ZHAI & JUAN
[2014] FamCAFC 234
•5 December 2014
FAMILY COURT OF AUSTRALIA
| ZHAI & JUAN | [2014] FamCAFC 234 |
| FAMILY LAW – APPEAL – SUMMARY DISMISSAL – Where the husband’s application for property settlement was dismissed by a Federal Magistrate and the husband applied to set aside this decision under s 79A of the Family Law Act 1975 (Cth) – Where the husband then appealed the summary dismissal of his application to set aside – Where the husband’s case was primarily aimed at discrediting evidence the wife gave at trial – Most of the husband’s complaints on appeal found to be without substance but some arguably had merit – The primary judge was justified in concluding that the husband’s case had no prospect of success given earlier comprehensive findings strongly adverse to the husband’s own credit – Appeal dismissed. |
| Family Law Act 1975 (Cth), s 79A, s 118 Family Law Rules 2004 (Cth), r 10.12, r 11.09 |
| Carpenter & Carpenter [2014] FamCAFC 100 CDJ v VAJ (1998) 197 CLR 172 Friar and Friar [2011] FamCAFC 71 Lindon v The Commonwealth (No 2) (1996) 136 ALR 251 Korsky & Bright & Anor (No 2) (2007) FLC 93-352 Webster v Lampard (1993) 177 CLR 598 Zhai & Juan [2010] FMCAfam 373 Zhai & Juan [2012] FamCAFC 50 |
| APPELLANT: | Mr Zhai |
| RESPONDENT: | Ms Juan |
| FILE NUMBER: | SYC | 5092 | of | 2007 |
| APPEAL NUMBER: | EA | 99 | of | 2013 |
| DATE DELIVERED: | 5 December 2014 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Thackray, Ainslie-Wallace & Ryan JJ |
| HEARING DATE: | 28 July 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 June 2013 |
| LOWER COURT MNC: | [2013] FamCA 637 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | No appearance |
Orders
The appeal filed on 17 July 2013 be 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 99 of 2013
File Number: SYC 5092 of 2007
| Mr Zhai |
Appellant
And
| Ms Juan |
Respondent
REASONS FOR JUDGMENT
Introduction
The husband, Mr Zhai, has appealed against the summary dismissal by Stevenson J of his application to set aside an earlier order dismissing his claim for property settlement against his former wife, Ms Juan.
The husband carries the burden of showing error by Stevenson J, notwithstanding that the wife did not participate in the appeal, her solicitors having withdrawn without filing a summary of argument as directed.
Background
The husband and wife were married in China in 1996 and separated in 2000. They were divorced in 2002.
In 2007, the husband filed a property settlement application after obtaining permission to commence proceedings out of time. The application was heard by a Federal Magistrate in March 2010, but dismissed by a judgment delivered in April 2010: Zhai & Juan [2010] FMCAfam 373.
In March 2012, the Full Court (Finn, May and Thackray JJ) dismissed the husband’s appeal against the order of the Federal Magistrate, and also dismissed the husband’s application for leave to introduce further evidence: Zhai & Juan [2012] FamCAFC 50.
The reasons of the Full Court provide the full background to the litigation. They explain the basis upon which the Federal Magistrate reached his decision, including his Honour’s strong adverse findings about the credibility of both parties, but in particular the husband. The reasons also explain the rejection of the husband’s application to adduce further evidence in the appeal. While the whole of those reasons need to be read with our reasons, the following extract, giving an overview of the earlier appeal, provides context for the way we propose to dispose of the present appeal:
100.The grounds of appeal take issue with many aspects of the Federal Magistrate’s decision. However, unless we are persuaded that his Honour erred in his damning assessment of the husband’s credibility, we consider the appeal must fail.
101. The importance of the credibility findings can be gauged by the fact that the Federal Magistrate repeatedly came back to the issue of credit, with the introductory and concluding paragraphs of his reasons being almost entirely given over to that topic. His Honour stressed, time after time, that he could not rely upon the husband’s evidence, and that he was also dubious about the wife’s evidence, which led him to conclude that “there is a real sense that the court has not been appraised by either party of what really happened in a financial sense during their cohabitation, marriage, separation and subsequently”.
