Vang & Chung (No 5)
[2024] FedCFamC1A 251
•20 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Vang & Chung (No 5) [2024] FedCFamC1A 251
Appeal from: Vang & Chung (No 6) [2024] FedCFamC1F 604 Appeal number(s): NAA 259 of 2024 File number(s): SYC 1433 of 2020 Judgment of: JARRETT J Date of judgment: 20 December 2024 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – SUMMARY DISMISSAL – Where before the primary judge the applicant sought to rely on a previously dismissed Amended Application in a Proceeding and to review a Registrar’s decision – Where proposed grounds of appeal are expressed generally without reference to any particular order – Where there is no basis for any of the proposed grounds of appeal – Where no substantial injustice would result from refusing leave to appeal – Where applicant does not have reasonable prospects of prosecuting the application for leave to appeal – Application for leave to appeal summarily dismissed – Costs ordered in a fixed sum Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32, 46
Cases cited: Boman & Boman [2022] FedCFamC1A 55
Vang & Chung (No 3) [2024] FedCFamC1F 101
Medlow & Medlow (2016) FLC 93-692
Number of paragraphs: 89 Date of hearing: 16 December 2024 Place: Brisbane (via video-link) Solicitor for the Applicant: Self-represented litigant Counsel for the First Respondent: Ms Tabbenor Solicitor for the First Respondent: Broun Abrahams Burreket Solicitor for the Second Respondent: Mangioni Biggs & Co ORDERS
NAA259 of 2024
SYC1433 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS VANG
Applicant
AND: MR CHUNG
First Respondent
MR D
Second Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
20 DECEMBER 2024
THE COURT ORDERS THAT:
1.The Notice of Appeal filed on 8 October 2024 is summarily dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the application for leave to appeal, fixed in the sum of $10,000.
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
JARRETT J:
On 8 October 2024 Ms Vang filed a Notice of Appeal in which she seeks leave to appeal orders made on 10 September 2024 by a judge of the Federal Circuit and Family Court of Australia (Division 1). Mr Chung, the first respondent to the application for leave to appeal seeks summary dismissal of that application. Mr D, the second respondent, supports the application for summary dismissal.
Having regard to the definition of proceeding in s 7 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), s 46(2) of that Act gives the Court power to give judgment for a respondent to an application for leave to appeal where the Court is satisfied that the applicant has no reasonable prospect of successfully prosecuting that application. To conclude that the application for leave to appeal has no reasonable prospect of success, I do not need to be satisfied that it is hopeless or bound to fail (s 46(3) of the FCFCOA Act), although the power is to be exercised with caution. Moreover, the power to give summary judgment may be exercised by a single judge: ss 32(3)(b) and 32(5) of the FCFCOA Act and see Boman & Boman [2022] FedCFamC1A 55 at [21].
Although the submissions of counsel for the applicant for summary dismissal (both written and oral) referred to s 45A of the Family Law Act 1975 (Cth), it is clear that the power the respondent is seeking to invoke is that set out in s 46(2) of the FCFCOA Act.
To successfully obtain a grant of leave to appeal, the applicant needs to establish that the decision of the primary judge is “attended by sufficient doubt” to warrant its reconsideration and, if leave to appeal were refused, a “substantial injustice” will ensue: Medlow & Medlow (2016) FLC 93-692.
Thus, in the context of the present application, the question for the Court is whether the applicant has no reasonable prospect of successfully establishing that the decision of the primary judge is attended by sufficient doubt to warrant its reconsideration and, if leave were refused, a substantial injustice will ensue.
THE PRIMARY JUDGE’S ORDERS
The orders sought to be impugned by the proposed appeal are interlocutory and procedural orders that generally concern two subjects.
First, the primary judge was asked to grant the applicant leave to prosecute an amended application in a proceeding filed by her on 5 July 2024. Leave was necessary because on 15 September 2023 an order was made requiring the applicant to seek leave to file any fresh interlocutory applications. The applicant did not appeal this order and it remains in force.
The primary judge described the amended application in a proceeding filed on 5 July 2024 as:
[13]…seeking leave to bring the application itself, and for an assortment of orders including my recusal on the basis of apprehended bias, a stay of various orders pending the outcome of appeals, injunction, disclosure and the reopening of a number of finalised interim applications.
Second was a review application, also filed on 5 July 2024, in which the applicant sought to review a registrar’s decision made on 3 July 2024 that set aside five subpoenas that she had caused to be issued.
The primary judge dealt with each of those applications separately in his reasons for judgment. He dealt with the amended application first. It sought 19 orders. At the commencement of the hearing on 28 August 2024, the primary judge spent some time identifying which of those 19 orders the applicant wished to press and which orders could await determination another day.
The first three orders were procedural in nature and sought to leave to bring the application and that the application be dealt with urgently. These orders were described by the primary judge as “otiose” given the listing before him. That seems an apt description.
Orders 8, 9 and 10 sought recusal of the primary judge, an order that no listings be made before him and that a “new judge” be assigned to the case. As to these orders, the applicant told the primary judge:
[THE APPLICANT]: The recusal, I accept, can be delayed to the next hearing, which will be in early September. I believe next hearing will be on 5 September. But today, the most important issue would be dealing with the subpoenas, because the state (sil. stay) order only allowed the subpoena orders to be stayed until today. So the most important order that I’m seeking is related to the subpoena orders.
