primary judge on 4 March 2024. The second respondent is the father of the husband.
The matter has a lengthy procedural history. The wife commenced proceedings in the then Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia (Division 2)) on 3 March 2020. The proceedings were transferred to this Court on 15 December 2022. The wife, as a self-represented litigant, has filed many Applications in a Proceeding (with further Amended Applications in a Proceeding) resulting in an order made by a senior judicial registrar on 15 September 2023, requiring the wife to seek leave of the Court prior to the listing of any further interim applications. The wife has otherwise filed three Applications for Review; and seven appeals (29 June 2023, 12 December 2023, 26 March 2024, 27 March 2024, 4 July 2024,15 July 2024 and 8 October 2024).
The Notice of Appeal filed by the wife in the appeal before us was filed on 15 July 2024. The wife sought leave to appeal, and if successful, to appeal Orders 1, 2, 3 and 6 of the orders made by the primary judge on 18 June 2024.
On 16 September 2024, the wife filed an Application in an Appeal where she sought to adduce further evidence, being 42 items (numbered 2-43 inclusive), some of which referred to multiple pieces of evidence. The wife also sought an order (numbered 44) that “More than ten Annexures to be allowed to add to this affidavit”. An affidavit was filed in support of the application on 16 September 2024, and refiled with various annexures on 18 September 2024.
The husband did not file any material in respect of the appeal, save for a submitting notice.
The second respondent sought the wife’s Application in an Appeal be refused with costs, and the wife’s application for leave or alternatively the wife’s appeal be refused with costs.
Relevant orders and notations made 18 June 2024
It is convenient to set out the orders and notations made by the primary judge on 18 June 2024.
THE COURT NOTES THAT:
A. The sale of the property known as [E Street, Suburb F] has completed and as a result, net proceeds of the sale of the property in the amount of $13,866,292.17 (“sale proceeds”) are held in the trust account of the solicitors for the Second Respondent.
B. By Order 2(e) of the orders made on 14 November 2023, no restrictions apply to 50% of the balance of the sale proceeds.
C. By Order 3 made on 14 November 2023, the orders made by the Court do not restrict the Second Respondent from dealing with the remaining 50% of the balance of the sale proceeds following 4.00 [am] on 22 January 2024.
THE COURT ORDERS THAT:
1. The Second Respondent is not to further deal with 50% of the balance of the sale proceeds of the property, being the amount of $6,933,146.09 pending either of the determination of Appeal numbers NAA69/2024 and NAA70/2024; or 4.00 pm on 25 June 2024.
2.Leave for the wife to file and serve her response to the Application in a Proceeding is refused.
3.The Application in a Proceeding filed on 30 May 2024 by the Second Respondent is otherwise dismissed.
…
THE COURT ORDERS IN CHAMBERS THAT:
6. The proceedings are listed in a callover at 10.00 am on 5 September 2024.
In the ex tempore reasons for judgment delivered by the primary judge on 18 June 2024, his Honour noted that the second respondent’s Application in a Proceeding filed 30 May 2024 was listed urgently before him on 18 June 2024 and that on the night of 17 June 2024, the wife attempted to file a response which sought a range of orders about disclosure, recusal for apprehended bias and a stay of orders made by the primary judge on 14 November 2023. The critical issue for the parties, and the gravamen of the Application in a Proceeding, was an injunction restraining the second respondent from dealing with 50 per cent of the balance of the proceeds of sale of E Street, Suburb F (“the E Street property”) which was addressed by Order 1 of the orders made 18 June 2024.
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).
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
The principles which apply to an application for leave to appeal are set out in Goldsmith & Stinson (No 2) (2023) FLC 94-134 at [45], where the Full Court said as follows:
If leave to appeal is required, the test adopted in this Court is a conjunctive one, namely, whether the decision of the primary judge is attended by sufficient doubt so as to warrant its reconsideration by the Full Court and, if so, whether a substantial injustice would occur if leave were not granted: Medlow & Medlow (2016) FLC 93-692 at [57]; Moy & Pao (2022) FLC 94-073 at [11]. The merits of the proposed appeal are relevant to the success of an application for leave to appeal: Ebner & Pappas (2014) FLC 93-619 at [39]; Harford & Spalding [2022] FedCFamC1A 78 at [16].
(Emphasis in original)
Orders against which the wife seeks leave to appeal
Order 1
The Second Respondent is not to further deal with 50% of the balance of the sale proceeds of the property, being the amount of $6,933,146.09 pending either of the determination of Appeal numbers NAA69/2024 and NAA70/2024; or 4.00 pm on 25 June 2024.
Order 1 of the orders made 18 June 2024, and the undertaking in the same terms that followed, were thereafter superseded by a further order made by the primary judge on 5 September 2024, as follows:
2. The second respondent is restrained from dealing with 50 per cent of the sale proceeds of the property known as [E Street, Suburb F], being the amount of $6,933,146.09 currently held in the trust account of Mangioni Biggs & Co pending determination of the final hearing or further order of the Court.