102.It is not coincidental that, immediately after making the last of these pejorative findings, the Federal Magistrate observed that the power to make an order for adjustment of property interests is discretionary. Importantly, his Honour also recorded that the legislation provides that the order must be “just and equitable”. He concluded that on the “facts of this case the only order the court makes is one dismissing the husband’s application”. His Honour noted this was the order sought by the wife. Importantly, however, he also recorded that the wife was not seeking a declaration of ownership of property, nor an order that each party keep the property they already had.
103.It was the husband who wanted the Court to make an order altering existing property interests (some 10 years after the final separation). The Federal Magistrate properly determined that it was the husband who bore the onus of satisfying the Court that such an order was just and equitable. Provided he was justified in determining that the husband had no credibility, we consider his Honour was entitled to proceed on the basis that the onus had not been discharged, and, consequently, to dismiss the husband’s application.
104. If his Honour had concluded his judgment at this point in his reasoning process (i.e. at paragraph 71 of his reasons) it would have been clear that the only basis upon which he made his decision was the failure of the husband (and the wife) to satisfy him about “what really happened in a financial sense”, since without that information it would be impossible to satisfy the requirement that any order be “just and equitable”. However, his Honour did not end his judgment there. Instead, he went on, in the concluding part of his reasons, to pose the rhetorical question, “Is the order dismissing the husband’s application just and equitable?”. After reviewing his earlier findings, his Honour made a positive finding that the order was indeed just and equitable.
105.In finding that it was just and equitable to dismiss the husband’s application, his Honour relied on the somewhat greater credibility of the wife; however, we infer that he also relied on the principle he cited from Weir and Weir (1993) FLC 92-338, namely that “once it has been established that there has been a deliberate non-disclosure…then the Court should not be unduly cautious about making findings in favour of the innocent party”. We acknowledge that treating the wife as the “innocent party” does not sit well with the adverse findings made about her credit, but it is clear his Honour regarded the unsatisfactory nature of the wife’s evidence to fall into a different category to that of the husband.
The Full Court did not reproduce the Federal Magistrate’s pejorative remarks concerning the husband’s credibility. However, we repeat below part of what his Honour said, since we consider it most significant in this appeal in which the husband seeks to restore his own credibility by attacking that of the wife.
2.The applicant husband is 45 years old. He describes himself as being unemployed and conceded in cross-examination that, in effect, the focus of his life for the last few years has been this litigation. He represented himself at all times. He is intelligent and articulate and demonstrated an impressive knowledge of family law and procedure, but an appalling inability to present his evidence objectively, cogently and in a form that was of assistance to the court. Amidst the ocean that comprised the hundreds of pages of his affidavits, there were a few tiny islands of relevant evidence. He had no sense of responsibility to present all relevant evidence to the Court, whether it assisted his case or not, and for him the duty of disclosure was but a mere eddy amongst the great oceanic currents upon which he was navigating. Regrettably, for the husband, the truth was a commodity as disposable as a paper tissue in the face of a cyclone.
These findings emerged unscathed following the dismissal of the earlier appeal.
The s 79A proceedings
On 1 February 2013, the husband filed an application seeking what could be loosely characterised as orders by way of property settlement. On the same day, he filed a Notice to Admit Facts in which, inter alia, he required the wife to admit the authenticity of certain documents.
On 17 April 2013, the husband filed an amended application in which he formally sought that the Federal Magistrate’s order of April 2010 be set aside pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”).
The wife did not file a response to the Notice to Admit Facts but she did, on 22 April 2013, file a response seeking that the application of 1 February 2013 and the amended application of 17 April 2013 be summarily dismissed, and that the husband pay her costs on an indemnity basis.
The proceedings were listed in a Duty List on 7 June 2013. After receiving submissions from the husband and from the wife’s solicitor, Stevenson J delivered judgment on 28 June 2013, dismissing the husband’s application. This order is the subject of the present appeal.
The statutory framework
Section 79A of the Act relevantly provides (emphasis added):
(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a)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; or
…
the court may, in its discretion, 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.
Section 118 of the Act relevantly provides:
The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
(a) dismiss the proceedings; …
Rule 10.12 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that:
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:
…
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
Relevant legal principles
In the course of giving her reasons, Stevenson J cited from Lindon v The Commonwealth (No 2) (1996) 136 ALR 251 at 255-256, where Kirby J said:
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.
Stevenson J also cited from Friar and Friar [2011] FamCAFC 71, where 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.
The husband accepts that these passages correctly state the law, but argues that her Honour did not apply them correctly.
Reasons of the primary judge
At [10] to [17] of her reasons, Stevenson J discussed each of the orders sought by the husband. It is unnecessary to repeat her Honour’s criticisms of their form and merit since the only order of real relevance here is the one relying on s 79A. In dealing with that order, her Honour noted at [17] that the husband had failed to identify the grounds he relied upon. However, she immediately went on to say that the husband seemed to be alleging that the orders had been obtained by “fraud, suppression of evidence or the giving of false evidence”.
Her Honour then turned to discuss the evidence on which the husband proposed to rely in support of his s 79A application (original emphasis):
18.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.
Her Honour also recited this extract from the husband’s written submissions concerning what he claimed had occurred at the hearing of his earlier appeal:
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.
Her Honour observed that the portion of the transcript provided by the husband did not contain the remarks said to have been made by Thackray J. Having therefore rejected the assertion that the wife’s evidence had already been declared to be “perjuries”, her Honour continued (original emphasis):
21.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 [ie the transcript of the appeal hearing which he had been asked to provide], 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.
At [22], the primary judge referred to the documents on which the husband had sought to rely during the appeal, observing that the Full Court had declined to admit any of them. At [23], her Honour also referred to the evidence the husband proposed to rely on “substantially” in the s 79A application, but observed that “[t]he husband must have known of the existence of these documents at the time of the trial”.
Her Honour next recorded the claim in the husband’s affidavit that the wife had committed perjury at the trial before the Federal Magistrate. For example, the husband claimed the wife had produced a “fake” certificate from a company concerning her earnings when she lived in China.
Her Honour went on to record the husband’s evidence that, in August 2012, he travelled to China where he obtained two certificates. One purported to be from the board of a company that had employed the wife in China and the other was from a “government authority”. (We pause to note that the purpose of the first certificate was to show that the wife worked for the company for a much shorter time, and for much less income, than she had claimed before the Federal Magistrate. The second certificate was obtained to demonstrate that the company which purportedly issued the “fake” certificate had ceased to exist at the time that certificate was provided.)
Stevenson J noted that the two certificates were the “new evidence” which the husband claimed had not been considered by the Full Court or by the Federal Magistrate. However, her Honour observed there was “no verification of the authenticity of these documents” and also recorded her view that “these unauthenticated documents do not assist the husband’s case”.
Having recited what she correctly described as “scandalous” statements made by the husband, her Honour referred to a submission of counsel for the wife that the husband’s application was “vexatious”. This submission was based, in part, on the husband’s description of his current occupation in his financial statement as being “personal debt collector for the money owed to me by the wife”.
At [29], her Honour found that all the issues the husband sought to traverse had already been raised at trial or before the Full Court, and in some instances in both venues. She found that, in reality, the husband was seeking “to relitigate issues which have been previously traversed because he is dissatisfied with the result”.
Her Honour then said (original emphasis):
30.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. [The Federal Magistrate] 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.
Her Honour concluded by saying that, having regard to all of these considerations, she proposed to dismiss the husband’s application.
The Grounds of Appeal
Although the husband’s command of English and knowledge of the law are most impressive, his two grounds of appeal were difficult to follow. They also did not encapsulate the complaints contained in his submissions. In an attempt to do justice, we have distilled the complaints into the following discrete issues.
