Wang v Bian

[2023] ACTSC 246

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Wang v Bian

Citation: 

[2023] ACTSC 246

Hearing Date: 

6 September 2023

Decision Date: 

6 September 2023

Before:

Mossop J

Decision: 

1.     Mr Wang’s proceedings against Ms Bian are dismissed.

2.     Ms Bian’s counterclaim against Mr Wang is dismissed.

3.     Mr Wang is to pay Ms Bian’s costs of the proceedings including the counterclaim.

Catchwords: 

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Claims for debts arising from former marital pool of assets – where property the subject of claims was already considered in separate family law proceedings – claims should have been brought in the family law proceedings – claims directly relevant to issues considered in the family law proceedings – where family law proceedings were determined based on an agreement that financial contributions to the marriage were equal – reagitation of matters the subject of the agreement amounts to an abuse of the court’s process – plaintiff estopped from pursuing claims – claims dismissed

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Counterclaim for worker’s compensation payments allegedly stolen from defendant – counterclaim directly relevant to defendant’s “financial circumstances” considered at length in the family law proceedings – possibility that defendant will have to repay the worker’s compensation to issuing authority – where cause of action has not yet accrued as defendant has not yet suffered damage – defendant unable to pursue counterclaim as it is an abuse of the court’s process – counterclaim dismissed

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for leave to amend Originating Claim and Statement of Claim – amended Statements of Claim included in bundles of documents filed with the court – defendant not on notice of a formally amended claim – claims not properly pleaded – claims would partially reopen matters determined in the family law proceedings – application refused

Legislation Cited: 

Court Procedures Act 2004 (ACT), s 5A

Family Law Act 1975 (Cth), ss 75(2), 79, 81, 106A, Pt VIII

Cases Cited: 

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175

Clayton v Bant [2020] HCA 44; 272 CLR 1

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507

Parties: 

Yaoxiang Wang ( Plaintiff)

Shefang Bian ( Defendant)

Representation: 

Counsel

Self-represented ( Plaintiff)

Self-represented ( Defendant)

Solicitors

Self-represented ( Plaintiff)

Self-represented ( Defendant)

File Number:

SC 151 of 2022

MOSSOP J:  

Introduction

1․This is a claim by Yaoxiang Wang against his ex-wife Shefang Bian. The causes of action are unclear but by Statement of Claim dated 15 October 2021 filed in the Magistrates Court, Mr Wang claims:

$49,000.00 stolen funds

$122980.00 accommodation

$11310.70 rates for property in Macquarie

$12917.86 land tax for property in Macquarie

$6150.37 water bills for property in Macquarie

$35,000.00 damages to property in Macquarie

$435.63 water bills for property in Page.

2․The Statement of Claim also claims $48,985.85 as interest and sets out the calculation of interest. He claims costs and disbursements in the sum of $1095.

3․The “reasons for making the claim” are set out as follows:

·     The defendant stole $49,000.00 from the joint home loan account in April 2016.

·     The Plaintiff incurred additional accommodation costs for the period from 04/04/2016 to 08/10/2021 $122980.00 ($430PW x 5.5 years) as a result of being forced out of the jointly owned property with dismissed/discharged applications of family violence lodged by the defendant, not to mention all the inconvenience thus caused.

·     Unpaid rates, land taxes, water bills for Macquarie and Page property which the defendant has been managing and collecting rent.

·     Damages in Macquarie property.

4․Also in the Statement of Claim under the heading “Other material facts relied on in support of claim” is a list of matters which appear to be documentary evidence which might be relied upon in support of the claim, which were annexed to the claim.

Procedural history

The commencement of proceedings in the Magistrates Court

5․On 15 October 2021, Mr Wang, the plaintiff, commenced proceedings in the Magistrates Court. He claims relief in the form of a debt against Ms Bian, totalling $237,794.56 as described above.

The defence and counterclaim

6․On 5 May 2022, Ms Bian filed a defence against Mr Wang. In her defence, she alleged that Mr Wang had failed to provide adequate particulars of the debts, and that he was using the court’s processes to commit acts of domestic violence.

Transfer to the Supreme Court

7․On 3 June 2022, Ms Bian filed an application in proceeding seeking to have the proceedings transferred to the Supreme Court because the quantum of her proposed counterclaim exceeded the jurisdiction of the Magistrates Court. That was supported by an affidavit of 3 June 2022, which annexed a counterclaim in which Ms Bian claimed that Mr Wang had stolen $708,851 from her, by transferring her worker’s compensation payments into his personal account over the period of September 2009 – February 2016.

8․Mr Wang filed an affidavit dated 22 June 2022 opposing the transfer including on grounds that the matters raised were dealt with in the Family Court. On 1 July 2022, the proceedings were transferred to the ACT Supreme Court, as the amount claimed by Ms Bian in her counterclaim exceeded that which could be determined in the Magistrates Court.

9․On 4 August 2022, the Chief Justice directed the parties to serve any documents intended to be relied upon by 17 August 2022, and also to serve a listing hearing questionnaire by that date.

10․A bundle of documents was filed by Ms Bian on 17 August 2022.

11․On 25 August 2022, the requirement for mediation was dispensed with and the matter was listed for hearing on 6 March 2023. The Chief Justice also allowed a bundle of documents to be relied upon by Mr Wang to be filed in court. Those documents included, as the last item in the bundle, an unsigned document dated 17 August 2022, which appears to be a draft of an Amended Statement of Claim. No leave was given to amend the Statement of Claim at the time that the bundle was filed in court. If leave was granted, this Statement of Claim would increase the claim for rates for the property in Macquarie, increase the claim for land tax for the property in Macquarie, increase the claim for water bills for the property in Macquarie, increase the claim for water bills for the property in Page, add a claim for $25,000 for rent on the Macquarie property, add a claim for $20,000 for rent on the Page property and add a claim for $1000 for personal belongings left at Red Hill in 2016.

12․On 1 March 2023, the hearing on 6 March 2023 was vacated.

13․On 9 March 2023, the proceedings were listed for hearing on 4 September 2023.

14․On 17 April 2023, Mr Wang filed a further bundle of documents in a lever arch folder. Those documents included a Statement of Claim dated 17 February 2023 signed by Mr Wang. There was no order granting leave to permit him to amend his Statement of Claim. If leave was granted, this document would add a claim for $280,829 for loss of salary from March 2018 to March 2023.

Discontinuance of counterclaim

15․On 16 August 2023, Ms Bian provided a notice of discontinuance or withdrawal in relation to her counterclaim. That notice was filed with the court on 23 August 2023. It was obviously defective in that it omitted the critical words from the approved form which would have indicated that the counterclaim was discontinued.

16․At the hearing today, Ms Bian indicated that she did not wish to discontinue her counterclaim.

Procedure adopted at the hearing

17․At the hearing today (6 September 2023), both parties were unrepresented. I indicated to the parties my tentative view that it may not be open to Mr Wang to proceed with some or all of his claims. Ms Bian indicated a desire to terminate the proceedings if possible. In order to permit me to understand Mr Wang’s claim, I allowed him to commence his case and he gave oral evidence and indicated an intention to tender the three bundles of documents that he had already filed. I will admit them as exhibits 1, 2 and 3, respectively: exhibit 1 being the bundle of documents filed by leave on 25 August 2022, exhibit 2 being the bundle of documents filed on 17 April 2023, and exhibit 3 being the bundle of documents filed on 16 August 2023.

18․Having heard his evidence and his explanation of the claims that he made, and before any cross-examination by Ms Bian, I adjourned to consider whether the claims amounted to an abuse of process of the court by reason of their relationship with the family law proceedings, which I will refer to in a moment, and to consider Mr Wang’s desire to include the amended claims for which leave had not been granted.

19․I now give my reasons for my conclusion that leave to amend should be refused, and Mr Wang’s claims dismissed.

The family law proceedings

20․Ms Bian commenced proceedings against Mr Wang on 16 March 2018. In the application, Ms Bian sought final and interim financial orders. These were proceedings CAC 490 of 2018. The proceedings were ultimately heard by the Federal Circuit and Family Court on 26 and 27 May 2021. Judge Campbell delivered a judgment on 8 October 2021 (Judgment) and made orders relating to the alteration of existing property interests arising out of Mr Wang and Ms Bian’s marriage.

21․The provisions being applied by the court were ss 79, 75(2) and s 81 of the Family Law Act 1975 (Cth).

22․Relevantly, s 79 provides:

(1)In property settlement proceedings, the court may make such order as it considers appropriate:

(a)in the case of proceedings with respect to the property of parties to the marriage or either of them—altering the interests of the parties to the marriage in the property; or

(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage—altering the interests of the bankruptcy trustee in the vested bankruptcy property;

including

(c)an order for a settlement of property in substitution for any interest in the property; and

(d)an order requiring:

(i)either or both of the parties to the marriage; or

(ii)the relevant bankruptcy trustee (if any);

to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.

…

(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:

(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

…

(e)the matters referred to in subsection 75(2) so far as they are relevant; and

…

23․In applying s 79(4)(e), the court must consider the relevant provisions of s 75(2) of the Act, which include, amongst the matters that are required to be taken into account:

(b)The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

24․Section 81 of the Act provides:

In proceedings under this Part, other than proceedings under section 78 or proceedings with respect to maintenance payable during the subsistence of a marriage, the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.

25․The relevant part referred to in s 81 is Pt VIII of the Act. Section 79 falls within Pt VIII.

26․The parties in the family law proceedings agreed for the purposes of s 79(4) that the contributions of the husband and wife should be assessed as being equal: Judgment at [10(a)], [12(a)], [97], [194], [214]. As a consequence, the decision focused upon the net assets of the couple, their personal circumstances and the appropriate adjustment to be made to the property interests.

27․A theme of the judgment was that Mr Wang had failed to provide full and frank disclosure of his financial circumstances. That was consistent with the judge’s adverse conclusions about Mr Wang’s credibility. Although issues of credibility and the lack of reliable evidence given by Mr Wang are dealt with in numerous places in the judgment, Judge Campbell’s conclusions on credibility and the failure to provide full and frank disclosure of his financial circumstances are set out in the Judgment at [27], [137], [149], [153], [167]-[168], [199]-[210].

28․The ultimate conclusion is that set out at [214] of the Judgment:

I have therefore decided, for the reasons set out above, that the wife’s share of the net asset pool, excluding the husband’s superannuation entitlements will be calculated as follows:

(a) the wife’s contributions to the [net] asset pool, pursuant to s.79(4) of the Act, will be assessed as equal to those of the husband, or 50 percent, in accordance with the agreement between the parties;

(b) the wife’s contribution percentage will be adjusted by an additional 10 percent, pursuant to s.75(2), to reflect my finding that the wife’s future needs are substantially greater than those of the husband, and to take into account of the monies advanced by her mother, [name redacted];

(c) the percentage calculated on the basis set out above, which amounts to 60 percent of the net asset pool, will be further adjusted by an additional 5 percent, pursuant to s.75(2)(o), to account for the husband’s failure to provide full and frank disclosure.

29․The orders that were made required the transfer of properties in Red Hill and Palmerston to Ms Bian. They also required the transfer of two properties in the ‘Wardolf’ apartments in Akuna Street, a property in Macquarie, a property in Nicholls and a property in Page to Mr Wang. The orders also required Mr Wang to pay to Ms Bian the sum of $253,000. Orders were made for the purposes of s 106A of the Family Law Act to permit the parties to execute documents necessary to give effect to the orders if the other party refused or neglected to do so.

30․I will mark the copy of the Judgment of Judge Campbell that was included in the material filed by Ms Bian as exhibit 4.

Mr Wang’s claims

31․In order to understand Mr Wang’s claims, it is necessary to appreciate that the couple either jointly or individually owned eight residential properties which were the subject of the family law proceedings. Two of those properties were at Page and Macquarie. The Page property was owned jointly. The Macquarie property was owned by Mr Wang. Both of those properties were properties which, pursuant to the Judgment, were to end up in Mr Wang’s name.

32․In his Originating Claim, Mr Wang claims relief by way of a debt against Ms Bian arising from the following:

(a)$49,000 he claims was stolen from their joint ANZ home loan account in April 2016;

(b)$122,980 in accommodation costs he incurred when he was “forced out of the jointly owned property” from 4 April 2016 to 8 October 2021;

(c)$11,310.70 in overdue property rates for an investment property located in Macquarie (the Macquarie property) plus any outstanding amounts up to 8 October 2021;

(d)$12,917.86 in land tax for the Macquarie property;

(e)$6,150.37 in water bills incurred by the Macquarie property in April 2016 plus any outstanding amount up to 8 October 2021;

(f)$35,000 “for the devastating damages” to the Macquarie property;

(g)$435.63 in water bills incurred in relation to an investment property located in Page (the Page property) plus any outstanding amounts up to 8 October 2021; and

(h)interest for the above debts, totalling $48,408.35.

33․As pointed out above, Mr Wang added the following additional claims in the unsigned draft Statement of Claim dated 17 August 2022:

(a)$25,000 in rent relating to the Macquarie property;

(b)$20,000 in rent relating to the Page property; and

(c)$1000 for personal belongings left at the Red Hill property.

34․Mr Wang sought to add the following additional claim in the proposed Amended Statement of Claim dated 17 February 2023: $280,829 in lost salary from March 2018 to March 2023 “due to stress and anxiety” caused by Ms Bian’s “three fraudulent Family Violence applications”.

35․I note that in evidence, he sought to increase the number of “fraudulent Family Violence applications” from three to four.

36․An important feature of the Originating Claim and Statement of Claim is that it was filed on 15 October 2021, only seven days after the date upon which Judge Campbell gave his judgment. Further, the claims are expressly made only until the date of that judgment. They are, therefore, all within the period prior to the orders adjusting the financial and property interests of Mr Wang and Ms Bian.

37․I will make some additional comments on the categories of claim which I have just outlined.

(A) Money stolen from joint ANZ home loan account

38․The joint home loan is discussed in order 5 made by Judge Campbell on 8 October 2021. The issue of stolen money from this account does not appear to have been raised directly in those proceedings. Mr Wang points to two deductions from the home loan account that occurred in April 2016 as grounding his claim that Ms Bian stole money from that account. In his Statement of Claim, he states that Ms Bian withdrew the money from the account on “8 and 15 April 2016”.

39․First, there is a redraw of $34,000 from the joint account dated 11 April 2016. The destination of the $34,000 is not clear from the bank statement provided by Mr Wang.

40․Second, there is a redraw of $15,000 from the joint account dated 14 April 2016. The $15,000 was transferred to another bank account. Mr Wang did not adduce evidence of who was the owner of that bank account.

41․Mr Wang has provided an excerpt from an affidavit of Ms Bian made on 10 May 2021. At paragraph 91 of the affidavit, she states:

In April 2016 I withdrew $46,900 from the joint ANZ Equity Management account and loaned the sum of $100,000 to my brother, [name redacted]. My brother has repaid a total of $100,000 plus $623 interest.

42․Ms Bian’s affidavit of 10 May 2021 was before Judge Campbell in the family law proceedings. Judge Campbell considered the issue of repayment of the loan at [174]‑[176]:

[174]There is also evidence before the court that, shortly before her investment in Mfc club in April 2016, the wife lent her brother the sum of $100,000. But this loan does not appear to have any connection with Mfc club and the wife’s evidence is that the loan was repaid by her brother within a short period of time together with a small amount of interest.

[175]In his affidavit, the husband largely accepts the wife’s evidence in relation to the paragraphs 86 to 91 of her affidavit - although he asks to see proof of the losses she made and the repayment of the loan by the wife’s brother. In cross examination of the wife, her version is not so much challenged as sought to be clarified with additional information. Ultimately, in submissions made on behalf of the husband, the only point of contention in relation to the wife’s evidence is not whether her brother repaid the loan, but the account into which it was repaid.

[176] I find that the loan from the wife to her brother was repaid, together with a small amount of interest, as asserted by the wife.

(B) Accommodation costs

43․Mr Wang claims the costs of finding alternative accommodation from the date which he was forced out of their home by Ms Bian (4 April 2016) until the date of judgment by Judge Campbell. Mr Wang did not raise these costs in the proceedings before Judge Campbell.

(C), (D), (E), (F), (G) Investment property expenses

44․The claims for expenses relating to the Macquarie and Page properties must be considered in the context of the previous proceedings before Judge Campbell, and in light of the orders made concerning the pool of marital assets.

(G) Interest

45․The claim for interest is substantial but entirely dependent upon the other claims. If those other claims are dismissed or not able to be pursued, then the position is the same in relation to the claim for interest.

Ms Bian’s counterclaim

46․Ms Bian claims that Mr Wang stole $708,851 from her personal ANZ account during the period from September 2009 – February 2016. This matter was not raised in the proceedings before Judge Campbell.

The claims are an abuse of process

47․In Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 a majority of the High Court summarised cause of action estoppel, issue estoppel and Anshun estoppel. So far as Anshun estoppel was concerned the judgment provided (at [22]):

Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as “cause of action estoppel”. Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as “issue estoppel”. Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a “judicial determined directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies”. The third form of estoppel is now most often referred to as “Anshun estoppel”, although it is still sometimes referred to as the “extended principle” in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a “true estoppel” and not as a form of res judicata in the strict sense. Consideration similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.

(Footnotes omitted)

48․An Anshun estoppel applies not to claims which merely could have been made, but rather ones which should have been made in the earlier proceedings. That is, it must have been unreasonable for the party said to be estopped to have not relied upon their claim in the earlier proceedings: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602; Clayton v Bant [2020] HCA 44; 272 CLR 1 at [31].

49․In the present case it is not essential to resolve whether or not what is involved is a cause of action estoppel, issue estoppel or Anshun estoppel. Having regard to the agreement made by the parties in the family law proceedings, it is not clear whether the acceptance of the agreement involved the court’s determination of an issue that would give rise to an issue estoppel. Further, it is not obvious that the causes of action now alleged are subject to a res judicata. Although it is not necessary to finally determine the matter, it is probably easiest to conceptualise the estoppel that might be applicable in the present case as one of Anshun estoppel. That is, a claim which should have been brought in the family law proceedings but was not.

50․In the family law proceedings, a central issue was the financial and non-financial contribution of each of the parties to the “acquisition, conservation or improvement of any of the property of the parties to the marriage”. For the purposes of that issue the financial contributions of the parties and their conduct in relation to the joint finances was of central importance. Similarly, the respective financial contributions to the maintenance and upkeep of the pool of real property assets the subject of the proceedings was a matter to be determined. Costs incurred as a result of the need on the part of Mr Wang to rent accommodation after leaving the family home would be a matter of significance for the purposes of s 79(4)(e) because of the terms of s 75(2)(b).

51․Each of the matters the subject of the claims by Mr Wang are either matters which related to the value of the properties, the respective contributions of the parties to the property of the marriage prior to the Judgment on 8 October 2021 or were matters relevant to the financial circumstances of Mr Wang.