Refusing leave to appeal Order 1 cannot lead to any substantial injustice, or indeed any injustice or prejudice to the wife. Such order is substantively in like terms to the order made by the primary judge on 5 September 2024 save that, as sought by the wife, and agreed by the second respondent, the restraint continues pending determination of the final hearing or further order of the Court. Therefore, an appeal against this order has no utility.
We observe in any event that at the appeal hearing, the wife did not ultimately press for leave to appeal this order.
Order 2
Leave for the wife to file and serve her response to the Application in a Proceeding is refused.
There could be no injustice or prejudice to the wife if leave to appeal was refused in respect of this order. Order 2 as sought by the wife in this appeal, together with Order 3 (presumed to be read as “Alternative to Order 2”), is otiose for the reasons given in the consideration of Order 1 above, namely the existence of Order 2 of the orders of 5 September 2024. The Amended Application in a Proceeding was otherwise dismissed once the restraint order was made, that application seeking no other orders. The wife required leave to file her response which was not granted, because the subject of the Amended Application had been dealt with; there was a need to afford procedural fairness to the second respondent; and because the wife was attempting to revisit earlier matters not determined to her satisfaction. Further, we observe the ongoing management of the proceeding, including the hearing of the trial is no longer with the primary judge. There is no utility in the seeking of this order.
Order 3
The Application in a Proceeding filed by the Second Respondent on 30 May 2024 is otherwise dismissed.
The continuation of an appeal against this order has no utility for the reasons given in relation to Order 1 and Order 2 above.
Order 6
The proceedings are listed in a callover at 10.00 am on 5 September 2024.
This is a procedural order in respect of a listing which has already occurred.
It is not a proper subject of appeal. It is not a “judgment” which binds the parties’ rights and disposes of any justiciable cause between them (Bonner & Chandler (2021) FLC 94-063 at [17]; Re Darley (No 2) (2023) 379 FLR 234 at [16] and [17]). There is again no utility in its pursuit.
The wife conceded as much and did not press this matter.
The orders sought in the appeal
The wife sought the following orders in the appeal:
1. Seek leave to file this Appeal, and the leave be granted.
2.The Second Respondent ([Mr D]) is not to further deal with 50% of the balance of the sale proceeds of the property, being the amount of $6,933,146.09 pending the final hearing of the case.
3.Alternative to Order 3, relist the application filed by the Second Respondent filed on 30 May 2024, and consider the wife’s response and affidavit to this application. Also consider parties consent orders agreenment (sic) letter dated on 18 June 2024.
4.Seek the court grant an order the father return any property sale proceeds and interest earned from the husband’s property, which the husband put under the father’s NAB account in June 2017, regarding the property address: [H Street, suburb F]. The fund to be secured under all parties’ mutual names for further directions and interest bearing.
5.This appeal to be listed for hearing together with the NAA168/2024 for saving all parties cost concerns and court resources. Any earlier appeal issues related to: NAA34/2023, NAA69/2024, NAA70/2024 are to be considered due to relavency (sic).
6.Vacate the Registrar’s order on 3 July 2024. These five subpoenas and relevant documents are key evidence in this case, and they were also adduced as evidence in earlier appeals. Alternatively, stay and archive the produced subpeona (sic) evidence at the court till further directions are given.
7.No more listings before [the primary judge] until previous case issues outcomes are given.
Orders 2 and 3 as sought by the wife are canvassed in the discussion as to Order 1 above.
Order 5 as sought by the wife serves no useful purpose: Appeal NAA168/2024 was summarily dismissed by the appeal judicial registrar on 19 July 2024.
Order 6 as sought by the wife is improperly before the Full Court, being a decision of an appeal judicial registrar which was the subject of an Application for Review before the primary judge who made orders on 10 September 2024 in respect of that matter.
Order 7 is also otiose as by Order 5 of the orders made on 5 September by the primary judge, the matter has been transferred to the docket of a different judge for final determination. Further, this order, and Order 4 as sought by the wife, does not relate to an order the subject of appeal, being orders not sought by the wife at first instance, nor the subject of judgment. Such orders should not be sought on appeal (Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438).
Merits of the proposed appeal
When looking to the merits of the proposed appeal we conclude that each of the grounds of the proposed appeal are unmeritorious.
The second respondent’s Amended Application in a Proceeding filed 30 May 2024 raised a single, narrow issue for consideration and sought an order favourable to the wife. The wife had 18 days between being served with that application and the hearing of that application on 18 June 2024 to consider that one narrow issue, an issue that the wife had long contemplated. An issue capable ultimately of agreement. The amended application sought an urgent listing before the primary judge, so the wife was on notice of the potential for the matter to be listed on short notice.
The primary judge provided reasons for his refusal of the wife’s filing of her Response to an Application in a Proceeding. The adequacy of reasons is to be considered in the context of the hearing itself (Tael & Bonnard Equipment Pty Ltd & Liao (2008) FLC 93-379 at [30]). The second respondent’s Application in a Proceeding heard on 18 June 2024 was relatively limited. Accordingly, the primary judge’s reasons were adequate.
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.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Hartnett & Riethmuller JJ. Associate:
Dated: 21 October 2024
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