Yilmaz & Anor and Yilmaz
[2013] FamCA 533
•2 May 2013
FAMILY COURT OF AUSTRALIA
| YILMAZ AND ANOR & YILMAZ | [2013] FamCA 533 |
| FAMILY LAW – SECTION 79A APPLICATION – Stay of proceedings – Whether the applicants’ application should be estopped by operation of the Anshun estoppel principle or by the doctrine of res judicata – what is the meaning of a “hearing on the merits”? |
| Family Law Act 1975 (Cth) Family Law Rules 2004 |
| Bigg and Suzie (1998) FLC 92-799 Barker and Barker (2007) FamCA 13 Eastman v R (2008) 248 ALR 149 Henderson v Henderson (1843) 3 Hare 100 In the Marriage of Caska (2001) 28 Fam LR 307 In the Marriage of M N and W A Blackman (1998) 22 Fam LR 416 Martin v Abbott Australia Pty Ltd [1981] 2 NSWLR 430 Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 434 Pagliotti & Hartner [2009] FamCAFC 18 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Prior & Prior 2002 30 FamLR 72 |
| APPLICANTS: | Mr A Yilmaz & Ms B Yilmaz |
| RESPONDENT: | Ms C Yilmaz |
| FILE NUMBER: | WOC | 532 | of | 2007 |
| DATE DELIVERED: | 2 May 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 8-10 April 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANTS: | Ms Goodchild |
| COUNSEL FOR THE RESPONDENT: | Mr Alexander |
Orders
The application filed on 4 April 2013 is dismissed.
The respondent’s application for enforcement is listed for allocation of further hearing dates on 17 June 2013
On or before 23 May 2013 the respondent is to file and serve any amended application for enforcement she will rely upon in the hearing to be allocated for same on 17 June 2013. The applicants are to file and serve any response to that application along with any affidavit material in support by 13 June 2013.
Any application for costs arising from these orders, together with evidence in support, is to be filed and served by 23 May 2013. Any response to that application, along with any affidavit material in support, is to be filed and served by 13 June 2013
Any costs application made pursuant to order (4) hereof is to be listed for hearing on 17 June 2013.
IT IS NOTED that publication of this judgment under the pseudonym Yilmaz and Anor & Yilmaz is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER:
| Mr A Yilmaz & Ms B Yilmaz |
Applicants
And
| Ms C Yilmaz |
Respondent
REASONS FOR JUDGMENT
Introduction
The application before the Court is that of Mr A Yilmaz (the husband) and Ms B Yilmaz (the husband’s mother). A document titled “Initiating Application (Family Law) Amended 2” was filed on 4 April 2013. It was upon that application the applicants sought to move.
Notwithstanding that the application was filed without the leave of the Court and was a new amendment to that filed (without leave) on 21 March 2013, the respondent Ms C Yilmaz (the wife) did not oppose the applicants being permitted to rely upon the document.
The applicants had been ordered on 26 April 2012 to file an application which sets out the orders they will seek in the hearing scheduled to commence 29 October 2012. The application was to be filed by 31 May 2012. No amended application was filed until 21 March 2013.
The proceedings had been commenced by the applicants on 3 May 2007. By that application they sought that an order made on 21 August 2002, which restrained the husband and his mother from leaving Australia, be discharged. In response to that application the wife filed a Response on 19 June 2007.
The Court record shows that on 2 December 2009 the applicants amended their application to seek orders which appear to be sought under s 79A of the Family Law Act 1975 (Cth) (the Act). They sought an order that all orders in proceedings numbered SYC 7061 of 1996 and WOC 532 of 2007 be set aside and an order that the wife pay the husband an amount of $70,000 “in respect of final property split between the parties”.
On 20 October 2011 orders were made by the Court requiring the husband to file and serve an application which sets out the precise orders he sought pursuant to s 79A and the consequent property order. The order further required the husband to specify the particular subsections of s 79A upon which he relied in his application.
On 26 April 2012 I set the matter down for hearing to commence on 29 October 2012. I listed the matter to be heard on consecutive days until completed and noted the legal representatives considered three days would be required. I directed the applicants to file and serve an application which set out the orders they will seek in the hearing listed to commence on 29 October 2012. The application was to specify the matters required by the orders of 20 October 2011.
The matter was listed to commence being heard on 29 October 2012. On 19 October 2012 there was an application by the applicants to vacate the hearing dates. I ordered the applicants to file the evidence they relied upon in support of their application to vacate the hearing by 24 October 2012 and the matter was listed for 25 October 2012.
On 25 October 2012 the matter came before me. I vacated the final hearing dates because errors had been made in the Legal Aid New South Wales office which caused the applicants’ application for legal aid to be lost. The applications for legal aid had been made quite some time before the scheduled hearing. A new application was then made on behalf of the applicants for legal aid to assist them in the hearing of the s 79A application which they sought to pursue. The applicants were to await the receipt of advice as to whether they had been granted legal aid. It transpired that their applications for legal aid were refused.
On 4 December 2012 I allocated further hearing dates to commence 8 April 2013 and continue to 11 April 2013. I directed the applicants to file their evidence by 8 February 2013 and the respondent to file her evidence by 1 March 2013. No further order was made in relation to amending the application the applicants were relying upon.
On 21 March 2013 the matter was listed before me again. On that day the applicants had filed a Further Amended Initiating Application. No leave had been sought by the applicants to be able to amend their application. I directed the respondent to notify the applicants as soon as practicable if there was to be any objection to the applicants being able to rely on that application.
The matter was next before me on 8 April 2013. On that day the trial commenced.
On 4 April 2013 the applicants had again filed an Amended Initiating Application without leave. As stated above I permitted the applicants to proceed on that application.
Notwithstanding the requirement of the orders made on 20 October 2011 the amended application filed on 4 April 2013 did not specify the subsections of s 79A on which the applicants proposed to move. Consequently, I directed a request to counsel for the applicants at the commencement of the hearing seeking that the Court be informed of the grounds upon which the applicants claimed the orders attacked by the application should be set aside. The Court was advised, firstly, that the orders sought to be set aside (11 February 2000, 31 October 2001 and 21 August 2002) were made in reliance upon evidence which was accepted by Justice Boland in a judgment of 11 February 2000 as to the value of the husband’s property in Country D and that evidence was inflated. As a consequence, if the orders were permitted to stand they would give rise to a miscarriage of justice.
When asked to specifically address s 79A and identify the subsection to be relied upon, the Court was informed that the subsection relied upon was subsection 79A(1)(a): the “giving of false evidence” was relied upon and also “any other circumstance”. Further, it was alleged that the valuation documents presented to the Court were fraudulent documents. The valuation documents were a forgery by someone.
During the early stages of the hearing, whilst the Court was determining objections to affidavits, I raised with the parties the prospect of bifurcating the hearing so that I could firstly consider whether the orders sought to be set aside should be so set aside and then, if that part of the application be successful, allocate further hearing dates to determine what further or other property orders should be made. In the event of the application being unsuccessful I would then allocate further dates to hear the wife’s application to enforce the property orders which have been made. Both counsel for the applicants and counsel for the respondent consented to the case proceeding in that manner.
Background Facts
There is a difficult to follow, yet very important, history of proceedings to be considered in relation to the subject application made pursuant to s 79A.