The imperfections in the pleadings
The husband argued that Stevenson J had impermissibly taken into account what he called “imperfections of the pleadings” in dismissing his application. As he correctly pointed out, provided it appears a party may have a reasonable cause of action, defects in the “pleadings” will not ordinarily lead to summary dismissal, and the party will be given an opportunity to reframe their pleading.
In advancing this argument, the husband referred in particular to what the primary judge said at [10] to [16]. In our view, her Honour’s remarks in those paragraphs about the defects in the proposed orders were warranted, and no amount of “reframing” would have cured most of them. In any event, the husband’s complaint is really directed to the dismissal of his s 79A application, since the other orders depend on the success of that claim. Her Honour discussed this central plank in the case briefly, but we do not understand her remarks about the husband’s failure to identify the grounds relied on to have formed any part of her reasons for dismissing the application. This is because, as pointed out earlier, her Honour accepted that the husband’s affidavit and submissions identified what seemed to be the basis for that part of the claim.
There is therefore no merit in this part of the complaint.
Failure to have regard to the Notice to Admit Facts
The husband submitted that the primary judge erred by proceeding on the basis that the two new certificates had not been “authenticated”. He argued that, in arriving at this conclusion, her Honour had overlooked the wife’s failure to respond to his Notice to Admit Facts, which he submitted constituted an admission of the matters contained in that document.
The Notice to Admit Facts, which was filed on 1 February 2013, required the wife to admit for the purposes of the proceedings the authenticity of various documents, including the two new certificates. The prescribed Notice states, as is provided in the Rules, that “if you do not, within 14 days after service of this notice upon you, serve a notice … disputing any facts (and authenticity of any document) … that fact, (and authenticity of that document) shall, for the purpose of these proceedings, be admitted by you”. As the wife had failed to dispute the Notice to Admit Facts formally, the husband claimed that the authenticity of the documents had been established.
We accept that the primary judge made no reference to the Notice to Admit Facts, but we also consider it obvious why she felt no need to do so. It will be recalled that the Notice was filed, along with the husband’s original application in February 2013. Assuming, as the husband asserted in his submissions, that the application and Notice to Admit were properly served, we consider the wife was entitled to ignore the application and hence the Notice. We say this because the application was, on its face, an abuse of process, given that it traversed issues which had already been determined at trial and on appeal.
It was only in April 2013, when the husband amended his application to seek an order under s 79A, that there was a properly constituted proceeding before the court – and this was met immediately by the wife’s application for summary dismissal. In our view, until such time as the summary dismissal application was resolved in the husband’s favour, it would have been a pointless exercise for the wife to respond to a Notice which effectively invited her to admit she had committed perjury. Had the husband’s application not been summarily dismissed, we consider the wife would have been given permission pursuant to r 11.09(1) of the Rules to withdraw her deemed admission.
There is therefore no merit in this argument.
Failure to have regard to admissions made on behalf of the wife
The husband submitted that the wife’s counsel had confirmed during the hearing before Stevenson J that the wife had “no issue with the authenticity of the new evidence”. He also claimed that the wife’s counsel had conceded that the “company seal on the certificate seems real”.
Perusal of the transcript does not bear out either of these propositions. The husband has misinterpreted the sole remark made by the wife’s counsel which he thought supported the first proposition. As for the second proposition, the husband submitted that the portion of the transcript containing the alleged concession had been “deleted”. Having erroneously claimed that Stevenson J was “the only person” who challenged the authenticity of the certificates, the husband then submitted it was her Honour who was “the prime suspect” (original emphasis) in the alleged doctoring of the transcript. To compound this outrageous assertion, the husband said this was not the first time “critical declarations” had been deleted from transcripts, since the same “malpractice” had occurred with the remarks made by Thackray J during the first appeal.
The husband went so far as to request that we refer the matter for investigation by the Bar Association, citing Carpenter & Carpenter [2014] FamCAFC 100. There is obviously no basis for us to do so. On the contrary, the only question is whether we should recommend contempt proceedings be taken against the husband. We will refrain from doing so on this occasion, but the husband would be well advised to desist from making similar claims in the future.
