Zohi and Narga

[2008] FamCA 574

FAMILY COURT OF AUSTRALIA

ZOHI & NARGA [2008] FamCA 574

FAMILY LAW – SUMMARY DISMISSAL – principles – exercise of discretion re s.79A(1) – security for costs – principles – evidence to be considered

Family Law Act 1975 (Cth)

Morrison and Morrison (1995) FLC 92-573
Peleman and Peleman (2000) FLC 93-037
Bigg & Suzi (1998) FLC 92-799
Beck & Beck (2004) FLC 93-181
Bain Pacific Associations & Ors and Kelly & Ors (2006) FLC 93-270
General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Church of Scientology v Woodward (1982) 154 CLR 25
Penfold v Penfold (1980) FLC 90-800

APPLICANT: Mr Zohi

RESPONDENT: Ms Narga

FILE NUMBER: SYF 5707 of 2001

DATE DELIVERED: 25 July 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 21 July 2008

REPRESENTATION

SOLICITORS FOR THE APPLICANT: T Reeve, Marsdens

COUNSEL FOR THE RESPONDENT: G Segal

SOLICITORS FOR THE RESPONDENT: Levitt Robinson

Orders

1. That the Application in a Case filed 4 June 2008 on behalf of the wife seeking orders for summary dismissal and security for costs is dismissed.

2. That the resumption of the hearing of the part-heard proceedings pursuant to s.79A will commence on a date to be fixed.

Notations

A.The parties will make submissions regarding the readiness of the case to be fixed for hearing for three (3) days in the week commencing 4 August 2008 or such other date convenient to the Court.

B.Directions will be made in relation to the filing and service of affidavits.

IT IS NOTED that publication of this judgment under the pseudonym Zohi & Narga is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

File Number:  SYF5707 of 2001

MR ZOHI

Applicant

And

MS NARGA

Respondent

REASONS FOR JUDGMENT

Introduction

1. The pending substantive proceedings between the parties were instituted by an application filed on behalf of the husband on 23 November 2005 in which he has sought orders pursuant to s.79A(1) that orders for property settlement made by consent on 28 March 2002 (“the consent orders”) be set aside.

2. The husband relied on a number of the grounds to establish a miscarriage of justice pursuant to s.79A(1)(a) as well as the ground of impracticability provided in s.79A(1)(b).

3. On 29 February 2008, I found that the ground relied upon in accordance with s.79A(1)(b) had been established.  The husband’s application, based upon s.79A(1)(a) was dismissed.

4. For the reasons given in the Judgment delivered on 29 February 2008, I concluded inter alia:

   “65.That further stage of the proceedings that requires determination is whether I should exercise my discretion to set aside Order 2 of the consent orders, and if so, consider and make orders for property settlement should it be just and equitable to do so pursuant to s.79.”

5. To that extent, I followed the Full Court’s judgment in Morrison and Morrison.[1]

   [1] Morrison and Morrison (1995) FLC 92-573

Application for summary dismissal (“the application”)

1. The wife has sought an order for summary dismissal of the proceedings pursuant to her application filed 4 June 2008.

2. There is no issue that the relevant principles are the following as stated by the Full Court in Peleman & Peleman:[2]

   “(a)The power for summary dismissal is a discretionary one.

   (b)Relief ‘is rarely and sparingly provided’.

   (c)The parties seeking summary dismissal must show that the application is ‘doomed to fail’ or as has been otherwise described ‘that the opponent lacked a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.

   (d)A weak case or one that is unlikely to succeed is not ‘sufficient to warrant termination’.

   (e)If there is a serious legal question to be determined, it should ordinarily be determined at a trial.

   (f)‘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 pleadings’.”

   [2] Peleman and Peleman (2000) FLC 93-037 at 87,582; see also Bigg & Suzi (1998) FLC 92-799 at 84,973-87,974 further cited in Beck & Beck (2004) FLC 93-181 at 79,051.