52․So far as the contributions made by the parties are concerned, the parties agreed for the purposes of the family law proceedings that their contributions were equal. Having done so, any claim or counterclaim that they may have was subsumed in that agreement and formed an essential foundation for the determination by the court in the judgment. Having regard to the existence of that agreement, the judgment which was based upon it and s 81 of the Family Law Act, to attempt to reagitate claims that had been the subject of the agreement and formed a foundation for the judgment amounts to an abuse of the process of this court. All issues that might have been litigated for the purposes of determining the contribution of the parties to the marriage prior to 8 October 2021 have been finally determined by that judgment. As I have indicated, the precise characterisation of the preclusionary effect of the Federal Circuit and Family Court judgment is not essential to this conclusion. The fundamental point is that if there was to be any claim such as is now raised in relation to the financial or property circumstances of Mr Wang or Ms Bian, it should have been made in the family law proceedings. It is now not open, after those family law proceedings have concluded and in circumstances where the decision in that case was based upon the agreement of the parties that their contributions were equal, to raise matters that either have been determined by the court or ought to have been raised if they were to be pursued prior to that court giving the judgment.

53․Insofar as the claim for rent is concerned, that relates to the period from 4 April 2016 until 8 October 2021. It does not relate to a contribution to the acquisition, conservation or improvement of any property of the parties, but it would be a matter of significance in relation to the financial resources of Mr Wang for the purposes of ss 79(4)(e) and 75(2)(b). It was, in my view, plainly unreasonable for Mr Wang not to have raised such a claim in the family law proceedings if he contends that such a claim exists. It is a matter which, as pleaded in this court, gives rise to no obvious cause of action but would plainly be relevant to the adjustment of property interests in the family law proceedings. As such, Mr Wang is estopped from pursuing such a claim against Ms Bian in this court and to do so amounts to an abuse of the court’s process.

The application for leave to amend

The proposed amendments to the claim

54․As I have pointed out earlier, the revised Statements of Claim were included amongst evidentiary material filed with the court in August 2022 and April 2023. No leave was granted to make those amendments. I have treated Mr Wang as having made an application for leave to amend his pleading, so as to include the additional claims. Those additional claims fall into a number of categories:

(a)increases in amounts claimed for various expenses that had been claimed in the Statement of Claim;

(b)adding a claim for $25,000 for lost rent on the Macquarie property;

(c)adding a claim for $20,000 for lost rent on the Page property;

(d)adding a claim for $1000 for personal belongings left at Red Hill; and

(e)adding a claim for $280,829 for loss of salary from March 2018 to March 2023.

55․The claims for rent on the Macquarie property and rent on the Page property relate to the period after the family law judgment. Mr Wang claims that there was a delay by Ms Bian in transferring the property to him and that she failed to account for rent that she had received relating to the property in that period. The legal basis for this claim is not articulated in the proposed Amended Statement of Claim.

56․The claim for personal belongings left at the Red Hill property relates to belongings left there in 2016 when Mr Wang moved out of the property. Plainly, this was a matter relevant to his financial circumstances that was within the scope of matters able to be addressed in the family law proceedings and should have been addressed in those proceedings if Mr Wang wished to pursue the issue.

57․The claim for $280,829 is a claim for loss of salary both in the period prior to the Judgment and in the period following the Judgment. This claim is said to arise from what Mr Wang described in the proposed Amended Statement of Claim as “three fraudulent Family Violence applications” made by Ms Bian. In evidence he referred to four different applications. It is not clear from the documents what cause of action is sought to be invoked arising from the bringing of these proceedings. The allegation of fraud is not particularised. The evidence is not sufficient to indicate an arguable causal connection between the family violence proceedings and a reduced working capacity.

The amendments should not be permitted

58․Having regard to the fact that a defence and counterclaim was filed on 5 May 2022, the documents included in the evidence bundles which are in the form of a revised Statement of Claim required leave if they were to become a formal claim. The grant of leave and their filing as such would have put the defendant, Ms Bian, on notice of the amended claim made against her and required her to file a defence. Because that has not occurred, she has not been on notice of a formally amended claim and has not had directions made which would permit her to serve and rely upon documents or other evidence in relation to that claim.