Weight placed on lack of “authentication” of the certificates
The husband submitted that in placing weight on the fact that the two certificates had not been authenticated, her Honour had failed to apply the law as set out in the extract above from Lindon v Commonwealth of Australia.
We accept there is some merit in this complaint since, as the husband submitted, the “authenticity” of the evidence is ordinarily a matter to be considered at trial, rather than on an application for summary dismissal. While her Honour was quite right in drawing attention to the lack of authentication, we accept that it was at least theoretically possible that the husband might have been able to remedy this defect by the time of trial.
We accept there was an issue to be tried concerning the wife’s income, albeit this related only to portion of the time she was living in China. We accept that the summary dismissal of the husband’s application deprived him of the opportunity to establish this part of his case by the means he described, including cross-examination, the use of the Notice to Admit Facts process which he had already employed, the calling of witnesses and by tendering documents that might assist in establishing his case. However, even if the husband succeeded in establishing that the wife had overstated her income during this period, his claim under s 79A would still face the insurmountable obstacle discussed below in relation to his own credit.
Assuming the claim was frivolous, vexatious or an abuse of process
The husband submitted that Stevenson J erred in assuming his claim was frivolous, vexatious or an abuse of process, when there was prima facie evidence of fraud. He further submitted her Honour erred in failing to exercise with sufficient caution the power to summarily dismiss his case.
In this context, the husband drew our attention to Webster v Lampard (1993) 177 CLR 598 at 608, where the High Court said that:
… it was incumbent on the Master, in the absence any opportunity of cross-examination, to dispose of the case on the basis that Websters’ version of the facts, which was not inherently incredible, would ultimately be accepted on the trial of the action.
We recognise, of course, that the present case is different from cases such as Webster v Lampard, since the husband had already had a trial in which the issues he wanted to raise had been unsuccessfully agitated. However, the remedy available under s 79A is such that many applications pursuant to that provision will inevitably involve revisiting issues that have been the subject of earlier judicial determination. We therefore do not consider the fact that her Honour found the husband was seeking “to relitigate issues which have been previously traversed” was an insurmountable barrier to him pursuing relief under s 79A, provided he had some basis for doing so, other than that he was “dissatisfied with the result”, as her Honour found at [29].
Her Honour clearly considered that the husband’s dissatisfaction was the only basis on which he was seeking to revisit the issue. However, as we have already found, her Honour was proceeding on the assumption that the husband would not be able to rectify his failure to authenticate the certificates he had obtained. This is not an assumption we think could properly be made on the hearing of an application for summary dismissal. Had those certificates been before the court in an admissible form, we accept it would not have been possible to conclude that the husband was seeking to re-litigate matters entirely on the basis of his dissatisfaction with the earlier result.
Availability of the documents at the time of the original trial
The husband complained about the finding made by her Honour at [23] that he must have known, at the time of trial, of the existence of all of the evidence he attempted to place before the earlier Full Court, including the wife’s diary (which he now claims was in the possession of his mother) and the evidence contained in an affidavit his mother had sworn after the trial.
The husband accepted that he was aware of this evidence at the time of trial, but claimed it was not open to him to adduce the evidence, because his mother had “blocked” its production to the court, as she was “adamant” the wife should first be made to “discharge her onus of proof”. He claimed it was only after the trial that his mother had a change of heart.
The husband stressed that his mother is a “separate and different entity” from him and that she “has her own mind” (original emphasis). He also drew attention to the fact that his mother is a foreign citizen and was not amenable to a subpoena (although even had she been amenable, the husband’s case at the original trial would not have been advanced since he advised the earlier Full Court he had not appreciated the possible “evidential value” of the diary that he claimed was in the possession of his mother).
The concerning variation in the husband’s claims about the location of evidence said to have been withheld by his mother was discussed by the earlier Full Court at [70] to [87] of its judgment. The Full Court concluded by saying:
87.There is no principled basis upon which this additional material should be received into evidence. Apart from the uncertainties associated with the provenance of the documents, they could only be introduced without prejudice to the wife by allowing her to be cross-examined on their content. This could only be done at a rehearing, to which both parties are opposed. In any event, we are not persuaded the further evidence would lead to a different result.
Although we do not intend to traverse again the issues discussed by the earlier Full Court concerning the uncertainties relating to the provenance of the documents on which the husband sought to rely during the last appeal, it is necessary to point out that at the trial the husband presented (but ultimately did not read) an affidavit from his mother and that extracts from some of the documents said to constitute “further” or “new” evidence were before the Federal Magistrate. However, the more important issue relating to these documents is the one to which we will turn next.
Relying on arguments and documents rejected by the previous Full Court
The husband argued, in effect, that the primary judge erred by taking into account two irrelevant matters. First, that the issues which he now sought to raise under s 79A had been ventilated before the earlier Full Court. Secondly, that the earlier Full Court had refused his application to receive in evidence the documents on which he now wants to rely in the s 79A application.
The husband argued that her Honour erred in taking these matters into account because an appeal was fundamentally different in nature from an application under s 79A. He also argued that the earlier Full Court said that the documents on which he sought to rely
should be cross-examined in a re-hearing. Therefore, re-hearing is compulsory process to determine the real issued which had not yet been determined on evidences although have been “ventilated” through submissions. (original emphasis)
The husband overstates the remarks of the earlier Full Court. The Full Court merely drew attention at [87] to the fact that some of the documents on which the husband had sought to rely in the first appeal could only be introduced without prejudice to the wife by allowing her to be cross-examined on their content. The Full Court pointed out that this “could only be done at a rehearing, to which both parties are opposed”.
Notwithstanding the husband’s misunderstanding of what was said by the Full Court, there is substance in his assertion that the refusal to receive further evidence in an appeal does not mean that the same evidence could not be used in a s 79A application: Korsky & Bright & Anor (No 2) (2007) FLC 93-352. The process of appeal is primarily designed to ascertain whether the first instance tribunal erred on the evidence available to it. While the Act permits the introduction of further evidence on appeal, the discretion to allow such evidence can only be exercised subject to well-known limits laid down in authorities such as CDJ v VAJ (1998) 197 CLR 172. The limitations imposed on the introduction of further evidence on appeal do not apply to an application under s 79A, although we accept that some common factors may be relevant in exercising the applicable discretions – for example, whether the further evidence relied on was deliberately withheld at the original trial.
Accordingly, at least in circumstances such as the present where, according to the husband, evidence had come to light after the hearing of the appeal, we consider the primary judge erred if she took into account as a relevant consideration the fact that the husband was seeking to agitate issues which had been raised on appeal and/or was seeking to rely on documents rejected as further evidence in the earlier appeal.
Taking into account the impact on the wife of the protracted litigation
The husband argued that the primary judge had taken into account an irrelevant consideration by relying on the fact that the wife had been “embroiled in this litigation for the past seven years”. He submitted that her Honour should have taken into account that it was the wife (at least so the husband asserts) who had caused the litigation to be strung out. The husband also contended that in focusing on the impact of the drawn-out litigation on the wife, the primary judge had demonstrated “bias and prejudice” by failing to recognise that while it had taken the wife “seven hours to fabricate perjuries and false affidavit”, it had taken him “seven years to disprove them”.
We do not consider it was inappropriate for the primary judge to have mentioned the impact on the wife of the litigation (which was still continuing 13 years after the parties separated). We see her Honour’s mention of this fact as merely supplementary to the decision she had already reached that the husband’s case was bound to fail. There was no need to refer to the impact of the drawn-out litigation on the husband, since it was he who wanted it to continue. There is accordingly no basis whatsoever for the assertion that her Honour demonstrated “bias and prejudice”.