On 11 February 2000 Boland J delivered a judgment and made final property orders. The orders required the husband to pay to the wife the sum of $170,000 before the expiration of three months. If not paid on time the sum was to carry interest as prescribed by the Family Court Rules 1984 (as applicable at that time). If not paid within four months, the wife was appointed trustee for sale of named properties of the parties in Country D. Other orders were also made.
On 31 October 2001 there were further orders made by Boland J. These were expressed to be further orders amending the original orders of 11 February 2002. They were not consent orders. The wife had applied for the orders pursuant to s 79A. The wife in that proceeding also joined the husband’s mother Ms B Yilmaz as a respondent. The proceedings essentially sought a mechanism to enforce the orders made by the Court on 11 February 2000. The husband and his mother opposed the orders sought. The orders made on 31 October 2001 were made against both the husband and his mother.
In the judgment of Boland J, delivered on 31 October 2001, she recites a history of the proceedings which included that the husband had filed an appeal against the Court orders made on 11 February 2000. The appeal had been filed on 10 March 2000. Boland J records that the husband’s appeal was subsequently withdrawn. Both counsel confirmed that information in the hearing before me.
At paragraph 74 of the judgment the following is recorded:
74. The husband in his oral response sought orders setting aside the orders for the payment of the sum on the basis that the valuation evidence contained in Exhibit E in the original proceedings was false. The husband provided no evidence to support his oral allegation, nor was the wife cross-examined about this assertion.
Having discovered the above paragraph in the judgment of Boland J of 31 October 2001, I had my Associate send a copy of same to each party requesting submissions in relation to whether the doctrine of res judicata operates to prevent the husband making the further application (now before me) to set aside the orders of 11 February 2000.
The request for further submission was sent by email to each of the parties’ legal representatives on 12 April 2013 in the following terms:
His honour has asked that I send you a copy of the judgment of Justice Boland delivered 31 October 2001. Amongst other portions of the judgment, your attention is drawn in particular to paragraph 74. That paragraph makes clear in that proceeding the Husband sought to set aside the orders of 20 February 2000 on the basis that the valuation evidence contained in Exhibit E in the original proceeding was false. The consequence of the decision of 31 October 2001 must clearly be to refuse that application of the husband. As such, it would appear that the husband is prima facie estopped from proceeding on his application currently before the court to set aside the orders of 20 February 2000 on the principle of res judicata. Should you have any submission that you wish to make in relation to whether the husband is estopped or not, please provide same by email addressed to my associate within 7 days.
The wife’s legal representative provided submissions in response to the above request on 19 April 2013. The applicants’ legal representative provided no response to the request.
The question which appears to me to arise from the determination of Boland J is whether there was a hearing “on the merits” of the husband’s application to set aside the orders of 20 February 2000. The circumstances outlined above further raise for consideration the question of whether an “Anshun” type estoppel may have application: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (“Anshun”). I discuss these matters later in these reasons.
Paragraph 91 of Boland J’s judgment of 31 October 2001, together with the orders themselves, indicate clearly that her Honour intended the original orders of 11 February 2000 to remain in force, amended only by the additional orders she made on 31 October 2001.
On 9 July 2002 JR Johnston, as he then was, imposed a period of imprisonment on both the husband and his mother for contravention of the orders made 31 October 2001. The period of imprisonment that the husband’s mother was to undertake was to commence on 17 July 2002.
On 21 August 2002 the applicants (both) and the wife entered into consent orders expressed to be made pursuant to s 79A. The orders have the following preamble to them:
The First and second respondents [the applicants in this case] having defaulted in carrying out obligations imposed on them by the previous orders and having agreed that it is just and equitable to vary the previous orders by consent it is ordered that:…
The previous orders were defined as being the orders of 31 October 2001.
The consent orders of 21 August 2002 are quite different in their terms to the orders made on 11 February 2000 and 31 October 2001. They provide for the payment of a different amount of money to the wife, namely $225,000. Daily interest was to run from 1 August 2002, a date preceding the order. They provide for different enforcement provisions. These orders are secured against a property at E Street, Suburb F. That property is said to be owned by the husband’s mother. The orders also provide for the discharge of the orders made on 2 August 1999 and 26 (or 6) October 2001, restraining either of the applicants from leaving Australia.
A specific provision of the consent orders is that orders 1(a), 1(b), 1(c), 1(d) and 1(e) of the previous orders (31 October 2001) be discharged once the payment is made to the wife as required by the consent order.
The questions posed by the making of the consent orders are:
a)Did the orders extinguish the orders of 11 February 2000?
b)Did the orders extinguish the orders of 31 October 2001 to the extent that specific portions of those orders were not preserved by the consent orders?
c)Were the orders of 11 February 2000 subsumed into the orders of 31 October 2001?
The answer to these questions can be found, in my view, in s 79A itself. Subsection 79A(1A) reads as follows:
(1A) A court may, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
The subsection set out above permits parties to apply for an order by consent under s 79A. In such circumstances the court may “vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.”
The only reasonable construction of the order made by the Court on 21 August 2002 is that all previous orders made pursuant to s 79 were set aside (with the specific exception of the named orders of 31 October 2001) and a new order under s 79 was made in substitution. If that be correct, then the orders of 11 February 2000 and 31 October 2001 ceased to have force and effect when they were varied by the order made under s 79A on 21 August 2002. If that be correct, then there is no order of 11 February 2000 or 31 October 2001 capable of being set aside by the application now sought to be pressed by the applicants. I will address this further at a later point in these reasons.
I turn now to examine the decision of Boland J of 11 February 2000 so far as it is relevant to the application now before the Court. It is necessary to do so should I ultimately determine that the orders made on 11 February 2000 are still capable of challenge under s 79A.
The husband’s complaint about this decision relates to the admission of evidence by Boland J as to the value of property of the parties (in particular the husband) in Country D. Boland J deals with this admission of evidence at [120] to [125] of her judgment as follows:
120. The valuations obtained by the wife pursuant to her applications to the various Courts in [Country D] were obtained as follows:-
Asset
Date of Valuation
Province: [City G], Administrative District: [District H], place on map …, … Ada, Parcel no … block of land 2017,60m2
23/2/1998
Province: [City G], Administrative District: [District I], … Ada, place on map …, Parcel No .., land area 208m2 and single storey house within it
2/3/1998
Province: [City J] Administrative District: [District K], [Village P], Page no: …, place on map … Ada Parcel No …, detached land area 390m2 (detached land approved by council)
8/1/1998
Province: [City J], District [District K], [Village L], Ova Position, Page no:…, place on map … Ada Parcel No .., 13400m2 area land
8/1/1998
Province: [City J], Administrative District: [District K], [Village M] Position, Page no: … 723m2 area land
8/1/1998
Province: [City J] Administrative District: [District K], [Village N] Suburb, [Suburb O], Page no … Ada, … share of shop No … ground floor and No E – … depo of Parcel No …
8/1/1998
Province: City J, Administrative District: [District K], [Village N] Suburb, [Suburb O2] Position, Page no … Ada, … share of home unit no … on … floor of Parcel No …
8/1/1998
Province: [City J], Administrative District, [District K], [Village P] Suburb, … Ada, Parcel no … share of land 6883m2 area
8/1/1998
Province: [City J], Administrative District: [District K], [Suburb P], … Ada, Parcel No … share of land 23,883ms area
8/1/1998
Province: [City J], [Town of Q], [District R] (1/20th interest)
13/4/1999
121. The wife, no doubt because of the expense and difficulty in obtaining such Court valuations and obtaining translations thereof, did not have the valuation evidence updated at the date of hearing. The husband disputes both his absolute ownership of these properties and says that the properties are owned as to 75 per cent by his mother, father and late brother who died in or about 1971 and himself. No evidence was provided by the husband to corroborate his assertion. There was evidence before me that the husband’s mother owns property in [Country D] (see Exhibit “M”). There was also evidence before me (again in Exhibit “M”) that the husband’s parents occupy the property Unit no. … at [District K, Suburb S], Block … and that the shop number … is rented to [Mr T] for 26,000,000 [Country D] [dollars] which was paid monthly to the husband’s mother in cash. This information is contained in a determination of the [District K] Court of Petty Sessions dated 28 April, 1999.
