Zhai and Juan

[2013] FamCA 637

FAMILY COURT OF AUSTRALIA

ZHAI & JUAN [2013] FamCA 637

FAMILY LAW – PROPERTY – Where husband sought orders pursuant to s79A – Where wife sought summary dismissal of husband’s application – Where the husband seeks to traverse issues raised by him either at trial or before the Full Court, and in some instances, in both venues in which the husband was wholly unsuccessful – Where husband’s application is summarily dismissed.

Family Law Act 1975 (Cth)

Friar & Friar (2011) Fam CAFC 71
Linden & Commonwealth of Australia (2) (1996) 136 ALR 251

APPLICANT: Mr Zhai

RESPONDENT: Ms Juan

FILE NUMBER: SYC 5092 of 2007

DATE DELIVERED: 28 June 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 7 June 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Zhai appeared on his own behalf

COUNSEL FOR THE RESPONDENT: Mr Guterres

SOLICITOR FOR THE RESPONDENT: Monaco Lawyers

Orders

1. That the husband’s application filed on 1 February 2013 and his amended application filed on 17 April 2013 are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zhai & Juan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5092 of 2007

Mr Zhai

Applicant

And

Ms Juan

Respondent

REASONS FOR JUDGMENT

the proceedings

1. On 20 December 2006 the applicant husband, Mr Zhai, filed an Application for Alteration of Property Interests in the Family Court of Australia.  These proceedings were transferred to the then Federal Magistrates Court and, on 17 July 2009, Altobelli FM granted to the husband leave to apply out of time.  On 19 April 2010 Altobelli FM dismissed the husband’s application, after a three day trial which had commenced on 1 March 2010. 

2. On 21 September 2011 the Full Court heard the husband’s appeal against the orders of Altobelli FM.  This appeal was dismissed on 29 March 2012.  The Full Court also dismissed the husband’s application in an appeal filed on 16 August 2010, by which he sought leave to adduce further evidence.

3. On 1 February 2013 the husband filed an application in the then Federal Magistrates Court, which was transferred to the Family Court of Australia on 27 March 2013.  On 17 April 2013 he filed an amended application by which he sought the following orders: 

   1.That pursuant to s.79A of the Family Law Act 1975 the judgment made by Federal Magistrate Altobelli on 19 April 2010 be set aside and the following new orders be made.

   2.That the Respondent [Juan’s] criminal acts of perverting course of justice through subornation of significant perjuries and false affidavits throughout the two trials at Federal Magistrate Court Sydney on 24 September 2008 and on 1-3 March 2010 shall be referred to the Commonwealth DPP for prosecution under s43, s34 and s35 of the federal Crimes Act 1914.

   3.That the Court shall declare that there was no financial contribution made by the Respondent Wife to the family throughout the marriage.

   4.That the Respondent Wife [Juan] shall return to the Applicant Husband his savings, with interests compensations since her commence of perverting cause of justice in February 2008, within 42 days, including a) His savings of $60,000 b) His term deposit of RMB 250,000 c) His term deposit of USD 6,500 d) His share trading profit of $10,000.

   5.That the Court shall declare the Husband’s beneficial interest in the real property at [B Street, Suburb C] at the rate of 10 out of 23.6 of the current market value of the property as at the time of hearing and order the Wife to compensate to the Husband within 42 days the appreciation of his equity investment of $100,000 in September 2001.

   6.That the Court shall declare that the Federal Magistrate Altobelli has no jurisdiction or power to make any judgment over the overseas properties namely the [Room D] and the [Room E] under the Doctrine of Res Judicata or that the Court shall declare that the Husband has no beneficial interests or legal interests in the said overseas properties under the Doctrine of Perfection of a Gift.

   7.That the Court shall order the Respondent Wife to pay back to the Applicant Husband all her living costs and holiday costs of $20,000 paid by the Applicant Husband and consumed by her during their time of 1996-1998 in [Country F].

   8.That costs award to the Applicant Husband for all the costs incurred by him incidental to the litigations in Australia (including this litigation) resulting from the Respondent Wife’s perverting cause of justice through her perjuries and false affidavits since February 2008 and for his costs incurred incidental to the Respondent Wife’s concurrent litigations in [Country F] in 2009 initiated by her during the Australia legal proceedings.

   9.That cost award to the Applicant Husband for the costs of forensic test of $18,802 over the signature on the purchase contract of [Room E] incurred from false claim by the Respondent.

   10.That such further or any other order as this Honourable Court deems fit.

   In support of this application the husband filed an affidavit which, including annexures, had a thickness of approximately three centimetres.

4. On 22 April 2013 the respondent wife, Ms Juan, filed a response by which she sought that the husband’s application be summarily dismissed and that he pay her costs on an indemnity basis.  The wife filed no affidavit evidence.

5. On 7 June 2013 I heard the wife’s application for summary dismissal and reserved my decision.  I now provide my reasons and orders.

Approach To These Proceedings

1. In Lindon v Commonwealth of Australia (2) (1996) 136 ALR 251 the High Court of Australia held (at page 256):

   The approach to be taken by the court to the Commonwealth’s application for summary relief is not in doubt.

   1.         It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests.  This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.

   2.         To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.

   3.         An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination.  Even a weak case is entitled to the time of a court.  Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.

   4.         Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer.  If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand an apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.

   5.         If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading.  A question has arisen as to whether O 26, r 18 applies to part only of a pleading.  However, it is unnecessary in this case to consider that question because the Commonwealth’s attack was upon the entirety of Mr Lindon’s statement of claim.

   6.         The guiding principle is, as stated in O26, r 18(2), doing what is just.  If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.

2. In Friar and Friar [2011] FamCAFC 71 the Full Court said:

   49. “Rules 10.12(c) and (d) of the Family Law Rules 2004 (“the Rules”) relevantly provide that a respondent may apply for “summary orders” in relation to an application on the basis that it is “frivolous, vexatious or an abuse of process” or has “no reasonable likelihood of success”.

   50. The Rules are properly read as supplementing the power of the Court to dismiss frivolous or vexatious proceedings pursuant to s 118(1) of the Act. The Rules are also to be read in the context of the many cases confirming the Court’s inherent power to dismiss or permanently stay an application which cannot succeed, as to which see the authorities discussed in Bigg v Suzi (1998) FLC 92-799 at 84,974.

3. Rule 10.12 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.

Consideration and Conclusion

1. The husband sought by paragraph 1 of his amended application an order pursuant to section 79A to set aside the orders of Altobelli FM made on 19 April 2010. He sought various orders and declarations in lieu or by way of variation thereof.

2. Counsel for the wife submitted that the court lacks jurisdiction to make orders as sought by the husband in paragraphs 4 to 8 inclusive of the amended application.  I consider that the court has no power to make a declaration in relation to legal and/or beneficial interests in real property located in Country F.

3. The court has no power to direct the Commonwealth Director of Public Prosecutions to commence proceedings against the wife under the “Federal Crimes Act 1914”. In my view there is no reason for this court to refer any matters arising from the trial and/or the appeal to the Commonwealth Director of Public Prosecutions.  The husband is at liberty to approach any organisation of his choosing in relation to his complaints about the alleged conduct of the wife.

4. The court has no power to “declare that there was no financial contribution made by the respondent wife throughout the marriage”.  That conclusion could only be a finding in respect of contribution.  Altobelli FM made findings as to the parties’ respective contributions in 2010.  Those findings were undisturbed on appeal.

5. Paragraph 4 sought an order that the wife pay various amounts to the husband “along with interests, compensations”.  Paragraph 7 sought an order that the wife repay to the husband her “living costs and holiday costs of $20,000” for the period of two to three years in the 1990’s.  These two paragraphs, in my view, are simply incapable of being construed as orders for alteration of property interests or declarations.

6. Paragraph 8 of the application sought orders that the wife pay the husband’s costs of litigation in both Australia and Country F.  In my view, it would be dangerous for this court to enter into the realm of costs of litigation in a foreign jurisdiction.  The husband was completely unsuccessful in the Australian proceedings both at first instance and on appeal and, accordingly, there is no basis upon which the wife should pay any such costs.

7. Paragraph 9 sought an order that the wife pay to the husband the sum of $18,802 for a “forensic test” in relation to a signature on documents connected with the acquisition of the property in Country F.  This matter was dealt with by Altobelli FM.  His Honour found in effect that the report of a document examiner did not resolve the issue whether or not the husband signed the contract for purchase of that property.

8. Paragraph 5 seemed to seek some combination of a declaration that the husband holds a beneficial interest in a property in Victoria, of which the wife is the legal owner, together an order that she pay with compensation to the husband “within forty two days in appreciation of his equity investment of $100,000 in September 2001”.  In my view it is difficult to discern from this paragraph just what orders or declarations the husband sought in relation to the Victorian property.

9. The husband failed to identify which grounds pursuant to section 79A he relied upon to set aside the orders of 19 April 2010. His affidavit and written submissions seemed to suggest that he alleged that those orders were obtained as a result of a miscarriage of justice by reason of fraud, suppression of evidence or the giving of false evidence by the wife.

10. The husband’s written submissions referred to the “new evidence” which he attempted to adduce on the hearing of the appeal.  He described this “new evidence” as

    the applicant husband challenges these crucial credibility findings during the appeal in September 2011 by adducing new evidence consisting of the respondent’s personal diary of 1993-1997 and additional wife’s own family letters of 1998 in addition to her own family letters 1996-1998 which had already been filed before the Magistrate.  These new evidence can prove that his Honour’s witness observation during the trial was misguided.  It was not open to his Honour to give credibility preference to the wife and his Honour erroneously has given credibility reference to a criminal of perjuries which resulted in that the Magistrate concluded that both party made equal financial contribution during the marriage and equal distribution of assets at the time of separation”. (as per original)

11. The husband’s written submissions continued:

    During the appeal hearing, the Full Court, announced by Chief Judge Thackray, declared that respondent’s annexure A and annexure B of her affidavit were perjuries (there is a record of court transcript) and offered a rehearing, the respondent indicated that the new evidence would be cross-examined during the hearing.

    However, due to that the applicant insisted the Full Court to exercise its power to correct the fundamental factual mistake directly so as to end the litigation quickly, the Full Court declined the request and dismissed the appeal by blocking the admission of new evidence. The appeal judgment was made without considering any new evidence. This left the applicant to pursue the current new application pursuant to section 79A of the Family Law Act 1975 to set aside the erroneous judgment of the Magistrate. (as per original)

12. At the conclusion of the hearing of the wife’s application for summary dismissal, the husband indicated that he wished to submit transcript to establish that Thackray CJ did make these remarks.  The husband provided such transcript on 21 June 2013 and, unsurprisingly, there appeared no such comments.

13. The above extract from the husband’s written submissions suggests in clear terms that all of the new evidence which he now seeks to place before the court in support of the present application was available to him at the time of the hearing of the appeal and was the subject of his application to the Full Court.  In his letter of 21 June 2013, accompanying the transcript, the husband however stated that annexure 5 to his affidavit constituted “two new evidences [which] have never been considered by both the Full Court and the Magistrate”.  I refer below to this alleged new evidence.

14. The judgment of the Full Court indicated that the husband sought to adduce the following further evidence on appeal:

    ·extracts from the wife’s diaries and “family letters”

    ·the wife’s “civil appeal petition” dated 4 February 2010 which was apparently filed in the proceedings in Country F

    ·an affidavit of the husband’s mother

    ·a judgment of a Country F court.

    The Full Court declined to admit any of these documents as further evidence in the appeal.

15. It appears that the husband now seeks to rely substantially on the following evidence to demonstrate errors in the judgment of the Federal Magistrate or what he described in his written submissions as “total destruction of the integrity of the judicial process”:

    ·selected extracts in the wife’s diaries

    ·letter dated 13 August 2010 requesting that the wife “admit authorship of the personal diary”

    ·translations of five of the wife’s “family letters” dated between 1996 and 1998.

    The husband must have known of the existence of these documents at the time of the trial.

16. The husband’s affidavit traversed various matters which he claimed were proof that the wife committed “perjury” in the evidence which she placed before the Federal Magistrate.  For example he referred to “a certificate by a company” in relation to the wife’s alleged earnings.  He alleged that “the deponent and the phone number was a fake”. 

17. The husband deposed that he travelled to Country F in August 2012 and obtained a new certificate from the board of this company.  He annexed to his affidavit copies of this purported certificate and a “certificate issued by government authority”.  There is no verification of the authenticity of these documents.  These two certificates constitute the “new evidence [which] has never been considered by the Full Court or the Magistrates”.  In my view, these unauthenticated documents do not assist the husband’s case.

18. Parts of the husband’s affidavit could only be described as scandalous on their face.  For example, the husband wrote:

    [Juan] had been persistently perverting course of justice since 11 March 2008 up to now on significant scale.  Producing and subornation of perjury serious crime and attracts heavy penalties.  The grave nature of [Juan’s] criminal acts throughout the trial warrants her referral of her perjuries case to DPP for prosecution.  Any judicial officer who stands in the way of justice to prevent [Juan] from prosecution on this matter should be prosecuted as well. (as per original)

19. The Federal Magistrate noted that the husband “conceded in cross-examination that, in effect, the focus in his life for the last few years has been this litigation”.  Counsel for the wife in the present application noted that the “vexatious nature of the present application…it is patently clear, it is submitted, when regard is had to the financial statement of the applicant filed on 17 April 2013.  Therein the applicant nominates as his current occupation ‘personal debt collector for the money owed to me by the wife’”. 

20. The husband’s approach to the proceedings emerged clearly during his oral submissions in the present application.  He said inter alia: 

    “the wife has committed two perjuries” and

    “the Full Court did not deal with any new evidence and declined to deal with the fundamental mistake made by the Federal Magistrate” and

    “the Full Court blocked the admission of new evidence so all this new material has never been considered” and

    “the wife intentionally committed a criminal act to pervert the course of justice”. 

21. All of the issues which the husband now seeks to traverse were raised by him either at trial or before the Full Court and, in some instances, in both venues.  The husband has thus ventilated these issues previously and been wholly unsuccessful.  In reality, he now seeks to relitigate issues which have been previously traversed because he is dissatisfied with the result.

22. It is appropriate to have regard to the position of the wife, when exercising the discretion whether or not to dismiss the husband’s application on a summary basis.  She has been embroiled in this litigation for the past seven years.  Altobelli FM remarked on “the ocean that comprised the hundreds of pages of his affidavits”.  The Full Court commented that the husband’s appeal “was not only entirely unsuccessful, but also presented in such a fashion as to cause great inconvenience and expense to the wife”.  These observations are apposite to the husband’s conduct of the present proceedings to this point.

1. Having regard to all of the above consideration, and in the exercise of my discretion, I find that the husband’s application should be summarily dismissed.

I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 28 June 2013.

Associate: 

Date:              28 June 2013