…
HIS HONOUR: All right. Now just so I’m very clear, you don’t seek to press an application for me to recuse myself today. Is that right?
[THE APPLICANT]: Not today. I accept that you hear my case. Thanks, your Honour.
During the hearing before me, the applicant said that she had pressed her application for the primary judge to recuse himself toward the end of the hearing. I asked for transcript references where she did so, but other than to direct my attention generally to the last three pages of the transcript, she provided none. I have perused the transcript. I can see no change of position by the applicant in relation to the recusal application as she claims.
The primary judge did not deal with these orders, not because the applicant did not press them, but because at a directions hearing on 5 September 2024 (so five days before the orders sought to be appealed were made), the proceedings were listed before another judge of the court for final hearing to commence on 17 March 2025. The parties were advised that the final hearing would take place before another judge. Aside from an order made on 16 October 2024 staying the operation of order 5 of the appealed orders pending the outcome of the appeal and directions in respect of an application for costs of the application in which the appealed orders were made, the primary judge has no foreseeable involvement in the proceeding.
The orders pressed by the applicant were orders numbered 4, 5, 6(1), 6(2), 7, and 11–19 of the proposed amended application in a proceeding.
Before discussing those orders and the primary judge’s treatment of them, a little background is necessary. On 14 November 2023, an application in a proceeding filed by the present applicant was before the primary judge. His Honour made some orders between the parties, but otherwise adjourned that application to 22 January 2024 for hearing, when other applications in a proceeding filed by the applicant were also listed for hearing. The adjournment order aside, however, some of those orders made on 14 November 2023 were concerned with the distribution of the proceeds of sale of a certain property described as E Street. By a combination of order 3 and paragraph 2(f) of Exhibit “A” to the orders, 50% of the proceeds of sale were secured in a solicitor’s trust account. a combination of order 3 and paragraph 2(e) of Exhibit “A” to the orders, and subject to a presently immaterial qualification, the other 50% was to be paid to the second respondent (not then a party to the proceeding).
By appeal NAA341 of 2023, the applicant sought leave to appeal the order that 50% of the proceeds of sale be paid to the second respondent. She sought an order in the appeal that pending further order, the whole of the net sale proceeds of the E Street property be paid into an interest-bearing controlled monies account in the names of the parties. On 21 December 2023 the operation of the subject order was stayed, pending the outcome of that application and appeal.
On 29 February 2024 the application for leave to appeal was dismissed with the applicant’s consent. She was ordered to pay the first respondent’s costs of the application of a little over $9,000.
In the meantime, the applications in a proceeding adjourned for hearing to 22 January 2024 came on for hearing on that day. For clarity, the primary judge insisted upon the applicant filing a single amended application in a proceeding setting out all of the relief she was seeking on an interlocutory or interim basis. She did so.
Underlying the applicant’s dissatisfaction with the orders concerning the proceeds of sale of E Street is her contention that the first respondent is beneficially entitled to all of the proceeds of sale of that property and any claim by the second respondent as a secured creditor, or otherwise, to any of those proceeds of sale is a sham. The applicant has long contended that all the proceeds of sale of E Street need to be secured pending final property adjustment orders between she and the first respondent.
These contentions were the subject of argument before the primary judge, albeit in the context of an application for spousal maintenance and partial property settlement by the applicant, on 22 January 2024. His Honour dealt with these contentions in his reasons for judgment, in Vang & Chung (No 3) [2024] FedCFamC1F 101 (Vang & Chung (No 3)) delivered on 28 February 2024. Between [86]-[94] of the primary judge’s reasons in that case, his Honour sets out the applicant’s assertions and the response by the first and second respondents to them about the parties’ entitlements to the net proceeds of sale of certain properties, including E Street. At [95] the primary judge concludes:
95For the purposes of s 44(3), on the basis of the evidence before me, I am not persuaded the [applicant] has a sufficient probability of success in proving [E Street] is not subject to a valid mortgage in favour of the father, the discharge of which will require the entire proceeds of sale to the mortgagee. Despite her Points of Claim, she has put forward no sufficiently persuasive evidence supporting an arguable basis why the mortgage should be impugned or set aside. She claims in part this is a result of the husband’s non-disclosure. But as discussed above, even at an interlocutory stage the probabilities are not in favour of her claims of a collusive arrangement between father and son. I accept the husband’s version of the circumstances surrounding the purchase of [E Street] is more inherently plausible for the purpose of assessing the [applicant]’s application for leave. At present, I take the view that the mortgage should be treated as valid and enforceable. Consequently, the proceeds of sale will not form part of the property pool of the parties to the marriage.
Orders 10 and 11 of the amended application in a proceeding filed on 22 January 2024 dealt directly with the applicant’s claim that all of the proceeds of sale of E Street should be secured pending trial. Order 10 sought that the first respondent’s father be joined as a party to the proceedings. Order 11 sought a stay of the order made on 14 November 2023 that permitted the respondent’s father to be paid half of the proceeds of E Street. At [30] the primary judge explained, in his reasons in Vang & Chung (No 3):
30On 22 January 2024, the [applicant] did not press her application for joinder of the father. Rather, she foreshadowed that her claims against him would be articulated in a Points of Claim, which would include an application to set aside the mortgage [#...9Q]. Orders were then made by consent for her to file and serve such a document by 4.00 pm on 12 February 2024. The costs of the father were reserved. At that point in the hearing, the father was excused from further attendance.