122. The wife has, in accordance with the rules, served on the husband a Notice to Admit Facts. The husband’s solicitor Mr Jarrett did not seek leave to dispute the facts asserted in the Notice to Admit Facts and Authenticity of Documents out of time in these proceedings but submitted the husband should not be bound by the Family Court rules because of his lack of fluency in the English language. On behalf of the husband it was further submitted that I should not allow the wife to rely on the provisions of Order 22 and in particular Order 22 Rule 2(3) on the basis that the husband was not legally represented at the time the document was served on him. I find that the husband’s financial position both in respect of his earnings and property have at all times been equal to or superior to that of the wife. The husband has from time to time consulted lawyers, including consulting his present solicitor, Mr Jarrett at or about the time his affidavit of evidence in chief in these proceedings was sworn on 22 October, 1999. Whilst I find that the husband may have experienced some difficulty by reason of his lack of fluency in English, he has had the opportunity of obtaining legal advice and has obtained such advice at various times during the course of these proceedings. I find the wife has used her funds to pay for legal representation including employing attorneys in [Country D], applying to the [Country D] Courts and obtaining valuations of the husband’s property. I find that the husband was not prejudiced by lack of fluency in English or lack of access to legal representation and that it would be unfair and prejudicial to the wife who has properly instituted judicial proceedings in [Country D] to obtain valuations and served these documents in accordance with the rules not to be entitled to rely on such Notice to Admit Facts and Authenticity of Documents. I therefore find the wife is entitled to rely on that document as in establishing ownership of and valuation of the properties in [Country D].
123. Even had I found it inappropriate to allow the wife to rely on the Notice to Admit Facts and Authenticity of Documents, I find that the valuations obtained by the wife through her applications to the [Country D] courts are proper valuations of each of the properties in Exhibit “E” being all of the properties held in the name of the husband.
124. I am concerned that the wife has not sought fit to provide to the Court any valuation evidence in respect of her property and land in [Country D] and that she attributes a value to her [Country D] property which is less than the monies she transmitted to her relatives in [Country D] to purchase that property for her (see paragraph 40 of the wife’s affidavit). The wife does not give any evidence of purchasing land in [Country D] notwithstanding she shows an item vacant land in [Town U] in [Country D] at a value of $10,000 in her Statement of Financial Circumstances. No valuation evidence of these properties was put forward by the husband. As I generally found the wife to be a witness of truth I accept her evidence in respect of these properties.
125. Even if the wife was not able to rely on her Notice to Admit Facts and Authenticity of Documents (which I find not to be the case) I reject the husband’s evidence that any of the properties in Exhibit “E” are not wholly his and do not find any evidence, save and except that of the husband’s assertion to indicate that his parents have any interest in any of the properties listed in Exhibit “E”.
The husband’s case is that the evidence relied upon by Boland J to determine the value of properties which she found to be owned by the husband in Country D was fabricated by someone. As such, he says that a fraud was perpetrated on the Court by the wife placing the evidence before the Court.
Another matter which is raised by the application is the ability of the husband to seek to set aside the consent orders made on 21 August 2002. Exhibit H3 is the decision of Moore J delivered on 13 July 2004. That decision was made in relation to an application by the husband’s parents to set those orders aside pursuant to s 79A. Although the orders of the Court of that date do not name the husband as a party, the judgment itself makes it clear that he was a respondent in the proceedings. Paragraphs [1] to [7] of the judgment read as follows:
Proceedings
1.Before the Court is the application of [Ms B Yilmaz] filed 10 April 2003, brought pursuant to s 79A of the Act, to set aside consent orders 2, 3 and 4 made by Boland J on 21 August 2002. The respondents are her son, [Mr A Yilmaz] (‘the husband’) who has elected not to participate though he was present at Court throughout the hearing, and her former daughter-in-law, [Ms C Yilmaz] (‘the wife’) who seeks its dismissal.
2.Two other s 79A applications have been filed though both have now been determined. The first was filed by [Mr A Yilmaz] on 10 April 2003 and it related to those same orders but he discontinued those proceedings on 27 January 2004 by a Notice to that effect filed by solicitors acting on his behalf. The other was filed by [Mr V Yilmaz], husband of [Ms B Yilmaz], on 12 March 2003 seeking to have order 4 of those same orders set aside, the respondents being his wife, his son (again, he elected not to participate), and his former daughter-in-law. That application has now been determined in circumstances to be outlined hereafter.
3.The applications brought by [Mr V Yilmaz] and [Ms B Yilmaz] came on for hearing together before me in February this year, but the hearing was adjourned at the end of the first day when [Mr V Yilmaz] fell ill during the course of cross-examination. Recently, just prior to the resumption of the hearing, I made orders without contest for the appointment of a case guardian for him and a solicitor took on that role.
4.On the first day of the resumed hearing Mr Foster presented consent orders he had signed as counsel for [Mr V Yilmaz] and by Mr Alexander, counsel for [Ms C Yilmaz]. They had agreed to set aside order 4 of the 21 August 2002 orders. [Mr A Yilmaz] did not consent to the orders, though he was at Court during the day and in communication by telephone with his solicitor, Mr Nedim. Nor did [Ms B Yilmaz] consent to the orders through her counsel, Mr O’Gorman, though that is one of the very orders she seeks in her application. Those positions notwithstanding, I made an order setting aside order 4 - as between [Mr V Yilmaz] and [Ms C Yilmaz] by consent and as against [Mr A Yilmaz] on an undefended basis. That done, Mr Foster sought and obtained leave to withdraw and by that means the proceedings instituted by [Mr V Yilmaz] came to an end.
5.In the course of dealing with the consent arrangement, Mr Alexander sought leave to make an oral application on behalf of [Ms C Yilmaz] pursuant to s 79A to vary the terms of order 2 by deleting the words ‘the settlement of the sale of the property’ and inserting in lieu ‘within 60 days of the date of these orders [ie orders made in the current proceedings]’. Obviously, if [Ms B Yilmaz’s] application is successful and order 2 is set aside, there will be no need to consider this application.