3. It has been further held that “it is only the respondent’s material to which regard should be had in the determination of an application for summary dismissal”.  In application of that principle, I have not had regard to any of the evidentiary material on behalf of the respondent or the submissions made in respect thereof notwithstanding the lack of objection by the solicitor for the wife.  I may also have regard “to relevant non-contentious facts”. [3]

   [3] Bain Pacific Associations & Ors and Kelly & Ors (2006) FLC 93-270 at 80,578

4. It was submitted on behalf of the wife that the crux of her case for summary dismissal is as follows:

   “2.10The Respondent concedes that as a consequence of the Judgement of this Court on the 29^th February 2008 there is not sufficient likelihood of success for her to continue to insist on compliance with an Order (Order 2) in circumstances where the husband has succeeded under Section 79A(1)(b).

   2.11There is similarly no point once the wife makes that concession in the Applicant pursuing his case.  There is nothing to pursue.  To permit the husband to agitate for a re exercising of the Court’s discretion under Section 79A is to empower a litigant who can not comply with an Order due to circumstances beyond their control that have arisen after the making of Consent Orders to then years later approach the Court and ask for the whole exercise to be conducted again….

   2.13The same observation applies here.  If circumstances arise after Orders are made which impact upon a person’s ability to comply with an obligation under an Order, that does not and must not be allowed to open the door to the whole re exercise under Section 79.  To do so is to create an environment where ‘potentially litigation would not be brought to an end’.”[4]

   [4] Case outline submitted on behalf of the wife dated 7 July 2008

5. The essence of those written submissions is expanded upon in the balance of those submissions.

6. Counsel for the husband submitted that by the proper application of the principles for summary dismissal, the application of the wife should be dismissed as not all of the relevant evidence is before me for determining that the potential exercise of discretion to make orders for property settlement, beyond the setting aside of Order 2 of the consent orders, is “doomed to failure” in accordance with well established authority.

Conclusion

1. The difficult hurdle that must be faced by an applicant for summary dismissal is accentuated in this Court as it is not a court of pleadings, unlike other superior courts of record.  The advantage of pleadings is that when completed, the issues are made clear.  The evidence to support factual findings in relation to those issues emerges from affidavits, witness statements and/or oral evidence.

2. Whilst a system of pleadings did apply in this Court for a short period in the late 1980s, it has not applied since then.

3. Consequently, issues must be discerned from the review of the application and response, as well as the affidavits and any oral evidence of the parties.  Usually, oral evidence is not relevant as an application for summary dismissal is made prior to the commencement of the trial.

4. However, in these proceedings oral evidence had been previously given by each of the parties as the trial commenced and became part-heard before me after what might be called stage one, that is, whether or not any of the grounds relied upon by the husband pursuant to ss.79A(1)(a) and (b) had been established.

5. During the course of submissions, the solicitor for the wife and counsel for the husband accepted the approach to ascertaining the issues that applies in this Court, referred to by me in earlier paragraphs.

6. However, I was not referred to any of the evidence given by the parties whether by way of affidavit or orally.  That was particularly so in relation to the wife, given that consistent with authority it is her evidence and the evidence of non-contentious matters to which I must have regard for the purpose of determining whether or not the application should succeed.

7. The approach taken on behalf of the wife can be understood having regard to the substance of the written submissions ably made on her behalf by her solicitor.  The essence of those submissions is that circumstances whereby Order 2 of the consent orders was consented to be set aside and the conceded discretionary power that falls for me to potentially exercise for the purpose of making other property settlement orders would not be so exercised. The husband’s case in that regard is that the application cannot and should not succeed. The principal submission made by counsel for the husband in his commendably succinct submissions was that all of the necessary relevant evidence had yet to be given which would not occur until the resumption of the trial.

8. I have determined that I will dismiss the application.

9. The essence of the case for the wife, expanded upon in more detail earlier in this judgment is that as she does not oppose the setting aside of Order 2 of the consent orders, that regard must be paid to the general principle that litigation should be brought to an end once substantive proceedings have been finalised, the case for the husband in the substantive proceedings is without merit.  Consequently, there is no reasonable basis to consider that the discretion that I have will be exercised in his favour for the purpose of not only varying any other of the consent orders, but also proceeding to make orders pursuant to s.79.

10. However, the varied circumstances which I am required to take into account so far as the evidence allows me to do so, are broad, and set forth in considerable detail in Morrison.[5]

    [5] Morrison, op cit , 81,673-81,674

11. I was not referred to any evidence that was part of the applicant’s case for summary dismissal to demonstrate the submissions that were made on behalf of the wife.

12. Consequently, I am left in the position of considering the application in an evidentiary vacuum.  It may well be that once the evidence is complete, including the parties’ bringing their financial circumstances up to date by the filing and service of further financial statements that it will be a proper exercise of the discretionary power to dismiss the husband’s application in the substantive proceedings.

13. Accordingly, I am not persuaded that the application of the husband is “doomed to failure”.[6]

    [6] Peleman, op cit

14. In that regard, I have decided I must follow the caution emphasised in the leading authorities including:

    “…nowhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact.  In such a case it is essential that great care be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his (or her) opportunity for the trial of his (or her) case by the appointed tribunal.”[7]

    [7] General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125; Church of Scientology v Woodward (1982) 154 CLR 25 at 31; Beck and Beck, ibid.

Security for costs

1. The Application in a Case of the wife filed on 4 June 2008 seeks an order that the husband provide the sum of $20,000.00 by way of security for costs on the terms set forth in that application.

2. Helpful written submissions were made by the solicitor for the wife.

3. The general rule, so far as costs are concerned in this jurisdiction, is that each party bears his or her own costs pursuant to s.117(1), subject to the broad discretion to make an order should there be a circumstance that justifies a court in doing so and having regard to (particularly in this case) s.117(2A).[8]

   [8] Penfold v Penfold (1980) FLC 90-800

4. The case for the wife is that the husband’s application in the substantive proceedings is weak, litigation between them in relation to property settlement has been finalised by consent, the wife is an unwilling party to the litigation, and that the wife should not be “put to the rest of incoming legal costs without the assurance that a costs order would be met”.[9]  It is further submitted that “the impecuniosity of the husband is not decisive”.[10]

   [9] Written submissions dated 7 July 2008, para. 3.8

   [10] Written submissions, ibid

5. I have determined that the application of the wife will be dismissed for the following reasons.

6. I am not persuaded that “a circumstance” has been established which justifies the making of the orders sought subject to the consideration of the matters that are relevant pursuant to s.117(2A).

7. For the reasons earlier given in relation to the issue of summary dismissal, I was not referred to the evidence which would lead to the necessary conclusion of a justifying circumstance as opposed to consideration of various matters that are relevant pursuant to s.117(2A).

8. However, the tenor of the written and oral submissions that the justifying circumstance is reflected in the case for the wife, to which I have earlier referred.  My difficulty in that regard, is that the evidence is incomplete including the evidence, which I consider to be necessary for this application, namely the current financial circumstances of each of the parties.  The evidence previously given was in 2006.  It has not been brought up to date as yet.

9. In the alternative, I take into account the following on the basis that there is a circumstance established justifying a possible costs order.

10. As was properly conceded on behalf of the wife, the husband appears to have been in a difficult financial position.

11. So far as prospects of success in the husband’s case, I am also not in a position to make findings in that regard due to the evidence being incomplete and I was not referred to the evidence of the husband thus far which demonstrates that proposition.

12. I have to balance whatever may be the strengths or weaknesses of the financial circumstances of each of the parties and the respective merits of their case.

13. I am not convinced that at this stage I am able to properly review the evidence in that respect for the same reasons as previously given, namely it is incomplete and the evidence of the parties’ financial circumstances is aged.  Reference to that evidence in those circumstances has an air of unreality about it.  No direction was sought to enable or require each of the parties to bring their financial circumstances up to date by the filing and service of a further financial statement.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.

Associate: 

Date:  25 July 2008