The applicant was not denied procedural fairness. No error is apparent from the way the primary judge dealt with the application or the way her Honour gave reasons for making the order.
Ground 3 is without merit.
Ground 4 is not recognisable as a ground of appeal.
The appeal is devoid of merit and has no reasonable prospects of success. The consequence is that it is vexatious within the terms of s 102Q(1) of the Act and the application must be dismissed.
[2]
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.
Parties
Applicant/Plaintiff:
Bahonko
Respondent/Defendant:
Sterjov
Legislation Cited (2)
Law Act 1975
Circuit and Family Court of Australia (Family Law) Rules 2021
Cases Cited (8)
Proceedings will constitute an abuse of process if they can clearly be seen to be "foredoomed" to fail (Walton v Gardiner (1993) 177 CLR 378 at 393). A determination under either s 102QAF(2) or s 102QAG(1) invites consideration of the merits of the appeal as articulated through the grounds in the context of the primary judge's reasons (Ebner & Pappas[2014] FamCAFC 229; (2014) FLC 93-619).
No part of the draft Notice of Appeal set out "a specific and concise statement of the points sought to be argued" (Nimesh Watapaldeniya v Transport Accident Commission[2022] VSCA 50 at [2]). It is not for this Court to identify error (Bahonko v Sterjov[2008] FCAFC 30; (2008) 166 FCR 415).
The orders made by the primary judge involved the exercise of a wide discretion. To succeed in an appeal from a discretionary determination, the applicant must bring their appeal within the well-settled principles identified in House v The King (1936) 55 CLR 499 at 504-505 ("House v The King").
The draft Notice of Appeal annexed to the applicant's affidavit enumerates the four grounds of appeal to be as follows:
The primary judge unjustly made order 2 on 4 June 2025 "applicant shall pay the Respondent's costs of the Application- Enforcement filed on 28 May 2024 in the fixed sum of $19,823.10 (inclusive of GST)".
The primary judge unjustly made order 3(b) on 4 June 2025 "The sum of $19,823.10 in satisfaction of the costs order made against the Applicant in favour of the Respondent at order 2 herein".
It is immediately apparent from the draft Notice of Appeal that it does not establish House v The King error. Nor does the inclusion of the word "unjust" give rise to appealable error in the terms of any category of House v The King, least of all the last, namely, that on the facts the determination was unreasonable or plainly unjust.
As to Ground 1, the applicant complained in the Case Outline and oral submissions that the order of the primary judge was unreasonable and unjust. Such a proposition may be a subjective conclusion of the consequence of the order, but it does not assist in the identification of error on the part of the primary judge. The applicant proceeded to contend that it was unreasonable of the respondent to rely upon an offer of settlement that was open for only 24 hours and consequently unreasonable of the primary judge to rely upon it in making a costs order. She also contended that the primary judge did not consider in the making of a costs order that the respondent had contended unsuccessfully before the primary judge that an issue estoppel arose preventing the applicant agitating enforcement of the orders.
The applicant's submission as to issue estoppel fails to accurately record the entirety of the respondent's case. While the respondent advanced an argument based on issue estoppel, he contended in the alternative that the applicant was entitled to a payment of $41,965.10 (at [71]) being the amount ultimately found by the primary judge to be the sum due to the applicant, less amounts for unpaid costs.
The primary judge's reasons for making a costs order included not just the respondent's offer of settlement but the following:
But for the underpayment of $38,179.10 (which the husband readily conceded was owing, with interest) the wife has been unsuccessful in her contentions that she has not received her entitlements under the 2019 and the 2023 orders.
I have determined that the payment of the costs orders made by Austin J, Christie J and Appeal Judicial Registrar Cameron is to be made from the funds payable to the wife $41,965.10 (being $38,179.10 plus interest). This means that, subject to any order that I make for the costs arising from this Enforcement Application, the wife is entitled to receive the sum of $19,823.10. Had the wife accepted the 13 February 2025 offer, she would have been $176.90 better off than she now is, and each party would have been saved the time and stress of attending at a hearing. The court time spent hearing and determining this matter, could have been directed toward other litigants.
The wife's failure to accept the 13 February 2025 offer resulted in the husband incurring legal fees so as: to prepare for and meet the wife's Enforcement Application; to agitate for the payment of the outstanding costs; and to seek a harmful proceedings order so as to attempt to bring the litigation to an end. These are costs that could have been avoided had the wife accepted the husband's offer sent in advance of the hearing.