6.This oral application effected both [Mr A Yilmaz] and [Ms B Yilmaz]. The Court record will reflect the efforts made to have [Mr A Yilmaz] obtain advice about it from the solicitor he was consulting and in the end there was no resistance by the solicitor to leave being granted. As for [Ms B Yilmaz’s] position, Mr O’Gorman was unable to identify any prejudice to her if leave were granted and I took the view it would be preferable to roll up all possible applications together so as to dispose of the litigation, at least in so far as they related to the orders of 21 August 2002. Leave as sought by the wife was therefore granted.
7.The upshot of all this is that (i) order 4 of the orders of 21 August 2002 has been set aside; (ii) a decision is now to be made whether orders 2 and 3 of those orders should be set aside on the grounds put forward by [Ms B Yilmaz] (referred to later); and (iii) if order 2 is not set aside, a decision is to be made whether it should be varied according to the ground put forward on the wife’s behalf (also referred to later).”
The orders made by Moore J on 13 July 2004 were as follows:
1.The application of [Ms B Yilmaz] pursuant to s 79A to set aside various orders made by Boland J on 21 August 2002 is dismissed.
2.On the application of [Ms C Yilmaz] pursuant to s 79A for a variation of order 2 made on 21 August 2002, the phrase ‘on the settlement of the sale of the property’ is deleted and there is inserted in lieu the phrase ‘within 60 days of ’.
(I have highlighted some words because I propose to refer to those later in these reasons)
The orders and portion of the judgment of Moore J extracted above raise a further problem for the husband in relation to the argument mounted against him under the “Anshun” principle. The extracts illustrate that the wife, in the same proceeding as that in which husband’s mother and father sought orders under s 79A, also sought orders under s 79A, and the husband did nothing to oppose those orders or to seek orders himself. He clearly had an opportunity to do so and he was a party to those proceedings. The wife’s application before the Court at that time was to amend the orders of 21 August 2002 by an application under s 79A. The husband’s application before the Court at the moment is to set the orders of 21 August 2002 aside under s 79A.
In that same proceeding before Moore J, the husband’s father sought to set aside order 4 of the orders of 21 August 2002. The wife consented to that application and terms of settlement were filed in Court. The husband did not consent to the order. The husband’s father had commenced separate proceeding to those of his wife and his application was filed on 12 March 2003. Again the husband was named as a respondent to that application. Again he chose not to participate in the proceeding. Ultimately, the order to set aside order 4 made on 21 August 2002 was made by Moore J.
In the judgment of Moore J, referred to above, her Honour notes at [53] that the husband’s mother filed a Notice of Appeal against the orders of 21 August 2002 and that appeal was dismissed by consent on 11 February 2003 with costs of $4,500 to be paid to the wife.
The wife submits that the principles set out in the case of Anshun should be applied and the husband should be estopped from being able to prosecute any application under s 79A in relation to the orders of the Court made on 21 August 2002.
The Evidence
The applicants relied upon only the evidence of the husband contained in his affidavit filed on 4 April 2013. The respondent objected to the applicants being able to rely upon the affidavit on a number of grounds. The grounds were:
·the affidavit was late in being filed;
·the evidence did not support any remedy sought;
·there was no relevant evidence in admissible form; and
·the valuations sought to be introduced through the affidavit were inadmissible.
Notwithstanding those objections, I permitted the applicants to rely upon the affidavit. After objections were taken to the content of the affidavit, only the following evidence remained.
Evidence of the husband
The evidence of the husband in his affidavit sworn on 3 April 2013, which was read in this application and which was admitted to evidence is as follows.
Paragraphs 1 through to 6 were read without opposition and set out copies of the orders made by the Court on 11 February 2000, 9 July 2002 and 21 August 2002. The paragraphs then set out a brief history of the marriage of the parties and the birth of their two children.
Thereafter, relative to the application to set aside orders, the following evidence was admitted.
31: I strongly believe there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance.
31.1 I say I had not been regularly or consistently represented by lawyers during my proceedings.
31.28 I say in reference of her Honour’s paragraph 93, of her Honour’s 11 February 2000 judgment. [Ms C Yilmaz] presented to this Court valuations upon which her Honour Justice Boland made her determination relating to the property split. The valuations purported to be from [District K] Court of Civil Claims, and having file numbers 1998/1D.IS and 1999/9D.IS. Annexed here and marked “M” are copies and translations of the judgments purported to be valuations of the property previously held in my name.
31.33 I say in reference of her Honour’s paragraph 119, of her Honour’s 11 February 2000 judgment. I refer to annexure marked “M” containing copy of letter from [District K] Court of Civil Claims dated 5 July 2007.
31.36 In reference to her Honour’s paragraph 124 of her Honour’s 11 February 2000 judgment, I say I was not able to obtain and bring to this Court further evidence because I was not able to leave the country. By the time I was finally able to leave the country in 2011, the laws and pretty much everything had changed.
31.38 I refer to her Honour’s paragraph 102 which contains what her Honour perceived to be the net value of the assets at the time.
33.5 I say I always knew that the valuations were wrong, but I had no real idea of the extent of the mistake in the orders until recently.
Annexure M to the affidavit consists of two translated letters which appear as follows:
REPUBLIC of [COUNTRY D]
[DISTRICT K]
COURT of CIVIL CLAIMS
FILE 1999/9 D.ISDear [Mr A YILMAZ] represented by Solicitor Husnu PORTAKAL
Reference: 02.07.207 your dated relevant writing.With your relevant writing, referred above, your court’s numbered file and carried POST VALUATION after established valuation is requested, if any court procedure started.
As a result of a thorough search of our court’s file records we HAVE NO any case registered on or after 1999 as:
APPLICANT: [Ms C Yilmaz] and
RESPONDANT: [Mr A Yilmaz]Please be informed 05.02.2007
Magistrate 41041
Seal: Unclear
Signature: IlliterateREPUBLIC of [COUNTRY D]
[DISTRICT K]
COURT of CIVIL CLAIMS
FILE 1998/1 D.ISDear [Mr A Yilmaz] represented by Solicitor Husnu PORTAKAL
Reference: 02.07.207 your dated relevant writing.With your relevant writing, referred above, your court’s numbered file and carried POST VALUATION after established valuation is requested, if any court procedure started.
As a result of a thorough search of our court’s file records we HAVE NO any case registered on or after 1998 as:
APPLICANT: [Ms C Yilmaz] and
RESPONDANT: [Mr A Yilmaz]
Please be informed 05.07.2007
Magistrate 41041
Seal: Unclear
Signature: IlliterateThere are several observations to be made about the evidence of the husband as set out above.
The words (appearing in paragraph 31.28 of the husband’s evidence as above set out) “‘M’ are copies and translations of the judgments purported to be valuations of the property previously held in my name” don’t describe the totality of the annexure. The annexure did include copies of two of the valuations tendered by the wife in the proceeding before Boland J which gave rise to the judgment of 11 February 2000 (they were without translations). The annexure also includes the response to a letter from the husband to the Court of Civil Claims at District K dated 5 July 2007 (the letter of request not being included). It is important to note the date of the document represents a time when the husband was not permitted to leave Australia. As the husband sets out in his evidence, he was only able to leave Australia in 2011.