Findings already made by the earlier Full Court
The husband continued to maintain before us that Thackray J had declared in the earlier appeal that the wife’s evidence at trial constituted perjury. Thackray J, who was the presiding judge in the present appeal, assured the husband he said no such thing. Although a full transcript is not available, we accept that a member of the earlier bench may have drawn attention to the possibility of an application being made under s 79A if the husband considered the earlier order had been obtained by evidence constituting perjury. However, there was no basis upon which the earlier Full Court, or any member of it, could have formed any independent view of the veracity of the evidence.
The outcome
In our discussion we have identified many of the husband’s complaints which are devoid of merit, but a few which might have substance. In those circumstances we would normally give consideration to allowing the appeal and then re-exercising the discretion of the primary judge.
In arguing that we should do so the husband asserts:
Given there was no misconduct of the Appellant in exercising diligence to adduce the evidences and given such evidences are compelling and credible … there is a high probability of producing complete opposite result concerning the erroneous fundamental factual findings …
This assertion echoes the claim repeatedly made by the husband that the Federal Magistrate arrived at his decision on the basis of a “credibility preference” for the wife. He submitted that the new evidence “has re-confirmed that it is not open to the Magistrate using credibility preference as the basis to make his judgment every issue in disputes”.
The husband’s submissions entirely overlook the real basis upon which the Federal Magistrate reached his decision. While it is true his Honour preferred the wife’s evidence about the extent of her income in China, it is readily apparent he placed little store in the evidence of either party. As already recorded, his Honour found at [70] that “[t]here is a real sense that the court has not been appraised by either party of what really happened in a financial sense during their cohabitation, marriage, separation and subsequently”.
We do not read the Federal Magistrate’s judgment as in any way indicating that the proceedings were decided on the basis of some “credibility preference”. On the contrary, a proper reading of the entire reasons, but especially [2] recited above, demonstrates that the husband’s evidence was assessed on its own merits, or lack thereof, leading to a conclusion that “for the husband, the truth was a commodity as disposable as a paper tissue in the face of a cyclone”.
The Federal Magistrate made clear in his reasons that the primary basis upon which he dismissed the application for property settlement was the husband’s own failure to adduce evidence to satisfy him it would be just and equitable to make any order adjusting property interests. As his Honour pointed out, the wife did not herself have any substantive application before the court, such as a request for declaration of ownership of property or an order that each party keep the property they already had. She was thus entitled to proceed, as she did, on the basis of merely seeking the dismissal of the husband’s application.
It is true, as the earlier Full Court noted at [104], that the Federal Magistrate went on to pose the question of whether it was just and equitable to dismiss the husband’s application. In discussing that question, the Federal Magistrate did rely on what he found to be the somewhat greater credibility of the wife, but it is clear he did not regard her as a credible witness either. Having completed this part of his discussion, the Federal Magistrate came to the conclusion that it was just and equitable to make the order he had already found to be the “only order” he could make, based upon the husband’s failure to provide credible evidence to support any adjustment of existing property interests.
Given this background, it seems to us to be an entirely futile exercise for the husband to come back to the court to seek to have the Federal Magistrate’s order set aside on the basis that he might now be able to establish that the wife gave false evidence about her income. The fact he might be successful in showing that the Federal Magistrate erred in being prepared to accept the wife’s evidence on this point would do nothing to restore his own credibility, save on that one discrete issue. The fact would remain that the husband had his opportunity at trial to adduce sufficient evidence to establish that an adjustment of property interests was warranted, but failed comprehensively to do so. It follows he has failed to establish that the further evidence placed before the primary judge had the potential to establish that the trial overseen by the Federal Magistrate occasioned a miscarriage of justice.
As we consider there is no prospect of the husband persuading a court to exercise its discretion to set aside the order of the Federal Magistrate, even if the wife were found to have misled the court about her income, we consider that the primary judge was entirely justified in dismissing his application.
We therefore propose to dismiss the appeal.
We might add that it is arguable the husband needed leave to appeal. That issue was not explored at the appeal hearing and we do not base our decision on it.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 5 December 2014.
Associate:
Date: 5 December 2014
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