Consideration of orders 10 and 11 was stood over to 4 March 2024. The applicant filed her points of claim against the second respondent on 12 February 2024. On 4 March 2024 the primary judge made orders joining the second respondent to the proceedings and making directions for the applicant to:
(a)provide further and better particulars of her claim against the second respondent (order 2(2)); and
(b)file and serve any Amended Initiating Application setting out the precise orders sought by her by the close of business on 13 May 2024 (order 2(3)).
The January 2024 amended application was otherwise dismissed. That is to say, the primary judge refused to make order 11 sought in that application requiring preservation of that half of the proceeds of sale of E Street which, by the orders made on 14 November 2023 were to be paid to the second respondent.
The orders made by the primary judge on 28 February 2024 and 4 March 2024 were the subject of two applications for leave to appeal, namely NAA69 of 2024 and NAA70 of 2024. In NAA70 of 2024 the applicant specifically sought an order on the appeal that the net sale proceeds of E Street, “or the rental incomes be paid into an interest-bearing controlled monies account the names of the parties pending further orders given by the court”.
While those applications for leave to appeal were awaiting hearing and determination, the second respondent applied to the primary judge for orders that regularised an anomaly that had developed concerning the operability of the order permitting him to receive half of the proceeds of E Street pursuant to the orders made on 14 November 2023. The operation of the relevant order had been stayed until a particular date, but the stay not continued until the determination of the applications for leave to appeal then pending. For reasons not immediately obvious, the second respondent sought an order restricting his use of the relevant funds. The applicant sought to respond to this application by a response that she filed on 17 June 2024. Amongst other orders, in that response she sought the following (errors in the original):
1. Restrict [Mr D] not to further deal with the rest of the 50% of the balance of Sale Proceeds of the Husband [Mr Chung’s] property [E Street, Suburb F] until the outcomes of the final hearing.
2. Alternative to above Order 1, restrict [Mr D] not to further deal with the above mentioned proceeds, until the LATER outcomes of:
(1) if the Appeal outcome for NAA69/2024 and or NAA70/2024 is successful. Then pending the outcome of the case being relisted for hearing.
(2) if the Appeal is not successful, list the case for hearing pending directions after the outcomes of the subpeona applications. The subpeona applications include:
Application from MBC lawyer filed on behalf of [Mr D] to set aside all five subpeonas.
Application from [Y Company], the husband’s company.
Application from [AC Accountants], the accountant and ASIC agent of the husband and [Y Company].
…
8. Seek the court to consider temporarily stay the previous orders made on 14 Nov 2023, stay the order to distribute the first 50% of the husband's house sale proceeds to the father due to the case has case management issue which cannot be dealt with through an appeal. Seek to restrict the first 50% of the house sale proceeds at the father's lawyer's trust account until the outcome of the latter, namely, either the appeal outcome to relist applications under appeal NAA69/2024 and NAA70/2024. Or the case management investigation outcome within 20 business days.
The primary judge dealt with this application on 18 June 2024 and delivered orders and ex tempore reasons on 18 June 2024. When considering whether to grant the applicant leave to file and rely upon her response filed on 17 June 2024, the primary judge said:
10 Accordingly, having considered the material filed overnight and in light of the overarching purpose which requires the Court to consider the other contending claims on the Court’s resources by other litigants, together with the apparent attempt by the wife to thrash the water to foam yet again on the same issues which have been the subject of earlier interlocutory determination, I am not persuaded that the wife’s response should be permitted to progress any further.
11 The interest in finality in litigation apply to interlocutory applications as well as to final hearings (Joubert & Verhoeven [2020] FamCA 53 at [30]–[32]; Massalski v Riley (2022) 65 Fam LR 73 at [146]).
12 Accordingly, I am not satisfied that it is in the interests of the parties for there to be any further hearing of the wife’s response, and it was clear from the submissions made to me on 18 June 2024 that the order proposed by the second respondent could be made by consent.
13 Accordingly, I will refuse leave to the wife to file her response to the second respondent’s Application in a Proceeding.
Applications for leave to appeal NAA69 of 2024 and NAA70 of 2024 were dismissed by the Full Court on 30 October 2024. The applicant was ordered to pay the costs of both respondents in a total sum of $22,500.
I now return to the orders sought by the applicant in her amended application in a proceeding filed on 5 July 2024. Orders 4, 5, 11 and 12 pressed by the applicant before the primary judge are related and are underscored by the same contentions advanced by the applicant in opposition to the orders made by the primary judge on 14 November 2023. Save for some immaterial differences in the text, orders 4 and 5 are in the same terms as orders 1 and 2 of the response to application in a proceeding that the applicant attempted to rely upon on 17 June 2024 and for which the primary judge would not grant her leave.
Order 6 seeks the Court to reopen the two applications that have been “closed” by the primary judge namely an application filed by the applicant on 8 April 2024 and an application filed by the second respondent on 30 May 2024.
The application filed by the applicant on 8 April 2024 sought an order staying orders 2(2), 2(3) and 2(4) made on 4 March 2024. I have set out the effect of orders 2(2) and 2(3) above. They are procedural in nature and required the applicant to file points of claim against the second respondent and an amended initiating application setting out the final relief that she sought in the proceeding. Order 19 is related to order 6(1) and seeks a stay of the order refusing the applicant leave to bring the application in a proceeding filed by her on 8 April 2024 for “procedural fairness”.
The application filed by the second respondent on 30 May 2024 was the application dealt with by the primary judge on 18 June 2024, the details of which I have set out above.
Connected with order 6(2) is order 7. It seeks the Court’s leave for the applicant to rely upon her response to the application in a proceeding filed by her on 17 June 2024 which the primary judge refused to grant her leave to rely upon on 18 June 2024.
Order 13 seeks a procedural order permitting the applicant to rely on an affidavit that was more than 25 pages in length.
Order 14 seeks procedural orders relating to disclosure “or subpoena related production costs, legal costs to be paid by the respondent to control these documents”. The precise nature of the orders for disclosure were not specified.
Orders 15, 16, 17 relate to the setting aside of the five subpoenas the subject of the applicant’s review application together with some procedural orders relating to affidavits filed by the applicant.
Order 18 seeks a stay of orders 1, 2 and 3 made by the primary judge on 18 June 2024 “for procedure fairness”.
The primary judge refused the applicant leave to prosecute the amended application in a proceeding filed on 5 July 2024 and dismissed it. The primary judge’s reasons for doing so appear between [23] and [38] of his Honour’s reasons.
His Honour dealt with proposed orders 4, 5, 6(1), 11 and 12 of the amended application compendiously. The primary judge commenced by saying:
[24]… the proposed orders regarding the unrestrained half seek to litigate the same issues which informed the orders made on 28 February 2024, which are the subject of appeal. Vang (No 3) determined an application which raised the same issues which the wife seeks to agitate in support of her amended application. This is doubly impermissible, on the one hand because any discharge or variation of those orders could undermine the efficacy of or conflict with the appellate process, and on the other an application agitating the same issues is an abuse of process.
His Honour noted the principles relating to the reconsideration of interlocutory orders and determined that no basis had been established by the applicant for her earlier orders to be revisited.
Relevantly, since the primary judge delivered those reasons, the appeal referred to by him from Vang (No 3) has since been heard and dismissed: Vang & Chung (No 3) [2024] FedCFamC1A 199.
As for the review of the registrar’s decision concerning the subpoenas, the primary judge determined that his task was to conduct a fresh hearing of the objections made to the five subpoenas in issue. His Honour undertook that task. He set out the applicable law and recorded that it was for the applicant to establish that the subpoenas sought the production of documents that had apparent relevance to the issues in the proceeding. He assumed that matter in the applicant’s favour. Next, he considered the schedules to the subpoenas so as to determine if the objector’s objections to them were made out. In doing so, his Honour noted two general deficiencies in each subpoena, namely that each subpoena sought the production of documents for an unnecessarily long and largely irrelevant period of time and that the schedule in each subpoena was too vaguely or oppressively worded, in the sense that the recipient, in order to comply with the subpoena, was required to determine for themselves which documents may have apparent relevance so as to fall within the subpoena. His Honour then considered each subpoena separately.
Order 2 of the appealed orders deals with the subpoena objections. His Honour set aside two subpoenas entirely (issued to AC Accountants and National Australia Bank) and ordered that parts of the schedules to the remaining three be struck out, leaving other parts to be answered by the recipients of the subpoenas.
Order 3 of the appealed orders relates specifically to the documents produced pursuant to the surviving parts of the subpoena issued to a firm of solicitors. This order regulates the inspection of those documents so that any claim to legal professional privilege by the respondent might be preserved. Order 5 provided for the return or destruction of documents produced under the subpoenas that had been set aside or those where parts had been set aside.
Orders 6 and 7 dismissed the Application for review filed on 5 July 2024 and all outstanding interlocutory applications generally.
THE APPLICATION FOR LEAVE TO APPEAL
The first respondent argues that the application for leave to appeal enjoys no reasonable prospects of success because:
(a)the primary judge’s decision was not attended by the requisite doubt to justify the grant of leave;
(b)relatedly, the proposed grounds of appeal bear no relationship to the orders sought to be impugned by the proposed appeal; and
(c)the respondent identifies no injustice that will flow if leave is refused.
The applicant’s proposed Notice of Appeal identifies that the facts relied upon to support the application for leave to appeal and which are said to establish an error of principle or an injustice are set out in annexure A to that document. Annexure A purports to be grounds of appeal. It does not separately address questions relevant to the grant of leave to appeal.
The grounds of appeal are all general in nature. None of the grounds appear to be directed to any particular order made by the primary judge. I have assumed that they are all intended to be directed to each order the subject of the application.
Two grounds should be considered first. Ground 3 alleges a failure to provide procedural fairness and Ground 8 alleges actual and apprehended bias. The particulars of each of these grounds are general and generic:
Ground 3. His Honor failed to afford procedural fairness
-Inadequate Opportunity to Present Case: One party was not given a fair chance to present their case or submit important evidence.
-Bias: The judge showed bias or favoritism towards one party, which influenced the decision.
-Failure to Consider Evidence: The judge failed to consider relevant evidence or facts presented during the trial.
-Incorrect Exclusion of Evidence: The judge improperly excluded admissible evidence that could have impacted the decision.
-Unfair Treatment: One party was not given a reasonable opportunity to present their evidence or cross-examine witnesses, violating procedural fairness.
…
Ground 8: The judge is biased in this case: bother with Actual bias with direct evidence and apprehended bias:
-Actual Bias:
• The judge had a direct interest in the outcome of the case or displayed conduct that indicated a real prejudice against one of the parties.
• The statements made by the judge, decisions made with clear favoritism, or conflicts of interest.
-Apprehended Bias:
• In my case, a reasonable person, with knowledge of all the facts, would suspect that the judge might not be impartial.
• A fair-minded observer might reasonably perceive that the judge could not bring an impartial mind to the matter. The appearance or perception of bias is sufficient.
• The judge's comments during the trial suggest they have already decided.
• Unequal treatment of the parties (giving one party more opportunities to speak or disregarding evidence from one party, treating the party with obviously different procedure rules).
To resist the summary judgment application, the applicant filed an affidavit that ran to 183 pages (including exhibits). Nothing in that affidavit makes out that the primary judge did not give the applicant an adequate opportunity to present her case. Moreover, I have perused the transcript of the hearing before the primary judge. The hearing commenced at 10.33am and the applicant addressed the court (with discussion with the primary judge) until shortly before 12.15pm. Counsel for the other parties then addressed the court and the applicant was invited to make any reply she thought appropriate. She took that opportunity up with relish and made further extensive submissions. Argument continued until about 1.00pm when an adjournment was taken. The Court resumed at 2.21pm.
In argument before me, the applicant suggested that the primary judge did not conduct a hearing, or permit her to make submissions about the application for review of the decision to strike out five subpoenas that had been issued by her. But a perusal of the transcript demonstrates that to be inaccurate. At page 53 of the transcript of 28 August 2024, the primary judge turns to consider “the subpoenas” and the objections to them. He invited the solicitor appearing for two of the subpoena recipients – strangers to the litigation – to make any submissions that she wished to make in addition to the written submissions that had already been filed. She did so. The primary judge then invited the applicant to make her response. The applicant initially made complaint about what she contended was the third parties’ non-compliance with rules and directions. She made complaint about some other procedural matters. The luncheon adjournment ensued and then upon resumption at 2.15pm, the primary judge said:
HIS HONOUR: Yes. [The applicant], you were making submissions about subpoenas, as I recall, or if you weren’t, could you? And explain to me why you say the subpoenas the subject of objection have apparent relevance to issues in the case.
The applicant took up the primary judge’s invitation. She addressed each of the five subpoenas she had caused to be issued. During the course of those submissions, the applicant veered into a critique of the hearing before the registrar who made the order the subject of the application for review, but the primary judge redirected her submission to the question of significance, namely the apparent relevance of the documents that she sought to have produced by the subpoenas (Transcript 28 August 2024, p.61, lines 13–15).
The primary judge sought the applicant’s acknowledgment that he properly understood what she was asking him to determine (Transcript 28 August 2024 p.61 lines 38–46):
HIS HONOUR: Well, I just don’t understand what it is you’re saying in respect of applications. There are some notices of objection which have been raised, and which you seek to resist by your application for review – which overlaps with your application in a proceeding. That’s what I need to determine today. Is that not right?
[THE APPLICANT]: Yes. The most urgent thing is the subpoena. Yes. Your Honour, while you – reviewing documents, I hope to address a few cases to you.
HIS HONOUR: Yes. All right.
Shortly after this exchange, the following exchange took place (Transcript 28 August 2024, p.62 lines 1–34):
[THE APPLICANT]: Okay. The relevance – the relevance I have addressed in my submission. And especially relevant to identify the beneficiary owner of [Y Company]. I also, in my submission, per my last point, raised a few questions. It’s because - - -
HIS HONOUR: Sorry. Which submission do you mean?
[THE APPLICANT]: I mean the submission I – I – I filed to the court on 23 April 2024. I follow the registrar’s procedure orders.
HIS HONOUR: Just a moment.
[THE APPLICANT]: Thank you, your Honour.
HIS HONOUR: Yes. What paragraphs of that document?
[THE APPLICANT]: Can I bring you to the – my point 17, the last paragraph? Is – okay. Firstly, I want to emphasise is: the subpoena content has not been discussed yet. It is only whether I should issue this subpoena or not issue the subpoena. So the content had not been discussed by – in front of the registrar on 3 July 2024. So today we are not going to talk about the subpoena contents – we only talk about whether 20 this subpoena should be issued to the five parties. I have a - - -
HIS HONOUR: Sorry – they have been issued to the five parties, and notices of objection have been raised.
[THE APPLICANT]: Yes. I object that - - -
HIS HONOUR: The - - -
[THE APPLICANT]: - - - Y Company .....
HIS HONOUR: The assessment of those notices of objection relies substantially upon arguments about the apparent relevance of the documents sought to issues in the proceedings. I thought - - -
The primary judge consistently redirected the applicant to the question of the content of the subpoenas – namely the apparent relevance of the documents she sought to have produced pursuant to them. Indeed, shortly after the last extracted exchange, the primary judge referred specifically to the schedule to the subpoena issued to AC Accountants and attempted to engage the applicant in a discourse about the width of the description of the document to be produced pursuant to the subpoena. Further discussion ensued until the applicant said (Transcript 28 August 2024, p.69 lines 4–30):
[THE APPLICANT]: Your Honour, if I may lastly, regarding the subpoenas’ relevances, I have printed out the transcript. I hope you read your position regarding the five subpoenas. Because your position regarding the subpoenas, during that time, you understand the subpoenas usually will be issued to [AC Accountants], to [Y Company], and you approved it. You said you prefer to hear these cases. And now you are asking me the relevance of my case. If you have heard about my case, you understand, and ..... believe my lawyer issued – during that time, my lawyer issued these subpoenas, not me. So - - -
HIS HONOUR: Look, [Ms Vang], the way it works is this. You’re self-represented. You need leave to issue subpoenas. You say the leave was granted. I can’t remember. I will assume it was.
[THE APPLICANT]: No, during that time I was represented.
HIS HONOUR: But that doesn’t change the fact that subpoenas still have to be properly drawn, and the rights of someone to object to them remain unaffected.
[THE APPLICANT]: Yes. Yes.
HIS HONOUR: So what is the purpose of showing me that transcript?
[THE APPLICANT]: To show you why the subpoenas are relevant to my case because there are early issues you and the legal counsels have discussed during those hearings. And you have discussed about the subpoenas - - -
HIS HONOUR: All right. Hand it up. Hand it up.
His Honour permitted the applicant to take him through what she argued were the relevant parts of the transcript. Argument then ranged across a number of areas that had been the subject of submissions by the applicant earlier in the hearing. At page 79 of the transcript, the following exchange occurred (Transcript 28 August 2024, p.79 line 27 to p.80 line 6):
[THE APPLICANT]: Okay. I certainly want to address – your Honour, to be honest, your position in my case – I really worry you will cause me being, you know – being disadvantaged continuously, because from what the questions you have asked me and the issues I addressed to you today, during today’s hearing, you basically did not 30 take my oral submissions to you – in your mind or concern. You asked me – repeated myself for different issues. I really worry your justice in my case, to be honest with you – because otherwise it’s going to lead to me continuously – seventh, eighth appeal – and it’s never ending without even - - -
HIS HONOUR: Sorry, do you mean that unless you get the orders you want, you will keep appealing? Is that what you’re saying?
[THE APPLICANT]: No, I’m not asking the – what orders I want. I only ask your Honour to maintain your justice in my case, but so far, I don’t see it, and that is why I don’t 40 think you are the right person - - -
HIS HONOUR: Well, [the applicant], [the applicant], we’ve been here almost the entire day, a good proportion of which has been me listening to what you say.
[THE APPLICANT]: Thank you, your Honour. Thank you for giving me sufficient time for making oral submissions to you. But, your Honour - - -
HIS HONOUR: So could you return to the question of what submissions you want to make in response to the objections?
[THE APPLICANT]: Your Honour, I basically have put my submissions regarding [Y Company’s] objection of the subpoena in my affidavit. So - - -
Then again, at page 82 of the transcript, the primary judge attempted to direct the applicant’s attention to the width of the issued subpoenas. The applicant engaged with the primary judge about the complaints made by the objectors to the width of the subpoenas.
The applicant’s submissions ceased at page 84 of the transcript and the other parties addressed the primary judge until page 89. At that point the applicant was invited to make any reply she thought necessary. Again she took up the invitation, but her submissions attempted to repeat what she had already said earlier in the day. On no less than four occasions, the primary judge redirected her to the task at hand and asked her to make her reply submissions. The hearing concluded at 4.33pm (Transcript 28 August 2024, p.101 line 41).
I accept counsel for the first respondent’s submissions that the vast majority of the hearing before the primary judge was taken up by the applicant’s submissions, which the primary judge gave considerable scope for her to provide.
I do not consider there is any merit in the suggestion that the primary judge denied the applicant procedural fairness. Ground 3 of the proposed Notice of Appeal has no reasonable prospect of success. Rather than demonstrating a lack of procedural fairness to the applicant, the transcript of the hearing before the primary judge demonstrates the lengths he went to so as to ensure the applicant understood her task. He redirected her many times to matters relevant to the applications before him. The applicant’s repeated assertion to me that the “subpoena issue” or the “subpoena content issue” was never considered simply cannot be borne out on the face of the transcript.
So too, I consider that the applicant has no reasonable prospect of establishing that the primary judge’s decision is vitiated by actual bias. Aside from the bare allegation in the proposed grounds of appeal, there is nothing that bears out the scandalous assertions that “The judge had a direct interest in the outcome of the case” and that he had “conflicts of interest”. The transcript disposes of the allegation that the primary judge “displayed conduct that indicated a real prejudice against one of the parties”.