It should further be noted that in paragraph 31.33 of the husband’s evidence, as above recited, the annexure specified was “K”, however in the reading of the affidavit I was informed that an error had been made in the preparation of the affidavit and it should have been annexure “M” referred to in paragraph 31.33. I permitted the amendment to the affidavit. There was no objection to that course of action.
Notwithstanding the husband was able to travel to Country D in 2011, the totality of the admissible evidence which he is able to put before the Court in support of his claim that the evidence of value relied upon by the wife for the 20 February 2000 orders was fabricated is that contained in annexure “M” to his affidavit as it is repeated above.
The applicants sought to rely on an affidavit of Mr X sworn and filed on 14 February 2013. He says that he is the holder of a degree in law from the University of W. He emigrated from Country D to Australia in 2003. He now practises in Australia as an independent consultant in Country D law. I have no basis to doubt his qualification as stated. The applicants seek only to rely on paragraph 35 of his affidavit. The wife objected to the applicants being permitted to rely on the affidavit for the following reasons:
·There was no attempt by the applicants to comply with Part 15.5 of the Rules of Court in relation to the obtaining of expert evidence. Rules 15.51 and 15.52 were also not complied with.
·Substantial prejudice would flow to the wife if the evidence was admitted.
·The applicants have had 13 years to obtain the evidence of alleged fabrication of the valuation evidence relied upon by the wife in the original property hearing before Boland J in 2000.
·Even if admitted there is no explanation as to the difference in the spelling of the husband’s name on the search annexed to the affidavit and marked as annexure “J” and “K”, nor to the different name of the Court searched as opposed to that referred to in the valuations obtained by the wife for the original hearing (see exhibit W4).
·If the evidence was admitted the wife would be forced to apply to be able to rely on her own expert’s evidence and that would give rise to an adjournment. The proceedings have already been before the Court for a number of years. The wife is entitled to see a conclusion to the proceeding.
·At one level, the husband is alleging the wife has been part of a fraud in relation to placing fabricated evidence before the Court to obtain a benefit for herself in the making of a property order to which she would not otherwise have been entitled. Without specifically stating what part the wife is alleged to have played in the fraud, the range of options would be from innocent conveyer of the evidence, to causing the fabrication to occur and knowing that the evidence she put before the Court was fabricated.
·Even if paragraph 35 of the affidavit was admitted into evidence, it would be of no assistance in establishing the fraud or fabrication the applicants wish to prove.
I did not allow the applicants to rely on the only part of the affidavit of Mr X which they sought to rely namely paragraph 35. I refused that application for the following reasons.
·No attempt had been made to comply with Part 15.5 of the Family Law Rules 2004 (“the Rules”). In particular no affidavit was provided as required by Rule 15.52. Clearly no attempt had been made by the applicants to have a single expert appointed. Further, no explanation for delay in obtaining the evidence was proffered. The documents marked as annexure “J” and “K” are dated 5 July 2007. The applicants have had the documents for nearly seven years.
·The evidence, if admitted, is not probative of any issue in the case. The husband has already annexed to his affidavit, read in the hearing, the two documents annexed to the affidavit of Mr X as “J” and “K”. If admitted, the evidence of Mr X would attest to nothing more than to say it is possible to have a search carried out in the courts of Country D to verify if the documents relied upon by the wife in the hearing before Boland J, which gave rise to her decision on 11 February 2000, actually were provided by the courts which on the face of each document is stated. He makes no comment about the documents which were marked as “J” and “K” annexed to his affidavit as to their authenticity. He makes no comment about the fact that the husband has not provided the letter of request made by him to the Country D courts requesting a search be carried out. He makes no comment about the meaning of the words which actually appear on the documents marked “J” and “K”. The wording used in the documents dated 5 July 2007 is most unusual on its face. He provides no explanation for the different names of the Court which appeared on annexure “J” and “K” and those which appeared on the documents relied upon by the wife in the hearing before Justice Boland. No explanation is provided as to the effect of the misspelling of the husband’s first name on the said annexures.
·If I had granted leave to the applicants to rely upon the evidence of Mr X then I would have to provide the wife with the opportunity to obtain her own expert evidence in response. That would have led to an adjournment of the proceeding where there had already been days lost because the hearing did not proceed in October 2012 when it was first scheduled to commence.
Relevant Law
Legal principles
Res judicata
In the judgment of Boland J of 31 October 2001 the following appears at paragraph 74:
74. The husband in his oral response sought orders setting aside the orders for the payment of sum on the basis that the valuation evidence contained in Exhibit E in the original proceedings was false. The husband provided no evidence to support his oral allegation, nor was the wife cross-examined about this assertion.
The questions which arise in this matter in relation to the above paragraph is:
·Do the above words now mean that any further attempt of the husband or his mother to set aside the orders of 20 February 2000 or 31 October 2001, on the ground that the valuation evidence presented to the Court for the 11 February 2000 orders were fabricated, give rise to an estoppel as against the husband and his mother in the current proceeding?
·If so, would the estoppel operate because of the principle of res judicata or the principle of Anshun estoppel?
In Pagliotti & Hartner [2009] FamCAFC 18 (“Pagliotti”), the Full Court at [77] discussed the principle of res judicata, citing the following passage from the judgment of Brennan J in Anshun:
If cause of action is taken to mean a right, the rule is stated in terms of the passing of the right into judgment, and the rule precludes a party bound by the judgment from maintaining against another party bound by it any subsequent proceeding to recover a judgment giving a remedy to enforce or to compensate for an infringement of that right.
The rule does not preclude litigation seeking a remedy to which a party is entitled in virtue of a different right from that which was first put in suit provided that the facts which support the right sued upon in the second action are not the same facts as those supporting the right which passed into the first judgment: thus in Brunsden v. Humphrey [(1884) 14 QBD 141] where the same act of negligence caused damage to the plaintiff's property and injury to the plaintiff's person, it was held that different rights were infringed and that an action for damages for personal injury was not barred by recovery of a judgment for damage to property.
If cause of action is taken to mean the facts which support a right to judgment, the rule of res judicata bars an action for relief founded upon the same facts as those upon which an earlier judgment was recovered, though the right sued upon in the second action is different from the right which passed into or was negated by the earlier judgment.
The reasoning of Brennan J suggests that a party will be estopped from pursuing a cause of action by virtue of the res judicata principle if the action being pursued is founded upon the same facts as those upon which an earlier judgment was founded. That is so even where the later cause of action is distinct from the earlier cause of action which was the subject of the prior proceedings and judgment.
In Pagliotti, the Full Court, inter alia, declined to overturn the decision of the trial Judge who had found that a matter before the Court was not res judicata. The res judicata question had arisen because proceedings in relation to property between the same parties had come before the Tribunal of Rome, and there was an issue as to whether the wife was estopped in this Court from prosecuting her application under s 79 of the Act.
In upholding the trial Judge’s decision that the matter was not res judicata, the Full Court in Pagliotti again pointed to the notion of whether the same factual issues were traversed in the earlier Italian proceedings as in the later Australian proceedings. Their Honours at [117] stated as follows:
[117] Whilst the Reasons for Judgment of the Roman Tribunal give some indication of the matters to which regard was had in determining the matters within the jurisdictional competence of the Tribunal, we glean nothing from the Judgment, or elsewhere, to suggest that any factual issues likely to impact upon the entitlements of the parties to the B property or its proceeds according to Australian law were either traversed in such proceedings or the subject of any findings or conclusions by the Tribunal.
The principle of res judicata was also considered and summarised by the Full Court of the Family Court of Australia in the case of In the Marriage of Caska [2001] FamCA 1279 (“Caska”), where at [109]–[110] their Honours Lindenmayer, Holden and Watt JJ noted:
[109] The principle of res judicata estoppel is stated, relevantly, in Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed, Butterworths, London, 1996, at para 9, as follows (footnotes omitted):
Where a final judicial decision has been pronounced on the merits by … a … judicial tribunal with jurisdiction over the parties and the subject matter, any party to such litigation, as against any other party … is estopped in any subsequent litigation from disputing such decision on the merits, whether it be used as the foundation of an action, or as a bar to any claim, … affirmative defence or allegation, provided the party entitled raises the point at the proper time. This rule is sometimes expressed in the maxim res judicata pro veritate accipitur.
[110] In para 19 of the same work, the learned authors summarised the constituent elements of res judicata as being:
(i) the decision was judicial in the relevant sense;
(ii) it was in fact pronounced;
(iii) the tribunal had jurisdiction over the parties and the subject matter;
(iv) the decision was —
(a) final, and
(b) on the merits;
(v) it determined the same question as that raised in the later litigation; and
(vi) the parties to the later litigation were either parties to the earlier litigation or their privies, or the earlier decision was in rem.
The above principle, when considered in light of the facts in the subject case, raises the question of whether there was a hearing on the merits of the husband’s claim as specified in paragraph 74 of the judgment of Boland J.
To answer this, the Court must firstly consider the question of what is the meaning of a “hearing on the merits”?
What is a “hearing on the merits”
References to the phrase “hearing on the merits” abound at common law however these references are rarely accompanied by a discussion of its meaning. Further, relevant commentary on the meaning of the phrase that can be found at common law arises predominantly in the context of criminal law proceedings, not civil. Indeed, the definition of a “hearing on the merits” found in the Encyclopaedic Australian Legal Dictionary (LexisNexis, 2011) reads as follows:
hearing on the merits
Criminal law
A hearing in which the issues of fact or law, or both, between the parties are fought out to a final conclusion binding upon the parties: Bridie v Messina [1965] NSWR 332; (1965) 66 SR (NSW) 446. There must be a consideration of the merits of the matter: Fehon v Wallin (1985) 17 A Crim R 364. There is no hearing on the merits where the proceedings have come to a halt because there has been a withdrawal of proceedings, want of jurisdiction, a failure to comply with some procedural step, or a defect in the information or charge. There is a hearing on the merits where a plea of autrefois acquit has been sustained, or an acquittal by direction, or the offering of no evidence on the hearing of the charge: R v Turner [1980] 1 NSWLR 19.
In Eastman v R (2008) 248 ALR 149 (“Eastman”) the Full Court of the Federal Court of Australia, following a discussion of the principle of res judicata and exceptions to where that principle applies, provided some discussion of the differences between interlocutory proceedings and hearings on the merits. Notwithstanding that Eastman being a criminal law matter, the discussion provided by their Honours at [27] is helpful for the purposes of this case:
In any event, interlocutory orders are usually contrasted with orders made as a result of a hearing “on the merits”. This latter phrase is often used but rarely defined, and is perhaps incapable of exhaustive definition. It does appear to involve the process of determination of the issues raised in a proceeding. In the context of criminal proceedings, a hearing on the merits has been described as a hearing in which “the dispute between the parties [was] really fought out upon the hearing of the summons and the charge dismissed”, in contrast to a situation in which “the charge [was] withdrawn, so that there was no real trial”: Reed v Nutt (1890) 24 QBD 669 at 673 per Lord Esher MR, with whom Lord Coleridge CJ agreed.
In the civil law case of Martin v Abbott Australia Pty Ltd [1981] 2 NSWLR 430 (“Martin v Abbott”), Hunt J considered how the phrase “hearing on the merits” should be interpreted for the purposes of its application under s 75A(8) of the Supreme Court Act 1970 (NSW). The case concerned personal injury proceedings between two parties and Hunt J was tasked with determining whether an appeal could lie from a previous order made by a Master of the Court. The question ultimately was whether a hearing before a Master was a hearing on the merits. In considering these questions, Hunt J at page 435 summarised some of the earlier case law in which the phrase “hearing on the merits” had been discussed:
There is some discussion of the meaning of the phrase “on the merits” in cases concerned with estoppel by res judicata, but that “somewhat elastic expression” (Spencer Bower, The Doctrine of Res Judicata (1924), par 44, p 33) is, in my view, used in a much wider sense in those cases than that in which it could be construed here; it includes, for example, the dismissal of an action upon admissions, or by reason of a default in pleading or of compromise: see New Brunswick Railway Co v British & French Trust Corporation Ltd [1939] AC 1; Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993; and the discussion of the older cases in Spencer Bower, especially pp 26, 27, 28.
. . .
Of more (yet qualified) assistance is the discussion of the phrases “hearing upon the merits” and “hearing on the merits” in cases concerned with the Crimes Act, 1900, s 498, and the Costs in Criminal Cases Act, 1967, s 2. The cases appear to treat the context and the construction of these two phrases as identical. There are two lines of authority. On the one hand (in England), these phrases have been held to mean that there has been a “real” trial of the dispute, one which has been fought out between the parties in a complete and substantial hearing: Reed v Nutt (1890) 24 QBD 669, at pp 673, 674; or by a thorough “going-into” of the evidence: Ellis v Burton [1975] 1 WLR 386, at p 389; [1975] 1 All ER 395, at p 398. See also R v Hay; Ex parte Patane [1981] Qd R 152. On the other hand (in New South Wales), they have been held to mean no more than that the issues between the parties (of fact and/or law) have been fought out to a final conclusion binding upon the parties, whether or not there has been an investigation by the tribunal as to where the truth lay between them on the issues of fact: Bridie v Messina (1965) 66 SR (NSW) 446, at pp 453, 455; 83 WN (Pt 2) 311, at pp 316-319; R v Turner [1980] 1 NSWLR 19, at p 25. The effect upon this difference of approach demonstrated by the two lines of authority of the disapproval by the High Court of some of the findings of the Full Court in the first of these two cases (reported as Messina v Bridie (1966) 114 CLR 354, at pp 358, 359) does not need to be resolved here.
Each of the cases cited above considered the question of what is a “hearing on the merits” however the discussion took place in jurisdictions other than the jurisdiction of this Court. Notwithstanding this, the descriptions of the phrase provided in those cases, if one were to garner the essence of those descriptions, cast no doubt as to whether the proceedings before Boland J (giving rise to the orders of 11 February 2000) constituted a hearing on the merits. There had been a real trial in which the parties fought out the issues of fact and law between them. Ultimately, the issues raised in the proceedings by the parties were determined on a final basis. The same must be said in relation to the orders of 31 October 2001 which were made by Boland J after a hearing conducted by the husband and the wife before her.
In this case there is a question as to whether there was “a hearing on the merits” of the husband’s application specified by Boland J in her reasons delivered for the making of the 31 October 2001 orders. It is to be recalled that the following words appear in paragraph 74 of the judgment:
74. The husband in his oral response sought orders setting aside the orders for the payment of the sum on the basis that the valuation evidence contained in Exhibit E in the original proceedings was false. The husband provided no evidence to support his oral allegation, nor was the wife cross-examined about this assertion.
Do the above words mean that there was a hearing on the merits of the response of the husband?
The definition of “hearing on the merits” provided by the Encyclopaedic Australian Legal Dictionary (as previously set out) asserts there is a hearing on the merits in criminal proceedings arising from “the offering of no evidence on the hearing of the charge”. Reference is made to the case of R v Turner [1980] 1 NSWLR 19.
If the definition be correct, then the concept of a “hearing on the merits” can include no canvassing of issues because a party to a proceeding elects not to provide any evidence to the tribunal. Consequently, the definition may be said to extend to circumstances where a proper opportunity is provided to parties to have a thorough airing and canvassing of issues, which issues have clearly been identified in a proceeding (for example, in this case, by the husband placing on the record the order or outcome that he was seeking and the reason why he was seeking same) and the parties, or one of them, choosing not to present a case. Clearly the identified dispute must be one within the jurisdiction of the tribunal to determine. This circumstance seems to me to be different from the Anshun principle, which will operate as an estoppel where a clear opportunity for the airing of issues and a cause of action was provided in a proceeding and a party chose not to raise that issue or cause of action in that proceeding.
Anshun Estoppel
The principle of Anshun estoppel arose from the decision of the High Court of Australia in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. In its simplest expression, the principle of Anshun estoppel is that a party to proceedings may be prevented from pleading a claim if that claim was not raised in prior proceedings and it was unreasonable for the party now seeking to rely on the claim to have failed to plead it in the prior proceedings.
The principle of Anshun estoppel is to be distinguished from res judicata which, in its simplest expression, is the principle that a party cannot relitigate a matter that has been the subject of a final judicial determination. It is also to be distinguished from issue estoppel, which is the principle that issues of fact or law which have already been the subject of judicial determination cannot be relitigated between the same parties.
In Young, Croft and Smith, “On Equity” (2009, Lawbook Co.), the learned authors at page 803 explain that:
…the Anshun estoppel has, like most other species of estoppel, a long pedigree. It has also been described as ‘the principle in Henderson v Henderson’.
The case of Henderson v Henderson (1843) 3 Hare 100 (“Henderson”) is an English case that was considered by Gibbs CL, Mason and Aickin JJ in Anshun. The principle in Henderson, as originally enunciated by Sir James Wigram V.C., was quoted in Anshun at page 598 as follows:
[W]here a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.
With respect to the principle arising from Henderson, their Honours Gibbs CL, Mason and Aickin JJ in Anshun at page 598-599 gave a caution in the following terms:
Although it has been said that the principle operates so as to extend the doctrines of issue estoppel as well as res judicata, its application to cases of issue estoppel is to be treated with caution.
This, it would seem, paved the way for the birth of the principle of Anshun estoppel. In Anshun, the High Court considered whether a failure to plead a defence that was available in an earlier action would give rise to an estoppel in subsequent litigation. At page 602, their Honours set out the test for whether an estoppel will arise to be one of “reasonableness” by stating as follows:
… there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceedings yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.
More recently, in the case of Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 434 at [60], his Honour Handley AJA expressed the test in very simple terms to be as follows: “[t]he Anshun test is based on the reasonableness or otherwise of the conduct of a litigant in earlier proceedings.”
Application in Family Court proceedings
In Caska, the Full Court of the Family Court of Australia considered the principles of Anshun estoppel and res judicata in an appeal against a decision to grant an application for variation of spousal maintenance. The procedural background to Caska is as follows:
·A husband and wife entered into consent orders in relation to the payment of lump sum spousal maintenance by the husband to the wife.
·The wife later filed an application for the payment of periodic spousal maintenance, which application was granted by a Registrar of the Court.
·The husband sought review of the Registrar’s decision and the matter was heard de novo before Chisholm J, who held that it was not open to the Court to make an order varying the lump sum payment of spousal maintenance as set out in the consent orders, because it was not inadequate or improper.
·The wife appealed the decision of Chisholm J in the Full Court, which allowed her appeal.
·The matter was reheard before Cohen J, who ultimately granted the wife’s application for variation of spousal maintenance. The husband appealed against that decision.
Their Honours Lindenmeyer, Holden and Watt JJ considered the decision of Cohen J and, in particular, whether in the appeal the husband should be precluded or estopped from rising a particular jurisdictional point. The question as to whether the husband was estopped from raising the jurisdictional point arose because there was uncertainly as to whether he had raised the jurisdictional point before both Chisholm J and Cohen J in the prior proceedings. The Full Court at [105] discussed the jurisdictional claim of the husband and, in doing so, considered the difference between res judicata and Anshun estoppel. Their Honours opined as follows:
[105] The answer to that question depends in part upon whether the husband's failure to challenge Chisholm J's jurisdictional ruling in the subsequent appeal proceedings instituted by the wife, or his failure to raise this question of leave before Cohen J, at the rehearing which is the subject of this appeal, precludes him from now contending in the same proceedings between the same parties, in this appeal, that the court lacked jurisdiction to make the order sought by the wife. That question, in part, depends on whether the point now raised by the husband is the same point as that which he raised, unsuccessfully, before Chisholm J (in which case the res judicata principle may prevent him from raising it again in the proceedings except by way of appeal from Chisholm J's decision) or, if not, whether it is a point which he ought to have raised, in those proceedings, but failed to do so, in such circumstances as to give rise to the species of estoppel, sometimes referred to as “Anshun estoppel”, following the decision of the High Court in Port of Melbourne Authority v Anshun Pty Ltd (No 2) (1981) 147 CLR 589 ; 36 ALR 3; 55 ALJR 621.
The Submissions
The husband argued that the Anshun principle should have no application to a case brought under section 79A because it has no application to a case brought under Part VII of the Act.
The husband further argued that the proceeding before Justice Moore was a proceeding instituted by his parents and was based upon a different ground to that pursued by him in this case. Consequently, he argues, the Anshun principle should not operate to prevent him pursuing his current application.
During the submissions I posed the following question to the husband’s legal representative: “How can the husband now complain about the efficacy of the orders made on 11 February 2000 and 31 October 2001 when he consented to the setting aside or variation of those orders on 21 August 2002?” In response, the husband relied upon the decision of Barker and Barker (2007) FamCA 13 which he said was a case where s 79A of the Act was used to set aside orders which had been made by consent.
I further asked the husband’s counsel: “Where the husband proceeds to sign and join in consent orders (as he did on 21 August 2002) knowing at the time he disputed the values which Boland J had accepted for the property of the parties, why is the consent not an abandonment of the issue of valuation of those assets?” (I note that the consent orders were made more than two years after the orders made by Boland J and, consequently, the evidence of value of assets which was provided in early 1998 and early1999 would be expected to have little impact).
The husband submitted that the documents in annexure “M” to his affidavit establish that the evidence which the wife put before the Court for the orders made on 11 February 2000 were not found in the records of the Country D Court. In submissions on the question posed, the husband’s counsel conceded that expert evidence was required to establish the husband’s case.
The wife submitted the applicants’ case should be dismissed. The application was made pursuant to Rule 10.12. That Rule provides:
Application for summary orders
A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a) the court has no jurisdiction;
(b)the other party has no legal capacity to apply for the orders sought;
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
The wife also relied upon section 80(1)(k), which reads as follows:
(1) The court, in exercising its powers under this Part, may do any or all of the following:
(k) make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and
The wife referred to the decision of the court in Bigg and Suzie (1998) FLC 92-799. She also relied upon a decision of Prior & Prior 2002 30 FamLR 72 (“Prior”). It was submitted that in Prior there had been a consent order. There had been an alleged misunderstanding of value.
It was submitted that the applicants’ case could not possibly succeed. It was submitted that many of the points raised by the husband in relation to Boland J accepting the evidence of the value of his properties in Country D were really matters for an appeal against that judgment. The husband had lodged an appeal against the decision however he did not proceed with that appeal.
The wife submits that the applicants have placed no evidence before the Court which could possibly establish the case they wish to make.
The wife submits that the applicants consent to the orders of 21 August 2002 is fatal to the case they now wish to run in seeking to overturn the orders of 11 February 2000 and 31 October 2001. The argument put is that these orders no longer have force or effect. The orders ceased to have effect upon the making of the consent order. Accordingly, it is put that part of the application must fail.
In relation to the consent orders of 21 August 2002, the applicants have no evidence before the Court to establish any miscarriage of justice arising from the making of those orders. The only evidence before the court relates to the making of the orders on 11 February 2000.
It is further submitted that the husband failed to participate in the proceeding before Justice Moore where he was named as a party and where orders were sought by each of his parents and the wife under s 79A. It is submitted that the principles specified in Anshun should operate to prevent the husband from proceeding with this application. In relation to the husband’s mother, it is submitted the principle of res judicata and Anshun apply to prevent her from proceeding again to set aside the orders of 21 August 2002.
The wife relies upon the decision in Pagliotti at [77]. That paragraph set out an extract from the judgment of Brennan J in Anshun. The extract was taken from pages 610 to 613 of the reported judgment.
Determination
I find that the orders of 20 February 2000 and the orders of 31 October 2001 ceased to have force or effect upon the making of the consent orders on 21 August 2002. As such, whether the February 2000 orders were made upon some false or erroneous evidence as to the value of relevant property in Country D ceases to be of any moment. At the time of the making of the orders on 28 August 2002, the husband already held the view that the evidence presented to the Court by the wife for the original orders was wrong. With that belief in mind, he consented to the new property orders which were made that day. Those orders were substantially different to the original orders which had been made in 2000, and again very different to the orders which had been made in October 2001.
If I be wrong in the above determination, then I am satisfied that the husband should have proceeded with his application (described as a response) which he specified before Boland J in the hearing which gave rise to the orders of 31 October 2001. As can be seen above, he clearly made the claim in the nature of an oral response to the application of the wife then before the Court. I find that as he chose not to offer any evidence to support the order he sought before Boland J in that hearing he has had a hearing on the merits of his case and, accordingly, the principle of res judicata applies and the husband is estopped from again litigating the same issue with the wife.
It is no defence for the husband to say he could not press his application because he was unable to leave Australia to obtain the necessary evidence to prove the fabrication of evidence which he alleges. The reason for this that the evidence relied upon by the husband for the present application before the Court was obtained by him without leaving Australia.
If for some reason the doctrine of res judicata did not operate to prevent the husband from seeking further orders to set aside the orders of 11 February 2000, 31 October 2001 and 21 August 2002, then there was another opportunity which he should have taken to press his application. That was in the hearing before Moore J in which he was a party and in which his mother sought to have the orders of 21 August 2002 set aside. In her judgment, Moore J recorded that the husband had filed on 10 April 2003 an application seeking to set aside the orders of 21 August 2002, however, he had withdrawn that application on 27 January 2004. It can be seen that the application was listed for hearing to commence before Moore J in February 2004. Consequently, I find that the principles enunciated in Anshun operate to prevent the husband from being able to now seek to set aside the orders of 21 August 2002.
In relation to the husband’s mother who is also an applicant before the Court seeking that the orders of 11 February 2000, 31 October 2001 and 21 August 2002 be set aside, I would dismiss her application on a number of bases.
(a)She has already sought to have those orders set aside in a proceeding heard by Moore J and her application was dismissed on 13 July 2004. As such either she is now estopped by operation of res judicata or the Anshun principle.
(b)She offered no evidence to support her application. Consequently it must be understood that she had knowledge of the husband’s claim as to the valuation evidence provided to the court in the original hearing before Boland J at the time she prosecuted her action before Moore J in 2004. A reading of that judgment gives rise to an understanding that she sought to set aside the orders of 21 August 2002 on the ground of duress or because there had been a miscarriage of justice. In the judgment of Moore J she records at paragraph 21 the claim the husband had presented to the court in the evidence he had filed. She notes the husband “maintained the properties were worth much less than the value attributed to them in the property proceedings heard in December 1999 and he foreshadowed what evidence he would be leading about that when his s 79A claim was heard”.
If I be wrong in determining, as I have above, that the husband is estopped by the principles in either Anshun or alternatively by the doctrine of res judicata, then I would dismiss the husband’s and his mother’s application on the basis that the evidence relied upon does not establish any proper basis for setting aside any of the orders of 11 February 2000, 31 October 2001 (to the extent that they may be capable of being set aside) or 21 August 2002.
The evidence relied upon by the husband is found in his evidence recited earlier in these reasons. In particular he relies upon the documents set out in annexure “M” to the affidavit. Quite apart from the failure to include the letter of request so the court is able to see what was requested, the content of the documents translated show the following problems:
·The court shown as the place where the search was conducted is different to the court set out in the translation of the valuation evidence relied upon by the wife in the original property hearing before Boland J. In the annexure M the court is described as “[DISTRICT K] COURT of CIVIL CLAIMS”. In the valuation presented by the wife the court providing the valuation was described as “[District K] Court of Petty Sessions”. See exhibit W4
· In the annexure “M” document the husband’s name is spelled differently to that used in this Court and also set out in the evidence obtained by the wife for the first property hearing. No explanation is given for these differences. Even if it was the case that the courts were the same and there has been a name change or if it be that both spellings of the husband’s first name are interchangeable varieties, the husband has failed to establish those matters by acceptable evidence.
It should be noted that although the husband included in annexure “M” copies of valuation evidence relied upon by the wife in the proceeding before Boland J in 2000 there is no indication that those documents were sent to the Country D Court which answered the husband’s request for a search. Had the documents been sent with the request the husband made for the search, it is reasonable to assume the responding correspondence would have included some information as to the different names of the courts specified in the wife’s evidence and that answering the husband’s request. It is further reasonable to infer that the court answering the husband’s request would not have misspelled his name.
Another matter to have regard to is the husband’s election not to cross-examine the wife in the hearing, thus failing to give her an opportunity to concede any matter. Further, it has never been put to her that the documents she relied upon in the original hearing were fabrications. Nor was she asked any questions as to how the documents came to her possession.
Having regard to all of the above I dismiss the applicants’ application.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.
Associate:
Date: 2 May 2013
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