59․The application to amend must be dealt with in accordance with s 5A of the Court Procedures Act 2004 (ACT) and the approach to late amendments to the pleadings addressed in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175.

60․The claims are not properly pleaded. The claim for property left at Red Hill in 2016 would amount to an abuse of process of the court. As pointed out earlier, the claim for loss of wages would, in part, amount to an abuse of process. It is otherwise not properly pleaded and an arguable basis for the claim is not demonstrated. The basis for the claims relating to rent on the Macquarie and Page properties is not properly pleaded and, as a consequence, the cause of action and relationship with the orders flowing from the judgment is not clear.

61․In my view, leave should not be granted to permit the amendment of the claim so as to incorporate the additional matters set out earlier. Mr Wang has had years in which to regularise his proceedings but has not done so. The fact that he is unrepresented does not alter that reality. To allow the amendment of the pleadings at this stage would be procedurally unfair to Ms Bian if the matter proceeded today. It would inevitably require an adjournment of the proceedings to allow the defendant to properly respond to the amended claims. That would prolong the proceedings in circumstances where they have already been on foot for almost two years and in circumstances where it is very apparent that the parties exist in a state of significant acrimony, which would only be perpetuated if these further claims were permitted to be brought into these proceedings.

62․For those reasons I refuse leave to amend the Originating Claim and Statement of Claim.

Conclusion in relation to Mr Wang’s claim

63․I have concluded that Mr Wang’s claim in its current form amounts to an abuse of process of the court. I have also concluded that leave to amend that claim so as to introduce further claims should be refused. The claim must therefore be dismissed.

The counterclaim

64․Ms Bian’s counterclaim for $708,851 is a matter relating to her financial circumstances which, if she wished to raise, should have been raised in the family law proceedings. An estoppel prevents her from raising the issue now and the pursuit of the claim would, for similar reasons given in relation to Mr Wang’s claim, amount to an abuse of process of the court. The matter raised by Ms Bian in response to the possibility that her claim might be in a similar position to that raised by Mr Wang was that she apparently now faces some possibility that she may be required to repay an amount that she received by way of worker’s compensation payments of the order of the amount claimed against Mr Wang.

65․In my view, the material before the court is insufficient to establish that the pursuit of the claim in its present form would not amount to an abuse of process. It appears that there is no current requirement for her to repay that amount, and as a consequence, whatever the relevant cause of action might be, if properly articulated, it is likely that that cause of action is not complete as a result of the fact that she has not yet suffered any damage. That leaves the claim as currently formulated in the same position as Mr Wang’s claims, namely, attempting to reopen a matter which was or ought to have been determined by the family law proceedings. In those circumstances the counterclaim must be dismissed.

Costs

66․So far as costs are concerned, having regard to the fact that both parties were unrepresented during the whole of the proceedings, it is unlikely that they have incurred significant legal costs, although it is likely that they have incurred some filing fees.

67․It is desirable to deal with the issue of costs to finality. These proceedings were commenced only seven days following the decision in the family law proceedings. They were an obvious attempt to reopen matters which were or ought to have been determined in the family law proceedings. They have been an abuse of process since they were commenced in the Magistrates Court. Where the court’s processes are abused, it is appropriate that there be an order for costs.  I have concluded that both the claim and the counterclaim involve an abuse of process because they involve claims which the relevant party is estopped from pursuing. I consider that the counterclaim was brought only in response to Mr Wang’s claims and should not alter the position in relation to costs. In my view, Mr Wang should pay Ms Bian’s costs of the proceedings including the counterclaim.

Orders

68․For those reasons the following orders are made:

1.Mr Wang’s proceedings against Ms Bian are dismissed.

2.Ms Bian’s counterclaim against Mr Wang is dismissed.

3.Mr Wang is to pay Ms Bian’s costs of the proceedings including the counterclaim.

I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 25 September 2023