The applicant’s claims of apprehended bias are equally hopeless. The transcript shows no unequal treatment as between the applicant and the other parties. The “particular” of this ground that “The judge's comments during the trial suggest they have already decided.” demonstrate the generic nature of this ground.
Ground 1 of the proposed notice of appeal asserts that the primary judge made “an incorrect interpretation or application of the law” in that there was “Misinterpretation of the Family Law Act 1975”, “Incorrect application of legal principles, such as those relating to property settlements and spouse maintenance”, the provision by the primary judge of “misleading guidance during hearings against the parties' best interests”.
Bearing in mind that the orders sought to be appealed concern the refusal to grant leave to prosecute an application in a proceeding and orders made concerning objections to subpoenas, it is difficult to see how this ground, even if made out, impugns the subject orders.
Perhaps at its heart, this ground seeks to cavil with the primary judge’s comments during the hearing to the effect that until a property adjustment order was made, the applicant had no interest in the property she was seeking in the proceedings. In the absence of an application for a declaration about the ownership of that property and in light of the applicant’s own case that the first respondent owned the relevant property, the trial judge’s comments were entirely accurate.
When I enquired of the applicant about the incorrect application of legal principles by the trial judge, the applicant directed me to the affidavit she had filed and said that she had set it out in there. Having considered that affidavit, I can see no evidence of the misapplication of legal principle by the primary judge. The application of principle by the primary judge to the issues arising in respect of the application for review and the subpoenas was entirely orthodox.
This proposed ground of appeal does not demonstrate that the applicant has reasonable prospects of successfully establishing that primary judge’s orders are attended by sufficient doubt to warrant their reconsideration.
Proposed grounds of appeal 2, 7, 9, 10, 11 and 12 can be dealt with compendiously. At the risk of making these reasons unnecessarily lengthy, I reproduce the proposed grounds:
Ground 2. The judge made an error in evaluating or understanding the evidence in the case:
-Incorrect Assessment of Contributions: The judge miscalculated the financial or nonfinancial contributions made by each party to the relationship.
-Misinterpreting Evidence: The judge misunderstood important evidence, leading to anincorrect conclusion.
Ground 7. Errors in Valuation of Assets:
The judge made errors in determining the value of assets. Grounds for appeal include:
-Incorrect reliance on outdated or improper valuation evidence.
-Valuation discrepancies that significantly impact the division of the property pool.
…
Ground 9: Incorrect Assessment of Contributions:
-Incorrect valuation of financial, non-financial, or homemaker contributions.
-Not considering relevant evidence of contributions that would have affected the overall division of assets.
Ground 10: Misapplication of "Just and Equitable" Principle: The court is required to divide the assets in a manner that is "just and equitable" under Section 79 of the Family Law Act 1975.
-The judge incorrectly applied the "just and equitable" test.
-The final orders do not reflect a fair and reasonable division considering the contributions and future needs of each party.
Ground 11: Failure to Properly Consider Debts and Liabilities:
-Liabilities were wrongly attributed to one party.
Ground 12: Failure to Include Certain Assets in the Property Pool:
-The judge excluded assets that should have been considered part of the marital property ( e.g., gifts, trusts, disposed assets). The gifted or inherited assets were wrongly omitted by the judge, this can form grounds for appeal.
It is immediately obvious that these grounds have little relevance to the orders the subject of the proposed appeal. Leaving aside the lack of particularisation, the ideas conveyed by these grounds are more apt in connection with an appeal against a final property adjustment order.
To the extent these proposed grounds underlie an argument by the applicant that the primary judge ought to have granted her leave to prosecute her amended application and seek the orders she proposed about the proceeds of sale of E Street, those arguments were the subject of consideration in the primary judge’s decision and orders given on 28 February 2024, in respect of which an appeal was unsuccessful. It is plain that the applicant seeks to reagitate the arguments she made on that application through, amongst others, the vehicle of the application in respect of which the applicant sought leave from the primary judge. Appeals against the orders made on 28 February 2024 and the (related) orders made 4 March 2024 have been dismissed.
These proposed grounds of appeal do not demonstrate that the applicant has reasonable prospects of successfully establishing that primary judge’s orders are attended by sufficient doubt to warrant their reconsideration.
Proposed Ground 4 asserts an error of discretion on the part of the primary judge although the ground does not seem to be directed to the orders the subject of the proposed appeal, but rather to the ultimate question of “property division”. Be that as it may, the proposed ground contends that “The judge's discretion was applied in a way that was clearly unreasonable or not supported by the evidence.” and that “The judge did not take into account certain factors required by the Family Law Act 1975, such as the financial needs of the vulnerable party and disclosure duties”. These matters have no immediately apparent connection with the orders made by the primary judge on 10 September 2024.
The applicant’s arguments and her affidavit do not establish that when making any of the subject orders the primary judge acted upon a wrong principle. There is nothing in his Honour’s reasons that suggests that he has allowed extraneous or irrelevant matters to guide or affect him. Although the applicant contends to the contrary, he did not mistake the facts.
In this respect, proposed Ground 6 is related. That ground asserts that the primary judge “did not deal with the significant issues but made orders based on his assumptions. Substantial arguments or issues raised by the party have not been taken into consideration and explain why the arguments were accepted or rejected”.
The applicant claims that the primary judge has made his orders (and other orders on other occasions) on the basis of assumptions rather than the facts. The principal, but not the only, assumption about which the applicant seems to complain concerns the source of the funds used to purchase E Street and the ownership of the proceeds of sale of that property. Those “assumptions” are based upon the legal ownership of the E Street (the first respondent was the registered proprietor) and the security interest possessed by the second respondent over that property (he held a registered mortgage over the property). Those matters are not assumptions but facts, and prima facie distribution of the proceeds of sale follow those legal interests. The matters asserted by the applicant to upset that prima facie position have not yet been established and so cannot at this point be said to be “facts”. The applicant’s assertions about the legal ownership of the proceeds of sale and the legitimacy of the mortgage held by the second respondent and the loan that underpins it, are yet to be considered and determined. Whilst the primary judge recorded these matters, he could make no findings about them.
The second aspect of the “particulars” to proposed Ground 4 argues that the primary judge did not take into account relevant matters namely the applicant’s financial need and “disclosure duties”. These matters were irrelevant to the issues his Honour was asked to determine in the applications before him.
I find that proposed grounds of appeal 4 and 6 do not demonstrate that the applicant has reasonable prospects of successfully establishing that primary judge’s orders are attended by sufficient doubt to warrant their reconsideration.
Proposed Ground 5 remains for consideration. This proposed ground alleges that the primary judge failed to provide adequate reasons. The applicant did not make any specific reference in her Notice of Appeal to which aspect of the primary judge’s reasons was inadequate. No submissions were made by the applicant orally to this effect. I consider that the primary judge’s reasons were more than adequate and sufficiently discharged his Honour’s obligation to provide reasons.
To the extent that this proposed ground is directed to the dismissal of the application for the primary judge to recuse himself (orders 8, 9 and 10 in the Amended Application in a Proceeding filed on 5 July 2024), it is true to say that the primary judge’s reasons do not deal with these orders and his dismissal of the amended application occurred with detailed consideration of those orders. But none was necessary. Although the consideration of these orders was not pressed by the applicant, the fact that by the time the primary judge delivered his reasons and orders the proceeding had been listed for trial before another judge, made the relief sought in those orders unnecessary, as the primary judge recorded. This proposed ground has no merit.
In my view, none of the proposed grounds of appeal establish any doubt about correctness of the primary judge’s orders. The applicant does not establish that the primary judge’s orders are attended by sufficient doubt to warrant their reconsideration.
SUBSTANTIAL INJUSTICE
Even if I am wrong, and there are grounds to find that the primary judge’s orders are attended by sufficient doubt to warrant their reconsideration, I am not satisfied that the applicant will suffer a substantial injustice if that reconsideration is not undertaken.
I asked the applicant in oral submissions to address herself to the question of why a substantial injustice would result if leave to appeal was not granted. She was unable to provide any submissions of value on this point. I do not consider that any injustice, let alone a substantial injustice, would result if the applicant is not granted leave to appeal. The orders made by the primary judge were procedural in nature and did not finally determine any of the applicant’s rights. The application the primary judge refused to allow her leave to rely upon was a re-agitation of issues previously decided by the primary judge.
At best, the applicant tried to argue that the subpoenas struck out were required for her to gather evidence to present her case. However, subpoenas must not be used as a mere “fishing” tool to gather evidence; they must identify a legitimate forensic purpose together with the existence of a reasonable chance that the documents in question may support the applicant’s case. The primary judge correctly set out the law on this point and no challenge is made to his Honour’s recitation of the law. His Honour concluded that two of the subpoenas did not serve a forensic purpose and constituted fishing. In relation to the other subpoenas, his Honour set aside parts of them for being too broad, and otherwise allowed them. No ground of appeal contends that the primary judge erred at law in his evaluation of the subpoenas. It cannot be said that there was any error relating to the subpoenas or that any injustice will result from the applicant not being granted leave to appeal as a result.
DISPOSTION
I find that the applicant does not have reasonable prospects of successfully establishing that the decision of the primary judge is attended by sufficient doubt to warrant its reconsideration and, if leave to appeal were refused, a substantial injustice will ensue.
The application for leave to appeal and the Notice of Appeal filed on 8 October 2024 should be dismissed.
COSTS
In the event the application for summary dismissal was successful, the first respondent sought costs calculated on a party and party basis. Those costs were set out by the first respondent in a costs schedule and totalled $10,118.81 but the first respondent sought the amount to be fixed in the sum of $10,000.
I asked the applicant to address me on the issue of costs. Instead, she diverted her attention back to making further submissions about subpoenas. When I brought her back to the point, she argued that she was impecunious and an order should not be made in those circumstances. Whilst I accept that she may well be impecunious, that is generally no answer to an order for costs. I do not consider it to be so in this case.
I consider that there are circumstances justifying a departure from the usual position established by s 117(1) of the Family Law Act 1975 (Cth). The applicant has been wholly unsuccessful in resisting the application for summary dismissal. None of the proposed grounds of appeal had any merit and on their face had very little, if anything, to do with the orders sought to be appealed.
There will be an order that the applicant pay the first respondent’s costs of and incidental to the application for leave to appeal, fixed in the sum of $10,000.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 20 December 2024
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