(2003) 200 ALR 447
(2008) 166 FCR 415
(2005) 223 CLR 1
(1936) 55 CLR 499
(1985) 159 CLR 550
(1993) 177 CLR 378
The calculations relied upon by the wife in support of her contentions about the payments made (or not made) to her, failed to bring to account various payments made to her or on her behalf. These omissions were significant and material and the process of trying to untangle the wife's calculations prolonged both the hearing and the preparation of this judgment.
For reasons already given, I rejected the wife's argument that she did not receive the sum of $252,604.87 paid into the [J Lawyers] office account, and I have accepted the submission made for the husband that any issue the wife takes with that payment (and the authority pursuant to which it was made) is a matter as between the wife and [J Lawyers], rather than a matter as between the wife and the husband. This plank of the wife's case was entirely without merit.
The primary judge was not required to identify every piece of evidence (Whisprun v Dixon[2003] HCA 48; (2003) 200 ALR 447 at [62]). The approach of the primary judge represented an orthodox and correct application of the law to the facts as established by the evidence and findings made. The order for costs was soundly made and well within the bounds of a reasonable exercise of discretion. Ground 1 is without merit. As Ground 2 relies upon a finding of error in Ground 1, it also is without merit.
Ground 3 contends that Orders 4, 5 and 6 were unjustly made. Order 4 addressed dismissal of the enforcement application while Orders 5 and 6 addressed the harmful proceedings order.
The challenge to the dismissal of the enforcement application rests upon two bases, albeit not articulated in the draft Notice of Appeal but identified in the applicant's Case Outline and oral submissions. Firstly, that the primary judge erred in failing to find that the respondent had not paid $4,000 pursuant to Order 11 made 30 April 2019 and secondly, taking into account the unpaid $4,000 plus interest, the primary judge erred in failing to find that the amount due to the applicant by the terms of Order 1 should be $50,306.49 and not $41,965.10.
As to the first part of the applicant's submission, it is apposite to observe that the findings of the primary judge on this issue were as follows:
The wife bears the onus of proving her contention that the husband did not make payment of the sum of $4,000.00 to the [Super Fund 1], as was required by order 11 of the 2019 orders.
In both her written and oral submissions, the wife directed me to Commonwealth Bank statements annexed to her affidavit filed 13 February 2025 in support of her contention.
The bank statements relied upon by the wife in relation to this issue span the period 7 December 2019 to 6 December 2023. The wife did not annexe any bank statements pre-dating 7 December 2019.
There is no evidence before me of the transactions on the [Super Fund 1] account in the seven months following the making of the 2019 orders. Therefore, the evidence adduced by the wife does not permit me to find that the husband did not make payment in that seven-month period. Counsel for the husband submitted that it fell to the wife to adduce evidence so as to prove her contention, rather than to the husband to trawl through records that are now some years old so as to disprove the wife's mere assertion. I accept that submission.
The lacuna in the wife's evidence on the issue was raised in the husband's Case Outline Document filed 13 February 2025.36 In the wife's written outline of her oral submissions, the wife engaged with various arguments raised by the husband in his Case Outline Document, such as the issue estoppel. I infer, therefore, that the wife was on notice as at 13 February 2025 that the husband contended she had failed to adduce evidence to make good her contention that he had not made payment of $4,000.00 into the superannuation account.
Following receipt of the husband's Case Outline Document, the wife filed a further affidavit, upon which she sought to rely at the hearing. Whilst I refused leave to her to rely on that affidavit, I received the documents annexed to it as a tender bundle. The wife could have, but did not, include in that bundle a copy of the bank statements for the period between 30 April 2019 and 7 December 2019 to remedy the deficiency in her affidavit evidence.
For these reasons, I am not satisfied that the wife has discharged her onus of proof on this issue, and her application to enforce payment of $4,000.00 to [Super Fund 1] in accordance with the 2019 orders must fail.
No aspect of the submissions advanced on behalf of the applicant demonstrate error on the part of the primary judge in requiring the applicant to establish the propositions for which she contended at trial. The deficiency in the production of evidence was entirely a function of the way in which the applicant presented the evidence before the primary judge. Her omission in failing to include what she contended were relevant bank statements does not demonstrate error on the part of the primary judge.
Apposite to the contentions now advanced by the applicant are the observations of the High Court in D'Orta-Ekenaike v Victoria Legal Aid[2005] HCA 12; (2005) 223 CLR 1 as to the finality of litigation and the quelling of controversies. In the context of appeals, their Honours observed as follows:
The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called "fresh evidence rule") are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe: "[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial".